tiki fredrick mushi and another vs lafayette international corporation ltd another 2023 tzhccomd 24 13 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL COURT DIVISION) AT DAR ES SALAAM COMMERCIAL CAUSE NO. 37 OF 2022 TIKI FREDRICK MUSHI……………………………………...1ST APPLICANT ANDREW KITIGANDA MAGESA………………….………...2ND APPLICANT VERSUS LAFAYETTE INTERNATIONAL CORPORATION (T) LIMITED….…………...………..….1ST RESPONDENT THE REGISTRAR OF COMPANIES……………………...2ND RESPONDENT RULING Date of last order: 22/11/2022 Date of ruling: 13/02/2023 AGATHO, J.: The Applicants brought this application by way of chamber summons supported by an affidavit. The Court was moved under the provisions of Section 95 of the Civil Procedure Code [Cap 33 R.E. 2019] and Section 2(1), (3) and (5) of the Judicature and Application of Laws Act [Cap 358 R.E. 2019]. They are seeking the following orders: (a) The Court declare that the letter dated 18th August 2022 with Reference No. MIIT/BRELA.RC/117995/22 which restored the position of the 1st Respondent and removed the Applicants as shareholders and directors of the 1st Respondent is null and void. (b) That the Court be pleased to declare that any changes effected (sic) the rights, status and powers of the Applicants in the 1st Respondent company by the 2nd Respondent are illegal and should be nullified. (c) The Court be pleased to declare that, procedures used by the 1 st Respondent and 2nd Respondent in removing the Applicants as 1 Directors and Shareholders of the Respondent company are null and void. (d) The Court be pleased to declare that the Applicants are lawful shareholders and Directors of the 1st Respondent and the position of the 1st Respondent before letter dated 18th day of August 2022 be restored. (e) This Court be pleased to make an interim order restraining the 1st Respondent, Directors and Shareholders of the 1st Respondent or any person acting on their behalf from disposing or changing the status of any property of the 1st Respondent pending the hearing and determination of this Application. (f) The Respondents to pay the costs of the application. (g) Any other reliefs that the Court thinks fit and just to grant to the Applicants. Upon being served with the copy of the Chamber summons and the affidavit in support, the State Attorney of the 2nd Respondent raised three preliminary objections on point of law. (1) The application is incompetent in law for offending Section 6(2) of the Government Proceedings Act [Cap 5 R.E. 2019] (2) That the application is bad in law for contravening Rule 10(1) of the High Court (Commercial Division) Procedure Rules, G.N. No. 250 of 2012 (3) That the application made against the Respondents is vexatious and otherwise an abuse of Court process and ought to be struck out with costs. The 1st Respondent on her side she raised two Preliminary Objections (herein referred as POs) on points of law as shown below: (1) That the application did not contain 90 days’ notice for suing the government contrary to Section 6(2) of the Government Proceedings Act [Cap 5 R.E. 2019], and (2) That the application did not implead the Attorney General as a necessary party contrary to Section 6(3) of the Government Proceedings Act [Cap 5 R.E. 2019] On 22/11/2022 by consensus, the parties agreed that the POs be disposed by way of written submissions. Thereafter the Court drew the schedule for filing of the same. It was set that the Respondents shall file their submission in support of the POs on 29/11/2022. The Applicants to file their reply to the Respondents’ submissions on 06/12/2022, rejoinder if any be filed on 2 13/12/2022 and ruling to be delivered on 13/02/2023. Strangely, it was just the Respondents who complied with the schedule set. Until the time of writing this ruling the Applicants never bothered to file their reply. Therefore, the ruling focused on the submission of the Respondents and the law. For interest of time and since the two POs raised by the 1st and 2nd Respondents are related, with exception of the 2nd and 3rd POs on contravention of Rule 10(1) of the HCCD Procedure Rules and abuse of Court process that were raised by the 2nd Respondent. The POs are merged, that is the two POs of the 1st Respondent are merged with the 1st PO raised by the 2nd Respondent. The latter’s two POs (2nd and 3rd) will be treated separately. I should state that from the outset the Applicants failure to file their reply to the Respondents submission on the POs cannot detain the Court from making a ruling. Such failure may be presumed that the Applicants have conceded to the POs raised. Nevertheless, I will examine the substance of the POs and the submission of the Respondents. To begin with, the key points of determination are as follows: Whether the application contravened the Government Proceedings Act (for failure to issue the (90 days’ notice to the government) and failure to make the Attorney General as a necessary party (Respondent) to the application as it was preferred against government entity (Registrar of Companies). The