KONSAD INVESTMENT VS THE DAR ES ALAAM CITY COUNCIL MISC

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM MISC.COMMERCIAL CASE NO.24 OF 2012 KONSAD INVESTMENT LTD............................................APPLICANT VERSUS THE DAR ES SALAAM CITY COUNCIL........................RESPONDENT Date of Hearing: 6th September, 2012 Date of Last Order: 06/09/2012 Date of Ruling: 03/10/2012 RULING MAKARAMBA, J.: On the 15th August, 2012, the Applicant lodged an application in this Court by way of Chamber Summons under a Certificate of Urgency seeking for the following orders:- (a) This Honourable Court may be pleased to declare that agreement number 9933 executed on 2nd October, 2010 between the Applicant and the Respondent for collectuion o f revenues/entry fees at Ubungo Bus Terminal is still valid and the Applicant has rights o f collecting revenues/entry fees at Ubungo Bus Terminal. Page 1 of 13 (b) This Hon. Court may be pleased to declare that the Respondent's act o f terminating the agreement without proper notice as provided in the agreement is unlawful. (c) This Honourable Court may be pleased to order the Respondent to abide to agreement No. 9933 executed on 2th October, 2010 vacate and allow the Applicant to collect revenues/entry fees at Ubungo Bus Terminal. (d) Costs o f the application may be provided for (e) Any other orders and relief as this Honorable Court shall deem fit. The application has been preferred under section 68(e) and 95 of the Civil Procedure Code Act, Cap. 33 R.E. 2002. It is supported by the affidavit of one James Konsel Wambura. In his affidavit, Mr. James Konsel Wambura states that on the 2nd October, 2010, the Applicant entered into Contract No. 9933 with the Respondent for collection of revenue (entrance fees) at the Ubungo Bus Terminal, for a term of three (3) years to expire on 30th day of September, 2013. The deponent avers further that under the said Agreement, the Applicant was given the mandate to collect entrance fees from persons and vehicles using the Ubungo Bus Terminal Stand except Government employees, vehicles from the Central and Local Government, and other Page 2 of 13 Diplomatic Vehicles as stipulated under Article 2.3 of the said Agreement. It is the further avernment of the deponent that by winning the tender, the Applicant expected to earn a profit of TZS 850,089.00 per day, but due to the Respondent's acts of concealing some fundamental factors, the Applicant has not been able to earn such profit. The deponent avers further that the Applicant has noticed that there are other categories exempted by the Respondent but the Respondent did not reveal such fact to the Applicant before executing the said Agreement. As a result, the Applicant's projections were affected and continued to attract loss and damages. Thus the Applicant was not aware of those encumbrances because the Defendant concealed such facts and failed intentionally to disclose it during negotiation and/or executing the Agreement. The deponent avers further that the Respondent admitted to be aware of the encumbrances at the said Ubungo Bus Terminal and kept on promising to amicably settle the disputes with the Applicant through negotiations. Unfortunately, the deponent avers further, on the 28th July, 2012 at 7:00 p.m., the Respondent issued the Applicant with a notice to terminate the contract directing the Applicant to vacate from the Ubungo Bus Terminal on the 29th July, 2012 at 3:00 a.m. The deponent avers further that without good cause and/or justification, the Respondent took possession and started to collect entrance fees at the Ubungo Bus Terminal contrary to the terms and conditions stipulated in the Agreement hence this suit. The Application has not been without resistance. On the 22nd day of August, 2012, the Respondent lodged in this Court a Notice of Preliminary Objection against the application on the following points of law, namely:- Page 3 of 13 1. That the Applicant's Application is incompetent for violation o f mandatory provision o f section 106(1) and (2) o f the Local Government (Urban Authorities) Act, Cap.288 R.E 2002 for want o f one month notice. 2. This Matter currently being pending in the High Court (Main Registry) as Civil Case No. 154 o f 2012 annexed hereby; it cannot stand in terms o f section 8 o f the Civil Procedure Code Cap. 33 R.E 2012 (it is Res Sub-Judice). 3. In the absence o f any suit, this application cannot stand before this Honourable Court. 4. That the Applicant has failed to move this Honourable Court by filling this application retying on general provision instead o f relying no specific provisions. 5. That i f the Applicant prays this Honourable Court to declare that the contract the contract was valid, the Applicant was required to serve the Respondent a three month notice as p e r clause 5.0 o f the Contract No. 9933. The preliminary objection on points of law were argued orally by Mr. SANZE, learned Counsel for the Applicant, and for the Respondent, by Mr. Page 4 of 13 ISACK TASINGA, learned Counsel assisted by Mr. ROBERT MAGENI, learned Counsel. In the course his oral submissions, Mr. Isack Tasinga, learned Counsel for the Respondent, informed this Court that the Respondent has elected to abandon the second and third grounds of preliminary objection and urged this Court that his submissions will only be directed at the first, fourth and fifth grounds. Submitting on the first ground of preliminary objection, Mr. Isack Tasinga for the Respondent argued that the application has been preferred against the