usangu logistics t ltd vs tanzania national road agency ministry of infrastructure development attorney general 2007 tzhccomd 26 9 november 2007

USANGU LOGISTICS [TO LTD v s TAN ZANIA NATIONAL ROAD AGENCY, MINISTRFY OF INFRASTRUCTURE DEVELOPMENT &

ATTO RN EY GENERAL

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO. 58 OF2007

R UL ING Deadline for submissions - 30/10/2007 Date o f Ruling - 9/11/2007 MASSATI, J. Through the services o f M /S MASAKA & CO =. ADVOCATES, the Plaintiff, USANGU LOGISTICS (T) LTD, has filed a suit in this Court against the Defendants to claim for orders; that the impounding o f his truck and trailer by the 1st Defendant was unlawful, for the release o f the said truck and trailer, special damages to the tune o f Tshs 98,000,000/=, loss o f business at the sum o f Tshs. 1,500,000/= per day, general damages o f not more than shs. 250,000,000/=, interests and costs. The Defendants are jointly defended by the Attorney - General, who is also the 3rd Defendant. In their joint defence, the Defendants have raised the following preliminary objection:- “ That the suit contravenes the Court’s Registry Rules as it has been filed in the wrong registry and this court has no territorialjurisdiction.” For this, the Defendants pray for the dismissal o f the suit. The Plaintiff would not let it prevail. In its reply to the Written Statement o f defence, the Plaintiff described the preliminary objection as:- “ Vexatious, frivolous and unfounded for want o f metis. And so prayed that the same be overruled. As if that was not enough he also launched an attack on the statement o f defence, against which he directed two legal missiles on the verification clause:- “ (a) The name o f the person verifying the averments contained in the defence is not disclosed. (b) TABRIADS by itself not being a natural person is incapable o f ___supplying information to the person verifying the contents o f the USANGU LOGISTICS [TO LTD v s TAN ZANIA NATIONAL ROAD AGENCY, MINISTRFY OF INFRASTRUCTURE DEVELOPMENT &

ATTO RN EY GENERAL written statement o f defence.” And so prayed that the same be struck out with costs I ordered the consolidation o f the two sets o f preliminary objections and their disposal by written submissions. Counsel have now presented their arguments. Since the Defendants have raised the question o f jurisdiction o f this Court, I will begin with their objection. The argument o f the Defendants, presented by the learned state attorney, is this: Since the cause o f action in this case arose in Mwendakulima, Kahama, Shinyanga and since s. 6 (4) o f the Government Proceedings Act 1967, requires all suits against the government to be instituted in the registry o f the High Court within the area where the claim arose, it was wrong for the Plaintiff to file this suit in the present Court. Therefore the Court lacks territorial jurisdiction. In support o f that argument, the learned Counsel for the defence referred to the Court o f Appeal Civil Revision No. 50 o f 1998 (unreported) JAMES G W AGILO VS. ATTORNEY GENERAL . For this reason, the Court was beseeched to strike out the suit with costs. Against that argument, Mr. Masaka learned Counsel for the Plaintiff, put up the following counter argument. Since the 1st Defendant is a legal entity capable o f sing and being sued on its own, the joinder o f the government and the Attorney General does not turn it, into a government

suit, therefore s. 6 (4) o f the Government Proceedings Act did not apply. Therefore in terms o f s. 189a) and 9b)s o f the Civil procedure Code Act, the suit was properly instituted in the present Court within whose jurisdiction, the 1st Defendant is headquartered. He submitted that G W A G IL O ’ s case was not applicable in the circumstances o f this case, not only because, in that case the Attorney General was the only Defendant, but also that the decision in that case was at variance with the enabling statute in the Civil Procedure Code. The case o f NBC VS. JACKSON NAHM AW A SINZO BAKW ILA [ 1978] lrt. N. 39, was referred to me as authority for the statement that:- “ Where case law and statute are at variance, the latter takes precedence over the form er. ” Therefore, concluded the learned Counsel, the Defendants” objection should be dismissed. In rebuttal, learned state attorney submitted thus. So long as the Attorney General was joined as a necessary party, the proceedings were “ proceedings against the government” , and so s.6 (4) o f the Government Proceedings Act, was applicable and so was the principle set out in G W A G IL O ’ S case, that it was s. 18 ( c), o f the Civil Procedure Code Act, and not s. 18 (a) and (b), which applied to proceedings against the government. As for the rationale for joining necessary parties the learned state attorney referred the Court to the statement o f USANGU LOGISTICS [TO LTD v s TAN ZANIA NATIONAL ROAD AGENCY, MINISTRFY OF INFRASTRUCTURE DEVELOPMENT &

