20131024 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 58 OF 2012 THE REGISTERED TRUSTEES OF THE GOODWILL TRUST FOR MARGINALISED GROUPS T/ A STABELA ENGLISH MEDIUM ACADEMY ........................ PLAINTIFF .. VERSUS TANZANIA NATIONAL ROADS AGENCY .............................. DEFENDANT Date of last order: 27/08/2013 Date of Ruling: 24/10/2013 RULING F. Twaib, J: The Plaintiffs are the Registered Trustees of Goodwill Trust for Marginalised · Groups, trading in the name and style of Stabela English Medium Academy. They have filed this suit against the Defendant, Tanzania National Roads Agency, claiming for: " ... compensation at the tune of Tshs. 522,000,000/= for the demolition of their school building and. re-locating to another place so as to give way to the extension of road from Jet to Davis Corner, Temeke Municipality, Dar es Salaam City, damages at the tune Tshs. 70,000,200/= and costs for this suit." The Defendant has raised a preliminary objection, claiming that the suit is barred by law. Counsel for. the Defend~nt relies on section 3 (6) (b) and (c) ofJ_~e Executive Agencies Act, Cap 245 (R.E. 2002) read together with rule 2.1 9f. Page 1 of 7 .... .. ,• ~~ .. l ~ . :~ . ~ ·_;_. -·~·- _-.. ·:,: .: _,.: .,:~ .l1: I.·. '• I , ·. ~pposite party by surprise, or would raise issues of fact not arising out of the . plaint, as, for instance, fraud, limitation, release, payment, performance, or facts · showing illegality. Indeed, some decisions of this Court have applied this provision strictly. One such case is CRDB Bank Ltd. v Noorali K.J. Dhanani and Shiraz H.K.J . .Dhanani, High Court of Tanzania, Commercial Case No. 102 of 2001. In that .·. · .'c:ase, the Court interpreted the above rule to mean that a Defendant is enjoined to raise every preliminary issue in his defence and nowhere else. Nsekela J. (as .· he.. :th.en was) stated: ,. ,' •. , . · · "My reading and understanding of this rule is that if Defendant wants to raise an . :_ .·issue that the suit is not maintainable according to law, then this point must be · ,' ~aised in the body of the Written Statement of Defence. It must be in the body of :: ~he defence and not otherwise .... A piece of paper called "NOTICE", in my humble ·. · ·.. ·. ·.. view, contravenes Order VIII rule 2 of the Civil Procedure Code and should be · discarded. It is not properly before me to adjudicate upon." ·•·: ~owever, the learned Judge went on to determine the preliminary point, just in .· case he· was wrong in his interpretation of Order VIII rule 2. However, though . ·.· .·this holding was expressed obiter, I take it as highly persuasive and for purposes '. .of co_nsistency, such decision should ordinarily be followed: see, for instance, ·.>'.·>.,· .·' .Leio·D,das & 171 Others v. Ardhi University & 2 Others/ Misc. Civil Cause No. 34 ·fl: .••. ·-;: ·of 20.08:, High Court Main Registry, Dar es Salaam (per Massati, JK, as he then , . . .· -was·,: unreported) . . ~ ·. ....·.'i·-··.·:·•··Furthermore, • ... :·1 ·' . ·• this is not the first time that I have been faced with the question at . ·\•. : :·· 0.: .. :hand (namely, whether a preliminary objection can be raised outside the WSD). · ·. {<: . :·I~:Mark AD and PR International (T) Ltd v. Stanbic Bank Tanzania Ltd. Civil Case . '- . -~•.:.,.·,-,_\· . . .~ ·•:No: .. ' 9l of 2010, I distinguished CRDB's Case and held that certain matters of law . ' ,;_ ·. :-:::mayJ:,e· so fundamental that they go the root of the case and thus do not have · · ··· ·· / :.<t6·. be raised in the defence. Among these are matters of jurisdiction and ·.· ': •li_niifation. I stated: '.- ... ' . ' . \, ·. .. ,.·... : ,•. :,: , . Page 3 of .7 , ·· - . • • .,~. - .,-,a,I" ":..- -..._..__ _____ _ - . - - - ... -~,- 'do not think.it is open to~a.