20191025 TZHC Dodoma2

"ORIGINAL"

IN THE HIGH COURT OF TANZANIA

I DODOMA DISTRICT REGISTRY 1 AT DODOMA PC. CIVIL APPEAL NO. 03 OF 2018 ARISING FROM THE DISTRICT MAGISTRATE COURT FOR DODOMA IN CIVIL APPEAL NO. 7 OF 2018, ORIGINAL CIVIL CASE NO. 192/2017, MAKOLE PRIMARY COURT) NDALO JOSHUA KABUCHE ......................... 1ST APPELLANT ADEODATUS TITUS GAMA .......................... 2ND APPELLANT

VERSUS STANLEY GODFREY MATONYA ..................... RESPONDENT

JUDGEMENT Date of JUDGEMENT- 25/10/2019 Mansoor, J: This matter originated from Makole Primary Court, whereas the Primary Court gave a judgement in favour of the respondent herein. The appellants were aggrieved and they filed the appeal at the District Court for Dodoma, the appeal did not succeed, hence this is the second appeal. 1 "ORIGINAL" During the appeal, the appellants were represented by Advocate Matimbwi, while the respondent was represented by Advocate Zainab Mtoro. The main ground of appeal is privity to contract and whether or not it was correct for the respondent to sue the appellants at the primary court while the contract which was the subject matter of the suit was between the respondent and Kabugama Company Limited, and even the payments of THz 23,985,000 was made in the Kabugama Co. Limited account. Ms Zainab Mtoro argued that this ground of appeal should not have been raised during the appeal for the first time. The argument of the private liability of a company, and privily of contract are matters of law and so they affect jurisdiction of the courts and these issues can be raised at any time or stage of proceedings even at an appellate stage either suo moto or by the parties. See the case of Richard Rukambura vs. Isaack N Mwakajila & another CAT, Civil Appeal No. 3 of 2004 (unreported), where it was held that: questions of jurisdiction are fundamental in

court proceedings and can be raised at any stage, even at the appeal stage. The court suo moto can raise it." 2 S "ORIGINAL" And also the case of Zehra Tahirali vs. the Minister for Lands & 2 others, Misc. Land Application No. 1 of 2006, HCT at Dar es Salaam (unreported): Hon Ngwala 3 had said: "It is a trite principle of the law on Preliminary Objections that Preliminary Objections on points of law should be raised at the earilest possible opportunity. Preilminary Objections which can be raised at any stage of the case are objections to the jurisdiction of the Courts and objections with regards to ilmitation of time." Counsel Matimbwi was correct to raise this point of law for the first time at the District Court, and also before the High Court as the ground of appeal since the District Court refused to determine on it, as in the primary court the parties were unrepresented, and so this point of law was not raised and considered by the Court. The first objection is actually on jurisdiction of the primary court to entertain the suit whose cause of action emanated from a contract. This objection is paramount and it needed to be addressed first before trial. The Court needed to be satisfied that it is clothed with jurisdiction to entertain and determine the suit, and parties before it have locus standi to sue or be sued. The question of jurisdiction does not require analysis of

evidence as submitted by the Counsel Zainab Mtoro. The question of jurisdiction must be pleaded in the plaint as 3 'a "ORIGINAL" required by the rules of the Civil Procedure Code. The plaintiff is given the duty to plead the jurisdiction of the Court and also to sue the correct parties. As submitted by Counsel Matimbwi, the parties to a contract were the company and the respondent, and so the proper party to be sued was the company, and not the directors. The respondent pierced the principle of separate legal personality and corporate limited liability of the company. She asked the court to make the individuals liable for an undertaking made by the company. Thus instead of making the company liable for the decree, the court ignored the well-established principle of corporate legal personality as established by the famous case of Solomon vs. Solomon (1897) A.C. at page 22 and instead the liability of the company have been imposed to the directors directly. The Solomon principle which is incorporated in our statutes states as follows: "The company is at law a different person altogether from the subscribers to the memorandum, and though it may be that after the incorporation the business is precisely the same as it was before, the same persons are managers and the same hands receive the profits, the company is not in law the agent 11 "ORIGINAL" of the subscribers or trustees for

them. Nor are the subscribers as members flable, in any shape or form for the liabifities of the company" For the above stated reasons, the appeal succeeds on the first ground of appeal, the proceedings judgement and decree passed by the Primary Court in Civil Case No. 192 of 2017, and the proceedings, judgement and decree passed by the District Court in Civil Appeal No. 7 of 2018 are quashed and set aside. Parties are at liberty to initiate fresh suit between the parties to the contract, and at a court with competent jurisdiction, and subject to limitations. Appeal allowed, with costs. ODOMA this 25th day of October, 2019. II e )

JUDGE 25TH OCTOBER, 2019