salemani zuberi chapa others vs psrc another 2007 tzhc 391 31 august 2007

Ih s h i: WlG>i COURT OF T A N Z A N IA ATTANGA MISC. CIVIL APPLICATION N0.31 OF 2006 SALEMANIZUBERI ) CHAPAJAND 12 OTHERS )............................ APPLICANT VERSUS 1.PSRC ) 2. TANZANIA HARBOURS)...................... RESPONDENT AUTHORITY ) 09/6/2007 & 31/8/2007 RULING A.A.M. SHAYO,J. This matter was due for ruling on 20/7/2007 but was adjourned because I was then at the KorogWe Criminal Sessions. The second respondent Tanzania Harbours Authority through their counsel Mr. Mafaru of Mbuna and Company Advocates, raised a preliminary I objection on points of law that: ■ This application is incompetent as there is no corporation known asTanzania Harbours Authority. ■ The intended proceedings are not maintainable as any claim relating to the applicants retirement is time barred. May De it is apposite, at this juncture, to give a brief background of this matter. The applicants Sulemani Zuberi Chappa and 12 others 'V had filed an application of Chamber Summons under the provision of ■ section 39(1) of the Public Corporation Act as amended by section 9(1) of the Bankruptcy Act (Cap.257 R.E. 2002) and not (Ordinance " of 1930) and section 95 of the Civil Procedure Code of 1966 and any other enabling provisions of the Law and pursuant to the Award of the Industrial Court of Tanzania delivered on 15th day of September, 2005 by Honorable E.L.K. Mwipopo, J. Chairman, Hon. I.S. Mipawa, Deputy Chairman and Hon.K.M.M. Sambo, Deputy Chairman. It was supported by an affidavit of Selemani Zuberi Chappa; mainly seeking this court to grant leave unto the part of the applicant herein to sue the 1st and 2nd respondent for improper retrenchment of the applicants herein who were the employees of the 2nd respondent. : All along the 1st respondent, that is Parastatal Sector Reform p Commission have never effected their appearance despite several notifications, and bearing in mind that they had, through their counsel one Mr. Fungamtama, as well filed their notice of preliminary objection. When the matter came for hearing of the preliminary point of law raised by the second respondent on 16/5/2007; the court granted leave to the parties to argue the matter by way of written ; submission. They did comply as so ordered by this court, hence this ruling. . , The learned counsel for the 2nd respondent, Mr. Mafuru, argued the preliminary points in order of sequence, starting with the first one, that the application is incompetent as there is no corporation known as Tanzania Harbours Authority. He submitted that by operation of law there is no authority known as Tanzania Harbours Authority as the Tanzania Harbours Authority Act, 1971 was repealed under section 99(1) of the Tanzania Ports Authority Act No.17/2004, and under section 4(1) of the same act an authority to be known as The Tanzania Ports Authority was established as a body corporate capable to sue and be sued and not withstanding the preceding provisions, the Attorney General shall have the right to intervene in any suit, or matter instituted by or against the authority. Mr. Mafuru submitted therefore that it is obvious and crystal clear that the applicants have sued a person who does not exist, sequel to which no orders can be made against the second respondent for which leave has been sought for the said Authority to be sued. On the second point, that the intended proceedings are not mantainable as any any claim relating to the applicants retirement is time barred, the learned counsel for the second respondent, submitted that the genesis of this application is time barred for multiple number of factors and based on computation of periods and hence this court having no jurisdiction to entertain it: He referred this court to the cases of ZAMBIA ROAD SERVICES LTD. VJ.K. PALLANGYO (1982) TLR.24 and JUMUIYA YA WAFANYAKAZI TANZANIA V. KIWANDA CHA UCHAPAJI CHA TAIFA (KIUTA) & ANOTHER and NMC VS HAMIS JUMA AND 90 OTHERS, MISC. CIVIL CASE NO.141/94 HCT. DSM Registry (unreported) for the proposition that matters of employment being contractual ones, are subject to laws of Limitation Act, 1971 as per paragraph 7 of the First Schedule which'is six years. Mr. Mafuru went on to submit that in para. 1 of the applicant's affidavit, the contents were that the applicants were employers of the second respondent herein and that sometimes in the year 1994 they were retrenched by the second respondent. It is his stance th£t bringing this application after 13 years had elapsed, the applicants are out of the time frame work as required by law and on claims based on contract, which is 6 years. That even if they seek refuge under aversions