gauff ingenieure gmbh co jbg vs director kinondoni municipal council 2016 tzhc 2286 8 february 2016

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 164 OF 2014 GAUFF INGENIEURE GmbH & CO. - J B G .......................... PLAINTIFF VERSUS THE DIRECTOR, KINONDONI MUNICIPAL COUNCIL..... DEFENDANT 24th November, 2015 & 8th February, 2016 RULING MWAMBEGELE, 3.: This is a ruling in respect of a preliminary objection raised by the defendant the Director Kinondoni Municipal Council against a suit filed by the plaintiff Gauff Ingenieure GmbH. The preliminary objection (henceforth "the PO") is couched thus: "The plaintiff has sued a wrong person hence contravenes Section 14 (1) (b) of [the] Local Government (Urban Authorities) Act, Cap. 288 R.E 2002 ". 1 The PO was argued before me on 24.11.2015 during which Mr. Julius Kalolo- Bundala, learned counsel, appeared for the plaintiff and resisted the PO and Ms. Grace Julius, learned counsel and Solicitor of the defendant, appeared for the defendant. The oral hearing was preceded by both learned counsel filing skeleton written arguments as dictated by the provisions of rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012. Arguing for the PO, Ms. Julius,, learned counsel has been very brief but to the point. She submits that the plaintiff has sued the Director, Kinondoni Municipal Council in lieu of Kinondoni Municipal Council which course is improper as under the provisions of Section 14 (1) (b) of the Local Government (Urban Authorities) Act, Cap. 288 of the Revised Edition, 2002 (henceforth "the Act") Kinondoni Municipal council is an autonomous body capable of suing and being sued in its own name. The learned counsel thus prayed that the suit filed by the plaintiff be dismissed with costs. She cited an unreported decision of this court (Rumanyika, J.) of Deodatus Nkumbo & another Vs the District Executive Bariadi District Council, Civil Case No. 14 of 2009 to buttress this proposition. Against the PO, Mr. Kalolo-Bundalia, learned counsel, first attacked the PO for being filed separate with the Written Statement of Defence contrary to the provisions' of Order VIII rule 2 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002. (henceforth "the CPC") which requires that a PO should be raised within ,the Written Statement of Defence. In the premises, the learned counsel submits that the PO offends the said law and urges the court to ignore it as was the case in an unreported decision of this court [Nsekela, J. (as he then was)] of CRDB Bank Limited Vs Nooraiiy K. J. Dhanani & another; Commercial Case No. 102 Of 2001 to support this argument. The learned counsel for the plaintiff argues that the proper course to have been taken by the defendant would have been to ask for an amendment of its Written Statement of Defence with a view to incorporating the PO in it, failure of which the defendant is not entitled to file a separate paper by way of notice of preliminary objection. The course opted by the defendant has denied the plaintiff to a right to respond to the objection in pleadings and also amounts to taking the defendant.by surprise contrary to Order VIII rule 2 of the CPC. On the alleged contravention of section 14 (1) (b) of the Act, the learned counsel for the plaintiff argues in order for the learned counsel for the defendant to rely on the section, she ought to have produced two documents; - a certificate of establishment and secondly an establishment order to prove that Kinondoni .Municipal Council is indeed a body corporate capable of suing and being sued in its corporate name. The learned counsel argues further that that would mean bringing evidence to prove the PO which would mean disqualifying it from being a PO. On this argument, the learned counsel cited Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] 1 EA-696 to reinforce it. On the merits of the PO, the learned counsel for theplaintiffgoes on to argue that the suit is based on a breach of contract and all. the invoices were addressed to the Director, Kinondoni Municipal Council and therefore in terms of Clause 1.9 of the Conditions of Contract and the Law of Contract Act, Cap. 345 of the Revised Edition, 2002, the plaintiff was free to sue both the | Municipal Council or the Municipal Director, or either of them. f t In any case, the learned counsel for the plaintiff charge,s even if the Director * of Kinondoni Municipal Council was wrongly sued, such wrong is not fatal as it is curable under the provisions of Order I rule 10 (2) of the CPC. He thus prays that the court dismisses the PO or alternatively,-order an amendment under the provisions of Order I ruie 10 (2) of the CPC. In a short rejoinder, Ms. Julius submits that the Kinondoni Municipal Council was established under section 9 of the Act and therefore there was no need to bring further proof. She also rejoins that the provisions of section 14 (1) (b) of the Act are self sufficient and therefore there is no need of bringing] into play the provisions of Order I rule 