julius saad kateti vs crje ea limited 2023 tzhc 18822 23 june 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CIVIL CASE NO. 225 OF 2022 JULIUS SAADI KATETI ..……………………………………..…….…… PLAINTIFF

VERSUS CRJE (EA) LIMITED …………………………………………………….. DEFENDANT

RULING 22nd May & 23rd June, 2023 MWANGA, J. This is a ruling relating to three points of preliminary objection which were raised by Mr. Ally Hamis, the learned counsel for the defendant, that: - i. this court lacks jurisdiction to hear and determine the suit; ii. the plaintiff has no locus standi to bring this suit; and iii. plaintiff has no cause of action against the defendant. The brief facts as understood from the pleadings are that; sometimes in January 2022 within Dar es salaam Region the plaintiff entered into a contract termed as Manpower Subcontract Costing 1 Proposal with the defendant. According to paragraph 5 of the plaint, the plaintiff was involved in the said contract as a project engineer and was responsible to supply man power for plumbing and electrical installation in the ongoing construction hospitals at Chumbini, Mbuzini and Magogoni areas in Zanzibar by hiring of laborers’ manpower for electrical and plumbing. The plaintiff contended that, he was also responsible for paying the said laborers after being paid his service by the defendant. According to him, the said laborers were totally and inclusive engaged and employed by the plaintiff to assist him in fulfilling the contract entered with the defendant. Under such arrangements the plaintiff hired a total of thirty (30) laborers. The plaint also reveals that, amongst terms of the agreement were that; the

plaintiff shall be paid his service on monthly basis. Pursuant to paragraph 6 of the plaint, the plaintiff had to make payment to the hired laborers who were assisting him to execute the contract between him and the defendant. It was the plaintiff’s further assertions that, from the month of august 2022 to date the defendant has neglected or refused to remit the said payment as agreed. Instead, the defendant is now making payment directly to the said laborer’s contrary to the agreement. In the written statement of defence, the defendant denied the above allegations and put the plaintiff to strict proof thereof. According 2 to the defendant, there was neither oral nor written contract entered between them. Hence, the such claims were vexations and without any legal basis. It was further argued that, if at all the plaintiff’s claims were true, the same is without legal basis because Zanzibar New District Hospital project Lot 1-3 was entered between the defendant who is registered in Zanzibar and the Revolutionary Government of Zanzibar and not with the defendant. Further contentions were raised that, the plaintiff was neither a registered engineer nor a registered recruitment agent in Zanzibar and, pursuant to paragraph 7 of the WSD the plaintiff was not allowed to be employed nor to carry on business of engineering or recruitment agent in Zanzibar without being registered by the

Registrar of Architects, Engineers and quantity Surveyors Registration Board in Zanzibar or approved by Zanzibar Labour Commissioner as a recruitment agent for the project. When the matter came for hearing, the plaintiff appeared in person while the defendant enjoyed the service of Mr. Ally Hamis, the learned counsel. But on the date fixed for hearing of the plaintiff’s submission regarding the preliminary objections, neither the plaintiff nor 3 his advocate appeared in that respect. Therefore, the learned counsel for the defendant invited this court to invoke provision of Order XVII, Rule 3 of the CPC, that the plaintiff has conceded to the preliminary objections. In consideration of such prayer, this court proceeded to fix date for the ruling. In support of the 1st point of preliminary objection, the learned counsel submitted that jurisdiction is a fundamental issue which has to be cleared before hearing of any case. The counsel cited the case of Fanuel Mantir Nginda which was quoted with approval in the case of Alois Hamsini Mchuwali Versus Gospari Simon Shituvu, Criminal Appeal No. 583 of 2019 where it was held that, the question of jurisdiction is basic; it goes to the roots of the authority of the court to adjudicate cases of different nature. Therefore, in any case the court must be certain and assured of the jurisdictional position at the commencement of the trial. It

