Tanzania Telecommunications Company Limited v Lwoga (Civil Case No. 61 of 1999) [2000] TZHC 678 (5 September 2000)

150 TANZANIA LAW REPORTS [2002]T.L.R. a TANZANIA TELECOMMUNICATIONS COMPANY LIMITED v. TIMOTHY LWOGA HIGH COURT OF TANZANIA B ATMWANZA (Nchalla, J.) c CIVIL CASE No. 61 OF 1999 Civil Practice and Procedure - Summary suit - Leave to defend a summary suit

• Leave to defend may be granted if there are triable issues raised. jj Civil Practice and Procedure - Public corporation - Locus standi - Specified public corporation - Whether a specified public corporation has locus standi to sue in its own name. Rent Restriction — Jurisdiction — Concurrent jurisdiction — Whether ordinary E Courts have concurrent original jurisdiction in housing tribunals under the Rent Restriction Act 1984. The plaintiff filed a summary suit against the defendant for a vacant possession of its house which had been allocated to him while working for the plaintiff. The plaintiff F had terminated the employment of the defendant but the Industrial Court of Tanzania ordered his reinstatement. Instead of reinstating him the plaintiff opted to pay him off by paying him all his terminal benefits. However, the plaintiff paid him TZS. 762 580- 50 while the Industrial Court ruled that the defendant was entitled to TZS. 18 156 421 G and the decision had not been challenged or varied. The plaintiff had not yet paid the balance when the suit was filed. The defendant applied for leave to defend the case and argued that as he had not been fully paid his terminal benefits he was entitled to remain in the house, that the plaintiff having been declared a specified corporation H had no locus standi to sue on its own, and also that he wished to set up a counter claim for his unpaid benefits. Held: (i) A defendant is entitled to leave to appear and defend a summary suit if it is shown that there is a triable issue; I

TANZANIA TELECOMMUNICATIONS COMPANY LIMITED v. TIMOTHY LWOGA 151 (ii) The questions whether the plaintiff had locus standi to sue on its own after being specified and whether the defendant had any counter claims against the plaintiff are triable issues which can only be settled by either a preliminary hearing or a full trial after the defendant has filed his defence; (iii) The application of the defendant has disclosed a number of triable issues. Leave to defend granted Cases referrers to:

1. DA Kavishe v. Arusha International Conference Centre, CAT - ARS

• Civil Application Number 1 of 1987

2. Said Mnimbo v. State Travel Service Ltd and others [1999] T.L.R 233
3. Kundanlal Restaurant v. Devshi and Company (1952) 19 E.A.C.A 77 Statutory provisions referred to:

1. Rent Restriction Act 1984
2. Rent Restriction (Exemption of Specified Parastatals) Order 1992 Government Notice Number 41 of 1998
3. Civil Procedure Code 1966, Order 35, rules 2(2), 3(1), 3(1)(6), 1(f), section 13
4. Public Corporations (Specified Corporations Declaration) Order 1997
5. Government Notice Number 543 of 1997
6. Section 9(1) of the Bankruptcy Ordinance Chapter 25
7. Public Corporations (Amendment) Act 1993 (Act Number 16 of 1993), sections 43 AND 2 Mr Galati, for the Plaintiff Mr Nasimire, for the Defendant

152 TANZANIA LAW REPORTS [2002]T.L.R. RULING (Delivered 5 September 2000) Nchalla, J.: This is an application for leave to defend a suit, that is, High Court Civil Case Number 61 of 1999 which has been filed against the applicant Mr Timothy Lwoga, by the respondent the Tanzania Telecommunications Company Limited (hereinafter referred to by its acronym, TTCL). The said suit is a summary suit filed under Order 35 Civil Procedure Code 1966 for recovery of possession of a house on Plot Number 51 Block “ D ” Isamilo area within the then Mwanza Municipality (now Mwanza City effective 1 July 2000). So, the said suit, to be specific, is under Order 35, rule 1(f) of the Civil Procedure Code , 1966. This application has thus been made under Order 35, rules 2(2) and 3(1) Civil Procedure Code 1966. To be specific the application has been brought under Order 35, rules 2(2) and 3(l)(b). Paragraph b of rule 3 is necessary and relevant because the suit is not one for a bill of exchange or promissory note under paragraph (a) of that Rule. It is advantage to our reproduce rule 3 (1 )(b) of the Civil Procedure Code 1966 under which this application has been filed: 3(1) The court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which-(a).... (not relevant) (b) disclose such facts as the court may deem sufficient to support the application. I now proceed to consider this application on the facts or grounds averred by the applicant in support of his application. I must first state that the applicant is represented by Mr Nasimire, learned advocate, while the respondent company is represented by Mr Galati, learned advocate. The affidavit filed in support of this application has been deposed to by the applicant/defendant himself, Mr Timoth Lwoga. Mr Nasimire argued the application on the averments contained in the applicant ’ s affidavit and also on other relevant legal material.

