Mbeya Municipal Council vs Damian Mrema (DC Civil Appeal No. 25 of 1998) [2000] TZHC 616 (27 October 2000)

IN THE HIGH COURT OF TAl"\JZANIA AT 1':BEYA DC CIVIL 1\PPE/-\L NO. 25 /1998 (From the decision of the District Court of fbeya District at teya in Civil Case No. 60 of 1996) Fi3EYA n.JNICIPAL COUNCIL VER.)"US RULING •;•oo•· The applicant is the appellant in (DC) Civil .Appeal No. 25 of 1998. '.rhat rr:atter was -fixed f9r,.hering on_ 10th 1lugu$t, 1998, a dat.E? ·VJliich was knovm •to_ the.·;$pplicant. On that date the appeal was dismissed upon default on -the part of trie applicant to· tidke appearance. What happened was that a Mr. IVwasomola, a· FD.hicipal Inspector, who appeared bGf_ore the Acting District· i'tegistr·ar on 1,1 th "July, 2oqo, purported to appear once' &gain before this. Court.. The appeal was disrrissed . because in his official capacity he is such an inferior officer wh0s.e decision cannot bind the applicant. The instant application is-for an order that the order dismissing the appeal be vacated and. the. appeal be re-admitted. It is supported by the affidavit of Jvir. Burton 1-'Masomola and that of rv;r. Kharist I:-':ichael Luanda. The respondent has opposed the applicab.rm. l'.r. Luanda swears. that the. applicant was refused to be , represented by fr. l"'wasorrola because he does not irnve locus standi. That is obviously an inexecusable misquotation because the Cc,upt _did not say: so, for the Co;__i_rt is aware that

• . ' •• ••• f ·- •• ,.

• 2 the expressir:'n .\o_<;;us_ standi, that is the right of a party to be heard relates ta the right of a party to be heard in his suit. This is nnt rr. r\•-rnsomola' s , suit, so that term cannot apply to hirn. 'i'he application was dismissed because h2 does not possess 1egal capacity to represent his errn;;loyer for the reason that was given. In paragraph 8 of his affidavit JVr. Luanda swears that the refusal to allow fr. rrwasorrola to stand in for the. respondent "••~ was irre 6 1.11arly rr,ade because it offends the provisions of· s.100 of the Local Government (Urban liuthci·ities) ii.ct, 1982"; In his subrnissi0ns r 1 r. Luanda, --the Vunicipal--3oiici tor, co,:itends that !Vr e r:wc,sc1Tt'la has been appeari:i:ig_ in di_ffrent cases before different couits and that by reason of those numerous appearance,s . • i .. ,,. ... ·: ···., .. ·,, .. it was not the first time for him to appear 2nd defend cases in which the applicant has been a partyo It is the learned r'unic:j.pal Solicitor's }3Ubrc,j_ssion that JVr. }'-wasorrola wa.s au-thcri.sed to appear for the applicant way back in 1992 ·when he was i'irst employed, presumably as a Kunicipal Inspector. Now r ✓ r e I·.-,d8.S<)IDOla, or any other junior officer may appe_ar as many times as possible before as many interior courts. I need not say th;:';t even though Police Constables appear in prirr.ary courts to prosecute criffinal cases, or ;:,enior Police . Officers up ·co the rank of Superintendent appears before subordinate cr:-\1rts, then automatically they can appear before the High C0urt. 'I'hat has never happened. .A junior Officer of any party n,ay appear before the P,:igh ·c©urt if the law speci- fically errq)ov1ers him or her to do so. A. good exaruj)le is a labour officer who, under section 632 of the F:mployrnent Ordinance, Cap. 366, is authc1rised to appear before any court. Section 100 of ..... /3

3 ..;. the Local Gcvcrnr;:;en-t (Urban:· :4uthciri ties) Jiect does n•) rr.ake any . :;.p,ecifi.c decl:-i.r:ntion. as_ to who j;s- :to appear for ,:111.d on_.:.±-ts behalf i!,l ,;J-:i_e:t_ig-ation as s.8 and s.;13~ of _Cap._366 provides. Th_e.;.former p_ta,tes-- tl;lus)l as far as the same.:,-is p.elevant here:- 11 • o. in any civil •case or in!3tter in a court in,wh,tch an authority is a party; -the autY:rity m;;iy be re:c,r'2sente~ by any officer or emplc•yee c'i.uly. authorfzed in that beha.lf by the authority, . . notwi thst,ncling that· that officer or employee is npt an advc-,cate within· the me_aning of the ) .. clvocates Ordinance. ;; Consdere~ at face .v~lue-s;lOO covers nyone)l provided he is an emi::;lnyee of an urban authority. Such a construction will bring absurd results because even th()se lcwly rankii'lg employees such as .rr:essenig~~s 'may be able to ap:pear for the authority if cnly they are authorised. So secticn 100 should ,· ' not be applied j_n isolation It has to be applied in tandem with section 12 (1) of the said 1kt. Paragraph ( a) of subsec- ' .. tion ( 1) of section 12 states that an· rban authc,ri ty is a corporate person2lity and '··· :iv( a) in its corporate' narr;e ·oe capable of suing or ·D2.ing sued. 11 I think it is beyond sane controversy that legal per;o'ris have no separo.te live.s d-f. their own. They live and act through their principaJ officers or employees vrho, by their ,act_i9ns and decisions the 12.r:;ai person is bound. So anyone appearing for . ... ; . the applicant 'before· the High ·Court :must be an •)fi'icer who is ~ 1 .. •• :. •• !.: sufficiently seised of'"'authority to bind the applicant by his decisions. It is fairly obvious that l'(r. l\i,vasomola is not such officer. In fact he did not, on that d2y)l purp0rt appear •••• IL '

4 to prosecute t;:--12 appeal. For when he was given audience he merely said this:- 11I am a, Vunicipal Inspecto_r. Our t'unici~)al Solicj_tnr is nursing his sick wife ••• 11 implying th,'Jt he had no mandate in that behalf. He merely __ c3me to rr,ake a report as shov,m above. Such a persc,n cannot be said to have authority to appear for the applicant, ior ·cannot make a binding decision on his employer. In any case no proof has been pref erred regarding whether iYideed the T<u:nicipal Solicitor could not appear for the reason :r,.';-f. r--'wasomola gave. I am satisfied, upon the above considerations 1 that this application lacks merit. It would fail as a resulto The application is dismissed with costs. :.:'luling to be dftirrif·by,, ihstrict Registrar on 27th October, 20000 . ,/:;::':.: ::-~ \ ,' . :,; t •..- • /.-?-\• ,,..,,, ;.- J. Jv • • l'ACKAl\JJ A JUDGE 5/10/2000 27/10/2000 Coram: s. V. c;. Karua, Ag. D.R. Appellant~ LJJsent Respondent~ Present Ruling, d2livered in Chambers this 27th clc,y of October, 2000 in the presence of the respondent and in the a1y3ence of the appellant.·'·'' Sgd •. s.v.G. Karua, Ag. D.R. 27/10/2000 Cert if j_ed true copy of the original rulingo x ___ ,.., ·. . . _;. DISTRICT REGIS;l'RAR !-'BEYA