10 of the CPC. ' The main issue I am called upon to decide in this ruling is whether, on the strength of the provisions of section 14 (1) (b) of the Act, the suit is bad in law for suing a wrong person and should thus be struck out or dismissed; for j offending the provisions of section 14 (1) (b) of the Act. The learned counsel for the defendant, in her skeleton written arguments, prayed for the dismissal of the suit for offending the provisions above but changed the goal post at j the oral hearing and prayed that it should be struck out. Let me, for easy reference, quote the said section 14 (1) (b) of the Act. It reads: "(1) Every urban authority established or deemed t to have been established under this Part, and in respect of which there is in existence a certificate 4 of establishment furnished under section 9, shall, with effect from the date of commencement of the j establishment order, be a body corporate, and . shall- : (a) N/A; (b) in its corporate name be capable of suing or being sued; : (c) subject to this Act, be capable of holding and purchasing, or acquiring in any other way, and disposing of any movable or immovable property." The learned counsel for the-defendant argues that Kinondoni Municipal Council was established under section 9 of the Act and hence, in terms of section 14 (1) (b) of the Act quoted above, it is an entity which can sue and be sued in its corporate name. Responding to this argument, Mr. Kalolo- Bundala, learned counsel for the plaintiff does not seem to argue against this proposition. However, Mr. Kalolo-Bundalla, learned counsel for the plaintiff1 argues that that fact could be proved by the learned counsel for the defendant bringing to the fore a certificate of establishment and an establishment order to prove that Kinondoni Municipal Council is indeed an entity which can be sued or sue in its corporate name which again would disqualify the point from being a PO. I think, Mr. Kalolo-Bundalla, in fronting this argument, had in mind the provisions of sections 6 and 9 of the Act which speak of the contents of an establishment order and certificate of- establishment, so as to bring Kinondoni Municipal Council within the scope and purview section 14 (1) (b) of the Act. Admittedly, the oft-cited Mukisa Biscuit laid down the principle of what a PO should contain. The case has been religiously followed in a string of decisions in this jurisdiction. One such cases that followed the Mukisa case is Citi Bank Limited Vs TTCL and 3 others, Civil Application No. 64 of 2003 (unreported) in which the Court of Appeal, speaking through Nsekela, J.A. quoted with approval what was said by Law, J.A. in the Mukisa case, atpage 700 as follows: "So far as I am-aware, a .preliminary objection consists of a point of law which has been pleaded or which arise by clear implication out of the pleadings, and which if argued as a preliminary • point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a p!ea of limitation, or a submission that the parties are bound by the contract giving, rise to the suit to refer the dispute to arbitration." The Court of Appeal went on to quote what was said by Sir Charles Newbold, P., at page 701 as follows: "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that the- facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion" And in a fairly recent decision of Mohamed Enterprises (T) Ltd Limited Vs Masoud Mohamed Nasser, Civil Application No. 33 of 2012 in a judgment delivered on 23.08.2012, the Court of Appeal has reiterated this position in the following terms: "It is settled law that for a preliminary objection to be successfully argued, it should be capable of disposing of the suit without evidential proof (see Mukisa case ...). It must be a point in 'limine litis' (a preliminary point of law). Therefore, where a preliminary' objection raised contains more than a point of law, say, law and facts it must fail (sea OTTU and Another Vs Iddi Simba, Minister for Industries and Trade and Others [2000] TLR 88). For, factual issues will require proof, be it by affidavit or oral evidence." [Emphasis not mine]. In the instant case, if the learned counsel would endeavour to prove that Kinondoni Municipal Council is an autonomous body to be sued or sued in its own corporate name by bringing in evidence the certificate of establishment and establishment order, that course would certainly have the effect of 7 disqualifying the PO from being a PO within the meaning of the Mukisa Biscuit case. With the foregoing in mind, Mr. Kalolo-Bundalla's argument may look very attractive at first site but a carefui scrutiny of the law drives me not to accept it. I say so because orders are matters which this court can take judicial notice of under the provisions of section 59 (a)- of the Evidence Act, Cap. 6 of the Revised Edition, 2002. I take judicial notice that Kinondoni Municipal Council was established by the Local Government (Urban Authorities) (Establishment) Order, 1999 - GN No. 319A published on 15.10.1999. This