ATTO RN EY GENERAL DEVLIN J in AMON VS. RAPHAEL TUCK & SONS [1959] All ER. 273 at p.

287. With these, the learned Counsel reiterated the Defendant’ s prayers that the suit be struck out with costs. AAs rightly pointed out by Mr Masaka learned Counsel for the Plaintiff, I think there are two issues here which call for de termination. First, are the proceedings before me government proceedings? Two, if so, whether the suit has been properly instituted in this Court:? The argument that because the 1st Defendant is a legal entity capable o f sing and being sued, therefore the suit is not a government proceeding, may sound attractive, but legally untenable. In paragraph 2 o f the plaint the Plaintiff acknowledges that the 1st Plaintiff is a government agency established under GN 283 o f 2000. The government notice which establishes the 1st Plaintiff is made under s. 3 95) o f the Executive Agencies Act (Cap 245 RE 2002). It is true that under S. 3 (60 (a) and (b) o f that Act, the Executive Agency may enter into contract or sue and be sued but the power to sue and be used is restricted. According to s. 3 (6) an executive agency shall be: (a) Be capable o f sing and being sued in its own name only in contract (Emphasis supplied) and in that respect all laws applicable to legal proceedings other than the Government Proceedings Act, 1967, shall apply to legal proceedings to which the Agency is a party. But in other matters not relating to contracts s. 6 ( c)

provides:- “ ...however any legal proceedings which butfo r this paragraph, would have been instituted by or against the executive agency, may only be instituted by or against the Government in accordance with the Government Proceedings A ct.” In the present case there is no averment that the Plaintiff’ s cause o f action against the 1st Plaintiff is founded on contract. This means that s. 3 (67)( (c ) o f the Executive Agencies Act is applicable. It follows as day follows right, that in the wording o f that section and on the facts, the present proceedings are government by the Government Proceedings Act, 1967 (Cap 5 RE 2002). I would, in the event, agree with the learned state attorney, although for different reasons, that the present suit is a government proceeding, and therefore governed by the Government Proceedings Act. I now go to the second issue whether the suit was properly instituted in this Court. The starting point is s. 6 (4) o f the Government Proceedings Act which USANGU LOGISTICS [TO LTD v s TAN ZANIA NATIONAL ROAD AGENCY, MINISTRFY OF INFRASTRUCTURE DEVELOPMENT &

ATTO RN EY GENERAL reads as follows:- “ (6) (4) All suits against the Government shall be instituted in the High Court by delivering in the Registry o f the High Court within the area where the claim arose.” The ratio decidendi in G W A G ILO ’ S case was that since the Plaintiff was terminated and received the letter o f termination in Dar es Salaam, and since s. 18 (a) and (b) o f the Civil Procedure Code 1966, did not apply to the government, the Plaintiff could only institute his sit in Dar es Salaam. However, G W A G ILO ’ S case was decided prior to the commencement o f the commercial division o f the High Court. After the establishment o f the Commercial Division, I think the situation has now changed. Rule 5A o f the High Court Registries Rules stipulates:- “ There shall be a Commercial Division o f the High Court within the Registry at Dar es Salaam and at any other registry or sub registry as may be determined by the Chief Justice, in which proceedings concerning commercial cases may be instituted.” Rule 7 (1) o f the Rules further provides: “ (1) Original proceedings in the Court may be instituted either in the Registry at Dar es Salaam or in the District Registry (if any) fo r the area in which the cause o f action arose or where the Defendant resides. Provided that where original proceedings in a commercial case are instituted in a District or sub registry such