in para.4 of their affidavit, in which they were granted an award by the Industrial Court of Tanzania on 15th September, 2005 to join the first respondent, they are still time barred. Under part III of the First Schedule of the Law of Limitation Act 10/71 (cap.89 R.E. 2002), ITEMS No.21, he said, the period of limitation in regard to an application not provided in the Act is 60 days. It was Mr. Mafuru's submission therefore that the applicants were supposed to file this application within sixty days after the order of joining the fist respondent and not after the expiry of almost 2 years, that is, from the 15th September, 2005 the day .of the award by the Industrial Court. The learned counsel for the 2nd respondent finally prayed that in regard to their submissions in support of the preliminary points of objection raised, the application brought by the applicants is not tenable, so it be dismissed with costs. In reply, the applicants in their written submission argued that though there is no Authority known as Tanzania Harbours Authority, in the original suit Revision No.6/2001 where by the order to join PSRC was made, Tanzania Ports Authority was not yet established. They referred this court to Order 1 Rule 9 of the Civil Procedure Code (Cap.33 R.E. 2002) which states that "No suit shall be defeated by reasons of the mis joinder, non joinder of parties and the court may in ! every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." It was further submitted by the applicants that the suing a non existent legal entity is not fatal or it is curable as it was held in the case of JUMA B. KABALA V. LAURENT MNKANDE (1983) TLR.103. In that case they said, the appellant brought an action against the respondent in Soni Primary Court to recover a "shamba" the respondent had been granted the land by an Ujamaa village and had subsequently sold it to the third party who was not made a party to the proceedings. The appellants lost both in the Primary Court and the District Court. It was held (1) that the suit was filed in the name of the wrong person the proper person should have been the Ujamaa village (ii) The error is merely technical and did not occasion any failure of justice#and therefore it is curable under section 32(1) of the Magistrates Court Act of 1963. On the second point of preliminary objection that the intended proceedings are not maintainable as any claim relating to the applicants retirement is time barred, the applicants argued that it is not true and is baseless on the grounds that; the applicants were retrenched in the year 1994 and sometime in 1999 they filed in the Industrial Court a trade inquiry No.46 of 1999. That as a result of a preliminary objection raised, on 15th September, 2005 the Industrial Court on revision granted a award directing the applicants to join the 1st respondent in their complaint. They did comply, hence this suit, they say. It was their submission that the point of objection raised by the 2nd respondent is baseless and wastage of precious court time and has no leg to stand. It was their prayer that the preliminary objection raised by the 2nd respondent be dismissed with costs. In his rejoinder, Mr. Mafuru, learned counsel, for the second respondent submitted that the applicant's submission in regard to the first point of preliminary objection is in total misconception of the law. Citing the provisions of Order 1 Rule 9 of the Civil Procedure Act (Cap.33 R.E. 2002), he argued that the phrase Misjoinder of parties is defined in Blacks Law Dictionary 6th Edition to mean:- "The improper joining together and parties to a suit, as plaintiffs or defendants, or of different causes of action, for which is not a ground of dismissal;" and Non joinder of parties, is defined to mean the omission to join some person as party to a suit, whether as plaintiff or defendant, who ought to have been so joined, and omitted party may be added, to parties our motion or by the court. Mr. Mafuru therefore submitted that the basis of their objection is not whether there is mis-joinder on non joinder of parties, but that liic dppiication is incompetent as there is no corporation known as Tanzania Harbours Authority by operation of law and after the repeal of the Tanzania Harbours Authority Act, 1977. He thus reiterated that the second respondent has been wrongly brought before this honourable court. The learned counsel further submitted that no remedy can be sought from the provisions of Order 1 R.10(l) of the Civil Procedure Act, because it deals only with plaintiffs/applicants and not defendants/respondents. That the provisions of 0.1 r. 10(2) of the same Act, can't take the triumph of the day as the