namtumbo district council vs mkongo building and civil works contractors ltd 2023 tzhccomd 219 30 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF THE TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM MISC. COMMERCIAL APPL. NO. 229 OF 2022 (Arising from Misc. Commercial Cause No.409 of 2017) NAMTUMBO DISTRICT COUNCIL........................ APPLICANT VERSUS MKONGO BUILDING AND CIVIL WORKS CONTRACTORS LIMITED.................... RESPONDENT Last Order: 24/05/2023. Date of Ruling: 30/06/2023 NANGELA This is an application extension of time. The application is pr,ejnised||iunder -section 14(1) of the Law of To shed some light on this application, the same arose from Commercial Cause No.409 of 2017 wherein the Respondent sought to register an Arbitral Award following successful completion of arbitration proceedings. The said award was successfully registered as a Decree of the Court, a fact which aggrieved the Applicant, and, hence, this application. Page 1 of 12 In her chamber summons filed in this Court, and which she has supported by an affidavit of Mr. George Nathaniel Mandepo, Principal State Attorney, the Applicant is seeking for the following orders: 1. That, the Honourable Court be please to extend time within which the ’IHh), to the Court of Appeal of Tanzania against the decision oPIfjhis Court in Misc. Commercialism H||| eave to appeal to the Court of Appeal of ^Tanzania against the decision of illlimF this Court in Misc. Commercial Case No.409 of 2017 dated 12th March 2018. 3. That, this Honourable Court be pleased to grant any relief for the interest of justice. Page 2 of 12 4. Costs of this application to follow the event. In Court, the Applicant got represented by Ms. Rehema Ntulia,and Jeniffer Masanga, learned State Attorneys, while Mr. Litete Hajji, learned advocate appeared for the Respondent. Apart from contesting the application by way of filing a counter affidavit, the Respondent raised two preliminary objections, to wit, that 1. The application is incompetent thus, 2.,The"'a is untenable as no the preliminary issues by way of written submissions and they have duly complied by filing their respective written submissions. In his brief submission in support of the preliminary objections, Mr. Litete has contended that, the incompetence of this application should be gauged from the fact that, the Page 3 of 12 Applicant is a Local Government and liability proceedings either by or against her should comply with the provisions of sections 3(1) and 10 of the Government Proceedings Act, Cap.5 R.E 2019, and, therefore, the proceedings ought to be filed by or against the Attorney General. Mr. Litete argued, that, failure to bring these proceedings under the auspices of the Attorney General, Hlh I' ipl ht ’Ih k makes the Applicant to lack the requisitell|/qci/^|!jFrandZ. "I|i| Ih!'1' I'1" Relying on section 26 of the Writtefy Laws (Miscellaneous Amendments) Act No.l of4.020, Mr. Litete contended that, that provision amended the section, 16 of the Government Proceedings ActdEt(^ intejj^ret^the word "Government" to dlHIljh ^l||h mean and|inclu’ble "Luteal Government Authority". He mair tiai'iH^d^ tnej^fore, that, since the Attorney-General has not ited the implication or be made a party to the application which stands as proceedings by Government, that fact does vitiate the whole matter and the same should be dismissed. As for the second ground of objection, Mr. Litete was of the view that, the Applicant has not stated with clarity whether the intended appeal is against the Order or final Decree of this honourable Court. He contended that, there Page 4 of 12 has been various earlier orders made by the Court before arriving at its final decree, including the order for enforcement of the Award under section 73 (1) of the Arbitration Act, Cap. 15 R.E 2020 and Reg. 51(7) of the Arbitration (Rules of Procedure) Regulation, GN. 146 of 2021, which is still pending for execution. Relying on section 5(1) (a) and (b) ofihe Milk Appellate -Hit Jurisdiction Act, Cap. 141 R.E 2019, Mr. LiteteHsubmitt^d that, under that provision it is made, cleaHfchat an appeal in civil all Hllllhihh ''hi. proceedings can either be against th(e: finardfecree or specified orders thereunder and1 nowhere has,the law vaguely provide for an appeal against thje, "decision". As such, he submitted that, this Court lacks jurisdiction to grant the prayers sought by th^lApplicant and the application should be found incompetent and be dismissed with costs. For his part, Ms. Rehema Mtulya urged this Court to overrule the two objections. Ms. Mtulya contended that, a party who did not take party in the proceedings cannot challenge the Decree since he is a stranger to those proceedings. Page 5 of 12 She contended that section 10 of the Government Proceedings Act, Cap.5 R.E 2019, does not in any way suggest that where the Attorney-General was not a party in the original proceedings, he cannot be joined in the subsequent proceedings without obtaining the leave of the Court. She stated, however, that, as a mattenhpf fact, the .. matter at hand originates from Misc. ’’Commerciail11 Cause .. / uiL ‘... ’ No.409 of 2017 in which the Attorney !l"" not a party iBeneralwas .... ii;<<y and, as such, the Attorneyfenerakcannot suo motto join .a y the wagons at the ap'peal or . exertion stage without there ’I» hi, p1 *(l "I ’ hh being the leave drae Court. J '•Ihh Hlh ulh I h* ' To((pplsteij the 'submission she made, reliance was placed W||j[ie decision of the Court of Appeal in CRDB Bank PLC ^forme|ly CRDB (1996) Ltd vs. George Matthew Kilindu, Civil Appeal No. 110 of 2017 (unreported). In that case, the Court of Appeal as of the view that: 'citing of... new names of appellants without leave or an order