being the case, Kinondoni Municipal Council can be proved to be an entity which can sue or be sued thus failing with the scope and purview of section 14 (1) (b) of the Act without factual proof. In view of the foregoing, I find and hold that Kinondoni Municipal Council is an urban authority established under the: Act and which, in terms of section 14 (1) (b) of the Act, is capable of suing or being sued in its corporate name. The question which comes to the fore at this juncture is whether it was fatal for the plaintiff to sue the Director of the Municipality instead of the Municipality. Mr. Kalolo-Bunaalla perceives that it was not as the ailment can be cured by the provisions of Order I rule 10 (2) of the CPC. With unfeigned respect, I find difficulty in agreeing with the learned counsel on this argument. I shall revert to this argument at the end of this ruling. I have already found and held that Kinondoni Municipal Council is a body corporate which can sue or be sued in its corporate name. In the premises it is imperative that it is so sued, especially when a learned hand, as is the case= in the case at hand, is the drafter of the pleadings. I agree with the; reasoning and verdict on the point in the Nkumbo case (supra); a case cited; to me by the learned counsel for the defendant. In that case, this court (Rumanyika, J.) was grappling with a sister provision; the provisions of section 12 (1) (b) of the Local Government (District Authorities) Act, Cap. 287 of the Revised Edition, 2002. His Lordship stated that the Director is an. employee of the District Council; his being a Chief Executive Officer (CEO) and accounting officer of his employer notwithstanding, powers to sue or being sued is essentially a question of legal personality. Basing on the principlethat similar statues should be interpreted similarly, Ishare His Lordship's sentiments. c I also do not agree with Mr. Kalolo-Bundala that the fact that the PO was not raised in the Written Statement of Defence was meat to surprise him. I also have read CRDB Bank Ltd vs Noorally K J. Dhanani & another; Commercial Case No. 102/2001 (unreported); a case referred by the learned counsel for the plaintiff. In that case, this court [Nsekela, J. (as he then; was)] remarked: "My reading and understanding of this Rule is that if the defendant wants to raise an issue that the suit is not maintainable according to law, then this point must be raised in the written statement -of defence. It must be in the body of the defence and not otherwise. This 'Notice' I have referred to is not part and parcel of the defendant's 9 pleadings. It is my considered view that whatever preliminary point of law the defendant wanted to raise for the court's consideration should have been in the written statement of defence. This piece of paper called 'Notice' in my humble view contravenes Order VIII rute 2 of the CPC, 1966 and should be discarded. It is not properly before me to adjudicate upon/' Noorally was followed in Ernest A. Mosha Vs Cyriacus Katunzi and Another, also an unreported decision of this court (Longway, J.). However, I am afraid the cases might have been depicting the correct position then. In the present practice of this court, the Court of Appeal has, time and again held that a point of law can be raised at any time, even on appeal - see: Fanuel Mantiri Ng'unda Vs Herman M. Ng'unda & Others, Civil Appeal No. 8 of 1995, Amani Male wo Vs Diocese o f Mbeya (R.C) Civil Appeal No. 22 of 2013 Richard Julius Rukambura Vs Issack N. MwakajHa & Another Civil Appeal No. 3 of 2004, Michael Leseni Kweka Vs John Eiliafe, Civil Appeal No. 51 of 1997 Faustine 6. Kiwia & Another Vs Scolastica Pauio, Civil Appeal No. 24 of 2000 and Nicomedes Kajungu & 1374 Others Vs Bu/yankulu Gold Mine (T) LTD Civil Appeal No. 110 of 2008 (all unreported), to mention but a few. In Nicomedes Kajungu (supra) the Court of Appeal, speaking through Othman, J. A (now Chief Justice of Tanzania) held: 10 "... it is the duty of the Court to satisfy itself that it is properly seized or vested with the requisite jurisdiction to hear and determine a matter. It is a well settled principle that a question of jurisdiction ... goes to the root of determination - see Michael Leseni Kweka V. John EHiafe, Civil Appeal No. 51 of 1997 (CA) (unreported)". A challenge of jurisdiction is aiso a question of competence" [Emphasis supplied]. In M/S Majew be Auction Mart Vs Charles Kaberuka Civil Appeal No. 110 of 2005 (unreported) it was articulated that a PO must be raised in time and on reasonable notice. The Court of. Appeal, speaking through Lubuva, JA, stated: . • "... it is clear that reasonable notice of the objection is to be given to the other parties including the appellant as in this case. The logic behind this provision hardly needs to be overemphasized. With the notice given within reasonable time, the other parties to the appeal would not be taken by surprise. In that situation the parties would be in a position to respond in advance to the issues