avicenna international academy ltd vs african foundation for education 2 others 2023 tzhclandd 16838 31 august 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 77 OF 2023

AVICENNA INTERNATIONAL ACADEMY LTD APPLICANT

VERSUS

AFRICAN FOUNDATION FOR EDUCATION AND DEVELOPMENT(AFEDEV) DEFENDANT RABAHI HAMIDU CHAMANI 2^^ DEFENDANT CRDB BANK PLC 3^^ DEFENDANT

RULING 28^ to 31^ August, 2023 E.B. LUVANDA,1 The Third Defendant named above raised two points of preliminary objections. One, the court has no jurisdiction to entertain the matter; Two, the plaint is incurably defective for lack of board resolution authorizing the filling of the case and appointment of prosecuting attorney. Mr. Oscar Mlilanzl learned Counsel for the Third Defendant submitted in respect of the Second objection that the Plaintiff a limited liability company, filed the suit without compliance to the mandatory provisions of Section 1 147(1) of the Law of Company Act, Cap 212 R. E. 2002, on that did not seek the permission or authority from the Board of Directors before instituting the case in court. He cited Solomon vs. Solomon and Company (1879) AC, 22; Wellnest Company Limited vs. MGEN Tanzania Insurance Company Ltd, Civil Case No. 201/2021, Simba Papers Converters Limited vs. Packaging & Stationary Manufactures Limited & Another, Civil Appeal No. 280/2017. He submitted that the plaint is incurably defective for lack of board resolutions authorizing the filling of the case and appointment of the prosecuting attorney. The Plaintiff did not file a reply, as it was filed after expiry of scheduled time without leave. At the first paragraph of the plaint, it is averred that the Plaintiff is a private Limited Company registered under the Companies Act, Cap 212 R. E.

2002. But there is nowhere pleaded facts suggesting that there is an extract of a board resolution authorization, which was procured prior commencement of court proceedings or filling the plaint. In the case of Simba Papers(supra), at page 20, the apex Court ruled, I quote, '7/7 the premises, since the ciaimant was a company, it was not proper institute a suiton behaifofthe Company withoutits format authority. This require the express authority by way ofresoiution ofthe Board ofDirectors to institute the case in absence ofwhich, the suitin the name ofthe company was defective and it ought to have been struck out As much the second objection suffices to dispose the matter, I cannot venture deliberating the first point, including the other point which crop up in the Third Respondent's submission arguing that there is no cause of action. The suit i with cost o u. > E.B. LUANDA j/^UDGE o ^1/08/2023 Ruling delivered in the presence of Mr. Bitaho Marco learned Advocate for the Plaintiff, Mr. Abubakar Salim for First and Second Defendant, Mr. Oscar Miranzi learned Counsel for Third Defendant. aJRT c9 ?! o EM LUyANDA /^GE ★ M/08/2023 DlV\^