was also the submission of the counsel that, the incorporation of company is not a union matter as in Mainland Tanzania there is BRELLA as opposed to Zanzibar where there is BPRA. According to him, Zanzibar laws does not allow the company to perform any duty if the same is not registered there. His argument was supported with the cited provision of Section 238 (2) of the Companies Act of Zanzibar which provides that 4 the company which entered into a contract with the plaintiff is a residence in Zanzibar. Therefore, the plaintiff ought to file case in Zanzibar because the court which had jurisdiction to entertain this matter was the High Court in Zanzibar at Tunguu. The counsel argued with the aid of the case of Abdallah Ally Selemani Versus Tabata Petro Station Co. Ltd, Civil Appeal No. 89 of 2017 (HCT) and Tanzania China Friendship Textile Co. Ltd Versus Our lady of the Usambara Sisters, Civil Appeal No. 84 of 2002. As to the second point of preliminary objection, the learned counsel submitted that, the law requires cases to be instituted where the defendant resides or cause of action arose. According to the counsel, the defendant resides in Zanzibar as she was registered there and looking at paragraph 5 of the plaint the project was located at Chumbini, Uzini and Magogoni Zanzibar. In the circumstances, the cause of action also arose in Zanzibar. The learned counsel also

made reference to page 9 of the written statement of defence which shows that the plaintiff had filed a case at CMA Temeke in Dispute No. CMA/DSM/Temeke 328/2022, where it was decided that the CMA did not have jurisdiction because cause of action arose in Zanzibar. In the second point of preliminary objection, the learned counsel was of the view that the plaintiff has no locus standi to bring this suit. It 5 was the learned counsel submission that the plaintiff has no legal interest which has been infringed. Supportive reference was made in the case of Lujuna Shungu Balonzi Versus Registered Trustees of Chama cha Mapinduzi 1996 TLR 203 as cited in the case of Peter Mpalanzi Versus Christina Msanika, Civil Appeal No. 153 of 2019. On top of that, the counsel argued that Section 29 of the Employment Act, Cap. 11 of Laws of Zanzibar prohibits recruitment without valid licence. Whereas, Section 29 (4) (b) of the Act define the meaning of private employment agent and paragraph 3 of the plaint shows that the plaintiff supplied man power. According to the counsel, since paragraph 5 of the plaint is pleaded that the plaintiff was the one who employed the labourers to assist implementation of the contract of the defendant, which is contrary to the laws of Zanzibar, that means he had no legal interest and rights that were breeched. The counsel also referred this court to the Zanzibar laws

under Section 25 (1) of the Architectures Engineering and Quality Surveys Registration, Act No. 5 of 2008 arguing that the plaintiff had no rights to work in Zanzibar as an engineer since he was not registered by Engineering Board of Zanzibar. In that regard, he had no locus Standi as there was no a legal right or interest breeched. The counsel argued further that, according to Section 10 (1) of the Contract Decree of Laws of Zanzibar, Cap. 149 which is in 6 parimateria to Section 10 and 24 of the Law of Contract Act of Tanzania Mainland, once consideration is unlawful, the contract is void. Moreover, it was the counsel view that the plaintiff had no capacity to enter into a contract with the defendant because he had no valid licence as per Section 29 of Employment Act of Zanzibar, and he is not registered Engineer as per the laws in Zanzibar. In the results, lack of such capacity renders contract void abnitio. I have gone through the pleadings and submission of the learned counsel. On perusal of paragraph 4 of the plaint, the plaintiff pleaded that he had entered both oral and written contract with the defendant on “Manpower subcontract costing proposal”. This assertion is supported by Annexture SCA-1 attached to the plaint which is the purported contract entered. I have perused the said annexture; it is the defendant’s document which is the Manpower Subcontracting

