20150213 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPEAL NO 118 OF 2012 (From RM's Court at Kisutu Civil Case No 93 of 2009) EDMUND CORN EL BASHAJE ........................................ APPELLANT VERSUS THI; VICE CHANCELLOR INTERNATIONAL MEDICAL AND TECHNOLOGICAL UNIVERSITY (IMTU) .................. RESPONDENT JUDGMENT ' ' Date of Last Order: 7/11/2014 Date of Judgment: t13/2/2015 . Bongole,J. ,: The crux of this appeal are that the Appellant Edmund Cornel '', Ba~hate instituted civil Case No 93 of 2009 in the Resident Magistrate Court of Dar es Salaam at Kisutu suing the Respondent - The Vice 4 Chancellor International Medical anq Technological University in a acronomy (IMTU). The reliefs sought by the Appellant in the trial court were declaratory Orders that the Respondent refusal to Register the Appellant was unlawful and unjustified; an order directing the University to Register the App~.llant and allow him to attend classes, to allow him to appear for modules and University. examination, an order to co~pel the 1 University to accept payments of Appellants dues by Installments as agree in 2006, general damages, ·interests and costs. The trial -court having evaluated and examined the ·evidence tendered before it, found ·the Appellants' claim devoid of any merit and dismissed it with no order as to • costs. Subsequent to the -said decision, the Appellant was aggrieved and - ' decided to preferred this appeal armed with a total of nine (9) ground of _appeal; to wit:- . . . 1. That the trial court having satisfied that there was an agreemer.t between the two parties that the plaintiff pays school fees by . . ' installment erred in law and fact in holding that the Appel!ant was supposed to had to paid the amount due before starting the new semester. 2. That the trial court erred in !aw and fact by holding that there wa:: ~19-: agreement between the parties of the Appellant to pay dues :)y installments. 3. That there was no notice served to the· appellant of stopping, the agreement (contract) by the respondent befor~ discontinuing .the ' appellant from studies. 4. That ·the t.rial court erred in law and fact by holding that there wa~ !lo element of discontinuation made by the respondents to the appellant. 5. That the trial court erred in ·1aw and fact" in· holding that there was no breach of contract made by the respondent. • 6. That the trial court erred in law and fact ·by ·holding that it was the appellant who breached the agreement made by the parties. 2 7. The trial court erred 'in law and fact by recognizing the appellant . - letter· dated 11t~ Aug.ustr 2·009. and holding that the appellant ' . - i~ -. not entitled to continue with his studies or to resume at the University. \ • .. f .. - • · 8. That trial court erred in law and fact by holding that the appellant is · not entitled to payments of damages and costs of the suit . ,· .9. The trial court erred in law and fact by holding that the refusal of the respondent to re register the appellant was justifiable. · ·. Before this cou_rt, the Appellant appeared in person and whereas F.B. Attorney championed for the Respondent. By the permission of the court, ~~~ . . pa~ies filed Written submissions in disposing the appeal. Upon glancing on the submissions, I came across one fundamental point of law of considerable importance raised by F.B. Attorneys. Broadly ·sp~aking, the point is on tenability of the Appeal being taken again.st the . Vice . Chancellor International Medical Technology University. . They submitted that the Respondent is a mere position in the IMTU (Dar es Salaam) . ,·. which is a Trustee registered under the - Trustees'· Incorporation -A~t Cap .. 375. That it is atrite law by now that before any suit can be maintained by or against any person there must be a proof to established that such suing or person being sued has a legal personality. That in the appeal at hand, the appeal has been taken against an entity without a legal personality. A proper party ought to be the Registered Trustees of the International Medical and Technological University (IMTU) Dar es Salaam they said. They cited five cases which _give guidance. The cases •:are as follows:- 3 •. Iii 1. Peter Gwagilo Vs. The Branch· Director, Western Zone NBC j . . I (Civil Case No 21 of 1996,· Msofe,J (unreported) ' ' ' . . 