proceedings shall as soon as practicable be transferred to the Commercial Division before further steps are taken in the proceedings except where all parties agree to have the commercial case determined by the High Court at such District or sub registry o f the High Court.” As I see it, the combined effect o f s. 6 (4) o f the Government Proceedings Act, Rules 3, 4, 5, 5a, and 7 (1) o f the high Court Registries Rules, is this: There is only one High Court Registry based in Dar es Salaam and such District Registries or sub registries as the Chief Justice may establish. Original proceedings may be instituted either in the Registry at Dar es Salaam or in the District Registry for the area in which the cause o f action arose. What this rule implies, is that the High Court Registry, has territorial jurisdiction to receive all original proceedings. The Commercial d=Division o f the High Court is a division, within the Registry at Dar es Salaam . It therefore, like the Dar es USANGU LOGISTICS [TO LTD v s TAN ZANIA NATIONAL ROAD AGENCY, MINISTRFY OF INFRASTRUCTURE DEVELOPMENT &

ATTO RN EY GENERAL Salaam Registry, enjoys territorial jurisdiction in commercial cases. Therefore, in my view, although s. 6 (4) requires all suits against the Government to be instituted in the Registry o f the High Court within the area in which the cause o f action arose, in the case o f a commercial case, once instituted, such a case ought to be transferred to the Commercial Division. I am settled in my mind, that s. 6 (4) o f the Government Proceedings Act, was enacted as an exception to the general rule enshrined in Rule 7 o f the High Court Registries Rules, and s. 18 o f the Civil Procedure Code. Its intention was to enable citizens with suits to settle with the government have a loser access to justice. But with the formation o f the Commercial Division o f the High Court and the amendment to Rule 7 (1) by adding the proviso, the situation has changed but not necessarily in contradiction to S.6(4) o f the Government Proceedings Act. While this section enjoins all suits against the Government to institute in the High Court by delivering in the Registry o f the High Court within the area in which the cause o f action arose, the effect o f the proviso to Rule 7 (1) o f the Registries Rules is that, in the case o f Commercial Cases, such cases shall bet transferred to the commercial Division before further steps are taken in the proceedings. This means unless s. 6 (4) o f

the Government proceedings Act is also amended to expressly disapply the proviso to Rule 7 (1) o f the High Court Registries Rules, that the Commercial Division o f the High Court is clothed with jurisdiction to determine any suit against the government, regardless o f where the cause o f action arose. Whether or not the parties consent to the transfer o f a case is in my view, a different matter affecting only the practice and not the jurisdiction o f the Court. In any case the issue o f consent to transfer does not feature in the present case. For the above reasons, I would think that the principle in G W A G ILO ’ S case would not apply in the case o f commercial cases in full view o f the present legal situation. I would hold that the case is properly before this Court, because even if it were instituted in Tabora High Court District Registry within whose area the cause o f action arose, it would have been transferred to this Court anyway, so long as there is no dispute that it is a commercial case. I would accordingly disallow the Defendants’ preliminary objection. The next set o f preliminary objections are those raised by the Plaintiff against the defects in the verification o f the written statement o f defence. As set out above, the gist o f the Plaintiff’ s objection is that the verification clause is not signed by a person acquainted with the facts o f the case,

not authorized, and whose identify is not disclosed. According to Mr. Masaka, this offends O. VI rule 15 o f the Civil procedure Code Actg. On the other hand, the learned state attorney’ s argument is that as a state attorney, duly instructed by the 1st Defendant, she/he was not only authorized to sign the verification, but USANGU LOGISTICS [TO LTD v s TAN ZANIA NATIONAL ROAD AGENCY, MINISTRFY OF INFRASTRUCTURE DEVELOPMENT &

