lwempesi general co ltd vs richard kweyumba 2022 tzhccomd 370 29 november 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT MWANZA COMMERCIAL CASE NO. 6 OF 2022 BETWEEN LWEMPISI GENERAL COMPANY LIMITED.......... lst PLAINTIFF CHARLES KAHATANO LWEMPISI...................... ....2nd PLAINTIFF Versus RICHARD KWEYAMBA JOSEPH RUGARABAMU ....... DEFENDANT Date of last Order: 25lh November 2022 Date of Ruling: 29th November 2022 RULING MKEHA, J: After being served with a plaint, the defendant, through Mr. Nasimire learned advocate raised a number of p.reliminary points of objection. One of such objections was to the effect that whereas the lst plaintiff is a limited liability company, institution of the present suit is not backed up by a board resolution. 1 I Page I According to the learned advocate for the defendant the requirement for having Board Resolution before instituting a civil suit on part of companies was emphasized in the case of BUGERERE COFFEE GROWERS LTD Vs SEBADUKA AND ANOTHER (1970) EA 147 where it was held that, when companies authorize the commencement of legal proceedings a resolution or resolutions have to be passed either at a company or Board of Directors' meeting. The learned advocate for the defendant insisted that, this legal principle had been adopted to be a correct and binding principle by the Court of Appeal of Tanzania in PITA KEMPAMP Vs MOHAMED I.A ABDULHUSSEIN, CIVIL APPLICATION NO 128 OF 2004 c/s No. 69 of 2015, CAT AT DSM. Mr. Innocent Michael learned advocate for the plaintiff submitted in reply that, the requirement to plead presence of Board Resolution is not a statutory requirement. The learned advocate submitted that, after all, there were conflicting decisions over the issue hence the objection ought to be overruled. The learned advocate did not dispute the fact that, indeed, there was no Board Resolution before institution of this case in court. 2 | Page In PITA KEMPAMP LTD Vs MOHAMED I.A ABDULHUSSEIN CIVIL APPLICATION NO 128 OF 2004 C/S No. 69 of 2005, CAT AT DSM, the Court of Appeal of Tanzania cited with approval the decision in BUGERERE COFFEE GROWERS LTD Vs SEBADUKA AND ANOTHER (1970) EA 147. The Court of Appeal was dealing with an appeal from Kinondoni District Court whose trial no doubt was governed by the Civil Procedure Code. Almost ten (10) years later, in URSINO PALMS ESTATE LIMITED VS KYELA VALLEY FOODS LTD & TWO OTHERS, CIVIL APPLICATION NO. 28 OF 2014, the Court of Appeal of Tanzania expressed a view that, the decision in BUGERERE'S CASE had been cited with approval by the Court of Appeal of Tanzania in PITA KEMPAMP (supra). I am mindful that, the position in Burere's case was overruled by the Court of Appeal of Uganda in UNITED ASSURANCE CO. LTD VS ATTORNEY GENERAL, CIVIL APPEAL NO. 1 OF 1986. However, in my considered opinion, since when the Court of Appeal of Tanzania cited with approval the position in Bugerere's case the same became the position of the Court of Appeal of Tanzania, hence binding upon aJI courts below the Court of Appeal. This is because, all courts and tribunals below the Court of Appeal are bound by the decisions of the Court of Appeal 3 | Page regardless of their correctness. See: JUMUIYA YA WAFANYAKAZI TANZANIA Vs KIWANDA CHA UCHAPISHAJI CHA TAIFA (1988) T.L.R 146. According to the Court of Appeal's position in PITA KEMPAMP (supra), when companies authorize the commencement of legal proceedings, a resolution or resolutions have to be passed either at a company or Board of Directors' meeting and recorded in the minutes. The learned advocate for the plaintiff did concede that, there was no Board Resolution on part of the lst plaintiff passed to authorize commencement of this suit. For the foregoing reasoning, I hold the objection to be meritorious. struck out with costs for being incompetent. )th day of NOVEMB^R 2022. c. p.^kehI^ JUDGE 29/11/2022 Court: Ruling is delivered in the presence of parties' advocates. C. P. JUDGE 29/11/2022