2. Sough Reight & Export . Co. Ltd V$. The. 1iranch Manager, · . . ' ' CRDB Tanga · (Civil Case· No. 5 of 2002, Mkwawa J (unreported). . ' 3. Bonque International De Commerce' De .Petrograd Vs . . Goukassaow (3)(1923) 2 KB 628 at page 688 in which the ~urt in Britain held:- "..... th(! party seeking to maintain the action is in the eye of our law no party at all but a mere na.me only, with no legal existence. A non existent person ~onn_ot sue and once the court -is made aware. that the plaintiff is_ non existent, and therefore. · . · incapable of maintaining the action it can ·not 'at/ow the action to proceed'~ . 4. Christina Mrimi V Coca Cola Kwanza Bottlers ltd (Civil Appeal 112 of 2008 where the Court of.-Appeal observed that:- "Companies, like human beings have to have names. They are known and · differentiated by the'ir registered ria"tnes~ .. ·In the instant case, it is apparent' that the name- Coca ? . Cola Kwanza Bottlers; Coca Cola Kwanza Bottlers· Ltd· or Coca "Cola-·:.Kwania Ltd have· been used 'interchangeably; Althougfr the Appeal . wants this courts to hold that· they mean one and the same • . . ' company, strictly this view can. not be.accepted.· Without sonie ... . . . - risk of inexactitude ........ It is bur considered opinion that in the 4 ' whole casi. ;:·There could b~. eitner different companies or sim~ly' confusioh i~ th_e. us·e ~nd application of the cor~ect nall)e 4 a _of ·comp·a·n; ·whith bottles: Sprit~ -·so~ drinks ... " ' 5 . .Rahim Hassam Vs. The Board of Directors of Agakhan , Ho~pital Civil C~se''N~o go··of ·2001 °H/Court Dar es Salaa~ unreported (Miha,yo.,J at page· 8 wh~re he held:- - ''J agree that as Lord Denning L.J. said in the Bol[on case (Su;ra) th; Directors and Managers represent the directing mind of the Company and control what is does. I also agree . ~ .' ~ . ... . ' \ that the Board of Directors is an important organ and agent of ~ ... " . the Company. But all that' does not give it (~he Board) a legal • ~ ~ t personality, Just like the brain of an individual cannot be a natural person . .in itself'/ .. i, ♦ i . . . It is unfortunate that the Appellant although , he was served with the submissions from the Respondent did not wish to file a re-joinder not ' . . ~ '" ~ .-·t ··r.... withstanding the. permission - to do so.- By implication it means he ' ' ' ~ consented to what his ~ounter party filed. Nevertheless, this court is bound to stick to the law. The question is · - ·whether the case before the trial court ·a·nd the appeal before this court wa~ and ·is. tenable. · · A~ it is spelt ·that · the Respondent is The Vice Chancellor International . . .:. Medical Technological University (IMTU) Dar es '. Salaam, one can not ·say with precision that it is the Registered name. It is ~" . .., . a mere position which may be acquired by any qualified Individual at a t 5 . 1 . " concrete time capable: of being changed at any time as well. A fact that the Respondent is not.the Registered name, as the Registered name is THE REGISTERED TRUSTEES OF ' INTERN~TIONALMEDICA(. "iND TECHNOLOGICAL UNiVERSITY DAR ES SALAAM (~"t;dicia°I" no.tice) ·he the respondent has no legal entity but a mere position incapable of being s~ed. . . . . . . .. . . .. The Appellant was obliged' to sue the Register~d Tr.ustees (IMTU) ' ... t and not the Vice Chancellor. In the upshort,.the case before the trial court was incompetent and the present appeal is equally incompetent. . ·- In view of the observation above, I subscribe to F.B Attorney argum~nts that the present appeal is. unt~nable in la0 for want of legal personality. It is therefore Incompetent and the legal redress to· an Incompetent action been it suit, application or appeal is to suffer a strike .. · out order. The appeal is therefore strike-out and each paity to bare own costs. S.B. Bohgole· · JUDGE 13/02/"2015 . , ,· .. 6 _.... · :_• . -~ . \. . ·., "I . . . . . · , ; , . . ' . : , ~-Coram:·; - .·s.s:· s'ongcil~;f:,.:·:· ·: :.· ... . .~ ~ ..: i. _., -- . . . ~ > __· . ~ \. •' . . : ·. _:. :.~_-,., . ·. . ~. *... _.... :,· .. ~. . •• ~ppellant:. In person · - •.-.~., ....~ ~- . ..s ... , ,:"i.•~~-;. _... -~,..:~ ......,;t • .R.e·spdndent: Absent ~ c.~.· Mia-~gi. 1 · .':: -,:· •... ~-; -· •• ~ · · -·- .. : · ~ . ·.;~·;~:.. ... ·.::· .: ·. ·:-·:-. . .,.,; ·,.::1.: .·:- : '~-' ...,t_:·- ·., .>-. . . _. _·: , . ·,' Appellant: My lord, the appeal'comes for judgment. co.urt: . : . ·~ ·-..-J~clgme~f~~iiverecl~~-·:- , . .~r' ,; G', t~ ...., ~- !I - " • -: : • • ·" - - i, ; .. • • .-1~: .-,., ,' ·... S.B.-Bongole . .·-4 _; ..,, • 4- JUDGE • ,,. ~ • 13/02]2015 -r ":-~ . . - ·~· ·- . ,; ,' ',, S. B. B_~ngole ' , _1-•. i ·• ," . , ' . JUDGE l~/021201s ,··1 7