of the Court is a fatal irregularity which has affected the competence of the entire Page 6 of 12 appeal and cannot be rectified by a Slip Rule.... We wish to emphasize that, the issue of names of the parties to the case is central for their identification. The right of appeal is for parties who have been involved in the original suit and not any other persons." (H|h u 'll r Ms. Mtulya did also rely on the decisfeiwf thel'Go’urt of 4 Appeal in Attorney General vs. Maalim Kadau & 16 Others [1997] TLR 69 wherje similar remarks were made by l Ul *llh hp* the Court of Appeal. Sh’e a rgueaqtihat,'currently the Attorney . iiiL qh|r General may stilldjwithi’the leavb of the Court intervene in a rnh white ^necessary. She cited the case of suit at anw's^qe <f h|h1(SiiUihhhHJ* Attorney.General vs. Mkongo Building & Civil Works if ' ^|j Contractors! Ltd and Another, Civil Appl.No.166/16 of 2020. She; therefore, urged this Court to overrule the first objection. As regards the second objection, Ms Mtulya was of the view that, the same should be overruled for being an objection not based on a point of law, thus against the principle stated in the case of Mukisa Biscuits Page 7 of 12 Manufacturing Company Ltd vs. West End Distributors Ltd [1969] EA 696. She submitted that, the issue regarding which in fact is the decision for which an extension of time is being sought is a matter calling for evidence and cannot be a basis for raising a preliminary objection. In a brief rejoinder Mr. Litete rejoined the entire reply submission filed by the learned State Attorney <his a misconception of the law. He contendedkth'^ththe chamber Ji ”llhh!> M||i! * summons does show that the application has been taken at „ 'ili” the instance of the Officeabfthe^Splicitor General and the "I h ' Uh ’iiih h1’ supporting affidavit is that of Mr.wandepo, a Principal State h ’’ Attorney who prdtectinglfpublic [interest. He^onteipded majb the Applicant, Namtumbo District ,'llllllllllil.... Illi'1 11 Cou |c:il!'i^|{jowher|e to be seen either by way of signing any of the dbcumerlk He argued that this is an application of the Office of Solicitor General in disguise and, that, the Applicant has nowhere been advised to kickstart the judicial process if one was to rely on the case Attorney General vs. Mkongo Building and Civil Contractors (supra). He, thus, stressed that this application be dismissed with costs. Page 8 of 12 I have gone through their rival submissions. The issue to tackle is whether there is any merit in those objections. In my view, while I am in agreement with Mr. Litete that the Attorney General should have been made a party to the matter for the sake of legal compliance, I am as well in agreement with Ms. Mtulya that, the doors for that to happen are not closed andthe Applicant has that roonkto apply to ....... "X / the Court or the Attorney General has Wfelippportwity to ■"ih. X"' apply to the Court to takeover the matterfrom the Applicant. The argument thatttlpe chamber summons and the supporting affidavit were taken afclthp instance of the Solicitor < 1 I' ' General makes ‘‘no, effect since all those who serve as ’l||h attorneysjn the varioushDistrict Councils in this country are still d£’si'tatedtes State Attorneys. To me what matters is (■ ii * On*’I । 4-h1’' who is^shownjto be the Applicant since, as the Court of Appeal stated in the case of CRDB Bank PLC (supra), names of the parties are central for their identification. Since this application indicates that the Applicant is Namtumbo District Council and, given that the Attorney General (AG) was not a party to the Misc. Commercial Cause No.409 of 2017, it follows that the AG cannot just jump into Page 9 of 12 the wagon at will. There must be an application oral or otherwise for leave to be joined as a party or may apply to formally takeover the proceedings since the AG must be a party to the proceedings. The possibility for the AG to do so is provided for under section 6A (1) of, Cap. 5 R.E 2019. That particular provision reads as follows: k 'llllh.. ^I|||. Jr "6A.-(1) The Attorney General shall, '||r through the Solicitor General, have the! right to intervene in "any suit" or "matter" instituted by or against the ministries, local government authorities, independent departments and "other (i| । government institutions". qhiii i(llAs|^uch,fl^uch'as the presence of the AG is a desirable thine ||[the first objection cannot succeed as the room for the AG to join the wagon is still open as he could not have been joined at the time of filing the matter because the AG was not a party to the previous matter from which this one arises. As regards the second objection, I do find that, the same cannot succeed. The question regarding which order or decree or decision is to be challenged is one of fact and not Page 10 of 12 of law. I do agree that the decision in the case of Mukisa Buiscuits case (supra) will apply to deny any further consideration of that preliminary objection. I am also alive to the wisdom of the Court of Appeal as expressed in the case of Karata Ernest & Others r Attorney General, Civil Revision No. 10 of 2010 "Where a point taken in "objection is premised on issues of imixed'facts and law, thati'hpoint "does npf deserve consideration 'afeball as a preliminary normal manner when deliberating on 1'the merits or otherwise of the concerned legal proceedings For the reasons herein above, this Court settles for the following orders: 1. That, the two preliminary objections are devoid of merit, and I hereby dismiss them with costs. Page 11 of 12 2. The parties are to proceed with the hearing of the application since the Attorney General may apply to be joined as a party or to take over the matter from the Applicant. Page 12 of 12