g(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may
appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck
out, and that the name of any person who ought to have been joined whether as plaintiff or defendant, or whose presence before the
court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved
in the suit, be added.h
The decision as to who to sue was essentially that of the appellant. The paramount
consideration is whether the party concerned is necessary for the effectual and complete adjudication of all the questions involved
in the suit. Order 1 rule 10 (2) is concerned with parties who have been wrongly joined, or who ought to be joined or added. Parties
who have been wrongly joined can be struck out under this provision. The learned judge considered this issue and stated, in part,
as follows ?
gc . Suffice hereto say that in the case at hand all what the 3rd defendant (sic) is praying for is the change of title, so to speak; from (if you like) Ambassador Abbas Sykes to that of Chairman,
Air Tanzania Corporation. In other words the plaintiff will still have amongst the defendants the 3rd defendant (sic) in the name and style of Chairman, Air Tanzania Corporation.h
With respect, we think that reference to the 3rd defendant must be an error. It must be the 4th defendant, the respondent. More important however, the learned judge did not discuss whether or not Order 1 rule 10 (2) was applicable
to the facts before the Court. In the case of Daphne Parry v. Murray Alexander Carson (1962) EA 515, Sir Ralph Windham, C.J. stated as follows at page 517 ?
gRule 10 (2) empowers the
court to order that the name of any party improperly joined whether as plaintiff or defendant to be struck out, and that the name
of any person who ought to have been joined, whether as plaintiff or defendant, ---- be added.h
The learned Chief Justice continued ?
gThe rule is thus concerned with parties who have been wrongly joined, or who ought to be joined or added. To gjoin or gaddh
a party is not synonymous with making a person a party.h
A question we ask ourselves, was the respondent
Abbas Sykes improperly joined as
Prof. Mwaikusa, learned advocate, has in our view,
correctly submitted that
the respondent was the
primary tortfeasor and cannot therefore escape the
primary responsibility to resolve the dispute before
the court. Without the respondent , it will not be
possible for the court to effectually and completely
adjudicate upon all the questions involved in the
suit. This Court in Civil Appeal No. 2 of 1986 I.G.
Lazaro v. Josephine Mgomera (unreported)
stated as under ?
gIn matters of tort, a tortfeasor,
the person who commits a
tort, is always primarily liable. An employer is vicariously liable
if his servant commits a tort in the course and within the scope
of his employment. That
does not absolve the liability of the
servant for the tort committed.h
It is therefore obvious to us that
the respondent Abbas Sykes is a necessary party in High Court Civil Case No. 97 of 1999. It was therefore wrong for the High Court
to strike out the name of the fourth defendant (the respondent).
Before we wind up, there is also need to consider Order 1 rule 3 of the Civil Procedure
Code. It provides as follows ?
g3. All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction
or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if separate suits
were brought against each such persons any common question of law or fact would arise.h
Under rule 3 above, all persons may be joined in one suit as defendants where the
following two conditions co-exist, namely ?
where any right to relief alleged to exist against them arises out of the same act or transaction; and
where, if separate suits were brought against such persons, any common question of law or fact would arise.
As regards the first test, we are of the considered
that the right to relief against each of the
defendants in Civil Case No. 97 of 1999 is based
upon the same act, namely, the utterance by the
respondent and subsequent publication in
Mtanzania newspaper. And as regards the second
test we are equally of the view that if different suits
common questions of fact would
arise, whether or not the purported defamatory
words were in fact uttered and published as claimed
in plaint. Consequently, this is another ground for
holding that Civil Case No. 97 of 1999 was properly
constituted in conformity with
Order 1 rule 3 of the
Civil Procedure Code, 1966. We therefore find that
defendant/respondent was properly
joined as a defendant under Order 1 rule 3 of the
Civil Procedure Code.
The second ground of appeal concerned a prayer that the Chairman, Air Tanzania Corporation, to be joined as a defendant. In the plaint,
the fifth defendant is Air Tanzania Corporation, a public corporation in terms of its establishment Order. It is a body corporate.
Is this proposed gdefendanth a necessary or proper party? The presence of this defendant will only be necessary if the
adjudication of the real controversy between the parties on the record cannot be done without impleading him. The allegations in
the plaint do not, in our view, warrant this gdefendanth who incidentally is not a legal person, to be joined as a defendant
under Order 1 rule 10 (2).
In the result, this appeal is allowed with costs.
DATED at DAR ES SALAAM this 11th day of May, 2005.