raised in the preliminary objection It is to be emphasized that in fairness ii to the parties and in the interest of justice, counsel intending to raise preliminary objection are enjoined as far as possible to serve the notice of preliminary objection within reasonable time." And in Registered Trustees o f Catholic Archdiocese o f Nyeri & Another Vs Standard Ltd and Others [2003] EA 257; a case with persuasive authority, it was held: "preliminary points are to be raised at the beginning of the hearing and not at the end of the hearing. Secondly, the issue of capacity to sue goes to the very root of the case and must be pleaded." The hallmark of foregoing authorities of the Court of Appeal is that a PO should be raised in time. They do not state that a PO must be raised in the Written Statement of Defence; it being a point of law, can be raised at any time. Form the above authorities, it seems, what is important is to give the opponent a reasonable notice thereof. •Mr. Kalolo-Bundalla has submitted that the ailment can be cured by the provisions of Order I rule 10 (2) of the CPC and calls upon the court to allow an amendment so as to rectify the anomaly. This argument has not found purchase with me. First, the learned counsel has not given reason why he has opted to seek refuge under the provisions of the CPC while there a specific provision in the Rules which deal with amendments. The learned 12 counsel certainly knows that ever since the inception of the Rules on 13.07.2.012, the CPC ceased to apply in the Commercial Court, except on conditions provided by the very Rules. One such condition is found under rule 2 (2); that the CPC will be applicable in the Commercial Court on situations when there is a lacuna in the Rules. But even if the counsel,for the applicant had made his prayer under the Rules, it is not maintainable at law for the simple reason that the course will be tantamount to preempting the preliminary objection raised by the learned counsel for the defendant. I have had an opportunity to deal with this point in some of my previous decisions more that once; see for instance Afrisian Ginning Limited Vs Mabruki Samii Rajabu Commercial Case No. 25 of 2015 and Aiiy Hatibu Msangi & Anor Vs Nurani Hatibu & 3 Ors Miscellaneous Commercial Application No. 3 of 2013 both unreported decisions whose decisions I delivered on 10.09.2015 and 16.09.2015 respectively. I will reiterate my position in this ruling as I still hold the same position today. It is trite law in this jurisdiction that once a PO has been raised, any course of action geared at preempting the same is no allowed. That this is the law has been stated in a number of cases. One such case is Mary John Mitchell Vs Sylvester Magembe Cheyo & ors, Civil Application No. 161 of 2008 (unreported) in which the Court of Appeal reiterated its earlier position it stated in Method Kimomogoro Vs Board o f Trustees o f TANAPA, Civil Application No, 1 of 2005 (unreported) in which it stated: 13 'This court has said in a number of times that it r will not tolerate the practice of an advocate trying to preempt a preliminary objection either by i raising another preliminary objection or trying to rectify the error complained of." There is a string of cases by the Court of Appeal holding that a preliminary, objection should not be preempted. Such cases include Shahida Abdul Hassanali Kassam Vs Mahedi Mohamed Gulamali Kanji Application No. 42 of 1999 (Unreported), Almas Iddie Mwinyi Vs National Bank o f Commerce & Another [2001] TLR 83, Alhaji Abdallah Talib Vs Eshakwe Ndoto Kiweni Mushi [1990] TLR 108, The Minister for Labour and Youth Development £nd Shirika la Usafiri DSM Vs Gaspa Swai & 67 others [2003] TLR 239 and Frank Kibanga Vs ACCU Ltd, Civil Appeal No. 2.4 of 2003 (unreported), to mention but a few. In all these authorities, the court did not mince words; it stated in no uncertain terms that a preliminary objection should not be preempted. This being the case, I respectfully decline the invitation by Mr. Kalolo-Bundalla, learned counsel for the plaintiff, to allow- his client (the plaintiff) rectify the ailment after the preliminary objection has been raised by the defendant. • The learned counsel for the defendant urged me to strike the suit out. I agree. Having not heard the suit on merits the only option is to strike it out - see Ngoni-Matengo Cooperative Marketing Union Ltd Vs Alimamohamed Osman, [1959] EA 577, Thomas Kirumbuyo and Another Vs Tanzania Telecommunications Co. Ltd., Civil Application No. 1 of 2005 (CAT - unreported) and Abdallah Hassan Vs VODACOM (T), 14 Civil Appeal No. 18 of 2008 (CAT - unreported). Having not heard the matter j on merits, the best option is to strike it out. ! _• *’ I In the end of it all, and for the reasons stated, I sustain the preliminary > objection raised by the learned counsel for the defendant and proceed to strike the suit out with costs. Order accordingly. . DATED at DAR ES SALAAM this 8th day of February, 2016. 3. C. M, MWAMBEGELE i JUDGE 15