19900212 TZHC Dar es Salaam 1

nr TEE COURT OF liPPEli.L OF' TAtfZll:HIA AT D.flR ES S.ALli..l',M I CIVIL 1'\PPE.AL lTOo 16 OF 1989 BETWEEJ.if . AFRIC.ll.ll STORE CONSm/JER. CO-OPERl1.TI'JE SOCIETI •••• " eAPPELIJllifT And SAID IlT.PINDA., o ••• o • • • • " • " • ,, • o o • • • ; •• ., •• ., • • • • • • • • • RESPOlillEN111 (Appeal from the Judgement o'f the Hit3:11 C01.i..l"t of Ta:.1zania at Dar es Salaam, l>'b:-. Justice A. Bahati dated 28th Uay, 1987 •in Civil Appeal Noo 13 of 1986) ' JUIGEME~TT OF TEE COURT ']he 2.ppellant, namely At"i'RIC.AN STORE CONSUHER. COOPERATIVE SOCIDJlY, is an unincorporated group or association of persons who purportedly ' instituted a suit in the District Court of flo.la District at Kis1:..tu, Dar es Salaam against the Respondent, namely S.AID· LUPilmA~ who was the ' Treasurer of the association, nnd another,. namely, S'GLT.AJH NASSORO HGUPJ\Jl'GWA, who was the SecretarJr of the same., The purported suit wa,s successful against the Respondent only. The7 other defendant, that is, SULTANI NASSORO NGURANGWA was exonere,ted from any -liability• The Respondent was aggrieved by the decision of the District C,aµxt and he successfully appealed to the Rich Court at Da.:r-es-So,laam. In overturning the decision of the District Court~ the Hi0h Court, Bahati, J. stated, 11 I do therefore &gree with tho first crmmd of appeal - that the learned Senior Resident Mac;istrate eITed in law in entertaining the proceedings as the plaintiff had no . legal ontity for it to sue or l)e sued as it had not lJeen registered., Since this appeal may be disposed. of by decidin3 on this sole ground of appeal I do n9t intond 1 to pursue the other G'.('ounds of appeal,, I consequently, allow th.is appea1 with costso This order covers the second defenda,nt who did not appeal on The appellant wns a 0grieved by this decision of the High Court. hence th.is second appeal to this Court· made with the leave of the HiGh Cou.rto Wrc. Eo s. Hgcisala1 learned advocate, represented the respondent whereas Mr., .Ahmed Sijaona, the omTent Chairman of the prosent appellant • = 2 (.;,cs~.c::.c::.-t~.on1 ~\i?j?OC,:coc. on tho othGr side. He hc'W..-done thG same in the two ·courts belowo We note from the proceedine,'S 1)ofore r.s 0.1·:d t>e two co,:::ts below, that he has rej?rGsented the other side p,"bly regardless of the fact that ho is not a 12.wver 1),T cl trainin"'e t." ... "t..) · At the commencement of the heari11G of this appe~l Mi'o IJcnsall;, loa:;."l.}Oc1 aclYocate, raised· two preliminary points of oojoction concoi·ninc,; the coill]?etency of tho appeal. Ile sulJmitted that the appeal was incompetent as the appeal was time-ba:i"Ted and that no. security for cos~s had been paid according to Rule 83 of the Tsnzania Court of Appenl Rules, 1,979. Re later conceded that his prelim:i.nar-y- points of objection were t.mfou.nded after Mr o Sijaona had ably refuted the same o The appeal.before us is, as it should be, pu:rely on points of lc1wo Mr., Sijaona, l:tas submitted in effect that the learned jude,""0, Bahnti, J. erred in law in condemning the ui1incorporated association to pay costs as it has no lee,al personality and no capacity to sue or be sued 7 and that he f-v.xther .erred in extending his decision to cover the other person who was not a party to th~ appeal in the Hic'h Co·ftt. Mr o Ngasala, loa·med advocate, ma.de no counter submissions. We m~e not sv,rprisedo There can be no serious counter suln:dssiori., We propose to deal briefly with Mr. Sijc.qna.' s second s,,,.1Jm:i.ssion., Undou~tedly, the other person, that is, SULTANI .N.ASSORO NGUPJiliGWA, who had been the second defendant in the Court of first instance, had not appealed to the IliGh Court. Obviously he could not be expected to appeal since the· suit a,:;ainst him had fa.iledD There was thus no basis upon which the judGSment of the Hi@1 ·court could be properly extended to cover him. We therefore find that the II:i.Q;h Court arred in law in doinc so'<> We now tu.rn to the first submission of I,Tr. Sijo,ona., It is 90Nuon ground that the appellant association hacl not acquired a le{:fcl,l personality at the time when this suit was· instituted in court;., The position is- similar to tha,t which arose in the Kenyan case ·of FORT HALL_ Bll:RERY -~PLY .9Sh_ v 0 FEDERIQ l/JfJIG.LU WAiJGOE ( 1 ~.. 