19900802 TZCA Arusha

' IN Td~ COURT OFI APPEAL OF T.4}jZANIA I . A'l' {1.RUSHA I ,i ) KI .S.,:~-JG A_,__<} • A • , . R.!'.f'1l.iW:aANI , -J • A • 1 And JVINZAVAS, _J ~A. · j, CIVIL APPEAL!: NO. 33 OF 1988 I BETFEEN ' 'I TH:S OLi~L.S RURAL C0-0-?i.i:L\TIVE .. j 0 -., ..;, l ,.,n· • .• o o (I o o • . "Or' I ·•·,Tv LIT1'1~I·r J:!.. APPELLANT ANID 1i y .M •. i'lfSUYA I. .] .1\SSIST \!.·JT COi-JfrUS3IONs~R IIAND RJGISTR~R ~OR COOPER~rivE socr~:TI:.:;3 :CILii"i.A.NJARO R:2:GION . . . RESPONDENT . I (Appeal from the decision of the High Court of Tarl_zania at Arusha) I• ( Nun_.~(2.,..J\L.) da.ted the 12th &py of October, 1987. in I . 1 1 titsc •__ Civil A-o·olic13.tion No .168 of 1987 ,i ------·-~-- I RU Lr/NG I I The appellant, Olele Rura1 Co-operative Society Limited 1 applied for leave before the High Court to apply for an order of certiorari, but the.applicatiln was r.efu~ed. The appellant then ao_!Dlied to that same Court lor leave to anneal to this . .I ~ ~ Court against the refusal and leave was.granted. When the appeal first·came on for hearing on 1.9~89 counsel for the respondent raised a preliminary objection, . . . . i . i I and after hearing the ~rgume~ts f~or and.against it we gave· a ruling in which we directee1 1 among other things, that i Mr. Leonsi Silayo Ngalai should fkle ih the Registry a copy of a resolution under the sekl of the appellant . I' Co-operative Society as evidenG.e ff his appointment by that 2 Society to repre.::ent it in these proceedings. We gave this direction pursuant to the requirement un.der Rule 28 '(3) of the Court of ippe2.l :~ules. In compliance with our order Mr. Ngalai filed a coyy of a res?lution bearing the seal of Olele -Rural Co-operative Society Limited, the signature of the Secretary of that Soctety and a certificate by the Secretary to the efLict that the resolution was extracted from the minutes of the meeting of the Committee of the Olele Rural Co-operative Sciciety'Limited held on 5.9.89. i _I Vhen the appeal ca~e on for hearing during the current sitting of the Court 1 Mr. M.K. Kimomogoro 1 lea~ned State Attorney ap9earing for the.respondent, raised a fresh preliminary objection. In his first ground of objection he submitted in eff2ct th3t the authenticity of the said resolution was in doubt b_ecause it was not accompanied by the minutes of the particular meeting of the Co-operative Society at which it ;~r~8rts to have been passed, showing the names o~ the co,;1:11i ttee members who sat and pa~sed it. Again, the resolution was in Eng],ish and hr:? doubted whether committee members of such a rura1 society would conduct their affairs and ;ia.ss a resolution in English. In reply thereto Mr. Ngalai stated that he filed a copy of the resolution in terms of the order of this Court which did not require him to file, a COIJY of the minutes, and ·we may add th.:::t under the relevant provisions of rule 28 (3) there was no obligation to file any minutes. However, Mr. Ngalai went on to say that he had with him a copy of the minutes rel2vant to this resolution . . He produced the copy showing, among other things, the names of committee members •.... /3 .. 3 who sat. He then went on to say that the resolution was drafted in Znglisl1 by a 18\v'ff.?r and its contents were put and ., explained to the co,-iil.ii ttee ;11e1~1b2rs in Kiswahili after which l the members passed it. After our inspection of the said ~ copy of the oinutes 1 and UJon h caring i'"Ir. l'Jgalai I s explanation .;\ we were satisfied th2t the copy of th~ resolution filed in this Court is a genuin2 on2_and we could find no good grounds for doubting its genuineness. On the second l2g of the objection 1 Mr. Kimomogoro took the view th~t even if the resolution is held to be valid 1 the proceedings are invalid because that resolution did not exist at the ti.i1e when Mr. Ngalai applied to the High Court for leave to a~Jeal to this Court. The learned couns :::l strenuously cont,mi::?d th3t the application for leave 1 to ff)Jeal was r.nd<2 in pur:suance of the provisions of Section 5 (1) (c) of the Appellate Jurisdiction Act which