Dar es Salaam City Council, a Local Urban Authority, without first complying with the mandatory requirement of issuing a notice against it of not less than 30 days as stipulated under section 106 of the Local Government (Urban Authorities) Act, [Cap. 288 R.E. 2002], which provides as follows: "(1) No suit shall be commenced against an urban authority until one month at least after written notice o f intention to commence the suit has been served upon the authority by the intending plaintiff or his agent, "(the emphasis is o f this Court). Mr. Isack submitted further that the intention of section 106 of the Local Government (Urban Authorities) Act is to protect Local Urban Authorities from being sued without giving them a prior notice of one month. In the absence of such notice, the whole action is therefore incompetent for having been prematurely brought to court and it should Page 5 of 13 therefore be struck out with costs, Mr. Isack further submitted and prayed. In support of his argument on the effect of non-compliance with the mandatory requirement of one-month's written notice, Mr. Isack referred this Court to the case of ARUSHA MUNICIPAL COUNCIL VERSUS LYAMUYA CONSTRUCTION COMPANY LTD [1998] T.L.R. 13 where it was held that: "Non-compliance with section 97(1) o f the Local Government (Urban Authorities) Act, 1982 which requires a one month's written notice to an urban local authority before instituting a suit against it, renders a suit un-maintainabie." Amplifying on the issue whether a miscellaneous application can be termed as suit, Mr. Isack referred this Court to page 1475 of Black's Law Dictionary 8th Ed by Bryan A. Garner where it stated that: "A suit in ordinary meaning is any proceedings by a party or parties against another in a Court o f law." Mr. Sanze learned Counsel for the Applicant responding to the submissions by Mr. Isack, conceded that indeed section 106 of the Local Government (Urban Authorities) Act, [Cap. 288 R.E. 2002] requires the issuance of a 30-days' notice to an Urban Local Authority for it to be properly sued. Mr. Sanze however, insisted very strongly that there is no suit in this Court. In his opinion what has been filed in this Court is a mere Page 6 of 13 miscellaneous application, and in support of his argument Mr. Sanze cited to this Court section 22 of the Civil Procedure Code, Cap.33 R.E. 2002 where it is stated that: "Every suit shall be instituted by the presentation o f a plaint or in such other manner as any be prescribed." Mr. Sanze submitted further that section 22 of the Civil Procedure Code must be read together with Order V Rule 1 of the Civil Procedure Code, which states that: "Every suit shall be instituted by presenting a plaint to the court or such officer as it appoints in that behalf and, where the suit is instituted against the Government, delivering a copy o f the plaint to the Attorney-General." Since the present miscellaneous application was not instituted by way of plaint, the same cannot be called a suit, Mr. Sanze surmised confidently. In the present matter, one thing comes out fairly clearly from the submissions in support and rival by learned Counsel - the Applicant's application was instituted against the Dar es Salaam City Council, an Urban Local Authority, without giving it a one's month written notice as required under section 106 of the Local Government (Urban Authorities) Act, [Cap. 288 R.E. 2002]. The only controversy in my view therefore is whether or not a miscellaneous application is "a suit." In this respect, while the learned Page 7 of 13 Counsel for the Respondent contends that the present application is not a suit but a "miscellaneous application," the learned Counsel for the Applicant on his part maintains that the present application is a suit within the meaning intended under section 106 of the Local Government (Urban Authorities) Act, [Cap. 288 R.E. 2002]. I take cue from page 1475 of Black's Law Dictionary 8th Ed, which Mr. Isack has relied upon in support of his submisions that the present miscellaneous application is a suit. According to Black's Law Dictionary 8th Ed at page 1475, in its ordinary meaning, "a suit" is "any proceedings by a party or parties against another in a Court o f /an/. "The term "proceedings" is also defined at page 1241 of Black's Law Dictionary 8th Edn., to mean "the business conducted by a Court or other official body; a hearing" The business of the court is to hear the parties and determine their disputes. It follows therefore that the present application, styled as Miscellaneous Application No. 24 of 2012, is among the matters forming the business of this Court. It falls within the broad category of a suit, being a civil action or proceedings of a civil nature. The distinguishing mark between a suit and other forms of civil action or proceedings of a civil nature seems to be predicated on the mode of preferring them in court. In the case of a suit for instance, it is by instituting it in court of law by the presentation of a plaint. However, in terms of section 22 of the Civil Procedure Code, Cap.33 R.E. 2002, which Mr. Sande has cited in his submissions, it is possible for a suit to be instituted "in such other manner as may be prescribed." k suit can therefore be instituted in the court by other prescribed manner. The Civil Procedure Code in my considered view, does not close the door on other Page 8 of 13 manner of instituting a suit. As Mr. Sanze rightly submitted, a plaint is not the only mode of presenting a suit to the court. However, with due respect