20070926 TZCA Dar es Salaam1

IN THE COURT OF APPEAL OF TANZANIA I AT DAR· ES SALAAM CIVIL APPLICATION NO. 164 OF 2006 I . TOSI JATEGI ...... .................................................. .APPLICANT

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VERSUS j TANZANIA HARBOURS AUTHORITY ..................... RESPONDENTS i &ANOTHER J (Application for Extension o time for the Application to serve Notice of Appeal to the Respondents Lodged On 27th Dec, 2005 From the Judgment/Decision Of the High Court of Tanzania I at Dar 1es salaam) I I {lh~ma, J.) I dated the 16th day of December, 2005 f I in I • ·1 Appeal No. 4 o5 ot 2002· HC. C1v1

RLING 18 & 26 Sept, 2007 MBAROUK, l: Before me is an application by notice of motion for extension of I time in which to apply for leave to serve notice of appeal to the Respondents. The application suJported by an affidavit was sworn by l I Mr. Moses Maira, learned counsel! for the applicant. i ll i When the application was called on for hearing Mr. Waziri Mchome, learned counsel for the respondents, raised a point. of preliminary objection, to which its notice had been filed earlier. The ground of objection on a point of law reads that:- "This application is incompetent before the court as it is against a non- existing First Respondent and that the intended appeal will not lie against the 2nd Respondent by virtue of the changes of the law." In support of the preliminary objection, Mr. Mchome asserted st that, this application is incompetent as it is against a non existing 1 Respondent. He proceeded by pointing out that, the 1st Respondent was a creature of statute established under Tanzania Harbours Authority Act No. 12 of 1977, but the said Act has been repealed by the Ports Act No. 17 of 2004. 2 Mr. Mchome contended further that, section ,75, of the Ports ; Act, 2004 provides for the transfer of liabilities, assets and personnel. According to the learned advocate, the whole of section 75 does not . in anyway include the matter currently pending in Court. He

further submitted that there is no certificate of the Minister to certify that the ' applicant's claim has been transferred to Tanzania Ports Authority in compliance with section 75(6) of Ports Act No. 17 of 2004, to which the same provides that:- "Where any question arises as tff whether any particular property,; right or liability has been vested• or transferred in the Authority under subsection (1) and (2), a certificate under the hand of the Minister shall be conclusive evidence that the property, right or liability was or was not transferred or vested as such." 3 The learned counsel for the respondent submitted that, since Tanzania Harbours Authority is not existing and the ·matter is against Tanzania Harbours Authority, the same is incompetent. This is because, the applicant's claim is against the non existing corporation. With regard to his second limb of his objection, Mr. Mchome asserted that, the 2nd Respondent can only be sued if there is a specified corporation. However, he said that according to GN. No. 151 of 2006, the Tanzania Ports Authority has been de- specified and it no longer a specified corporation. Hence, Mr. Mchome submitted that an appeal against the 2nd Respondent can not lie. For the reason of being incompetent, Mr. Mchome invited me to strike out this application with costs. Mr.Maira, learned counsel for the applicant resisted the objection and contended that, there is a misapprehension of this proceeding by his learned friend. He said that,: the record shows that, this application arises from the decision of Ihema,J.(as he then 4

I I I was) in Civil Case No. 405 of 2002·. The learned counsel for the J I applicant submitted that litigation is: a process, and that is why the same .1s st·11 I con t·mumg . as a process.:j

