20060717 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUBUVA, J.A., MROSO, J.A., And MUNUO, J.A.) CIVIL APPLICATION NO. 54 OF 2003 NURDIN IBRAHIM & 147 OTHERS ............................... APPLICANTS VERSUS THE DIRECTOR GENERAL, TANZANIA HARBOURS AUTHORITY ........................... RESPONDENT {Application for review from the decision of the Court of Appeal of Tanzania at Dar es Salaam} ·- {Lubuva, J.A.; Mroso, J.A., And Munuo. J.A.) dated the 2 nd day of May, 2003 in Civil Appeal No. 47 of 2001 RULING OF THE COURT 11 & 21 July 2006 MUNUO, J.A.: The applicant, Nurdin Ibrahim and 147 others, through the services of Dr. Lamwai, learned advocate, brought the present Notice of Motion under the provisions of Article 13 of the Constitution of the United Republic of Tanzania, Cap 2 R.E. 2002, seeking a review of the decision of the Court in Civil Appeal No. 47 of 2001 which was dismissed by the Court on the 2nd day of May, 2001. ,. 2 Mr. W. Mchome, learned advocate for the respondent, filed a preliminary objection seeking to strike out the application for review on the grounds that - (a) the application is incompetent as the same was filed against the Tanzania Harbours Authority which is a Specified Public Corporation under Government Notice No. 453 of 1997 for non- compliance with the provisions of the Bankruptcy Act, Cap 25 R.E 2002 and the Public Corporation Act, Cap 257 R.E. 2002; (b) the application is incompetent in that it was filed out of time. At the hearing, counsel for the respondent abandonea ground (b) of the preliminary objection. With regard to ground one of the preliminary objection, counsel for the respondent contended that the application is incompetent for non-compliance with the provisions of the Bankruptcy Act, cap 25 3 R.E. 2002 and the Public Corporation Act, 1992 as amended by Act No. 16 of 1993 so it should be struck out with costs. Dr. Lamwai, learned advocate for the applicants, contended that the provisions of Section 11 of the Bankruptcy Act, Cap 25 R.E. 2002, do not apply to the present case because the case is not a bankruptcy petition: it is a suit of redundancy and terminal benefits, he urged. It is the contention of counsel for the applicants that the application is competent so the preliminary objection lacks merit and ought to be overruled. The issue before us, is whether the application for review is competent. As observed by counsel for the respondent, the Tanzania Harbors Authority was declared a Specified Public Corporation under Government Notice No. 543 of the 2 nd August, 1997, item 4. That being the position, the respondent is subject to the provisions of Section 43 (1) of the Public Corporation Act, 1992 as Amended by Act No. 16 of 1993, Cap 257 R.E. 2002. Section 43 of the Bankruptcy Act, Cap 257 provides, inter - alia: 4 43. (1) Notwithstanding 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 fwther assurance on appointment, have the power to act as the official receiver of the specified public corporation; and (b) have the power and all the rights of a receiver appointed in accordance with or pursuant to the Bankruptcy Act. Section 3 of the Public Corporation Act, 1992, cap 257, defines - "Commission" means the Presidential Parastatal Sector Reform Commission established by section 21. 5 In this regard, in view of the Provisions of Section 43 (1) of the Public Corporation Act, Cap 257, Dr. Lamwai's contention that the provisions of Section 11 of the Bankruptcy Act, cap 25 R. E. 2002, do not apply to this application, is erroneous. We are of the settled mind that the provisions of Section 43 (1) of the Public Corporation Act, cap 257 require that the Presidential Parastatal Commission be joined to the application as the official receiver of the respondent which, therefore, necessitates the application of the provisions of Section 11 of the Bankruptcy Act, Cap 25 R.E. 2002. The Court deliberated on a similar issue in the case of the National Insurance Corporation versus J. Mbuna, Civil Appeal No. 67 of 1999 and observed that the provisions of the Bankruptcy Act, cap 25 apply to specified corporations. Similarly, in Mathias Eusebi Saka versus The Registered Trustees of Mama Clementina Foundation and Two Others, Civil Appeal No. 40 of 2001 (unreported) this Court stated:- 6 "We have no doubts at all that the unambiguous words of section 43 of the Act are that once a corporation has been declared a specified corporation the PSRC becomes its official receiver and the provisions of the Ordinance are engaged. That is the position as borne out by the authorities cited to us by Mr. Maruma; Said Mnimbo and Others versus State Travel Services Ltd., Civil Case No. 296/1997 (DSM Registry) and Alli Haji Damdusti versus BP (T) Import and Export Co. Ltd., Civil Case No. 53/1999 (DSM Registry) ---" The Court further observed that - ---the reasoning by this Court in Soka similarly applies for purposes of this appeal. -- - It will be observed that the record of appeal was filed on 4/12/1999, which was well after the appellant was declared a specified public corporation by virtue of the above GN. [GN 330 A/1998]. That being so, it was necessary for the appellant to seek amendment of the record ---. Since this was not done it will follow that the appeal is incompetent. ' ,. 7 In similar vein, in the case before us, the respondent was declared a Specified Public Corporation vide Government Notice No. 543 of the 22 nd August, 1997 so it was imperative to have the Parastatal Sector Reform Commission impleaded. Under the circumstances, we accordingly sustain the preliminary objection and strike out the application with costs. DATED at DAR ES SALAAM this lih day of July, 2006. D.Z. LUBUVA JUSTICE OF APPEAL J.A. MROSO JUSTICE OF APPEAL E.N. MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. ( S.M. R YIKA) DEPU . REGISTRAR