william godfrey urassa vs tanapa arusha 2009 tzhc 238 2 june 2009

IN THE HIGH COURT OF TANZANIA AT ARUSHA MISC. CIVIL APPEAL NO. 12 OF 2 0 0 0 WILLIAM GODFREY URASSA ....................... APPELLANT - V ersus - TANAPA A R U S H A ................................................... RESPONDENT (Appeal from th e d e c is io n o f th e Indu strial C ou rt at Arusha) (A. A. M. SHAYO - DC) D ated th e 2 8 th day o f J u ly , 2 0 0 6 In Trade D ispute No. 11 o f 1 9 9 3 D ated th e 1 1th M arch, & 2 nd J u n e, 2 0 0 9 RULING OF THE COURT Before Mmilla, B.M.: Ciioelia. N.P.Z.: and Sambo« K.M.M.: J.I.T; Mmilla,J.s Twenty years ago, that is on 29.5.1989 the applicant, William Godfrey Urassa was interdicted by his employer “ Tanzania National Parks” on allegations o f theft o f his em ployer’ s money. He was prosecuted before a court o f law, but on 20.1.1993 he was found not guilty and acquitted. He was briefly reinstated in February 1993, but on 18.5.1993 had his services terminated. After protracted unfruitful negotiations with his employer which were handled by the Organization o f Tanzania Trade Unions (OTTU ), he instituted Trade 1 Dispute No. 11 o f 1993 whose decision in that Tribunal is the subject o f Misc. Civil Appeal No. 12 o f 2000 before us. This appeal was fixed for hearing on 8.9.2008. On that day however, the hearing could not proceed following the information which was given to us by learned counsel Mwaluko that upon being served with a copy o f the record o f appeal on that very morning he was prompted to file a notice o f preliminary objection on a point o f law. Properly so in our view, he has requested this court to tackle the preliminary objection first before proceeding, if at all, with the main matter before the court. The preliminary point he has raised is that the appeal is misconceived and bad in law as it is against a non — existing legal person, not capable o f suing or being sued, referring to the respondent T A N A P A , Arusha. Relying on the provisions o f section 8 (1) (a) and (b) o f the National Parks Act, Cap. 282 o f the Revised Edition, 2002, learned counsel Mwaluko has submitted that the only body corporate which is capable o f suing and being sued is the “ Trustees o f the Tanzania National Parks” . Learned counsel Mwaluko has cited four cases in support o f his point. They include those o f The Registered Trustees of the Catholic Diocese of Arusha, v. The Board of Trustees of Simanjiro Pastoral Education Trust, High Court (T ), Civil Case No. 3 of 1998 (unreported), Registered Trustees of Arusha Hellenic Community and Another v. George Tsakris and 26 others, Civil Case No. 15 of 1995, Arusha Registry (unreported), NBC (1997) Ltd v. Thomas K. Chacha t/a Ibora Timber Supply (T), Mwanza Civil Application No. 3 of 2000, (unreported) and Linus F. Shao v. The National Bank of Commerce Civil Appeal No. 36 of 2000, Mwanza Registry (unreported). He is requesting this court to strike out this appeal for being incompetent. On his part, learned senior council Mahatane has denied in the first place that T A N A P A , Arusha is non — existent. He has submitted that although its corporate name is “ The Trustees o f the Tanzania National Parks” , this entity trades as “ TANAPA, Arusha” . According to him, it invites the general public to identify it as such. He has asserted therefore that, by general reputation the respondent is known as T A N A P A . He has added that it has been conducting correspondences with the appellant or with several other people outside itself on its “ letter headed papers” which describe and identify the organization as “ T A N A P A ” or as “ Tanzania National Parks.” He demonstrated this by filing annexture “ A ” to verify his point. He submitted therefore that there is in existence an organization generally known and styled variously as T A N A P A of Arusha or as “ Tanzania National Parks,” but which can sue or be sued only in its corporate name o f the Trustees o f Tanzania National Parks” . He has submitted therefore that the view held by the respondent’ s advocate that the respondent does not exist is not true in the circumstances o f this case, adding that the court decisions his learned friend has cited based on non — existence o f the party in the 3 suit which is not the case in our present matter, thus distinguishable. He has prayed this court to dismiss the preliminary objection. On the other hand however, learned senior counsel Mahatane has admitted that Misc. Civil Appeal No. 12 o f 2000 and proceedings in Industrial Court o f Tanzania in Trade Dispute No. 11 o f 1993 were brought in the wrong name o f the plaintiff but who was existing. In his humble view, the redress in such a situation is by amending such a defect in order to set the matter correctly by removing the wrong name o f the appellant (applicant) and putting in its place the proper name o f “ The Trustees o f Tanzania National Parks” instead o f striking out or non — suiting the Appeal or Application in terms o f Order 1 rule 1 and 2 o f the Civil Procedure Code Cap. 33 o f the Revised Edition, 2002. He has also cited the proviso to Order V II rule 11 o f the same Code as was amended by G.N. No. 228 of 1971. senior learned counsel Mahatane has supported his argument with two cases o f George and company (M.P. George t/a George & Co. in Amended Plaint) v. Pritam’s Auto Service (1955) 22 EACA 233 and A.N. Phakey v. World Wide Agencies, Ltd 15 EACA 1. He has also aired concern over the long unreasonable and unexplained inordinate delay in raising the preliminary objection on the nomenclature for the respondent. He has submitted that the application was commenced in the name o f “ T A N A P A , Arusha” and variously referred to as “ Tanzania national Parks “ as the respondent way back in about 15 Novem ber, 1993, but that the 4 objection being raised now was never raised, which is now a period o f about 15 years o f battle in the judicial fora. He has therefore pleaded the equitable principle o f stoppel by larches. He has relied on the