issue raised is answered in the affirmative. Nothing in the application especially the joint affidavit of Tiki Fredrick Mushi and Andrew Kitiganda Magesa avers on the issue of the 90 days’ notice to the government as required by the law, Section 6(2) of the Government Proceedings Act. It is important to point out that the Registrar of Companies is a government entity or institution established under Section 3(6) of the Executive Agencies Act [Cap 245 of 1997]. Hence, it is a governmental body for the purposes of the Government Proceedings Act [Cap 5 R.E. 2019]. There are plenty of authorities on this matter. The case of Arusha Municipal Council v Lyamuya Construction Company Ltd [1998] TLR 13 CAT held that non-service of statutory notice to Local Government Authority renders a suit unmaintainable. Similarly, in Palemo Construction v Kwimba District Council, Civil Case No. 33 of 2019 HCT Mwanza District Registry, the Court struck out the case for non-compliance with the mandatory requirement of law. In East Coast Oil Fats Limited v The Tanzania Bureau of Standards and Attorney General, Commercial Case No. 151 of 2017 HCCD at Dar es salaam the Court held that the provision of Government Proceedings Act is clear that before a party institutes a suit against the 3 Government such a party must have previously issued a notice of not less than 90 days to the government entity and a copy be served upon to the Attorney General. Another deficiency of the present application is failure to implead the Attorney General as a necessary party. Nothing in the Applicants’ joint affidavit averring as to why the Attorney General was not joined in the application. Moreover, looking at the chamber summons it is conspicuous that the Attorney General was not joined. Without beating around the bush this application is indeed incompetent for offending section 6(3) of the Government Proceedings Act [Cap 5 R.E. 2019]. I will add looking at the relief sought by the Applicants, the Commercial Cause at hand is a suit. It is not a mere application that does not determine the rights of the parties. See broad definition of the term “suit” in the case of Tanzania Motor Services Ltd & Another v Mehar Singh t/a Thaker Singh, Civil Appeal No. 115 of 2005 CAT at Dodoma (unreported). In that case it was held that suit may be instituted by various modes such as petitions like the one at hand. It is clear that in every proceedings that determine rights between the parties in which the Respondent is the government entity requires joining of the Attorney General as a necessary party. For instance, in Uitdager Consultancy & Business Investment Ltd v Tanzania Posts Corporation & Two Others, Misc. Land Application No. 43 of 2022, HCT Land Division at Dar es salaam (unreported) the Court sustained the Preliminary Objection that the application for mareva injunction order was incompetent and should be struck out due to the Applicant’s failure to join the Attorney General as required by Section 6(5) and Section 10 of the Government Proceedings Act [Cap 5 R.E. 2019]. Joining of the Attorney General in a suit against government is neither cosmetic nor optional requirement. It is a mandatory requirement set by the statute (Section 6 (3) the Government Proceedings Act [Cap 5 R.E. 2019]). Its non-compliance is fatal and renders the application incompetent. See Section 6 (4) the Government Proceedings Act [Cap 5 R.E. 2019]. Plethora of authorities exist on this. For instance, Hotels and Lodgers Tanzania Ltd v Conservation Commissioner, Ngorongoro Conservation Authority and the Attorney General, Misc. Commercial Application No. 136 of 2021, HCT Commercial Division (unreported); The Board of the Registered Trustees of Lawate Fuka Water Supply v RUWASA Siha District, CRDB Bank Siha Branch and the Attorney General, Misc. Civil Application No. 27 of 2021 (unreported). See also Law Wino V Karatu District Council, Civil Application No. 132 of 2018 CAT, and Henry Lubinza v Agriculture Inputs Trust Fund & Others, Civil Application No. 114/11 of 2019 CAT (both unreported). 4 In the end, the two POs having been found to have substance it will be counterproductive to examine the rest of the POs. For the foregoing reasons, the application is incompetent for not issuing the 90 days’ notice to the government and for failure to join the Attorney General as required by Section 6(2) and (3) of the Government Proceedings Act [Cap 5 R.E. 2019]. Consequently, the application is struck out with costs. It is so ordered. DATED at DAR ES SALAAM this 13th Day of February 2023. U. J. AGATHO JUDGE 13/02/2023 Date: 13/02/2023 Coram: Hon. U.J. Agatho J. For Applicants: Aden William, Advocate For 1st Respondents: Grace Omuti, State Attorney holding brief of Eric Mwanri Advocate. For 1st Respondents: Grace Umoti, State Attorney. C/Clerk: Beatrice Court: Ruling delivered today, this 13th February 2023 in the presence of Aden William, counsel for the Applicants, and Grace Umoti, 2nd Respondent’s State Attorney. U. J. AGATHO JUDGE 13/02/2023 5