ATTO RN EY GENERAL also a person acquainted with the facts o f the case. Besides, argued the learned state attorney, there is no law, which requires the signatory o f a verification clause to make his identity known. The learned state attorney however, concurred with M. Masaka that O. VI rule 15 o f the Civil procedure Code 1966 governed verification o f pleadings. I think both counsel are wrong as to the law applicable. Having found that this is a proceeding against the government, I think the applicable law is 0.VI rule 15 o f the Government Proceedings (Procedure) Rules. Happily, however the wording o f the rules is the same. According to Order VI (15) o f the Government Proceedings (Procedure) Rules, which is in pari material with the same rule in the Civil Procedure Code 1966, every pleading has to be verified at the foot by the party or by some other person proved to the satisfaction to the Court to be acquainted with the facts o f the case. It also provides that the person verifying, shall specify by reference to each paragraph, what he verifies o f his own knowledge and what he verifies upon information. It also provides for the signing o f the verification by the person making it. M OGH A in his book, LA W OF PLEADINGS IN INDIA, 16thed. P. 54 gives the following comment: “In a sit by or against the government the pleading shall be signed by such person as the

government may, by general or special order appoint in that behalf and shall be verified by any person whom the government may so appoint and who is acquainted with the facts o f the ca se.” On the objects o f the verification and signature, the learned author further comments (p.52):- . While signatures are necessary to show that the pleading has been filed with the knowledge and approval o f the party, the object o f verification is to fix responsibility fo r the statements made therein upon someone before the court proceeds to adjudicate upon them.” I agree with the state attorney that there is no rule that requires the full identification o f a person who verifies a pleading, but I think it is desirable to do so, if the object o f verification is to be achieved. But, whether such a person is authorized or really acauainted with the facts, is, I think, a matter o f evidence that could not properly be probed into in a preliminary objection on a point o f law. I have carefully looked at the verification clause o f the Written Statement o f USANGU LOGISTICS [TO LTD v s TAN ZANIA NATIONAL ROAD AGENCY, MINISTRFY OF INFRASTRUCTURE DEVELOPMENT &

ATTO RN EY GENERAL Defence complained about by the Plaintiff. I am satisfied that it is properly verified and signed by the state attorney; whether the state attorney was authorized to sign or acquainted with the facts, or really informed by TANROADS, is a matter o f evidence, which we cannot go into at this stage. All that the Court can look at in handling a preliminary objection on a point o f law is the face value o f the pleading. As to whether TANROADS could supply the requisite information, my view is that as a legal entity and obviously through its officers, I think it can although like in the case o f the person who verifies it is desirable to identity the informant “ officer.” I do not, however, think that the non disclosure o f the name o f the information is in itselffatal. With those observations, must conclude that I am unable to find anything wrong with the verification o f the Written Statement o f Defence. But even if I were to find that the verification and the signature were defective, would I been titled to strike out the Written Statement o f Defence as suggested by Mr. Masaka? I think not. Why? According to M OGH A (supra) p. 55:- “ What o f signature or verification or any defect in either will not make the pleading void, and the sit cannot be dismissed, nor can a defence be struck out simply fo r want o f or a defect in the signature or verification o f

the plaint or written statement as these are matters o f procedure only. The defect may be cured by amendment at any stage o f the suit. This reasoning has been followed by the Courts in this country. Thus, in PHILIP ANANIA MASASI VS RETURNING OFFICER, NJOMBE NORTH CONSTITUENCY, THE ATTORNEY GENERAL & JACKSON M AKW ETA (Misc. Civil Cause No. 7/95 (unreported) Samatta JK. ( as he then was) held:- “As I apprehend the law, want o f or defect in verification does no make a pleading void, it is a mere irregularity which is curable by amendment.” At the end o f the day, I find that not only is the verification clause in the Written Statement o f Defence, not defective in any way, but also that even if it were, it is curable by amendment and does not attract the sanction o f being struck out advocate for by Mr.Masaka, learned Counsel. His preliminary objections too, must fail. In the event, I find and hold that both sets o f preliminary objections are devoid o f substance and must fail. I must now dismiss them, and order that each party shall bear their own costs. Order accordingly, USANGU LOGISTICS (T 0 LTD v s TAN ZANIA NATIONAL ROAD AGENCY, MINISTRFY OF INFRASTRUCTURE DEVELOPMENT &

ATTO RN EY GENERAL S.A. MASSATI

JUDGE 9/11/2007