to Mr. Sanze, Order V Rule 1 of the Civil Procedure Code which he cited in his submissions, does not say anything about the other prescribed manner of instituting a suit. Instead, that provision is concered with the manner in which summons may be served. If anything, the closest resemblence to section 22 of the Civil Procedure Code [Cap.33 R.E 2002] in my view is Order IV Rule 1 of the Civil Procedure Code which stipulates that: "Every suit shall be instituted b y presenting a plaint to the court or such officer as it appoints in that behalf and, where the suit is instituted against the Government, delivering a copy o f the plaint to the Attorney-General, "(the emphasis is o f this Court). Order IV Rule 1 of the Civil Procedure Code however, does not assist this Court much since what it does is merely to direct the institution of a suit by presenting a plaint to the court, and in the case of a suit against the Government, to the Attorney General. The said provision does stipulate as to any of the other manner of instituting a suit as envisaged under section 22 of the Civil Procedure Code [Cap.33 R.E 2002] or against a Local Government Authority specifically, for that matter. In this respect the specific law, the Local Government (Urban Authorities) Act, Cap. 288 R.E. 2002, which provides for the manner of bringing a suit against a Local Urban Authority and the mode of service upon such authority, is to be resorted to. I am alive to the decision of Hon. Madame Jusitice Oriyo of the Page 9 of 13 Court of Appeal of Tanzania in Civil A ppeal No. 7 o f 2005 betw een T A N Z A N IA CIG A R A TTE C O M P A N Y LIM ITED V ER S U S M A STER M IN D T O B A C C O (T) LTD originated from Misc. Com m ercial Case No. 19 of 2002 where she had this to say at page 6 of the ruling with respect to the wider meaning of the term suit, that: " It is apparent that the word "suit" is quite wide and covers civil proceedings, civil claims, etc. The mode o f presenting such claims m ay be done b y a plaint, petition, chamber summons, and e.t.c." In her rendering as to the wider meaning of the word suit, Madame Justice Oriyo was informed by the decision of the Court of Appeal of Tanzania in the case of TH E HON. A T T O R N E Y G EN ER A L vs. REV. C H R IS T O P H E R M TIKILA in Civil A ppeal No.20 o f 2007 (unreported), where a suit was defined to mean the following: "Proceedings o f a civil nature in a court o f law involving two o r more parties on a dispute o r claim which needs to be adjudicated upon, to determine o r deciare the rights o f the disputing parties. The procedure fo r instituting and conducting such proceedings in a court o f law is governed either b y the Civil Procedure Code A ct o r as provided under any other written law ." The decision of the Court of Appeal of Tanzania in TH E HON. A T T O R N E Y G EN ER A L vs. REV. C H R IS TO P H ER M TIK ILA in Civil Page 10 of 13 Appeal No.20 of 2007 (unreported) (above), in my views lays emphasis on the procedure for instituting and conducting proceedings of a civil nature in a court of law, which is governed either by the Civil Procedure Code Act or as provided under" any other written law." The Civil Procedure Code also lays emphasis to the fact that proceedings of a civil nature may be instituted in a court of law either with the presentation of a plaint or "in such other manner as may be prescribed." In her decision in Civil Appeal No. 7 of 2005 between TANZANIA CIGARATTE COMPANY LIMITED VERSUS MASTERMIND TOBACCO (T) LTD, (above) Madame Justice Oriyo attempted to adumbrate the other prescribed manner of presenting such civil claims or proceedings which include but are not limited to "petition, chamber summons, e.t.c." In the whole what flows from what I have explained above is that the present application which has been styled as Miscellaneous Application No. 24 of 2012, the subject of the present preliminary objection, fits squarely within the ambit of "a suit" as stipulated under section 106(1) of the Local Government (Urban Authorities) Act, [Cap. 288 R.E. 2002]. According to that provision, a suit against an urban authority will only commence at least one month after service by the intending plaintiff or his agent upon the authority of a written notice. Mr. Sanze, the learned for the Applicant, the "intended plaintiff", has conceded to the fact of the failure by the Respondent to comply with the mandatory requirement of one-month's written notice to the Respondent. Non-compliance with section 106(1) of the Local Government (Urban Authorities) Act, Cap.288 R.E. 2002, which requires a one month's written notice to an urban local authority before Page 11 of 13 instituting a suit against it, renders the present application, which for all intent and purposes as I have held, is a suit, un-maintainable. The application the Applicant filed in this Court on the 15th August, 2012 is therefore incompetent for want of one month's written notice. I accordingly uphold the first ground of preliminary objection. This Court having so held, it will therefore serve no useful purpose to determine the remaining grounds of preliminary objection. Accordingly, Miscellaneous Application No. 24 of 2012 is hereby struck out with costs. It is so ordered. R.V. M A K A RAM BA JU D G E 03/10/2012 Page 12 of 13 Ruling delivered this 03 rd day of October, 2012 in the presence of Mr. Sanze, Advocate for the Applicant and in the presence of M/S Jackie Moshi, Advocate for the Respondent. R.V. MAKARAMBA JUDGE 03/10/2012. Words count: 2,730 Page 13 of 13