<COL.irt ofv·[aw*fo decline to determine. such. matters niply· because they have -notbe~n · raised in~ the .ws6. In ahy: case, the law ,j.0ins.;·G~ll~-C?u'tsLt~) ensun{that we only'.e\ltertain .'matters th~t are-brought t~ •• < • - ,. ,., •bs .., • ~· . . .J ., yVhere ~e are·sa~isfied·that·we h"ay,~:theYe~-rnsite:j_uris.diction:"'Eftn~r:wise,-inc:::.:::..:::.:::.:;:;;:::::__;;:_ prppriate cas~s, .we are even boun·d to 'raise the issu'{suo:motu: . ._ ·. ~ . .., . hus my conclusion in M~(k AD_ v Stanb(c that the requirement for raising .. , ,:t;-Js~ue in the WSD contained .in Order ViII rule 2: cannot be insisted upon :ij!'.!~W.i~i {1,: 1 . - · . . . · ~ - ·. 'W~M;,,i,, he matter or. issue touches upon such __critical question as the Court's WI%~; in this case, I would overrule t~e point raised by th_~ Plaintiff against ~:,f:, '!.. - ' , • • a'nner in which the ·oeferid~ht ra.ised its preliminary objection .. I now ',.:, ' . . . ;, f6 move to the Def~ndant's point of preliminary obJection. ~;~Tu~~~ . . "·'I~s'=s'ence·of tlie _Defendant'~ counsel's-~ubmission is that l?Y law, TANR~ADS ,_!_._ • • ,i • • _ .. , :'.i·:apacity to sue or be sued in its own name; exceptih contract. Thedssues ~::.}~v-·· t· • ~ • _ - /·\ point rai$eS, therefore, are: . . · ::hether it is true that, in law, the· Defendant cannot be sued except in '~ ntract; and ·ifiyes, · -.,~ ' · hether this action is based on a contract.· ·in wJth a ~iscussion of the relevant law. Section 3 (6) (b) and (c) of the . 1ve Age'ncies Act provides: . . , ) Notwithstanding any other law, an Executive Agency shall- (a) be capable of entering into contracts in its own name;. (b) be capable of suing and being s~ed in its own name only in co·ntract; and inthat respect. all laws applicable ' to legal proceedings other than Government Proceedings Act, 1967, shall applyto legal proceedings to which the Agency is a party; · [emphasis mine] Page 4 of 7 ' . ~-- .·• ~~ ~~\~ .: -~-~}.:~;~;:•~-~~~~..;:._•t~-••.~-.;..;.;.1t•c...:.:•,,....,..,,.~: •, -~~~~- ~~-~;... ~,.,;• ~"• ...........-.:. ••-•-~~~•-~._....;.•~lc~"'-''_,i.~~~~•:.•._•L" __ : •.(•~~ ~•~ ( c) in all matters relating to contract, not be competent to sue or be sued in its own name; however, any legal proceedings which, but for this paragraph, would have been instituted by or against the executive agency, may only be in~tituted by or against the Government in accordance with the Government Proceedings Act*; Item 2.1. of the Schedule to the Executive Agencies (The National Roads ·: .A~Jerky Establishment) Order, 2000, provides for the legal status of .· tANROADS in similar manner as the Act as quoted above, namely, that · TAN ROADS can sue and be sued only in contract. The Rules omit the word · ''only", which· is used in the Act apparently for purposes of emphasis. But, this · .· .being ~ subsidiary legislation, it cannot conflict or override the parent act, or >: , change it in any material particulars . .· ·. f:ierce, I accept the argument by counsel for the Defendant that the law bars any action against TANROADS, except where the cause of action is founded on .: .· ... :: contrac:t. Fortunately, this is not an unchartered territory. It has been traversed by: my brother and sister Judges before me [see, for instance, Total Tanzania .. ' ·.Ltd. .v Tanzania National Roads Agency {TANROADS), Land Case No. 31 of 2006 .<··.·. ::. (Land Division, Dar es Salaam, per Rugazia, J., unreported); Regional Manager .. < ,; ..:· .. (TANROADS) Manyara v. Gurax Singh Sandhu, Land Appeal No. 18 of 2012 . ·. . ·· ·(Land Division, Arusha, per Sambo J., unreported); and Sebastian Ndesanuro · ·· ·:·: .. '.: .Udo & Others v. TANROADS (Kilimanjaro), High Court, Land Division, land Case · No; 3 of 2008 (per Mugash.a, J., unreported)] . . , Hav·i.ng held that the Defendant can only be sued in contract, the remaining .'... ·•. : ·:: :: >.::':question : - . - is whether this suit is based on contract, as Plaintiffs' counsel maintains. - . . ,.: ., , < . As· .ea,rlier stated, the Plaintiffs are claiming for compensation for their ·<• .