| dc.description | SIMBA MOTORS (T) LIMITED VERSUS TANZANIA AUTOMOBILE MANUFACTURING CO. LTD AND OTHER COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM
CIVIL APPEAL NO. 264 OF 2018
(Appeal from the decision of the High Court of Tanzania at Dar es Salaam] (Kalegeya J, A dated the 16th day of August, 2004 in Civil Case No. 441 of 2001)
CORAM: MUGASHA. J.A. LEVIRA, J.A and MWAMPASHI. J.A.
FLY NOTES
Corporate Laws-Appeal – Jurisdiction -Whether or not, the High Court had jurisdiction to entertain the suit in which one of the parties and particularly, TAMCO, was a specified Public Corporation
BRIEF FACTS
The appellant, Simba Motors (T) Limited is appealing against the decision of the High Court of Tanzania at Dar es Salaam in Civil Case No. 441 of 2001. In that case, the appellant's suit against the respondents, Tanzania Automobile Manufacturing Co. Ltd and Sweya Auction Mart & Court Brokers, hereinafter referred to as TAMCO and 2nd respondent, respectively, was dismissed while the counter claim raised by TAMCO against the appellant was allowed. Briefly, the facts from which the suit before the High Court arose hence the instant appeal, are as follows: On 15.09.1993, the appellant and TAMCO entered into an agreement for local safe agency whereby the former as an agent of the latter, received and sold on behalf of TAMCO on commission basis, 40 TATA trucks which had been imported by the latter. The duration of the agreement was three years. However, by 2001 and according to TAMCO, TZS. 225,740,000/= was still outstanding and not yet paid by the appellant. Consequently, TAMCO engaged the 2nd respondent, as its debt collection agent for collecting the said outstanding amount from the appellant. In that process, the 2nd respondent, among other things, issued a demand notice and pressed for payment of the said balance by the appellant. The 2nd respondent's pressure on the appellant, prompted the appellant to protest by instituting in the High Court Civil Case No. 441 of 2001 against the respondents, praying for, among other things, a declaration that the appellant was not indebted to TAMCO to the tune of TZS. 225,740,000/= and for a perpetual injunction restraining the respondents from threatening it with notices for disposal of its properties. In its written statement ofdefence, apart from resisting the appellant's claims, TAMCO raised a counter claim against the appellant claiming for, among others, payment of TZS. 225,740,000/=.
The High Court dismissed the appellant's suit with costs and the court alluded to above, it allowed the 1st respondent's counter claim against the appellant to the tune of TZS. 194,340,000/= plus 10% interest per annum on the decretal sum from 1998 to the date of judgement and also 7% interest per annum on the decretal sum from the date of judgment till payment in full. Aggrieved, the appellant has filed the instant appeal.
When the Appeal came for hearing the appellant was represented by Mr. Richard Rweyongeza, learned counsel, whereas TAMCO had the services of Ms. Mercy Kyamba, Ms. Happiness Nyabunya, both learned Principal State Attorneys and Mr. Boaz Msoffe, learned State Attorney and the second respondent did not inter appearance.
Before hearing the Court suo moto wanted to satisfy the competence of the appeal before us, particularly on whether the High Court had jurisdiction to try, not only the appellant's suit against TAMCO but also the counter claim raised by TAMCO against the appellant. Both parties agreed with the court that the trial court acted without jurisdiction to entertain the dispute and its counterclaim due to the reasons that at the time of institution of the suit TAMCO had already been declared a specified public corporation, then the appellant ought to have sought and obtained leave first before instituting the suit.
ISSUES
Whether or not, the High Court had jurisdiction to entertain the suit in which one of the parties and particularly, TAMCO, was a specified Public Corporation
HELD
1. In the light of the above, we join hands with the learned counsel for the parties that since at the time of institution of the suit TAMCO had already been declared a specified public corporation, then the appellant ought to have sought and obtained leave first before instituting the suit. Likewise, TAMCO had no locus to raise the counter claim against the appellant without involving its receiver, that is, PSRC (now the Treasury Registrar).
2. As no leave of the court was sought and obtained before Civil Case No. 441 of 2001 was instituted, the High Court had no jurisdiction to entertain the suit the High Court proceedings nullified and the resulting judgement are quashed .
STATUTORY PROVISION REFEERED TO;
1. Rule 102(1) of the Tanzania Court of Appeal Rules, 2009
2. Section 2, 21, 43 (1) (a) and (b) of the Public Corporation Act, 1992
3. Public Corporation (Specified Corporations Declaration) Order 1997, GN No. 33 of 1997 dated 24.01.1997
4. Section 9 (1) , 97 of the Bankruptcy Act, [Cap. 25 R.E. 2002 now R.E. 2019]
5. Section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2002,
CASE LAWS REFEERED TO;
1. Mathias Eusebi Soka v. The Registered Trustees of Mama Clementina Foundation and Others, Civil Appeal No. 40 of 2001 (unreported)
2. Abubakar S. Marwilo and 172 Others v. National Insurance Corporation and 2 Others, Civil Appeal No. 13 of 2019 (unreported)
3. Mwananchi Engineering and Contracting Co. Ltd v. Ahmed Mbaraka, Civil Appeal No. 96 of 2016 (unreported)
Mr. Richard Rweyongeza for the Appelant
Ms. Mercy Kyamba, Ms. Happiness Nyabunya, both learned Principal State Attorneys and Mr. Boaz Msoffe, learned State Attorney for 1st Respondent | en_US |
