RULING Saram Com

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB - REGISTRY AT SONGEA CIVIL CASE NO. 12316 OF 2024 SARAM COMPANY LIMITED …………………...……………………………. PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF ST. AUGUSTINE UNIVERSITY OF TANZANIA …………………..…….. DEFENDANT RULING Date of Last Order: 23/09/2024. Date of Ruling: 30/09/2024. KAWISHE, J.: In this suit, the plaintiff is a registered company under the laws of Tanzania and it conducts its business within the territorial boarders of the United Republic of Tanzania. The defendant is an academic institution operating her business in the United Republic of Tanzania. From the plaint filed in this suit, the plaintiff alleges that, sometimes on 26th January, 2017, 1 she had a contractual agreement with the defendant to construct a library and lecture halls in one of the defendant’s compasses located at Songea in Ruvuma Region. But, the defendant, for its illegal acts breached the contract which made the plaintiff to suffer specific damages at the tune of TZS. 1,123,169,700.00. The plaintiff filed this suit against the defendant for breach of contractual agreement praying for judgment and decree of this court as follows: i. An order that the defendant breached the contractual agreement and addendum therein. ii. Payment of TZS. 40,550,000.00 being the costs of building materials stayed at the site. iii. Payment of TZS. 53,350,000.000 as compensation claim for plant and building equipment stayed idle at site. iv. Payment of TZS. 133,250,000.00 being the costs of labourers staying idle at site. v. Payment of TZS. 893,150,000.000 as administrative and rung costs. vi. Payment of TZS. 30,200,000.000 being costs for security from 2018 to the date of filing this suit, which is charge at TZS. 400,000.000 per month. vii. Payment of TZS. 400,000.00 being costs charged from the date of filing the suit to the date of judgment. viii. Payment of TZS. 400,000.00 from the date of judgment to the date of full payment of the decretal sum. ix. Payment of TZS. 15,000,000.00 being the cost of preparing the claim. 2 x. Costs of this suit. xi. General damages to be assessed by the court. xii. Any other relief(s) this court may deem fit and just to grant. In response to the plaintiff’s claim, in the written statement of defence, the defendant not only disputed the claims but also raised three points of preliminary objection on point of law on the ground that: a) This suit is incompetent because the plaintiff has sued a wrong and incompetent party. b) The suit is time barred. c) The plaint is bad in law for contravening the mandatory provisions of Rule 4 (1) (a) and (b) of the Interpretation of Laws (Use of English language in Courts) (Circumstances and Conditions) Rules GN. No. 66 of 2022, in that although the said plaint is drawn in English it is not accompanied by a corresponding translation thereof in Swahili. It is trite principle that, where there is a preliminary objection on point of law, it must be determined first before the hearing of the main suit. See the decision of the Court of Appeal in Zahara Kitindi & Another vs. Juma Swalehe & Others, Civil Application No. 04/05 of 2017 (unreported). Therefore, in this suit, the court ordered for the points of preliminary objection to be argued first. 3 By the parties’ consent, the preliminary objections were argued by way of written submission. While Mr. Anthony Nasimire, learned advocate represented the defendant, Mr. Edmund Rweyemamu Ngemela, learned advocate represented the plaintiff. Arguing in support of the first point of preliminary objection, the defendant’s advocate submitted that, the plaintiff has sued wrong and incompetent party. That, in the plaint filed in this court, the plaintiff specifically stated that the defendant is an Academic Institution which is duly registered corporate body. He went on submitting that, in terms of section 21 of the Universities Act (Cap 346, R.E 2002), Saint Augustine University of Tanzania (SAUT) operates under a charter and in accordance with the provisions of section 26(a) of the said Act, SAUT is a body corporate with perpetual succession and a common seal and is capable of suing and being sued in its corporate name. He averred that, according to article 3(2)(a) of the defendant’s Charter as gazetted vide Government Notice No. 580 of 2020, read together with section 26(a) of the Universities Act (supra), the proper person to be sued is Saint Augustine University of Tanzania (SAUT). To bolster his stance, he referred to the case of Ruttu B. Jeremiah vs. Registered Trustees of St. Augustine University of 4 Tanzania & Another (Misc. Civil Cause 6 of 2018) [2019] TZHC 2099 (24 January 2019). Mr. Nasimire submitted further that, the