· demolished school building and provision of an alternative place for its relocation. · · ·. Th<:{ Pl~intiffs aver in the plaint that their said building was demolished by the •c , • . · :Defond~nt, some compensation has been paid, but the Plaintiffs-were not happy <With.: the compensation, which they considered inadequate. The Plaintiffs further · · daim•that the Defendant has threated to demolish other buildings belonging to Page 5 of 7 _..,.,... __ . . . ---·-··---· -· --------- . . . j thout· further ·compensati<fn; ·and- have. expressed fear: that their-school -~ ede-registered. ::· - ' .~· .• fa :, · .... ,. . .. + . .- . -: .. ..,....,,., l:is means i~ that the Plaintiffis·accusirf~f'tne"'Defendant~of-"Violating~legal======:::~1 ,:?:. ~ •'-: .: 't • . • " , -'I- • "-• . "' •• . •~-:: . , ~ • • ' ~ (mp·9s~d by the~law governing land matters·to pay fair·compensati9n for .cf'land: The Pl~i~tiff~ action is· th~s··,based: on-tort breach of statutory anct bwhere in th~. Pia.int is there any allegation, express of implied, or e'(en '\.1ation, that the Defendant is in ·breach of confract. :'·~;.~:for . . the Defendant agrees ,• ·with .. ~ _the • propo~ition that the Defendant. can . -j ''/tiv.• ~ , . • .,,.... ~"~; sued_i11_its~'('!n name in contract . .He ,however argues that· his clients' { ased on contract~ince~she puts )t:-- .. . .:_________________ _ : . . ti/fT]here has been a number .of correspondences both written and physical -:''!~tween the Plaintiff and Defendant as regards this OFFER and a disputed ;¢CE,PTANCE that c;reate a'contr~dual r~l_atiohship between the Pl~inti_ff·a~d the fendant...Therefore the Defendant · cannot dispute that there exis_ts no ;' ntractual relationship." · that counsel meant to say that "the Defendant cannot dispute thaNthere ,co'~tractual -r~lationship.i' They':have also tried vehemently to_ arg~~·tha_t as a contract between the parties. The thrust of counsel's argument is in lrving assertion: .,., r[T]he nature o~ cause of_ action giving rise to the institution of this suit shows -__early" that there is OFFER which suggests ACCEPTANCE whi.ch in this case was '-cepted by the Plaintiff with qualification and whic;h the Plaintiff seeks recourse 'r this Hon. Court to determined between the parties." ~ .,. ff~;:.with all due respect to learned counsel -· . . for the Plaintiffs, that we do not . ' .. . \ . tbe detained any longer by this line of reasoning. Counsel himself admits .re has been "a disputed acceptance". Hence, even assuming, for ... t's -sake, that there was an offer from the Pla_intiffs, counsel concedes - t the said offer has not been accepted. A "disputed acceptance" cannot, an acceptance at all. Acceptance is one of the essential Page 6 of 7 j f / l a • ··~ . --· .~ I ~'- .., • . • ,. , • ·' / • ingredients of cdntract. Its absence . , ~ means there is no 'Contract. It thus cannot . . ~ / . be said, by' any stretch of imagination, that in the present case there has· been a ., f' • // < contract: ·See also Sam~o, J.'s decision in,,Manyara v. Gurax Singh Sandhu, / ••- r, . · Hence, the Plaintiff's case being based on tort and breach of statutory duty, and· there b_eing not even a· semblance of contra~ in the parties' relationship, the provisions of section 3 (6) (b) and (c) of th~ Executive Agencies Act, Cap 245, would _necessarily apply. In- the final analysis, therefore, it is my finding that, since the cause of action in · this case is not founded on contract, the Plaintiffs are barred ...OY~· law to sue the : _Defendant in its personal ·capacity as they have ·done hereln. If the'{-an~ still minded to pursue their claims, they will have to comply with the provisions of · Section 3 (6) (b) a'nd (c) of the Executive Agencies Act, Cap 245 and other relev~ht law. As for the present suit, having been filed co~trary to _law, 'it cannot be allowed to stand. It is struck out with costs . ... "i' th DATED and DELIVERED this 24 day of October 2013. Judge Page 7 of 7