order, provides for powers of the court in regard to joinder and misjoinder of parties which doesn't apply to their case. He further submitted that once a preliminary point of objection has been raised as theirs, it is legally wrong for the other party to ask the court to amend the pleadings or by the court in its own motion as for doing so, that would be like pre­ empting the preliminary objection. Mr. Mafuru referred this court to cases of jSIODI MINDEU VS. KOLOMBO SOKOINE & ANOTHER - C.Appl. No.2/2002 Arusha Registry (C.A.) (unreported) and ALMAS IDDIE MWINYI VS. NATIONAL BANK OF COMMERCE & ANOTHER, C/Appl.No.8/98 (C.A.) (unreported). In the latter case, the Court of Appeal held that:- "after preliminary objection has been raised no application of notice to amend what is objected to can be entertained." It was the learned counsel's contention that since it is in contestation of the applicants that, Tanzania Ports Authority has not been sued in this application, it wouid amount to an admission and that no any cure of any defects can be entertained and it will be improper to do so. He submitted further that the case cited by the applicants is distinguishable and not binding upon this court as it was by way of appeal originating from primary court and not by pleadings as in their case at issue. As regards the second point of objection in so far as the limitation of time is concerned, Mr. Mafuru further submitted that the applicants have miserably failed to show whether this application has been brought within time after the expiration of 13 years and or 60 days after the decision of the Industrial Court, dated 15th September, 2005, as provided under the Law of Limitation Act, No. 10/1971 (Cap.89 R.E. 2002) First Schedule, Part III item No.21 for which were supposed to file their application and not after expiry of the limitation period. Mr. Mafuru finally submitted that for the submissions they have given in their rejoinder and by reiterating the earlier submissions, the points of objection raised are legally tenable and they humbly pray for the application to be dismissed with costs. I have diligently perused the submissions by both parties on the raised preliminary objections on points of law. Starting with the first one, that is, the application is incompetent as there is no corporation known as Tanzania Harbours Authority. It is true as submitted by Mr. Mafuru, learned counsel for the 2nd respondents that Tanzania Harbours Authority ceased to exist by operation of law as the Tanzania Harbours Authority Act, 1971 was repealed under section 96(1) of the Tanzania Ports Authority Act No. 17/2004. It is C'.jiia'ly true as submitted by the appellants that the original suit Revision No.6/2001, in the Industrial Court of Tanzania, the Tanzania Ports Authority was not yet established. The award of the Industrial Court was to the effect that the appellants should join the 1st respondent in their trade inquiry proceedings against Tanzania Harbours Authority. But then the applicants cannot seek refuge under Order 1 r.9 of the Civil Procedure Code to cure the situation because this is not a question of misj-oinder and non joinder, and further that the case referred to, that is, JUMA KABALA (supra) is equally not applicable here. I also subscribe to Mr. Mafuru's submission that after a preliminary objection has been raised no application of notice to amend what is objected to, can be entertained (see Siodi Minden and Almas Iddie) (supra). However, although the Tanzania Harbours Authority was abolished, there is no doubt that its property rights, assets and liabilities were transferred to the new entity that is the Tanzania Ports Authority. That was indeed effected under section 75(1) of Act No.17/2004. Under section 81(2) of the same Act it is provided thus:- 82(2) Any proceedings or cause of action relating to the property* rights and liabilities transferred to the Authority under this Act or to any employee transferred to the services of the Authority under this Act pending or existing immediately before the appointed day by or against the Tanzania Harbours Authority, or any person acting on its behalf, may be cuncirsueo and shall be enforced by or against tu€: Authority, (emphasis supplied). My understanding of this section is that so long as there was existing proceedings against the defunct Tanzania Harbours Authority immediately before the coming into being the Tanzania Ports Authority, that is, the Revisional proceedings No.6/2001 before the Industrial Court; and which gave an award to the applicants that the/ join the 1st respondent in their trade inquiry against the 2nd respondent, this application then is a continuation