20000316 TZHC Mwanza

IN THE HIGH COURT OF TANZAI\J'IA (He) CIVIL CASE No.41 OF 1999 MRS. CHRISTINE ·••0•000000000000000000000•00 PLAINTIFF VERSUS THE GE~RAL MANAG~R._ (TRC) o o • • o • • • • • • o o • • • o. DETh"'NDANT RULING MROSO, J • Mr. Galati, learned advocate for the defendant, raj_sed a preliminary point of objection to the effect that the suit by the plaintiff is incompetent and should be struck out., This,is a suit in which Mrs. Christine sued the General Manager of the Tanzania Railways Corporation for the cost value and profit on lost goods which were contracted for transportation by the defendant from Ilala, Dar es Salaam to Kampala, Uganda. hlhen the plaintiff raised a claim with the defendant some payment was madeo The defendant considered such _payment to be all the compensation t that was due to the plaintiff. Although the plaintiff apparently accepted that payment it did not agree that that was all she was entitled to and eventually filed the suit with a view to recovering what she believed was the balance of payment due to her for the loss of her goods. ,·, The defendant filed a defence disputing liability but also raised the preliminary point mentioned earlier in this ruling. Mr. Galati has argued that the defendant is a specified public corporation under the provisions of Act No.16 of 1993 - The Public Corporations (amendment) Act, 1993, henceforth to be referred to only as the Act.. One of the consequences of a public corporation being declared a Specified Corporation }s,.. ·,under section 39( 1) of the Act, that the Presidential Parastatal Section Reform Commission, usually referred to in short simpiy as the Commission, shall 0 from the effective date be responsible ·for restructurmgt•'it. Furthermore, under section 43(1) of the same Act, 11 with effect from the date of publication of an Order declaring a public corporation to be a Specified Corporation the Commission shall-- 2 (a) without further assurance on appointment have the p0t•1er to act as the official receiver of the ,specified public corporation, and (b) have the power and a11 the rights of a receiver appointed in accordance with or pursuant to the Bunl--.rupt (sic) Ordinance; 1., New, the Minister for Finance by an order published in the Gazette in Government Notice Number 543 of 22 August, 1997 the Tanzania Railways Corporation (TRC) was declared to be a rrspecified Public Corporation° · r1fro11i the date of commencement of this Order;i, Order 1 of the Gmrernment Notice was supposed to show the date of cmmmencement but the date is blank,. It reads- :11. This Order may be cited as the Public Corporations (Declaration of Specified Public Corporations and Specified Government s ~,r..'1)/,(_· Minority Shares.) Order, ·j99'? and_.,.~ome into effect on••~•• day of •~oo~• 1997. 2., The PubJ.ic Corporation'3,Specified in the First Schedule to this Order are hereby ;i ii. ", -.~ declared to be hsper.ified Public Corporations 11 i ..'~· and the prhvisiol'is :,f the Public Corporations • ~~ '.i . (~~~. 'F' Act, 1992 shall apply to them with effect ,!'~ from the date of com111encement of this Order·••. As already mentioned, the date of commencement w~s not filled in and · although the de_fendant was listed, it is not clear if the order has uome to effect. 1 Mr. Galati suggested that the Order came to effect on 22/8/CJ?, the dat12 r~ the ·Government Notice wa~ published in the Gazette. But; with respect, that is not necessarily true~ If the Legislature meant that the date of publication in the Gazette was to be the date when i the Order was to come into effect it would ~ot have made provisicn for I 1' what should have been a specific date of cornmencemente For unexplained ! I reasons the date and month. was omitted in paragraph ( 1) of the Order•• I I 3 It will also be noted that section 38(1) of the Public Corporations (Amendment) Act, 1993 which provides for the competency of the Minister by Order to decl:rre a public corporation to be a specified corporation proceeds to provide in sub-section (2) thereof as follows-- 17(2) Any Order mfl_de under subsectio(l (1) shall specify the· effective dRte on which this Act sha.11 apply to the Specifj cd Corporation• 1 • Which, I think, fortifies my view that a specific date of commencement of the Order must be stated and not that the date of publication in the Gazette.. suffices. i \-lhat I have just said above would, on a casual reading, appear to fly in. the face of the provisions of sect ion l~3( 1) of the Act which I ,1 I I cited .earlier in this ruling. But, in my view, there is no conflict. I Section 43(1) comes into play where the provisions of the Act have I ., l ·~ already been made to apply to a specified public co1i1oration with I effect from a specific date, as provided in section 38(2) of the f,ct. So, in my considered opinion, the Commission cannot exercise its- powers unless under section 43( 1) of the Act l Han ef:fecti ve date on which . this Act shall pply 17 to a ,~pe~ified public corpore.tion has been 'I- spP,cified by the Minister. I am, therefore, unable, on the basis of r j, the material before me, to agree with Mro Galati that the Commission : •. , has had the power to act as a receiver of the Tanzania Railways Corporation. Which would follow that I have not- been. p_ersuaded that section 9(1) of the Bankruptcy Ordinance, Cap.25 of the Laws automatically· applied to the defendant in this case.. It further follows that the plaintiff might not have needed the leave of the court in order to commence legal action ag~inst the defendant. , The matter before me on the basis of the reasoning above, is therefore distinguishable from the case of SAID ~iNIMBO & OTW.:RS Vs. STATE TRAVEL SERVICES LTDo AND OTHERS, in Civil Case No. 296 of 1997 of the High Court of Tanzania (Dar es Salaam District Registry) (unreported)~ 4 In that case Kalegeya, Judge found that the State Travei Services Ltd. was a specified public corporation to which section ~-3( 1) of the Act and section 9 of the Bankruptcy Ordinance Cap 25 of the Laws applied. Nor is there a basis for assuming that tli~ defendant was insolvent. i I· Mr. Rugaimukamu agreed with Mr. Galati that the defendant had 1 been placed under the Commission but for the reasons given, unless by a Government Notice subsequent to Noo542 of 22/8/97 a .date was specified on which the Act was to a:::,ply to the Defendant Corporntion, I hold that Mr. RugaimuJ.,camu agreed in error with ·Mr.Galati. I would therefore dismiss the preliminary objection with costs. In vi0w of that- i· I decision, there is now no need for me to consider the merits.or .J, \· otherwise of Mr. Rugaimukamu's prayer to withdraw the suit under the 'i I provisions of or'.der 23 Rule 1 (2) (a) of the Civil Procedure Code., 1966. ·!. i At 'Mwanza, --- JUDGE