20110414 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 74 OF 2008 (Original Rm Civil No 362 of 1995 at Kisutu RMS court) MINISTRY OF FOREIGN AFFAIRS OF ROMANIA ........................... ~ ......... APPELLANT VERSUS ALNOOR TAJDIN HABIB NANJI ............ 1 sT RESPONDENT SHERNAZ TAJDIN HABIB NANJI ......... 2N° RESPONDENT Date of last Order: 11/3/2011 . Date of Judgment : 14/4/2011 JUDGMENT Shangwa, J. This appeal arises from the Ruling of the Court of the Resident Magistrate at Kisutu in RM Civil Case No. 362 of 2 1995 delivered on 21/2/2008. In his ruling, the Trial Magistrate, Mwangesi, PRM held that the Application before him was not sustainable as it had been made against persons who were not a party to the suit/Rent Application No. 57 of 1995 which was filed by the Applicant / Appellant in the Regional Housing Tribunal, Dar es Salaam. In fact, he dismissed it. It appears from the record of the trial court that the application which was dismissed by Mwangesi, PRM was an application for an order to call the Respondents to come before court and show cause why they should not be arrested and committed to civil prison for disobeying the court orders. Furthermore, it appears from the record of the trial court that Mwangesi, PRM dismissed the application on grounds that the parties to the suit/ Rent Application No. 57 of 1995 in the Regional Housing Tribunal, Dar es 3 Salaam who were found liable to pay the decretal sum of Tshs. 180,604,326 being rent in arrears are plan Group Consulting Engineers Ltd and Grobal General Merchandise (T) Ltd and not the Respondents. It appears also that in dismissing the application, Mwangesi, PRM followed the Ruling of Ihema, J (Rtd) 1n Civil Revision NO. 51 of 1999 delivered on 10 /7/2001 1n which he expressed the following view and I quote: " From the above proposition, it would follow in my considered view that the learned Principal Resident Magistrate, Honourable Rwakibalira grossly misdirected himself when he ordered that Alnoor Tajdin Habib Nanji and Shemaz Tajdin Habib Nanji the subscribers of plan Group Consulting Engineering Ltd and Grobal General Merchandize Ltd be accountable for obligations and debts of their companies. Equally, there was misdirection 4 by the learned Principal resident Magistrate when he ordered the attachment of stock in trade in City Footwear the property of Rosham Khanu Tajdin Habib Nanji." The Appellant in this case namely the Ministry of Foreign Affairs of Romania raised two grounds of appeal against the Ruling of the trial court. First, that the trial Magistrate erred in law and in fact when he failed to address his mind to the issue of the failure of the Respondents to obey a lawful order of the court delivered on 16/7/1999 for the attachment of a house on Plot No. 3 Block B LO NO. 107709 Kariakoo, Dar es Salaam which was transferred by the Respondents to Yusufu Juma Sadiki of P.O. Box. 80300 Dar es Salaam. Second, that the trial Magistrate erred in law and in fact by addressing his mind to matters which were not in the chamber applicatio? dated 27/2/2007. 5 Starting from the first ground of appeal, I am of the view that Mwangesi, PRM could not have addressed his mind to the issue of failure of the Respondents to obey the order of the court for the attachment of the house on Plot No. 3 Block B LO NO. 107709 Kariakoo, Dar es Salaam. Mwangesi, PRM could not have done so because in the chamber application dated 27/2/2007 the court was not called upon to look into the question of attachment of the aforesaid house. The court was simply called upon to order the judgment debtors to appear before court and show . cause why they should not be arrested and committed to prison for disobeying the court orders. Thus, the first ground of appeal is not important. l now proceed to consider the second ground of appeal. On this ground, Mwangesi, PRM is blamed for addressing his mind to matters which were not in the chamber application dated 27/2/2007. As already said, in the 6 chamber application the court was called upon to order the judgment debtors to come to court and show cause why they should not be arrested