of the same legal process. It has to continue under the same umbrella although of course at the end of the day it is the Tanzania Ports Authority which will have to take the role of the 2nd respondent. In the result, the 2nd respondent's first point of preliminary objection falls to the ground. The second point of preliminary objection is that the intended proceedings are not maintainable as any claim relating to the applicants retirement is time barred. Mr.Mafuru, learned counsel contends that the applicants were retrenched in 1994 by the 2nd respondent, and that by bringing this application after 13 years had elapsed they are time barred as claims based on contract the time frame is 6 years. With respect to Mr. Mafuru, while I agree with him that the appellants claim resulting from retrenchment in 1994 was to be brought within 6 years, I decline to agree with him that this application was brought after lapse of 13 years. I am afraid the learned counsel is mixing up two issues here. The first issue is the time lapse within which the applicants were to challenge their retrenchment in 1994. That they did through the Labour Commissioner who, as per their written submission, filed a trade dispute inquiry No.46/1999 which was the genesis of the Industrial Court Revisional proceedings No.6/2001. The applicants were given an award by the Industrial Court that they join the 1st respondent (PSRC) which is the basis of this application in which they are seeking leave to sue/join the 1st respondent (PSRC) obviously in their intended trade dispute. The second issue relates to that award the applicants were granted by the Industrial Court dated 15th September, 2005. It required them to join the 1st respondent (PSRC) in their trade dispute against the 2nd respondent who was under receivership. They had not done so in their original trade dispute inquiry No.46/99 that is why it was dismissed. They filed Revision No.6/2001 challenging that dismissal in the said Industrial Court. Again their application for revision was dismissed but they were advised to join the 1st respondent. It is this application in which the applicants are now seeking leave to sue or join the 1st respondent (PSRC). The essence of Mr. Mafuru's preliminary point of objection is that this kind of application is in law supposed to have been filed within 60 days from the date of the alleged award, that is, 15th September, 2005. He finds his support under the Law of Limitation Act 10/1971 Cap.89 R.E. 2002). The First Schedule, Part ili items No.21 provides: " Application under the Civil Procedure Code, the Magistrate's Courts Act or other written law for which no period of limitation is provided in this Act, or any other written law........... sixty days." Mr. Mafuru strongly submitted therefore that the applicants were supposed to file this application within sixty days after the order of joining the 1st respondents that was made by the Industrial Court or revision on 15/9/2005 and not after almost two years from that date. Apparently, the applicants did not wish to submit anything on this second limb of the second point of preliminary objection. They only argued in relation to the claim that they were time barred in bringing this matter after 13 years from when they were allegedly retrenched in 1994, which they denied as herein demonstrated. The order/award of the Industrial Court the genesis of this application was dated 15th September, 2005.This application for leave to join the 1st respondent was filed on 21st August, 2006 which is exactly 11 months and 7 days. As rightly submitted by Mr. Mafuru, by way of limitation the application was supposed to have been filed within 60 days, that is to say, on 14th November, 2005 latest. It is crystal clear therefore that the applicants contravened the Law of Limitation Act, 1971 First Schedule, Part III items No.21 by not bringing their application within 60 days. I am satisfied that this application is hopelessly out of time and this court has no jurisdiction to entertain it. In fact there is nothing legally before it to entertain. Jffitfii-'URShot, this application is hereby dismissed with costs. /: /■' " ' U \ DATE 3 i/8/2007 CORAM MR. MLAWA - AG.DR. APPLICANT- present all RESPONDENT -absent C/C SARAH i Judgment delivered in the presence of eight Applicants and in the absence of both Respondents, today, the Friday, 31st day of August, 2007. Sgd. M.R. MLAWA-AG.DR. 31.8.2007 1st APPLICANT:- We are intending to appeal against the ruling so we pray for a typed copy of the Ruling so that we may prepare the appeal. ’ COURT:- The applicant is at liberty to do what he thinks is legally right M.R. MLAW A-AG. DR. 31/8/2007.