Costing Proposal prepared for Zanzibar New District Hospital Project Lot 1-3 by Morlyn Wang on 6th January 2022. It shows number of workers of the defendant, working days and their payments. It appears at page 4 of the purported contact that, the plaintiff was also contracted as professional engineer of the defendant as his certificate of registration appears in that page. On the face of it, nothing else can be seen relating to the plaintiff with the defendant in the document alleged to be a 7 contract of recruitment. Apart from that, except by oral statement, there is nothing established in the pleading to show the link between the defendant and the plaintiff on issue of recruitment and payment of labourers for the construction work in Zanzibar. It is important to note that, in order for the plaintiff to have a cause of action against the defendant, he must plead and proof a bundle of facts for the purpose of obtaining the relief claimed in the suit. Therefore, whether the plaint discloses a cause of action or not is essentially a question of fact and must be ascertained by reading a plaint itself. In the case of John Byombalirwa Versu Agency Maritime Internationally (Tanzania) LTD, Civil Appeal 15 of 1983 it was stated that for purposes of deciding whether or not the plaint discloses the cause of action, the plaint and not the reply to the written statement of defence should

be looked at. I have again looked at the pleading as whole that is, plaint and its annextures; I am unable to find any Plaintiff’s cause of action against the defendant. The other important issue raised was in respect of jurisdiction of the court. It may be mentioned that, same is restricted to ascertain whether allegations on cause of action is shown and the plaintiff has shown any legal rights or interests breached against him. It would, therefore, equally to say that the plaintiff does not have the locus standi 8 to sue the defendant. In the cited case of Lujuna Shubi Ballonzi Versus Registered trustee of Chama cha Mapinduzi [1996] TLR quoted with approval in the case of Peter Mpalanzi Versus Christina Mbaluka, Criminal Appeal No. 153 of 2019 the court had the following to say on locus standi: - “Locus standi is governed by common law according to which a person brings a matter to court should be able to show that he right or interest has been breached or interfered with. The High Court has the power to modify the applied common law so as to make it suit local conditions” In similar vein, in the case Peter Mpalanzi Versus Christina Mbaluka, Criminal Appeal (Supra), the court also had this to say; - “Locus standi is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject matter. Unless a person stands in a sufficient

close relation to the subject matter so as to give a right which requires protection or infringement which he brings the action, he cannot sue on it…locus standi is a point of law rooted into jurisdiction. It is for that reason it must be considered by a court at the earliest opportunity or once it is raised” 9 It would be important to consider that, paragraph 10 of the plaint shows that the cause of action arose in Dar es salaam Region which is within jurisdiction of this honourable court. However, by looking at the pleadings generally there is nothing submitted to suggest that the purported recruitment agreement done in Dar es salaam. The counsel for defendant is stating that, the defendant is a resident in Zanzibar and the construction site was in Zanzibar. Therefore, the court with jurisdiction was the High Court in Zanzibar. It is under the aforesaid facts, I am inclined to hold similar view that this court has no jurisdiction to entertain the suit. In the case of Abdallah Ally Selemani t/a Otawa Enterprises (1987) Versus Tabata Petrol Station Company Ltd and Another, (unreported), Civil Appeal No.89 of 2017, the court held that: - “…it is not enough for a party to state that a court had jurisdiction, rather the court has a duty to ascertain that indeed it has the jurisdiction stated. This is mainly because, as we have earlier stated, jurisdiction is conferred by

statute so that even if the party is agreed, they cannot confer jurisdiction to a court that does not have it.” In light of the above, this court has not found any scintilla of facts on the face of it pleaded to show that there was contract of recruitment 10 of labourers entered between the parties here in Dar es salaam to confer this court with prerequisite jurisdiction to entertain the matter. I am equally in agreement with the learned counsel Mr. Ally that the plaint suffers from lack of cause of action, plaintiff lack locus standi against the defendant and, ultimately, this court lacks jurisdiction to entertain the matter. On that basis, the suit against the defendant is not maintainable; it is, therefore, struck out. In consideration of the prior relationship of the parties, I order no costs. Order accordingly. H. R. MWANGA

JUDGE 23/06/2023 COURT: Ruling delivered in Chambers this 23rd day of June, 2023 in the presence of the plaintiff in person, his Advocate Mr. Boniface Sairo and Advocate Ally Hamisi for the defendant. 11 H. R. MWANGA

JUDGE 23/06/2023 12