case o f Issa Mohamed v. Regional CID officer (1979) L.R.T. 12 and Abdu Assabwala v. Abdu Saeed (1957) EA. 597. We have carefully gone through the submissions o f both counsel for the parties. W e note that they agree that in law; only two types of persons can institute legal proceedings (sue) or defend such proceedings (be sued). These are the natural and legal persons. In the latter category o f legal persons we have companies and trustees which become body corporate upon being granted certificates o f incorporation after registration or after being created by statute under the relevant laws. There is no hazarding that such registered trustees can only sue or be sued in the corporate name(s). This is what was exactly expressed in the case o f The Registered Trustees o f the Catholic Diocese o f Arusha, v. The Board o f Trustees o f Simanjiro Pastoral Education Trust, High Court (T ), Civil Case No. 3 o f 1998 (unreported) which is one among those being relied upon by learned counsel Mwaluko. W e hasten to say that what is expressed above is the correct legal 5 position. An unincorporated body or trustee cannot sue or be sued in any court o f law as it has no legal personality. The facts in the case o f the Registered Trustees of the Catholic Diocese of Arusha v. The Board of Trustees of Simarijiro Pastoral Education Trust were similar to those o f present case. In that case, the point which was taken by way o f preliminary objection was that at no time had there been in existence a legal entity capable o f suing or being sued in law known as the “The Registered Trustees of the Catholic Diocese of Arusha” as was required by the provisions o f section 6(1) o f the Trustees Incorporation Ordinance, Cap. 375 o f the Laws. The Adm inistrator - General o f Trustees had signified his consent o f acquiring interest in the suit land to a corporate body known as ‘The Registered Trustees, Diocese of Arusha” and not “The Registered Trustees of the Catholic Diocese of Arusha.” That court held the view that “The Registered Trustees of the Catholic Diocese of Arusha” was non existent; therefore that it had no power to sue or be sued. See also the cases o f Registered Trustees of Arusha Hellenic Community and Another v. George Tsakris and 26 others, NBC (1997) Ltd v. Thomas K. Chacha t/a Ibora Timber Supply (T ), and Linus F. Shao v. The National Bank of Commerce (supra). 6 In our present case, Misc. Civil Appeal No. 12 o f 2000 and proceedings in Industrial Court o f Tanzania in Trade Dispute No. 11 o f 1993 were brought in the name o f T A N A P A , Arusha. However, in terms o f section 8 (1) (a) and (b) o f the National Parks Act, Cap, 282 o f the Revised Edition, 2002, the only body corporate which is capable o f suing and being sued in the circumstances was “ The Trustees o f the Tanzania National Parks.” That section provides that, we quote: “ Section 8(1): There shall be established for the purposes o f this Act a Board o f Trustees which shall- (a) be a body corporate by the name o f “ the Trustees o f the Tanzania National Parks” with perpetual succession and a com m on seal. (b) In their corporate name be capable o f suing and being sued.” 7 We have also considered the submission o f senior learned counsel Mahatane to effect that T A N A P A , Arusha is merely a wrong name but exists. We are o f the firm view that on the guidance o f The Registered Trustees of the Catholic Diocese of Arusha, v. The Board of Trustees of Simanjiro Pastoral Education Trust whose facts, we have said, are similar to the present case, T A N A P A , Arusha in our present case is non existent, thus could not sue or be sued. The cases o f George and company (M.P. George t/a George & Co. in Amended Plaint) v. Pritam’s Auto Service and A.N. Phakey v. World Wide Agencies (supra) he relied upon in this regard are distinguishable. In the circumstances, the provisions o f Order 1 rule 1 o f the Code cannot properly be applied. Senior learned counsel Mahatane has also resorted to the equitable principle o f estoppel. W e are o f the unanimous view that much as we agree, particularly basing on the evidence constituted in annexture 44A” that “ The Trustees o f the Tanzania National Parks” was allegedly trading as “ T A N A P A , Arusha” as well as the various correspondences between the parties in this same name now being contested as non- existent that it has taken too long (about 15 years) for such an objection to be raised, in our view the fate tilts against the applicant. Apart from the finding we have just made above that T A N A P A , Arusha is non existent; we also heed to the fact that it is a settled principle o f law that a point o f law can be taken at any stage o f the case, including at the level o f appeal. We have in mind the case o f F.A. Kilewo v.Eleakira Pendael & Another, Civil Appeal No. 4 of 1994, High Court (T), Moshi Registry (unreported). In our case, lack o f objection as to non — existence o f the defendant either out o f ignorance, or inadvertence or even com plicity between the parties cannot be condoned by the court if it is glaringly clear as is the case here that in law such a person does not exist. The cases o f Issa Mohamed v. Regional CID officer (1979) L.R.T. 12 and Abdu Assabwala v. Abdu Saeed (1957) EA. 597 cannot bail them out o f this. 9 In the circumstances, the principle o f larches cannot apply here. In conclusion, we are satisfied that the preliminary objection has merits which we accordingly uphold. In consequence, we strike out this appeal for being incom petent. Costs to be in the course. (Sgd) Mmilla, B.M. Judge. 28.5.2009 (Sgd) Chocha, N.P.Z. Judge. 28.5.2009 (Sgd) Sambo, K.M.M. Judge. 28.5.2009 10 Date; 2/06/2009 Coram:- K. M. M. Sambo, J. For the Appellant; Mr. Mahatane, Advocate. For the Respondent: Mr. Mwaluko, Advocate. B/c: Mariamu. Order: The ruling o f the court in respect o f the preliminary objection is read in court today in the presence o f both learned advocates for the parties as indicated in the coram hereinabove. AT ARUSHA. (Sgd) / M 11