sanctions a-,J-Jeals to the Court of ),-ov02,l in such matters with the leave of the High Court or the Court of A~peal itself. That being so 1 counsel went 011 1 the procedure governing such applications was thst 2s regulated by the Court of Appeal Rules. So that when I-'lr. Ngalai appli,?d for leave· to appeal 1 to this Court he was bound in ter,ns of rule 28 to file a sealed copy of the resolution of the appellant Society as evidence th~t he was duly appointed by that Society to appear on its behalf. But since there was no such resolution in existence at the time, then he had no locus standi in the application, and the purported grant of leave to appeal was no 1,22ve at all 1 and consequently there is in law no appeal before this Court. • •• / 4 L.... 4 C t. t 1 . ' , e agree vii th the liaarn'.::,d cJunsel that the app~ication to the High Court in this mc.:tter W.:,s regulated by the procedure l . as laid dm.-m by the Court of .\ppedl Rules. But we cannot . agree tlD.t the m,:.1.tt.::r c,J.,.,0 wit\1in lt11e ambit of. rule 28. 'rhe I rel2vant parts of rule 28 provideJas f6llows:~ ;; 28 ( 1) Subject to th4 provisions of Rules 73, 3 p3rty to any proceedings 1 in person or in the Court may app0ar by ;::ocate. I · .· (3) A c~rpor~tionjmay appear either by advocate or by its dir-=ctor or · manager or secretary), who is appointed by resolution under ~he seal of the company, a senled coby of which shall be lodR:ed '-' with the ifugistrar. i '1 I 1 ( The reference in sub-rule ( 1 Y to rule 73 is not relevant here). Sub-rule (1) talks of a party to proceedings in the Cou~t, and - j the Court is defined in rule 2 (~) to mean the Court of Appeal. ·1 Tl'F:·.:r :cf ore the provisions of sub-,ul2 ( 3) apply only when a Director, Manager or Secretary 0£l a corporation .. appears. before the Court of Appeal; they do not apply to such persons a9pe9ring before the High Court. For such persons appearing before the High Court th~ releva t provision is rule 43 (a) which says:- In civil matters~ h"h2re an appea1j1ies with the leave of the High Court, application for leave may be map.e•informally, wh~n the decision ag'3.inst whiph it is desired to a,peµl is given, or by chamber summonsi according to the _prac~ice·of the. H~gh ·court, within fourteen days o;f the decision. 11 I . I' -. 5 ' .. ' . ' 1i In the instant case, therefor2, thj ap9lication to the High Court for l23ve to au~eal to this Court was regulated by the practice of the High Court 1 and t~2 nearest provisiori we could find relJ·ting to the pr~ctice of the High Cou~t in such a matter is rule (1) of Ord2r 28 of the Civil Procedure Co_de which says:- H1. In suit3 by or ngainst a co:rpor3.tion, any pleading may be signed and verified on beh3lf of the corporation by the s2cretary or by any director or other princip~l officer of the corporation who is able to depose to the f::1cts of the case. 11 ,''e think that Ngalai w}10 is s:iovm to be the chairrnan of the Cammi ttr::>e and chi2f spokes1;1an of the Ole le Rural Co-opera- tive Society Limited illay be likened with the principal officer of a corporation who, on b2h3lf of the appellant Co-operative Society, could sign 3nd verify any pleadings on its behalf. If he could Sign and verify any pleadings, he could also mak2 the a~9lic3tion on behalf of the appellant saci~~Y, for le2v2 to appeal tc this Court, and since the rule do2s not say anything about ~n enabling resolution of the corporation, Mr, Ngalai did not require any resolution to sanction his appointJent to app)~r on behdlf of the appellant Society. ·, In the final analjsis the preliminary objection is overruled, and the respondent shall bear the costs hereof • • . ./6 i . .; •. \J ,1 • ., ~ 6 ' - i : -~' '· ) 'f.,, I I. DATED at ARUSHA this 2nd day of 11.ugust, 1990~. R( H. KI,3ANGA . I JUST/ICE OF APPEAL I II A •f3 •L . RAMADHANI ~-------------- JUSTIICE OF A?PE~\L • ........ ' 1~ 1 c , o 0 "1N7A' •' l - I v,,sl ,-l. JUS~IC6 OF APPEAL -~ ! I certify that this is a true copy of tHe original. I l~ I· (M ~ L. IC. Ki"'UmONYiELE) I ; . D]J:PUTY REGISTRAR I. ,, ii ~1 ·{ .~,:~~/..-_:f;·J .j j ) I