electrical transmission and distribution construction and maintenance company limited etdco vs isamilo supplies limited 2022 tzhc 15403 19 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA DC CIVIL APPEAL N0.20 OF 2022 (Arising from Civil Case No.8 of 2021 in the Resident Magistrate Court of Dodoma at Dodoma) ELECTRICAL TRANSMISSION AND DISTRIBUTION CONSTRUCTION AND MAINTENANCE COMPANY LIMITED (ETDCO)..................................................................................... APPELLANT VERSUS ISAMILO SUPPLIES LIMITED................................................. RESPONDENT JUDGEMENT 13/12/2022 & 19/12/2022 MASAJU, J. The Appellant, Electrical Transmission and Distribution Construction and Maintenance Company Limited (ETDCO) sued the Respondent, Isamilo Supplies Limited, for a claim of TZS 25,335,000/= in the Resident Magistrate Court of Dodoma. The Defendant raised a preliminary objection on the point of law that the Resident Magistrates Court of Dodoma had no jurisdiction to entertain the matter. The trial 1 Court sustained the objection and subsequently dismissed the suit with costs. Aggrieved by the Resident Magistrates Court's decision, the Appellant has approached the Court for an appeal. In its Memorandum of Appeal, four grounds have been raised which shall be reflected herein shortly through the submissions. When the appeal was heard in the Court on 13th day of December, 2022 both parties were represented. Mr. Kelvin Gadi, the learned State Attorney represented the Appellant whilst Mr. Erick Tumaini Korogo, the learned counsel, represented the Respondent. The Appellant prayed to amend the third ground of appeal to the effect that the cited provision therein reads section 33(4) of the Magistrates Courts Act [Cap 11 RE 2019]. On the first ground, the Appellant argued that as per section 18(l)(e) of the Magistrates Courts Act [Cap 11 RE 2019] the Primary Court lacks jurisdiction because the Appellant is a public corporation in which the Attorney General can intervene at any time pursuant to 2 section 6 (A) of the Government Proceedings Act, [Cap 5, RE 2019] as amended by the Written Laws Miscellaneous Amendment Act No.4 of 2019. Regarding the second ground of appeal, the Appellant argued that the trial court would alternatively transfer the suit to the Primary Court as guided under section 48 of the Magistrate Courts Act [Cap 11 RE 2019] than dismissing it with costs. In respect to the third ground of appeal, the Appellant argued that although section 33(4) of the Magistrates Courts Act [Cap 11 RE 2019] as introduced by the Written Laws Miscellaneous Amendment Act No. 3 of 2021 entitles advocates to enter appearance before the Primary Court, section 33(1) of the Magistrates Courts Act [Cap 11 RE 2019] was still enforceable barring the advocates appearance before the Primary Courts. On the fourth ground of appeal, the Appellant submitted that Paragraph 1 of the Fourth Schedule to the Magistrates Courts Act [Cap 11 RE 2019] does not oust the jurisdiction to other courts established by 3 other laws. The Appellant further argued that in section 3 of the Civil Procedure Code [Cap 33 RE 2019] the word 'Court' does not include a Primary Court, hence pursuant to section 13 of the Civil Procedure Code [Cap 33 RE 2019] the trial Court was proper forum for the matter. Eventually, the Appellant humbly prayed the Court to allow the appeal with costs. The Respondent contested the appeal in its entirety. On the first ground of appeal, he argued that the Attorney General was not party to the suit thus the trial court lacked pecuniary jurisdiction. The Respondent further submitted that the Appellant is a subsidiary company to TANESCO registered with BRELA and according to paragraph 1 of the Plaint, the Appellant identified itself as a limited liability company incorporated under the Company Act [Cap 212], hence a private company which could be sued and sue on its own capacity in the Primary Court. As regards the second ground of appeal, the Respondent contended that as per section 49(3) of the Magistrates Courts Act [Cap 11 RE 2019] read together with section 48 of the same Act, transfer of 4 the case (if any) was not mandatory rather discretionary and if denied such decision is not appealable. He added that as per section 6 of the Civil Procedure Code [Cap 33 RE 2019] the trial court could not have assumed pecuniary jurisdiction since the same is a creature of statute and not dependent on consent of the parties. On that point, he referred the Court to the case of Tanzania Ports Authority v. African Liner Agencies Company Limited [2004] TLR 127. Attempting the third ground of appeal, the Respondent submitted that as per the introduced section 33(4) of the Magistrates Courts Act [Cap 11 RE 2019] advocates are allowed to enter appearance before Primary Court effective from 11th of October 2021 and the suit was filed in the 8th day of November 2021 whereby the law was in force. As regards the fourth ground of appeal, the Respondent argued that the trial court rightly decided that it lacked jurisdiction and that section 13 of the Civil Procedure Code [Cap 33 RE 2019] was enacted to give each court its own jurisdiction. Lastly, he humbly prayed the Court to dismiss the appeal with costs for want of merits. 