defendant as set out in the present case no longer exists following the publication and coming into operation of the Charter. He averred that, suing a non-existing party/entity makes the suit incompetent. Hence, no legal action will be enforceable to a non-existing party. To buttress his argument, he cited the case of Ngoni- Matengo cooperative Marketing Union Ltd vs. Ali Mohamed Osman [1959] E.A 577. In light of the foregoing submission, the defendant’s counsel prayed for this suit to be struck out for being incompetent and the plaintiff be ordered to pay the costs. Replying to the submission made by the defendant’s learned advocate, Mr. Ngemela, the plaintiff’s learned advocate maintained that, the 1st point of preliminary objection does not hold water on the ground that the specific rules governing suing wrong party is not applicable in the case at hand. His main reason being that, the plaintiff and defendant entered into contractual agreement way back in 2017 and at that time the 5 plaintiff entered into contract with the Board of Registered Trustees of St. Augustine University Tanzania and the Rules published via GN. 580/2020 were not in existence thus, they cannot operate retrospectively. In his rejoinder on the issue of suing an incompetent party, the defendant’s learned counsel reiterated what was submitted in his submission in chief insisting that the suit was filed against an incompetent party making the suit hopeless and incompetent. He prayed for this suit to be struck out. Having careful read and considered the submissions made by both parties in respect of the raised points of preliminary objection, this court is now duty bound to decide on whether they are merited. For reasons to unfold in the due course, the court is set to determine the first point of preliminary objection. In the first point of preliminary objection, the court is called upon to determine on whether the plaintiff has sued the competent party. From the rival submissions made by both parties, the counsel are not in dispute that the defendant is established under the Universities Act (Cap. 346, R.E 2002) and there is a Charter governing the defendant. However, 6 the defendant’s learned counsel argued that, the proper defendant should have been Saint Augustine University of Tanzania in accordance with the Charter gazetted in the Government Notice No. 580 of 2020 where, the defendant’s name is Saint Augustine University of Tanzania (SAUT). That, it is a body corporate with perpetual succession and a common seal and is capable of suing and being sued in its corporate name as provided under article 3(2)(a) of the Charter. The defendant’s counsel, in his submission has referred this court to all written communications which were attached by the plaintiff in his plaint. The name of the defendant is seen to be Saint Augustine University of Tanzania (SAUT). The fact which is disputed by the plaintiff on a reason that, they entered into a contract with the Registered Trustees of Saint Augustine University of Tanzania. Although, the plaintiff’s learned counsel alleges that, the plaintiff entered into a contract with the defendant that is, the Registered Trustees of Saint Augustine University of Tanzania yet, the annextures attached to the plaint do not name the defendant rather, they were addressed to the Vice Chancellor, Saint Augustine University of Tanzania. Taking for example, annexture “I” a ‘Demand Notice’ dated 27th July, 2023, it was addressed to the Vice Chancellor, Saint Augustine University of Tanzania (SAUT), copied 7 to Saint Augustine University of Tanzania (SAUT). Again, annexuture “H”, reads; Client (employer): The Vice Chancellor, Saint Augustine University of Tanzania, Contractor: Saram Company Limited. The annexutres are betraying the plaintiff. She claims that, she sued the Registered Trustees of Saint Augustine University because the Charter does not operate retrospectively but documents are addressed to St. Augustine University of Tanzania, these documents are filed by the plaintiff bearing a name different from the one she is claiming to be the proper defendant. The differences on names noted are married with the defendant’s learned counsel contention that, according to article 3(2)(a) of the defendant’s Charter as gazetted vide Government Notice No. 580 of 2020, read together with section 26(a) of the Universities Act (supra), the proper person to be sued is Saint Augustine University of Tanzania (SAUT). It is the plaintiff’s learned counsel contention that, they entered into a contract with the Registered Trustees of St. Augustine University of Tanzania in 2017. That, during that time, the Charter was not in existence. Hence, they are not bound by the Charter as it