20190325 TZHC Mwanza

. IN THE HIGH COURT OF TANZANIA i I i ATMWANZA CIVIL APPEAL NO. 45 OF 2017 I ti i (Arising from District Court of' Magu at Magu in Civil Case No. 20 of' 2013) I I \ i NATIONAL INSURANCE CORPORATION OF TAN ZAN IA ... ■ • ■ •• ■ • ■ • • • • ■ • • • • ■ • • • • • • • • ■ ••••••••••• I ••••• ■ • • • • • • • • • • ■ • • APPELLANT VERSUS THOMAS CHARLES ................................................. RESPONDENT JUDGMENT 21/01/2019 & 25/03/2019 Gwae, J: A traffic proceeding was in stituted in the District Court of Magu at Magu against the 1st defendant, Juma Abdallah Salum vide Traffic Case No. 29 of 2011. The said Juma Abdallah was convicted in six counts on the basis of his own plea of guilty. On the 13th - pecember 2013, the a.ppellant and three others, namely; Juma Abdallah Salum, Wilson Chikwakala Mnubi and MIMUCO Company Ltd were jointly sued in the District Court of Magu at Magu ·_ (trial court)· by_ the respondent who -claimed among other things f o r ~ "'payment of all damages he alleged to have been occasioned against him "'-! (respondent) amounting to Tshs. 80,000,000/=. \J• Through its verdict dated 20th February 2017, the trial court (Hon. Kente-RM) awarded the respondent general damages in the tune of Tshs. 50,000,000/= special damages in the tune of Tshs. 1,500,000/= as medical expenses and costs of the case. All the reliefs granted in favour of the respondent were ordered to be paid by the 4 th defendant now appellant. Aggrieved by the decree and judgment of the trial court, the appellant has opined to challenge the said decision by way of appeal, thus, the present appeal. The appellant is fully armed with a number of ten grounds of appeal, to wit; 1. That, the Hon. Magistrate erred in law and fact in entertaining the suit in which the court has no jurisdiction . . 2. That, the Hon. Magistrate erred in law and fact in holding that the accident occurred on 30th June 2016 3. That, the Hon. Magistrate erred in law and fact in holding that the plaintiff was involved in the accident in motor vehicle, bus Scania with Reg. T. 553 AAM. 4. That, the Hon. Magistrate erred in law and fact when he found ~ that motor vehicle with Reg. T. 553 AAM belonged to the 3rd defendant 2 5. That, the Hon. Magistrate erred in law and fact in holding that the motor vehicle with Reg. T. 553 AAM was insured by the 4th defendant. 6. That, the Hon. Magistrate erred in law and fact in reaching the · decision in favor of the plaintiff without proof. 7. That, the Hon. Magistrate erred in law and fact in reaching the decision in favor of the plaintiff on the contradictory and inconsistent evidence 8. The Hon. Magistrate erred in law and fact for failure to evaluate evidence adduced by all parties. 9. That, the Hon. Magistrate erred in law and fact in awarding the plaintiff Tshs. 50,000,000/=as general damages since the plaintiff has not proved it. 10. That, the Hon. Magistrate erred in law and fact in -awarding the plaintiff T~hs. 1, 500,000/....: as special damages without proof of the claim. When this matter was called .on for hearing before me, the appellant's counsel, Mr. Marco Nshimba and the respondent who appeared in person+ with consensus agreed"' to argue this appeal by way of written submission. The leave was granted and the parties subsequently to the grant filed their written submission in conformity with the court's schedule. In determining the appellant's grounds of appeal, I shall· be ~ co·nsidering parties' submissions in each ground 3 Starting with the 1st ground of appeal on jurisdictional issue, the question of jurisdiction is fundamental in court proceedings and it can be u raised at any stage, even at the appeal stage or the court suo motu can raise (See a decision of the Court of Appeal of Tanzania in Richard Julius Rukambura vs. Issack N. Mwakajila and Another, Civil Appeal No. 3 of 2004). In our instant matter, the trial court record reveals that the appellant's counsel one Mr. Rupia canvassed the issue of jurisdiction of the trial court on that the respondent could not sue the appellant before the trial court since the appellant is a Specified Public Corporation whose ' • f • proceedings follow under bankrupt proceedings. The said preliminary objection raised by the appellant was eventually found lacking merit, it was consequently dismissed. Dissatisfied with the trial court decision in various legal aspects, the appellant advanced his grounds of appeal as herein above, jurisdictional issue inclusive.· In his submission, the appellant's counsel argued that since the appellant has been declared a Specified Corporation since 1992 under section ·3g (1) of the Public Corporation Act, Cap 257 R. E, 2002 vide GN. .. 