474 •. In that case a suit ,;,ms instituted by an u:nrecistered firm of over twenty members whose existence as a body was not rec0Gt1ized in l~w. T1ne Hich Court of Kenya stated at pa.[;"0 475. It is no'Ci re[;"istered as a company under the Companies 11 Ordinance or formed in pursuance of some other ordinr,nce or Act of Po,,:-liument ·or letters patc:nto It cannot :therefore l)e ~:·ccognized c:,s having any _legal existence., In the wo:r-ds of ruunoo, L. J. in J3anque Internatione,le de Commerce de Petrograd vs Gonkassaow, (1923) 2 KoDo 682 at p.688. .,,.._ ... r:: 3 z::: / 11the p,'1:ct3r seekinc to maintain the c,ction io in tho eye of our law no pa:i:-t:~ at all but D. me:.:-e 11Q.Ii10 only; with DO 10:?,'8..l oxistorice O ll /¼. non---c:x:istcnt :person cc:.n.,."lot sue, _and once the con:ct is mo.de 2,~•w,rc tl:-.at the plaj_ntiff is non-existent, tmtl ·the:refo:re inc2,pable of m1;,inta:Lning the act:i.on, it ca.:nnot allow the action to proceed., The o:.:-de:,_~ of tho Cou:d is that tho action be str-l,1-ck out, as the e,lleged· plaintiff J:-,as no eyJ.stonce. Since a non- e:x:Lstent plr,j_ntiff ca,n neither pay no:r receive costs there can be no order as to cost so 11 We accept the principle stated in this'_ Kenyan case as cori'ect. It - follows the1~ef ore tha,t the IIigh COUTt, Bal.J.ati, Jr o erred in law in condemning the appa;t.lant to pay costs. Tho proper order w:. :ich should havo l)een m0,do by the High Court in this case would have been to allow the appeal, nullify and qv..ash the proc0edin5-s of the trial Court and rnake no directfon as to costs• At the end of our judgem,mt we are 0 oing to remedy this error by doin.; :wb.a,t the High Court ouc.:;ht to have done by vi1:'tue of the poHe:es vested in this Court 1Jy the :provis:i.ons of section 4 of the AJ)pollato J1,,:,.•:i.s(liction Act, 1979 as amended by Act No. 16 of 1984. Before w0 do so however, we have to draw tl.-~e attention of the :pe.i~tios and all those concerned that.tho proper procedu:l."e for seeking a lo.gal remec.y in court by a 1Jody of persons who htwe no corporo,te o:x:isten6e, is by vm,y of n. representative suit as provided under Order. 1 Rule 8 of the Civil P:,:-ocodnre Code, where it is stated: 8( 1 ) Where there are nVJnerous pe;sons havinc tho saCTe . 11 interest .in one suit, one or more of s1·:ch pei·sons rn.ay 1·rith the permission of the Couxt, sue or be sued, or may defend, ln such sr'.it on 1)ehalf of or for tho 1)onofit of all persons so interostodo BL1t the com"'t shall in Si:,ch case e,e:i..ve at tho :pln.intiff1 s expense, notice of the institution of the suit to all such persons either 1Jy pe:cso:hal service or, ·whore from the numlJer of the persons or ~ny other cau..se such service is not reasonably practicable, l);f puhlic cidvcrtisement, as the court may in each case direct. (2) kny person on whose behalf or for whose benefit a·m:-.it is ins ti t1.,ted o:!:' defended under sd)rtu.e ( 1) may apply to the court to be made a. party t◊- the suit,,," In the final anal3rsis therefore, we allow this 'appeal, set aside the judc;"ement of the High Cou.xt, nullif;)' and quash the proceeding-s of the trial Cov..rt and make no order· as to costs in this Court and the two cou.-rts below. ~ oo/ f;. oo i. .J :::: 4 C 12th d.ay of February; 1S90 F. L. lfYJ-lL!:.I.I ...-----... ----- - . JUSTICE cm:lll? .- R. II. :KISjNGL _JUl?TICE OJP bR_~~:L -·----•-- __ ------ RAt.:ti.DILf.J:U .JUSTIC:C.....,.01' AFPEtL .......; copy of tl:.e· o:cig:i.no.l o (Jo IL, _1:IBOJ.;'.L;'E) SENro:a :mtrL-nrY m:xns'l1B1Jl ---~-----