regional manager rtc tanga vs charles mnkeni others 2005 tzhc 274 28 january 2005

iiN THE HI«H COURT OF TANZANIA •V AT TANGA CIVIL APPEAL NO. 13 Or 2C02 CONSOLIDATED WITH THE CIVIL APPEAL m .? S OF 2002 {Originating from D /C Tangs Civil Case t\'o. 3 o f 1998) 'i THE REGIONAL MANAGER) R T C -T A N G A ) P.P.S.R.C. ) ...... APPELLANTS VERSUS CKARL.ES <1 & 60 C7HBIS .. RESPONDENT JUDGMENT BEFQRFi U S , SHANGALI, } This is c, consolidated a; -sal emanating r'rom the decision of the Tanga District Court o.iginal Civil Cas: No. 3 of 1998 in which the present respondents Charles Mnkeni and 59 others ued the present 1st appellant, The Regional Manager, RTC - Tanga, and lh !! 2nd appellant, cite Presidential Parastatal Sector Commission (PPSRC). The background of this case between the parties is briefiy that the respondents/plaintiffs were former employees of the 1st appellant (RTC) serving in different capacities in the company. Their employment was terminated by the 1st appellant and declared redundancy and later were paid their redundancy packages on different days. However, they were not satisfied with the payments and therefore decided to die the case claiming for the retirement benefits amounting to 40 months salaries calculated in accordance to the directives in the Registrar of Treasury Circular Reference No.TYC/P/lG/3/01/33 dated If)"1 i\!cv. 1993. Before the substantive hearing of the case in the District Court, several preliminary objections were raised by the appellants/defendants but both were resolved in favour of the respondents/plaintiffs. In the final analysis of the case the trial District Magistrate pronounced his final decision in favour of the respondents/plaintiffs on 6tn June 2002. Thereafter, the two appellants/defendants who were not satisfied with the decision of the District Court departed and each filed a separate appeal challenging the same decision. The first appellant (RTC) filed Civil Appeal No. 25/2002 on 15th October 2002 and the 2nd appellant (PPSRC) filed Civil Appeal No. 18/2002 on 16th July 2002. The civil appeals were thus consolidated in the Civil Appeal No. 18/2002. Before this court,. Mr. Sangawe, the Learned counsel appeared for the 1st appellant (RTC) and Mr Akaro, the Learned counsel appeared for the 2nd appellant (PPSRC) whik: Mr. Kavuta,. the Learned counsel appeared for the respondents/plaintiffs. This appeal has two important parts. The first part involves the challenges from the decision of the trial District Magistrate on the preliminary objections and the second part involves the challenges based on the merits of the case. I am persuaded to start with and concentrated on the first pait because it involves the important question of the jurisdiction of the trial court. The Learned Counsels for the appellants has raised 5 grounds of appeal t.- emanating from th§ preliminary objections of which they both argued that if they were properly decided by the Trial Magistrate they would have disposed off the ' suit entirely at the preliminary stage. The said grounds of appeal are as follows; One; that the trial District Magistrate erred in law in trying this case because PPSRC being the official Receiver, the District Court had no jurisdiction to adjudicate upon the matter; two, the trial District Magistrate erred in law when ne trie<J this case which was fiieci as a representative suit without leave of the court as provided under order 1 rule 8 of the Civil Procedure Code 1966; three, that the trial District Magistrate erred in law when he entertained this case which was instituted without leave of the Court as provided under S.9(l) of the Bankruptcy Ordinance; four, th a t, the trial District Magistrate erred in law and fact when he failed to observe that the respondents case was not maintainable because of Lhe misjoinder of the causes of action and fifth, that the trial District Magistrate erred in law and fr.ct when he failed to obsen/ed that the respondents case was not maintainable because it was time barred. However, in his wr;:J:eri submissions Mr. Sangawe, the Learned counsel for the first appellant decided to drop the fourth and fifth grounds of appeal and '.he appeal rer'lin ed with 3 grounds based on thr: preliminary objections which form the first part of appeal.