4 ·_ No. 330A dated 12th June 1998. According to the stance of the appellant's counsel, the respondent was to sue the Treasury Registrar and that is in ~ · accordance with Government Notice No. 2013 of 2014 published on 27 th June 2014, item 5 of the Order read together with section 97 of the Bankruptcy Act (Cap 25 Revised Edition, 2002). i. Supporting his submission, the learned counsel for the respondent l "1 1l¾ cited a decision of this court (Luanda, J as he then was -now a retired JA) ·j 1 in National Milling Corporation and Presidential Sector Reform l Commission vs. John Paul Civil Appeal· No. 71 of 2002 ( unreported) where it was held that; "The Resident Magistrate's Court has no jurisdiction suit involving the specified corporation in which a ~ankruptcy Act is applicable, that is has no jurisdiction to entertain a bankruptcy cases" . . The .advocate for the respondent went on submitting that since no suit against a specified corporation can commence in the District Cou~ or that of Resident Magistrate's Court without mandatory leave being sought and obtained from the High Court pursuant to section 9 (1) of the . Bankruptcy Act (Cap 25. R.E, 2002), the trial therefore . wrongly entertained . . the matter: 5 ' l J To embrace his submission, the respondent's counsel cited two Court 'i J .of Appeal decisions, firstly, in the case of Mathias Eusebi Soka (as :,! u personal representative of the late Eusebi M. Soka vs. The . I Registered Trustee of Mama Clementina Foundation John Amos Udumbe and National Insurance Corporation of Tanzania, Civil Appeal No. 40 of 2001 (unreported) and secondly, in Chama cha Walimu Tanzania vs. The Attorney General, Civil Application No. 151 at DSM (yet to be reported). . . Replying to the appellant's submission, the respondent argued that it is astonished to see the appellant raising the issue of jurisdiction at this appeal stage. He argued that his suit against the 4th defendant now appellant was clothed under Gn. No. 203 published on 23 rd June 2014 · under item 7 which, according to his .understanding, connotes that the issues that arose before the GN of 2014 should be dealt with normal procedures as the dispute in question arose in the year 2013 which is between 1998 and 2014. Finally the respondent submitted that the 1st ground of appeal questioning the jurisdiction of the trial court is vexatious and tainted o n l y ~ to waste time as well as hindering _of dispensation of justice. · 6 ·In determining the 1st ground, I am bound to examine the record of the trial court to ascertain if the appellant has emerged with the issue of the jurisdiction on appeal notwithstanding that jurisdictional issue can be raised at any stage as correctly emphasized in Richard Julius Rukambura vs. Issack N. Mwakajila and Another (supra) and of Mathias Eusebi Soka (as personal representative of the late Eusebi M. Soka vs. The Registered Trustee of Mama Clementina Foundation John Amos Udumbe and National Insurance Corporation of Tanzania, Civil Appeal No. 40 of ·2001 (unreported- CAT- Arusha). In this present civil matter, the record reveals that the appellant filed a notice of_ prelimfnary objection on 28 th January 2014 with two points of law, jurisdiction inclusi_ve. The same was argued by the parties and the trial court eventually overruled both po_ints of law raised by the appellant. Hence, it is not correct to contend that the appellant has raised this legal issue at this juncture that is at appeal stage. Looking at the parties' submissions, I have observed that it was and it is non-contentious issue either to the trial court or to this court that the appellant is a Specified Public Corporation since 12th June 1998, it follows ~ 7 therefore, this court is duty bound to ascertain if, in law, the respondent , properly or improperly instituted a civil suit against the appellant in the o district court. As intimated in ·the appellant's submission. Since Presidential Parastatal Sector Reform Commission (PSRC), the organ of the Government of United Republic of Tanzania under the Public Corporations Act, 1992 as amended in 1993 and 1999 (Cap 257 R. E, 2002) which was vested power to act as an official receiver of Specified Public Corporations, the PSRC was then replaced by Consolidated Holding Corporations (CHC). The defunctus CHC was also replaced by Treasury Registrar who is _:=urrently r~sponsible for restructuring of tpe specified· public corporations=-~- --- _:__.:::: vide GN. No. 203 of 2014 published-on 27.06.2014. According to section 43 (1) of the Public Corporations Act (supra), it is patently clear that once _a Corporation is declared a specified Corporation an official receive~ for the time being_ becomes responsible and the provisions of the Bankruptcy Act apply. This position of the law was equally stressed by the Court of Appeal in the case of Mathias Eusebi Soka (as personal representative of the late Eusebi M. Soka vs. The • Registered Trustee of Mama Clementina Foundation John Amos · Udumbe and National Insurance Corporation of Tanzania, Civil 8· . Appeal No. 40 of 2001 (unreported) also this court in General Manager " National Milling Corporation v. Mwaisanila and others [1995-1998] 1 EA 68. '' The Parastatal Sector Reform Commission is the official receiver. As such, it has a duty to protect the property of a specified Corporation for the benefit of the Corporation's creditors, and to ensure that such property is not wasted through fraudulent disposition or preferential settlement schemes with some creditors behind the backs of other equally deserving creditors. The Parastatal Sector Reform Commission was therefore a necessary party witho~t whose joinder the suit would not be finally -anc;i effectually determined (Official Receiver v. Messrs Ukamba Service Store [1952] 20 EACA 19 applied)". In view of the above provisions of the law and judicial decisions her~in above, I am now properly guided that. since the respondent's suit was lodged before 27th June 2014 and since 13th December 2013 the CHC . . was not yet replaced, the said CHC could be sued though sometimes in 2013 and immediately before commencement of GN No. 203 of 2014 all proceedings in which the CHC was being a party were administratively . . ordered (AG's direction) to be stayed pending further Government· Notice ~ . lh>M~ 9 . . to be issued on who shall be responsible, hence Government Notice. No. ~ 203 of 2014 came into play. u However the AG's directive was not a bar to the respondent from joining the "CHC" in courts' proceedings. The respondent was therefore to sue the 'CHC' in the court of competent jurisdiction and immediately after the publication of GN. 203 OF 2014 he would seek leave to amend the plaint by inserting the responsible entity, Treasury Registrar. In no way, my considered view, the respondent was justified in instituting a suit in the trial court against the appellant while section 43 (1) of Cap 257 (supra) and section 97 of the Bankruptcy Act are unambiguous -and to the effect that the only court vested with jurisdiction is th~ High c;:ourt, for easy of reference the same are quoted herein under; S. 43 (1) Notwithsta_nding any other law to the contrary, with· effect from the date of publication of an Order declaring a public corporation to be a specified public corporation the Commission shall- ( a) Without further assurance on appointment, have the power to act as the official receiver of the specified public corporation; and (b) H_ave the power and all the rights of a rec~iver appointed iri accordance with or_pursuant to the Bankruptcy Act*. ~ 10 "S. 97 The court having jurisdiction in bankruptcy shall be the High- Court; save that the Chief Justice may by order delegate u all or any part of the jurisdiction of the High Court in . i bankruptcy to any subordinate court, either generally or for the purpose of any particular case or class of cases". .~ l The respondent's reliance of what he named as saving provision j ·j under item 5 of the GN. No. 203 of 2014 is not correct as his act of lodging a case before the trial court which is not vested with jurisdiction to entertain a case against a specified corporation, the appellant -unless leave of the court is sought and obtained. The trial court would not bestow a jurisdiction which it does not have since jurisdiction to entertain ·a proceeding in our courts or quasi judicial bodies is a creature of a statute and not a mere wishes of an adjudicator. In the circumstances of this case, I need not say, more so, I shall, not be curtailed determining other grounds of appeal taking into account doing so vvill amount to re-adjudicate a nullity since all the proceedings and decisions therefore against the appellant conducted by the trial court were none other than a nullity. 11 In this particular case, I am enjoined by the provisions of laws and -,,, ~ judicial decisions aforementioned to unhesitatingly hold that the trial court \_i wrongly entertained the suit against the appellant as it did not have such jurisdiction. Consequently proceedings, decision and any ancillary order (s) made by Magu District Court against the appellant are hereby quashed as the same are a nullity., According to the nature of the dispute, each party shall bear its own costs . . ..~tJ~: s9::{?tder:eo. · ~--~ M.R.~~ Judge • _25/03/2019 --~. ~. - _,. ' '. . . Right. df Appeal explained M.R.G Judge 25/03/2019 12