kinondoni municipal council vs dsm waste management association 2008 tzhc 220 19 june 2008

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPEAL NO. 11 OF 2001 KINONDONI MUNICIPAjCOUNCIL....................... APPELLANT VERSUS DSM WASTE MANAGEMENT ASSOCIATION ....................................................... RESPONDENT Date o f last Order: 30/5/2008 Date o f Judgment : 19/6/2008 JUDGMENT. MLAY, J. This appeal is against the ruling of Ruhumbika SRM in Kisutu Resident Magistrates Court Misc. Civil Application No.112/2001, in which the Senior Resident Magistrate overruled a preliminary objection by the present Appellant, that the applicant who is the present respondents, had "no cause o f action/locus standi against the 1st Respondent". In that application, the DAR ES SALAAM WASTE MANAGEMENT who were the applicants made an application for the following orders: "EXPARTE a) That this Honourable Court be pleased to make findings that there exist sufficient grounds to dispense with notice to the Respondents and grant interim orders against the Respondents pending the determination, o f this application. INTERPARTIES. a) That this Honourable Court be pleased to issue a Marera injunction restraining the respondents, by themselves or otherwise from terminating or avoiding agreements entered between beneficiaries pending the expiry o f one month's notice to sue and then institution o f the suit against the Respondents. b) Costs o f this application be provided for. c) Any other relief this Honourable Court deems just and fit to grant" The application was duly supported by the affidavit of WEEKSTON NSAJIWA and SAM MAYASA who identified themselves as the "trustees o f Dar es salaam Waste Management Association (DAWAMA)". In the said affidavit the applicant stated in part, as follows: 2 2. That DAWAMA the Applicant is society duly registered under the Societies Ordinance Cap 337 Primarily concerned with among other things to unite, promote, assist and protect rights o f all its Organization, Companies and Association members, which have been assigned with duties to collect an disposal o f the refuse in the specified arrears ofD ar es salaam..... 3. That on divers dates from 1999 DAWAMA'S members hereinafter refered to as beneficiaries whose names and descriptions are detailed in the list annexed herewith, were appointed and assigned with the duty to collect and dispose of the wastages and refuse in their respective specified are as within the territorial boundaries of the Respondents municipalities............. 4. That it was an express term of our beneficiaries (agreements) letters o f appointment to assume the above mentioned d u ties..... 5. Further that it was an implied term o f the agreements referred to above, that the Respondents would not terminate or avoid our beneficiaries agreements until unless our beneficiaries had 3 defaulted their duties and obligations The 1st Respondent through their Legal Officer are CLEOPHACE MBISHI MANYANGU, filed a counter affidavit in which they raised preliminary objection on a point of law, that the applicant has no cause of action/locus standi against the 1st Respondent. In the counter affidavit the 1st Respondent further stated in part, as follows: "4. The in reply to paragraph 3 o f the affidavit the 1st Respoitdent never appointed and assigned the applicant the duty to collect and dispose of the waste product in Kinondoni Municipality (DAWAMA) [written "Dawasa"] being a Legal entity has no power to sue the 1st Respondent since the applicant is storage (sic) to the purported appointment and assignment thus the applicant cannot whatsoever benefit from the terms and condition o f the purported assignment. 5. That in reply to Paragraph 4 o f the affidavit the 1st respondent over that the applicant's members 4 failed to carry not their assigned duties to collect and disposal o f waste and refuse in areas allocated to collect garbage. Must o f them did not comply with the letter a appointment as a result most of allocated areas here unattended. 6 .................................. 7................................. 8............................... 9............................... 1 0............................... 11.................................... 12........................................ 1 3 ......................................... 1 4............................................... 1 5................................................ At the hearing of the preliminary objection counsel for the 1st Respondent argued that DAWAMA was not a party to the contract between the 1st Respondent and the various groups engaged in waste management and that there was no document which confer power on DAWAMA to institute the proceedings on behalf of the groups. He therefore prayed that the interim injunction granted by the Court be rescinded and the application (inter parties) be dismissed with costs. 5 For the applicant it was argued that the existence of contractual relationship between the "beneficiaries o f the applicant" who are the various groups involved in Waste Management and the 1st Respondent, was indisputable. On the lack of locus standi for want of documentary authority to act on behalf of "the beneficiaries", the counsel for the Applicant argued that "there is now here under the lazv o f this country w here it is indicated that any assignm ent must be in writing". It was contended that DAW AM A is duly registered in accordance with the law of this country and therefore has power to bring the proceedings. The trial Senior Resident Magistrate having considered the arguments from both parties, made a finding that DAW AM A the applicant is registered under the Societies Ordinance and given a certificate of Registration No. SO. No.10861. The trial Magistrate stated in his ruling that: "Although no evidence was brought in respect o f the minutes and deliberation of individual groups which fall under the Umbrella o f DAWAMA, yet one can reasonably infer that DAWAMA is a trustee and individual groups are beneficiaries that being the case, it is regarded as a legal entity and it has power to sue or be sued. Therefore it has locus standi. 