^ T i. second part uf i , peal has two major grounds namely; o i1 that the trial District Magistrate a red in law and fact when he failed to observe that the Government Circular issued by the Treasury Registrar Exhibit PEI and DL‘2 concerned Government Employees only and therefore the parastatal Organizations were not bound by iv unless they have good financial ability and; two, the trial District Magistrate erred in law and fact in holding that those plaintiffs who were declared redundant: (retrenched) from 1st May, 1993 are entitled to 40 months salaries. As I have pointed above I will start with the 3 ground of appeal on preliminary objections part one. On the first ground of appeal both learned counsels for the appellants argued in their written submissions that at all material times the 1st appellant, Tanga Reginal Trading Company Limited was a specified Public Corporation by virtue of Public Corporations (Specified Public Corporation Declaration) Order 1994 - GN No.23 of 1995. The counsels submitted that section 43(1 )(a) of the Public Corporation (Amendment) Act, No. 16 of 1993 confers on the PPSRC, the second appellant powers of an official i eceiver and section 43(l)(b) of the same Act clothes the 2nd appellant with rights of a receiver appointed in accordance with the provisions of the Bankruptcy Ordinance, Cap 25. Furthermore, by virtues of the Bankruptcy Ordinance Specifically Section 97, all matters of Bankruptcy are rested to the jurisdiction of the High Court. Therefore once the 2nd appellant PPSRC was involved in the case as a co-defendant the matter should have been filed in the High Court and not to proceed before a District Court. In rep’/, Mr. Kavuui, the Learned counsel for the respondents/plaintiffs submitted that the decisio . the trial District' Court which dismissed the preliminary objections were lelivered on i f / 1; eb. 1999 and 10th May 2001. After those decisions there was no legal action/steps taken by the appellants to appeal or apply for revision against those decision.' The counsel submitted that the legal effect of such fail :;t *by the appellants means that they are now barred by the law oi Limitation to ppeal againsi- thr,--;e decision after the expiration of 90 days as provided under irst scheduia of the law of Limitation Act, 1971. The counsel prayed for the coi>i t to dismiss all grounds emanating from the preliminary objections. With due respect to the Learned counsel for the respondents, I am not persuaded by that submission because in general, decisions in respect of the preliminary objections are not appellable as z: right unless such decision tends to conclude and bring to the end the main case. In addition, there is no law or procedure which bars an appeal against the decision from the preliminary objection within a period of 90 days unless, as pointed above, that decision concludes the main case. I agree with Mr. Akaro, the Learned counsel for the appellant that the only way or stage that the interlocutory ruling/order could be appealed against as a matter of right was after delivery of judgment and issuing of the respective decree. Therefore, the preliminary objections and their intercontory orders being part of the entire suit, the appellant was procedural'/ entitled to reserve his appeal therefrom till the final determination of the case. On the other hand the objection to the jurisdiction was not only based or related to the pecuniary limit as intimated by the counsel for the respondents. It was the second appellant/ defendant who challenged the jurisdiction in respect of the statutory jurisdiction, namely the suit was triable by the High Court exercising its original jurisdiction. I earnestly concur with Mr. Akaro, the Learned counsel for the 2nd appellant that even if the appeal in respect of jurisdiction is to be heid time barred, still this court i*j empowered to entertain the san ij because the Issue of statutory jurisdiction can be raised at any stage on the ground that it goes to the roots of th whole triai. In the case of M icfrasl Leseni K w eka Vs. 3-uhn £ liafye - C iv i l . .<jpeal N o.51 o* 1997. Court* A p p ea l a t Oar es :\:-n (ureporte*;:' it was held that »otters of juris. :tion, as district from objections to the place suing, may be ■ used at any as they go 10 the roots of the trial. Again, in the case of P.S.G. Kangogefo Vs. T a n za n ia T ^ c o m m u n ic a tio n Co. Ltd M isc. C iv il Appl. Ho. 9 o f 200 - H igh C o u rt o»‘ m zania a t T a tr-u (U n re p o rte d ) ii was emphasized that the question of jurisdiction is not one of form but it is -undamental. The rationale being that it is a primary dub/ of any umpire to be sal isfied that he/she has jurisdiction to try or inquire into a case before he/she assume jurisdiction. That is exactly what the Learned trial District Magistrate ought to have done before dismissing the preliminary objections blindly and proceeded with the hearing of the case. Back to the merits of the first ground, it is ovious as submitted by the Learned counsels for the appellants that the case was determined in a wrong court. The trial District Court had no jurisdiction to entertain the matter after the joinder of the 2nd appellant. PSRC as official receiver of the 1st appellant - RTC. On the second ground of appeal there is no dispute at all that the respondents suit was representative one. The counsels for the appellants submitted that Mr. Charles Mnkeni prosecuted the suit on his own behalf and on behalf of his 59 colleagues who were latter on reduced to 55 in number. However, it is not in dispute again that no leave of the court was sought or obtained for the purposes of instituting and