does not operate retrospectively. His main reason being that, the Charter was gazetted under Government Notice No. 580 of 2020. That, she continued to sue the entity 8 whose name was on the contract. This claim caused this court to revisit the attachments to the plaint to ascertain the matter. It is so unfortunate that, the plaintiff did not attach a copy of the contract as she did with other annextures. Non-attachment of the copy of the contract did not hinder this court in determining the objection. This is due to the fact that, from the submission made by the plaintiff’s counsel, the plaintiff entered into a contractual agreement with the Registered Trustees of St. Augustine University of Tanzania. Anyhow, attachment of the copy of the said contract would only strengthen the plaintiff’s claim on the name of the defendant which is in contradiction with all the correspondences attached thereto. It is my considered view that, the counsel’s assertion that, the plaintiff sued the right defendant is unfounded as he based on the principle that the Charter does not operate retrospectively. I think the plaintiff should have considered the fact that, no one sues the deceased rather, they sue the administrator or administratrix) of the estates of the deceased. In that regard, the plaintiff chose to sue the Registered Trustees of Saint Augustine University of Tanzania in lieu of Saint Augustine University of Tanzania at his own peril. I am saying so due to the fact that, even if this objection is not sustained, and in anyhow if succeeds in the 9 main suit since, she sued non-existing defendant, at the end of the case, the court’s order would prove futile. See case of Ngoni-Matengo cooperative Marketing Union Ltd (supra). Bearing in mind the contentious issue, this court is persuaded by its decision in the case of Ruttu B. Jeremiah vs. The Trustees of Saint Augustine University of Tanzania & Another (supra), where the court referred to its decision on the same parties in Miscellaneous Civil Application No. 8 of 2017 (Gwae, J.), where it was stated that: ‘It is in this reason I find the SAUT’s Charter of 2020 is applicable as the same has been recognized under section 25(1) and (2) of the Universities Act of 2005 and since the Charter was signed by the former president of the United Republic of Tanzania, His Excellence President, Hon. Dr. Kikwete on 20 th December, 2012, I am therefore, convinced that the Charter in question is applicable and the one to be sued is Saint Augustine University of Tanzania (SAUT) which is a body corporate capable of suing or being sued by virtue of article 3(1) (a) of the Charter read together with section 26(a) of the Universities Act, 2005 …’ [Emphasis added]. From the excerpt above, this court was faced with a similar issue like the one at hand. That the plaintiff sued a wrong defendant. In the case of Ruttu B. Jeremiah vs. Registered Trustees of St. Augustine University of Tanzania & Another (Misc. Civil Cause 6 of 2018) [2019] TZHC 2099 (24 January 2019) (Siyani, J.) while quoting the above excerpt 10 when was deciding a matter on the same issue of suing a wrong defendant, found that the proper party to be sued was Saint Augustine University of Tanzania. Thus, the case at hand being challenged on the same subject for suing the wrong party, since the Defendant’s Charter and the Universities Act, are very clear on the status of Saint Augustine University of Tanzania that, it is a body corporate which can sue and be sued, and in line with the cited cases, I am of the view that, the proper person to be sued is Saint Augustine University of Tanzania. Therefore, I agree with the defendant’s counsel that, the plaintiff has sued a wrong person. According to the Charter, and all attached written communications made by the parties show that the proper name of the defendant is Saint Augustine University of Tanzania (SAUT). As a result, therefore, the issue raised is answered in the negative. For the foregoing reasons, I uphold the defendant's first limb of preliminary objection and strike out this plaint with costs. Since this finding alone suffices to dispose of the whole suit, I need not embark on the rest limbs of preliminary objection as it will save no purpose rather than prolonging this ruling. The plaintiff may refile the suit if so wishes by adhering to the legal requirements. 11 It is so ordered. DATED and DELIVERED at SONGEA this 30th day of September, 2024. E. L. KAWISHE JUDGE COURT: Ruling delivered in the presence of Mr. Edmund Mnyawami holding brief for Edmund Ngemela Advocate for the plaintiff and also holding brief for Anthony Nasimire, Advocate for the defendant. Right of appeal is fully explained. E. L. KAWISHE JUDGE 30/09/2024 12