6 The objection is rejected................. The 1st Respondent being aggrieved by the ruling filed the present appeal to this court on one ground, namely: "1. That the trial Magistrate erred in law and fact by holding that the Responde7tt had a locus standi to sue the Appellant". At the hearing of the Appeal the Respondent who was served through their advocate Mr. Sabas Kiwango, did not appear and this court ordered the hearing to proceed exparte. Mr. Johnson who advocated for the Appellant submitted that it was not in dispute that the Dar es salaam City Commission who was the predecessor of the 1st Respondent, had contractual relationship with a number of groups involved in waste collection and disposal within the while City of Dar es salaam. He contended that the contractual obligation was between the City Commission and each individual group and DAWAMA the present respondent, was not among those groups and DAWAMA never was in existence during the time of the City Commission. The counsel argued that as DAWAMA was not a party to the contracts they cannot sue on behalf of each individual group. He 7 further submitted that even during the hearing of the preliminary objection, there was no evidence or minutes of meetings of the groups appointing DAWAMA as their representative. The learned counsel conceded that DAWAMA as a legal entity had the right to sue but argued that DAWAMA can sue and be sued in its individual capacity but not on behalf of its individual members. The counsel prayed that the ruling of the trial court be set aside. The issue for consideration and determination is whether the trial magistrate was right in ruling that the Respondent has the capacity to institute the proceedings in the Resident Magistrates Court on behalf of the individual groups against the Respondent. From the ruling of the trial Magistrate and the submissions on behalf of the appellant, it is common ground that the Dar es salaam City Commission entered into contractual relationships with individual groups for waste collection and disposal within the City of Dar es salaam. The Dar es salaam City Commission was succeeded by the Kinondoni Municipal Council for the Kinondoni District area of the City of Dar es Salaam and therefore became a party to the contracts with the groups engaged in Waste collection and disposal in that area. 8 It also appears from the ruling and from the submissions made in this court, that subsequent to the contracts entered into by the Dar es salaam City Commission with the groups engaged in Waste Collection and Waste disposal, those groups or some of them, formed an Association called DAWAMA, which was registered under the Societies Ordinance. It is a common ground that DAWAMA was not in its individual capacity, a party to the contracts entered into with the Dar es salaam City Commission. DAWAMA purporting to act on behalf of its members, gave notice of intention to sue the Appellant and filed the Application for injunctive orders against the appellant pending the expiry of the notice of intention to sue. The appellants preliminary objection that the Respondent (DAWAMA), did not have a cause of action or locus standi to sue the Appellant, was overruled an grounds that DAWAMA as a registered society, has the capacity to sue and be sued. The institution of proceedings of a civil nature in the Courts of the Resident Magistrate are governed by the Civil Procedure Code, 1966. Order 1 rule 1 makes provisions as to who may be joined as plaintiffs. It states: 1. All persons may join in one suit as plaintiffs in w hom any right to relief in respect o f or arising out 9 o f the same act or transaction or series o f acts or transactions ................................................. " The question is whether DAWAMA is entitled to a "relief in respect o f or arising out of" the contracts entered inter by the groups with the City Commission now represented by the Appellant. Was DAWAMA entitled to bring the intended suit as plaintiffs in terms of Order 1 Rule 1? I think not . As DAWAMA was not privy to the contracts between the Appellant and the groups engaged in waste collection and disposal within the area of Kinondoni Municipality, DAWAMA has no "right to relief ' arising out of the said contracts. DAWAMA did not have the right therefore to institute the proceedings against the appellant in their individual capacity as DAWAMA. Order 111 rules 1 and 2 makes provisions for appearance in person and recognized groups. Rules 1 and (2) states in part, as follows:- 1) Any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in each court, may except where otherwise expressly provided by law for the time being in force, be made or done by the party in person or by his recognized agent or by an advocate duly appointed to act on his behalf,....... 2) The recognized agents of parties by zvhom such appearances, applications and acts may be made or done are- 10 (a) persons holding powers o f attorney, authorizing them to make and do such appearances, applications and acts on behalf o f such parties. (b) Parties carrying on trade on business for and in the names of parties not resident within the local limits o f the jurisdiction of the court.................." If DAWAMA cannot be regarded as the plaintiff in terms Order 1 Rule 1, the question is whether the said DAWAMA is authorized to institute the proceedings as a "recognised agent" within his meaning of Order III rules 1 and 2. It was not in dispute during the hearing of the preliminary objection that DAWAMA did not exhibit any evidence of the authority to act for the groups. They did not have a power of attorney or other written authority, other than the certificate of registration under the Societies Ordinance. DAWAMA cannot therefore be regarded as a recognized agent for the purpose of Order III rules 1 and 2. A certificate of registration under the Societies Ordinance Cap 337 serves as evidence of registration under the Ordinance. It does not confer any right to institute proceedings in court on behalf of its members. The trial magistrate speculateci that DAWAMA is the trustee for the beneficiaries who are its members. This was nothing more than conjecture not based on evidence. There was nothing before the 11 magistrate to show that DAWAMA was a trustee and it was not even alleged that DAWAMA was a registered trustee in terms of the Trustees Incorporation Ordinance, Cap 316. The trial Magistrate was wrong to rule that DAWAMA had the locus standi to institute the proceedings against the appellant on grounds that DAWAMA is a registered society. The fact of registration as a society under the Societies Ordinance, Cap 337, does not confer upon the Respondent the right to institute the proceedings on behalf of the groups which had entered into contracts with the Appellant. In the final analysis and for the reasons given above, this appeal is allowed and the ruling and order of the Senior Resident Magistrate in Miscellaneous Civil Application No.112/2001 is set aside, with costs. J. I. Mlay, JUDGE 12 Date and delivered in the absence of both parties this 19th day of July 2008. .* ' S /• ' v 19/0^/2006. 13