and committed to prison for disobeying the court orders. The question to be determined here is whether or not Mwangesi, PRM did address his mind to what the court was called upon to do in the chamber application. In order to answer this question one has to resort to what Mwangesi PRM held in his Ruling. As already indicated,. Mwangesi, PRM held that the application to order the judgment debtors (Respondents) to appear in court and show cause as to why they should not be arrested and committed to prison for disobeying the court orders is not sustainable as it had been made against persons who were not a party to the suit/Rent Application. The persons whom he said were not the parties to the suit/Rent Application are ALNOOR TAJDIN HABIB NANJI and SHERNAZ TAJDIN HABIB '\ 7 NANJI. Indeed the trial court's record shows that the parties to Rent Application No. 57 of 1995 in the Regional Housing Tribunal of Dar es Salaam were PLAN GROUP CONSULTING ENGINEERS LTD and GROBAL GENERAL MERCHANDISE (T) LTD. The decree of the Tribunal which was signed by J. E. Mtolela V /Chairman (Rtd) does indicate so. Mr. Mwangesi, PRM was referred by counsel for the Appellant ALHAJI SAID H. EL- MAAMRY ESQ to the Ruling of Rwakibarila PRM in RM Misc. Application NO. 362 of 1995 who had earlier ruled that AL"-- NOOR TAJDIN HABIB NANJI and SHERNAZ TAJDIN HABIB NANJI ·who are the Directors of the aforementioned two companies and who had been defending the matter are the ones who have to pay the decretal sum. However, Mr. Mwangesi, PRM was convinced by the argument made by counsel for the NANJIS that as they were not joined in the Regional 8 Housing Tribunal, Dar es Salaam in Rent Application No. 57 of 1995, there was no basis at all for the imprisonment of the two individuals against whom there has never been a case. This shows that in actual fact Mwangesi, PRM did address his mind to what the court was called upon to do in the chamber application. However, after doing so, he decided to dismiss it on grounds that it was filed against persons who were not the parties to Rent Application No. 57 of 1995 which was filed in the Regional Housing Tribunal, Dar es Salaam. This disposes of the second ground of appeal which fails. In my considered opinion, I wish to point out that Mwangesi, PRM was wrong in dismissing the chamber application on grounds that there was no basis for the imprisonment of the NANJIS as they were not a party to Rent Application No. 57 of 1995 filed in the Regional Housing Tribunal Dar es Salaam. I agree with the 9 contention which has all along been advanced by AL HAJI SAID H. EL MAAMRY ESQ that as the NANJIS are the Directors of the Respondents companies and as they were occupying the Appellant's premises of whose decretal sum of rent in arrears has not been paid todate i.e 37,000 USD and as they appeared before the Tribunal and engaged an Advocate to defend the case, they are liable to pay the decretal sum. In his written submissions at page 2, Mr. Marando for the Respondents blamed AL HAJI . SAID H.EL MAAMRY for failing to make a distinction between natural persons and limited liability companies. For me, I think that Al Haji Said EL Maamry is right for not making such a distinction and for holding the view that where a limited liability company has successfully been sued, its Directors are accountable for its debts. 10 I therefore quash the decision of Mwangesi, PRM given in Kisutu RM Civil Case No. 362 of 1995 and order that the case file should be remitted to the court of the RM at Kisutu for calling upon the NANJIS to appear and show cause as to why they should not be arrested and committed to prison for disobeying the court orders, notably the order issued by the same court on 16 / 7 / 1999. Therefore, I allow this appeal albeit on a different ground from the grounds which were raised by counsel for the Appellant. Each party to bear its own costs. ~ A.Shangwa JUDGE 14/4/2011 .1 11 Delivered in open court this 14 th day of April, 2011 in the presence of Mr. Kalolo for Al Haji Said H. El Maamry for the Appellant and for Mr. Marando for the Respondents. ~ A.Shangwa JUDGE 14/4/2011