prosecuting the suit under a representative capacity. Mr. Akaro, the Learned advocate for the 2"J appellant submitted that such omission to ol-Lain leave for the filing and prosecuting of the said representative suit was a ;,;.',gnnt flouting Oi the express and mandatory provisions of order 1 rule 8(1) of the Civil Procedui - Code, 1966. The1counsel suppoi Led his submissions by citino d decision of tl i : < -urt of Appeal of Tanzania name*/ K J . Motor* a th re e o th ers Is. R ich ard K ham ba & o th e rs - C ivil A pp eal N o.74 ■1999 - Salaam Real; -ry (unreported). ’ ! this ground ;f appeal th ujnsel for t iv re: -ondents had ; jthing subsu..!:.ive to submit jther than cli-iomg on the issue .'f Limitation which is not applicable to this gro«. ,d of appeal To make the matter short, I entirely agree with the counsels for ie appellant th:;t Order ] Rule 8(1) of the Civil Procedure, 1966 is e.; ress and unambiguous that leave is a condition precedent prior tu the institutioi =of a represent;ilive suit. The allegation that the suit was filed under the provisions of the Err \>ioyment Ordinance and therefore not applicable under order 1 rule 8(1) r>f the Civil Procedure Code is based on a misconception. The !.iw is clear th .-: even the Employment cases under Cap 366 intend, d to be filed as a representative suit, leave of the court is mandatory and must be sought ancl obtained prior to the institution of the suit. This position was adequently and c loquently expressed in the above cited case of K J . M otors and th re e o th e rs Va. R ich a rd fi-jcgZiamba and others. For those reasons and on the strength of the Learned counsels for the appellants submissions, the second ground of appeal is hereby allowed. On the third ground of appeal it was submitted that the trial District Magistrate erred in law by dismissing the appellants preliminary objection regarding the statutory requirement of leave to sue the appellants. The counsel for the 2nd appellant sui /.itted that section 9(1) of the Bankruptcy Ordinance prohibits Lhe institution of any suit against an official receiver without- prior leave of the High Court. In support of that mandatory requirement of the leave the counsel cited the case of Jo h n Reuben Vs. T anzania T e le co m m u n ica tio n Co. Ltd - Civil Case 3 of 200V !-iigh Court a 'c . /anza (unreported) and Joseph Jones Mwr.jpopo Vs. Tanzania Telecon isnicationo Co. Ltd - Civil C e No. 12 r>i: 1999 - High Court of Tanzar n at Dcdoma (unrepo;cid). In those two cases it was he'd that under S.9(l) of the Bankruptcy Ordinance, once a receiving c r'e r has been n r;cie a creditor si all not commence action or other proceedings unless leave or tlv. High Court is obtained. This ground or appeal also succeed and indeed :■lis matter should have commenced in the High court as found and determined in ground one of this appeal, with a leave of this very court as provided under 3.9(1) of che Bankruptcy Ordinance. Such a leave of the-High Court is :ondition precedent before one commences an action acainst a corporation placed under receivership of the Presidential Pa ra ste r I Sector Reform Ccm rr'ssicr. Having ;cne that far and having four.Li aii three groynes of acoeai on preliminary objections in favour of the appellants, I own thee :re question on whether to proceed to consider the remaining grounds of appeal (part ;•) which / touches on the merits of the main case has exercised my mind considerably; but, in the end I have reached a settled opinion chat to consider such grounds would amount to an otiose exercise or rather academic one. The above findings are enough and in effect they do dispose off the whole suit entirely. The Learned trial District Magistrate decided to proceed with the case in total disregard of the law and procedures. The law and the authorities cited by the able and resourceful learned counsels for the appellants are evident chat if the preliminary objections ware properly and seriously considered by the trial District Magistrate this matter would have been resoived in one way or the other back in 1999 and 2001 when the preliminary objections were carsualy dismissed. In *3 premise^ of th foregoing, and for the rea ons given he? ain above, I am satisfied that the trial District Magistrate gravely erred in dismissing the preliminary objections raised by the appei’.jnts/defendants and wrongly decided to proceed with the cas^. All preliminvuy objections are sustained, the appeal is allowed, judgment and o;v vs of the District Court set and q u a ':. d. Regarding to th«j costs, I am c r th- view that, thh ■eing an appeal from a suit filed under the p, t /;3lo.';S of the I. rnployment Odin- :e, and found in favour of the employer, it is prude, for each j;... Ly to shoulde; ; costs. It is so orcierec.. M.S. S r A, 3 28.1. )05 Judgment delivered iodate 28.1.0!> in the presence of Mr. Sancpwe and Mr. Akaro,. counsels for the appellants and Mr. Kavuta counsel for the M.S. SH LI, 3 28.1.2005