5 In rejoinder, the Appellant maintained his submissions in chief and added that according to section 6(3) of the Government Proceeding Act [Cap 5 RE 2019] as amended by Act No.l of 2020 read together with section 6A (3) of the Government Proceedings Act [Cap 5 RE 2019] the Attorney General can only be joined where the suit is against the Government. Moreover, the Appellant stated that it was a private company incorporated under the Companies Act, 2002 but under section 3 of the Public corporation Act [Cap 257 RE 2010] it is a public corporation since even its shares are 100% owned by the Government. The Appellant went on re-joining that, section 49 (3) of the Magistrates Court's Act [Cap 11 RE 2019] restrict appeals against orders made under section 48 and 49 of the Magistrates Courts Act [Cap 11 RE 2019] which is quite contrary to the source of the present appeal. Moreover, the Appellant argued that section 6 of the Civil Procedure Code [Cap 33 RE 2019] is not applicable in the matter at hand because the amount claimed by the Appellant does not exceed the pecuniary jurisdiction of the trial court. Finally, the Appellant emphasized that the 6 trial court was the competent court to try the matter and humbly maintained the prayer that the Court allow the appeal with costs. The Court has had regard to the parties' submissions and easily find that the suit was initially filed in an incompetent court. The Appellant's learned State Attorney in his submissions, admitted that the Appellant is a public corporation (state-owned corporation). Therefore, institution of a suit by the Appellant is primarily governed by the Government Proceedings Act [Cap 5 RE 2019]. This is because, the word "Government" as defined in the provisions of section 16 (4) of the Government Proceedings Act [Cap 5 RE 2019] introduced by the Written Laws (Miscellaneous Amendment) Act, No.l of 2020, includes a public corporation established under any written law to which the Government is a majority shareholder. The fact that the suit is instituted by and not against a public corporation is not in itself an excuse for non-compliance with the procedure under the Government Proceedings Act [Cap 5 RE 2019]. In the instant case the Appellant did not render proof that he has duly informed the Attorney General of the intention to sue and the response 7 thereof so as to establish certainty in jurisdiction in relation to pursuing the case. The Appellant's pleadings in the trial court were silent on whether the Attorney General was duly informed or not. Section 7 of the Government Proceedings Act [Cap 5 RE 2019] requires all suits against the Government to be instituted in the High Court of the United Republic of Tanzania. Further, section 10 of the Government Proceedings Act [Cap 5 RE 2019] imperatively requires civil proceedings by or against the Government to be instituted by or against the Attorney General. Going by the above provisions of the Government Proceedings Act [Cap 5 RE 2019] the question of pecuniary jurisdiction limits in suits by or against the Government is immaterial, what is material is the statutory jurisdiction irrespective of the pecuniary value of the subject matter. Additionally, it cannot be said that the matter ought to be instituted in the Primary Court as ruled by the trial Court because the same is a government institution whose right of audience is excluded in the Primary Court pursuant to section 18(l)(e) of Magistrate Courts Act [Cap 11 RE 2019]. Thus, the Court holds that the suit was wrongly filed 8 in court which lacks jurisdiction, hence the trial proceedings and the decision thereof a nullity ab initio. Thus, the Court is constrained to invoke its revisionary powers under section 44(1) (b) of the Magistrates Courts Act [Cap 11 RE 2019] as it hereby does nullify and quash the entire proceedings and the ruling of the Resident Magistrate Court of Dodoma with respect to this matter. Except if the parties reach amicable settlement of their dispute, the Appellant may sue the Respondent before the court of competent jurisdiction in accordance with law. The parties shall bear their own costs accordingly. Incidentally, the Government as defined in the Government Proceedings Act, [Cap 5 ] and read together with sections 9 and 15(1) (3) of the Office of the Attorney General (Discharge of Duties) Act, [cap 268 RE 2019] employs the Law Officers and State Attorneys who discharge legal functions and duties in the Government and its variants as named therein. The said Law Officers and State Attorneys are under the control of the Attorney General in terms of sections 9, 15 (1) (3) 17, 18, 21, 22 and 24 of the Office of the Attorney General (Discharge of 9 Duties) Act, [Cap 268 RE 2019]. The Government Proceedings Act, [Cap 5 RE 2019] provides that all suit by or against the Government shall be instituted by or against the Attorney General upon expiry of a ninety (90) days notice to the Government. The power of the Attorney General in suits by or against the Government is well stated in the Government Proceedings Act, [Cap 5], the Office of the Attorney General (Discharge of Duties) Act, [Cap 268 RE 2019] and Article 59 of the Constitution of the United Republic of Tanzania, 1977 [Cap 2 RE 2005]. That being the case, it is advisable that in order to enhance accessibility and timely delivery of justice, the civil jurisdiction of the High Court of the United Republic of Tanzania in suits by or against the Government should be decentralised by devolution into the magistrates courts and tribunals, say the District Land and Housing Tribunals, depending on the nature and certain category of suits or, and pecuniary value of the subject matter of the suits accordingly.