20041027 TZCA Arusha

i r: I 11 jl I THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: RAMADHANI, J. A.; NSEKELA, J. A.; And KAJI, J. A.) CIVIL APPEAL NO. 40 OF 2001: BETWEEN MATHIAS EUSEBI SOKA i ••• ·APPELLANT •I (As personal representative of ' .. . . f the late EUSEBI M. SOKA) i AND i . 1. THE REGISTERED TRUSTEES 9F } MAMA CLEMENTINA . FOUNDATION I, } 2. JOHN AMOS UDUMBE !. } 1'! :i } ,RESPON:D,ENTS .. . l . ' ' 3. THE NATION-AL INSURANCE CORP. } OF TANZANIA ,, } . ! (Appeal from the Judgment of the High Courtof Tanzania at • I Mosh1) ' {Munuo,J.) dated the. 13th day of April, 2000 .' ,1n ' • '1 ,1 Civil Case No: 2 of 1997 ••••••• '! 1, RULING ·RAMADHANL J~A.~ . . . . . ·. . . i. . ; Mr. Apollo Maruma, learned advoca:te for the third I respondent, The • 1 i. I i National Insurance Corporation__ (he~einafter referred to as NIC), filed l ' .'. I ,I! II • a notice of preliminary objection se~king the appeal against the NIC to be struck out with costs. His ground was that NIC is a specified I \ public corporation by virtue of GN 330/98 of 1ih June, 1998, made· ' ' 2 under The Public Corporations (Spedfled Corporations Declaration) i Order, 1998. Mr. Maruma submitted that under section 43(1) of the I Public Corporations Act, 1992, as amended by Act No. 16 of 1993, . I (the Act), once a corporation has been declared a specified I j corporation, then the Presidential Parastatal Sector Reform .' I • l . Commission (PSRC) becomes the official receiver and that the j provisions of the Bankruptcy Ordinance· (the Ordinance) apply. I I Section 9(1) of the Ordinance provides: . I On the making of a receiving order the official receiver shall be thereby constituted receiver of the property of the debtor, and thereafter, except as directed· by this Ordinance, no creditor to whom the debtor is indebted in respect of any debt provable in bankruptcy shall have any remedy against the property or person of the debtor in respect of the debt, or shall I commence any action or other legal proceedings, unless with the leave of the court 1 and on such terms as the court may impose. ( emphasis provided). l Mr. Maruma pointed out further thaf "the court" referred to in this subsection is, by the operation of se~tions 2 and 97, the High Court. I The learned advocate submitted fur~her that NIC was joined as a party to the suit on 28 th October, 1998, when NIC had already been .'. I 3 ' .... declared a specified corpora.tion on 1th June, 1998 and as such leave , I of the High Court was required under section 9 of the Ordinance. Mr. Jonathan, learned counsel, appeared for the appellant, Mathias Eusebi Soka, had three responses: First, he said that this is not a proper matter for preliminary objection under Rule 100 because it does not pertain to the "appeal or any part of it". Secondly, Mr. ' I Jonathan submitted that section 9 of the Ordinance is inapplicable because the first respondent, The Registered Trustees of Mama Clementina Foundation, is not a creditor of NIC. Lastly, the learned ' ' advocate argued that leave was obtained when the High Court granted third party notice that Mr. Maruma did not object. Mrs. E. Minde, learned c:0_unsel for the first and the second respondent, John Amos Udumbe, pointed out that the accident th happened on 13 November, 1995, long before NIC was declared a ' ' specified public corporation on 12th June, 1998. She went further to say that there had been some negotiations regarding the accident between the first respondent and NIC. Mrs. Minde then pointed out • I 4 that NIC was already made a defendant in the original plaint which I was filed before the declaration of a specified public corporation. She asked the preliminary objection to be di:smissed with costs. i ' We agree with Mr. Maruma that this is a proper matter for preliminary objection under Rule 100. Admittedly, that Rule starts with the clause "Wbere .a respondent)ntends to take a preliminary ' objection to any appeal or any part: of it ... " Thus a preliminary objection has to have a nexus to the appeal or part of it. Here, as Mr. Maruma rightly pointed out, NIC is to pay the decretal amount. That ! provides the nexus. And for that matte_r section 9 of the Ordinance is brought into play and so, leave tojoin, NIC in the litigation has to be sought under that section and not under the Civil Procedure Act as Mr. Jonathan submitted.- But was--leave--to be sued required? ' I We have no doubts at all that the unambiguous words of section 43 ' ' of the Act are that once a corporation has been declared a specified corporation the PSRC becomes its official receiver and the provisions of the Ordinance are engaged. That is the position as borne out by _, I . ' I" 5 the authorities referred to us by Mr. Maruma: Said Mnimbo & Others v. State Travel Services Ltd., Civil Case No. 296/1997 (DSM Registry) and Ali Haji Damdusti v. BP (T) Ltd. & BP Import and Export Co. Ltd., . Civil Case No. 53/1999 (DSM Registry), and others by this Court. • I The argument that the objection ought to have been raised in the I High Court does not find purchase with us since, as Mr. Maruma rightly pointed out, it is' a question of jurisdiction and lt can be raised at any stage of proceedings. This is so, even if Mr. Maruma consented to be joined at the trial. The consent of a party does not confer jurisdiction if there is none under the law. -'. I • We agree with Mrs. Minde that the litigation has an intricate history: 'There are two ··amended· ·plaints. The first plaint and the first ' ' amended plaint included NIC as a defendant but it was omitted in the second amended plaint, for some unknown reasons, but only to include it again through third party proceedings. Again there were negotiations as conceded by, Mr. Maruma. However, we do not think that it is necessary to go into all that. The crux of the matter which . ,'' t,, 6 concerns us is that on 1th June, 1998, NIC was declared a specified corporation, and that on 28th October it was joined as a party without there being leave under section 9 of the Ordinance. We uphold the preliminary objection and strike out the notice of appeal. However, that is not enough because the decision of the High Court will still remain intact though illegaL Therefore, we invoke the ·'.. , . provisions of section 4(2) of the Appellate Jurisdiction Act, 1979, and exercise our revisional jurisdiction to cure the illegality at the High Court. That subsection provides: For all purposes of and incidental to the hearing and determination of any appeal in the exercise of the jurisdiction conferred upon it by this Act, the Court of Appeal shall, in addition to any other power, authority and jurisdiction conferred by this Act, have the power of revision and the p_~wer, authority and jurisdiction vested in the Court from which the appeaLis.,brou.ght. We quash those proceedings because of the illegality explained above and set aside all the orders made in those proceedings There is the question of costs which has exercised our minds a great deal. We are of the decided opinion that the High Court did not get .' I -.,4 ..... • t 7 I, the assistance it deserved from all } he parties. Mr! Maruma is recorded to have consented to all tha~ was happeninJ in the High l I Court and it is only in this -·court that he has become .iaware of the 1 i I I requirement of leave under the Ordinarlce. j We think that it is just fair I I , : to all concerned that we order no costs both in this Court and below . .I , I , I It is so ordered. \ DATED at ARUSHA this 2ih day ofOctober;-2004; t I l j ! , II A. S.' L. RAMAIDHANI JUSTICE OF APPEAL f I i H. R. NSEK,ELA I · JUSTICE OF Jl:PPEAL ,I ,, i l .S. N. KAJI I JUSTICE OF-APPEAL ( l I I . I I certify that this is a trµe copy , ' tI I ,I , S. M DEPUTY REGISTRAR _' I j