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I I I Mr. Maira reacted further contending that his learned friend I has conceded that Tanzania Harbours Authority has been replaced I I by Tanzania Ports Authority. Hence he said, it is up to his learned I I friend to give evidence that the m,'atter pending in court is barred. I I After all, he said that the substitution of Tanzania Harbours Authority I to Tanzania Ports Authority was 6nly name changes, whereas the ' functions, liabilities, and assets reh1ained the same. Further more I Mr. Maira submitted that, this applkation is not inconsistent with the I provisions of Ports Act, 2004. It was Mr, Maira's contention that, Parliament has not meant I I by substituting Tanzania Harbours Authority (1 st Respondent) to Tanzania Ports Authority, all the 1/tigants have lost their rights. After all he said what they need is td sue the successor in title to the ' I Tanzania Harbours Authority (1 st i Respondent). He then submitted I I } 5 I I that the new Act (Ports Act, 2004) took effect on 8.2.2005 and their I I . application was filed on 23.11.2006 a:nd it is not the first time for this I matter to be in this Court. I I The learned counsel for the ap'plicant ended by submitting that ! I this preliminary objection is misconceived, because the application I was served in terms of section 95(2) of Ports Act, 2004, hence I prayed for the same to be overruledl. I The central issue which

requi es the decision of this Court is on 1 ' whether this application is incom'petent for being against a non I existing First Respondent and whether I the intended appeal will lie I ! against the 2nd Respondent by virtu:e of the changes of the law. I The general principle of the! law directs that it is essential for I f. I the names of the parties either ,in a suit or an application to be I I clearly stated. This is because such a mistake in the names of the parties may be fatal and bring jbout some confusion. Hence an I j application bearing a non- exister-1t respondent as in this case, may 6 lead to fatal consequences too because if the applicant wins, an order of the court might not be executable to such a non existing party. In showing the difficulty and confusion which might arise in a case where a wrong party has been given let alone a non existent party, the case of Juma Kadala V. Laurent Makande [1983] TLR 103 observed that:- "The difficulty or confusion that may ultimately emerge if the name remains unchanged are too obvious to need a restatement .......... As a matter of fact an unscrupulous person I can even easily fraudulently convert communal property to his own use thereby." Without being delayed in this aspect, it is settled that a suit or an application having wrong or non-existing parties renders a suit or application incompetent. 7 . . . i, I, In the instant

application, the rec9rd is very clear that the same I had been filed in Court on 23.11.2006 which is over one year after Ports Act, 2004 has taken effect on 8.2.2005. According to section I, . ' 95(1) of the Ports Act, No.17 of ?004, the Tanzania Harbours Authority Act, 1977 has been repealed. This means since 8.2.2005 ,, when Ports Act, 2004 took effect, T~nzania Harbours Authority (1 st I, Respondent) has been non - existent. However, the applicant I i I through lack of care (per incuri'am) filed I, his ,'application on 23.11.2006 and make Tanzania Harbours Authority qS a respondent, at the time when the Act which has ,!'established it has been repealed I since 8.2.2005. The new Act (Tan,~ania Ports Authority Act, 2004) ' ' has made Tanzania Harbours Autho~ity non existing .. !, I,' As shown above, an applicati,on having a nori - existing party ,, ' as is the case in this application, ithe same becomes incompetent. I I i' With due respect to Mr. Maira, I do not think that a change in name i, i from Tanzania Harbours Authorityi to Tanzania Ports Authority as a ,, successor in title can be taken automatically or by implication in the !: ' ., process of filing a suit or an application in court. A proper party I, 8 (respondent) must appear in an appHcation. So as to avoid problems, necessary steps must be taken to have proper party before proceeding any further. For that reason,

this part of preliminary objection is sustained. As to the second limb, I am in an agreement with Mr. Mchome, learned counsel for the respondent that the 2nd respondent can only be sued if there is a specified corporation. Hence as far a GN. 151 of 2006 has de - specified the Tanzania Ports Authority a_nd the same is no longer a specified corporation, an appeal against the 2nd Respondent can not lie. Being a statutory requirement I have no reason to argue otherwise. In the upshot, for the foregoing reasons, : the preliminary objection is sustained. Consequently, the application being incompetent is struck out with costs. DATE at Dar es Salaam this 18th Day of Septe,mber, 2007 9 M.S. MBAROUK

JUSTICE OF APPEAL at this is a true copy of the original. I ; . ;

ANYIKA

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