20151113 TZHC Dar es Salaam

IN.THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM (APPELLATE JURISDICTION) CIVIL APPEAL NO. 136 OF 2014 (From Kilombero District Court Civil Case No. 8 of 2011 -Hon. P.I. Kimicha, RM) J, & Ta COMPANY LTD 111cr.r1111att-11i::a111ri1n ■ 1 ■ Dc111a1:11a1tGEliiE>trli!ll1C&ecics:c: APPELLANT VERSUS DISTRICT EXECUTIVE DIRECTOR KXLOMBERO DISTRICT COUNCIL ............................ RESPONDENT Date of Last Order: 30 th November, 2015 Date of Judgment: 13th November, 2015 JUDGMENT FELESHI, J.: In the Dist1·ict Court of Kilombero at Ifakara, the appellant sued the respondent for payment of Tshs. 26,250,000/= as agreed vide a contract to drill and construct a borehole in Uchindile village, general damages at Tshs. 20,000,000/=, interest and costs of the suit. After llea1·ing of the suit,. Judgment \Vas entered in favour of the respondent her·ein. Aggrieved, the appellant appealed to this Court on 2 grounds namely:- 1. Tl1at, the trra! Magistrate erred both in law and in fact 1n ho[ding that after the appeUant met the bed rock at 28 metres, he woul.d have_ replaced the machine with a machine capable of drfHlng the rock bed. 2. That, tl1e trtar Magistrate erred both in law and in fact tn ho[ding that by forcing the mach.rne which the appellant was using while knowing rt was r11capabfe was putting himself at his own risk. Page 1 of 5 The hearing of the appeal was conducted by way of written submissions in which the appellant engaged the services of Kitare and Company Advocates while the respondent was represented by the Legal Unit of Kilombero District Council (the respondent). Arguing for the two grounds of appeal altogether, the appellant's counsel submitted that, in performing the contract to drill the borehole, he used the recommended machine by the respondent which is a Mud and Air Rotary Drilling Machine whereas upon reaching a depth of 28metres, the machine encountered a rock before it got damaged. For that matter, the appellant asked for replacement of the machine but the respondent denied approving a varied price. He added that, the appellant relied on a Hydro-geological/Geophysical Survey Report which was furnished to them by the respondent that indicated that the bedrock was at 114.40metres depth with recommendations to drill the borehole to the depth of 100metres. He thus urged for the appeal to be allov. 1ed. In reply, the respondent's solicitor submitted that, the appellant has sued a wrong person, that is, the District Executive Director, l<ilombero District Council instead of l<ilombero District Council in terms of section 12(1) of the Local Government (District Authorities) Act, [CAP. 287 R.E, 2002] who is the legal person capable of suing and being sued. He added that, the appeal was filed more than six (6) months from tl1e date of Judgment of the trial Court thus time barred. Page 2 of S Moreover, it was the submission by the learned Council solicitor that the appellant failed to prove in Court the type of machine used in undertaking her contractual obligations in proving compliance to the procurement contract thus arguing that, the appellant was as such in breach of the procurement contract thus urging the appeal to be dismissed with costs. In rejoinder, the appellant's submitted that, the suit has been properly filed against a proper person in terms of the law. He added that, in case of any impropriety, the same is curable in terms of Order I Rule 10(2) of the Civil Procedure Code, [CAP. 33 R.E, 2002] that provides that, the Court at any stage may order any improperly joined person to be replaced to enable the Court to finally adjudicate the contentious issues before the Court. Regarding time limitation, the appellant's counsel submitted that, the appeal is not time barred because the time used to obtain the requisite copies of Proceedings, Judgment and Decree was excluded in terms of section 19(2) of the Law of Limitation Act, [CAP. 89 R.E, 2002]. I will start vvith the issue raised by the learned appellant's counsel that the issue of proper party was raised by surprise meaning that, he was not accorded a fair opportunity to be heard. To this Court, this is not correct. The appellant had an opportunity to address the said issues by \tvay of rejoinder which amounts into a fair opportunity to be heard. That conforms what was held by the Court of Appeal of Tanzania in the case of IBRAHIM OMARY (EX.Dr. 2323 IBRAHIM) vs. THE INSPECTOR GENERAL OIF POLICE, THE PERMANENT SECRETARY, MINISTRY OF HOME Page 3 of 5 ... •. AFFAIRS & THE HON. THE ATTORNEY GENERAL, Civil Appeal No. 20/2009, (Arusha Registry) (Unreported) that:- "In this sense, although it is a bit unusual and unfortunate that the Essue was raised at a rather late stage of the case, strictly speaking, the judge did not err in raising it at the end of the judgment. However, as far as this case is concerned, since the point appears to have come up as an afterthought we think that prudence and the interests of justice demanded that the appe[lant and the respondents be called upon to address the court on the issue before making a finding on it. If the judge had done so he would have had the benefit, advantage and opportunity of hearing the parties' views, or rather getting their inputs on the point, before making a definitive and balanced finding on the said point. Indeed, we wish to go further and say that if he had done so justice would have been seen more to have been done". Regarding suing of a wrong pe1·son, notably, the appellant's counsel did not basically fault the assertions that she has sued a wrong person, instead, he argued and maintained that, any rectification can be done at any time. As correctly submitted by the respondent's counsel, in terms of section 12(1) of the Local Government (District Authorities) Act (supra), the appellant ought to have sued Kilombero District Council and not the District Executive Director, Kilombero District Council. Thus, according to law, there is no gainsaying that the appellant sued a wrong person incapable of suing or and being sued for the law is clear as to vvho is capable of suing or be sued. Besides, the appellant's learned counsel has argued that, any anomaly can be rectified at any time in terms of Order I Rule 10(2) of the Civil Procedure Code (supra). VVith due respect, such an argument has been made at a wrong forum because such prayer and Order for amendment of Page4of5 . .. ,.,. the pleadings can only be made before the trial Court and not at this appellate Court. For that matter, such an argument is watered down. In a nutshell, as correctly argued by the solicitor for the Respondent, the respondent was wrongly sued thus rendering the suit incompetent. From the foregoing, going by that track, the proceedings, Judgment and Decree of the trial Court in• Civil Case No. 8/2011 by the District Court of Kilombero at Ifakara are declared a nullity thus hereby quashed . In the circumstances, I make no order as to costs. f-. E.M. FELESHI JUDGE 13/11/2015 Judgment delivered in chambers this 13 th day of November, 2015 in presence of Mr.Kitale, Advocate for the Appellant and in the absence of the Respondent. Right of Appeal explained. \ l f I } ' c. FEL!ESMI JUDGE 13/1:..1/2015 Page 5 of 5