TANZANIA TELECOMMUNICATIONS COMPANY LIMITED v. TIMOTHY LWOGA 153 Substantially, Mr Nasimire submitted that the applicant was and a still is an employee of the plaintiff company. Mr Nasimire explained that, although the TTCL had taken steps to terminate the services of the defendant, those steps were countermanded or foiled by the Industrial Court of Tanzania in Trade Dispute Number 6 of 1994, whereby that b Court ordered the reinstatement of the applicant. However, instead of reinstating the applicant, the TTCL opted to pay off the applicant, that is, by paying him all his terminal benefits. This means the employment contractual relationship between the applicant and his employer TTCL c would only cease and the parties discharged under that contract upon the employer TTCL paying to the applicant all his entitlements under the said service contract. Mr Nasimire submitted that TTCL never honoured its option to pay the applicant his terminal benefits from 1994 when TTCL made some payment of TZS. 214 516-50 plus TZS. 548 064 total TZS. 762 580-50. This payment is supported by documents annexed to the plaint filed by TTCL herein. While the defendant admits to have received this payment, he E argues that the said amount is a minute fraction of what he is entitled as terminal benefits from the employer, TTCL. Moreover, Mr Nasimire submitted that, even this minute payment was made after TTCL was served by the Industrial Court with notice to show cause why its K motor vehicles should not be attached to satisfy the award. So TTCL paid the said amount out of panic, as it were, in order to save its motor vehicles from being attached. It is further averred by the defendant that he filed an application in the Industrial Court to execute the decision of that Court ig Trade Dispute Number 6 of 1994. This is annexure “ C ” to the defendanat ’ s affidavit. The Industrial Court heard and decided that application in a ruling (UAMUZI) which was delivered on 28 May 1999. n In its ruling which has not been overturned by any superior Court, that Court found that the defendant is entitled to a total amount of TZS. 18 156 421 as terminal benefits from TTCL. To-date this amount, less TZS. 762 580-50, has not been paid to the defendant. To be exact mathematically, TTCL is yet to pay TZS. 17 393 840-50 to

154 TANZANIA LAW REPORTS [2002]T.L.R. A the defendant as his terminal entitlement which has been adjudged by a competent Tribunal whose judgment is still in force to-date. By Tanzania economic standards this amount is quite colossal. This money has been long overdue for apparently no reason in law. It is B further averred by the defendant that the suit filed by TTCL against him is simply aimed at delaying and otherwise frustrating the execution of the order of the Industrial Court given the conduct of TTCL in not honouring the decision of the Industrial Court for an inordinate c time. In his submission, Mr Nasimire learned advocate argued that the suit filed by the plaintiff against the defendant ought to have been filed in the Regional Housing Tribunal and not in the ordinary Courts d of law like the High Court. Mr Nasimire was of this view because the suit filed by TTCL against the defendant, is for vacant possession of premises owned by TTCL but occupied by the defendant as a service tenant. Mr Nasimire cited the Rent Restriction (Exemption of Specified E Parastatals) Order 1992 which is Government Notice Number 41 of 1992 to support his argument. That Government Notice lists down some institutions or parastatal organizations which are exempted from the application of the Rent Restriction Act 1984. Mr Nasimire F pointed out that TTCL is not one of the institutions listed down in the said Government Notice.So, without belabouring this legal point raised by Mr Nasimire, I do not think that the point raises a triable issue to entitle the applicant to be granted leave to defend the suit which has been filed against him. As Mr Galati, learned advocate for the respondent, rightly submitted, the applicant being a service tenant, that kind of tenancy relationship does not come squarely under the purview of the Rent Restriction Act 1984, because that kind of tenancy is dependent on the continued existence of the employment H contract between the parties. Once the employment contract ceases, the tenancy also lapses. The decision of the Court of Appeal of Tanzania va.DANKavishe v. AICC (1), which Mr Galati cited, lends support to my opinion. So, I find that, it is not necessary for the suit in 1 question to be filed first in the Regional Tribunal. Hence, therefore,

TANZANIA TELECOMMUNICATIONS COMPANY LIMITED v. TIMOTHY LWOGA 155 nor is it necessary in law for that suit to be filed first in the court of the lowest grade in accordance with section 13 Civil Procedure Code 1966. After all, it is stated in the plaint that the value of the suit house in question is over 12 million, hence the subordinate Courts would have no pecuniary jurisdiction to entertain that suit. Moreover, the Rent Restriction Act 1984 does not contain any provision which specifically ousts the original jurisdiction of other ordinary Courts of law in cases which August 1997 there was promulgated the Public Corporations (Specified Corporations Declaration) Order 1997 which is Government Notice Number 543 of 1997 published on 22 August 1997. Mr Nasimire argued that from 22 August 1997 TTCL became a specified Public Corporation, which is among the specified Public Corporations in the First Schedule of the said Government Notice. As a result, the functions and powers of operation of TTCL were transferred to and vested in the Presidential Parastatal Sector Reform Commission, established by section 2 of the Public Corporations Act Number 2 of 1992 as amended by Act Number 16 of 1993. Mr Nasimire argued that, the main suit filed by TTCL against the applicant is, therefore, legally incompetent as TTCL has no power or locus standi in that suit. Mr Nasimire cited in support of his argument the decision of this Court (Kalegeya, J.) in Saidi Mnimbo and others (Plaintiffs/Decree Holders) v. State Travel Service Ltd (defendant/ judgment debtor). On this legal point Mr Galati, learned advocate for the respondent TTCL, replied that the respondent ’ s suit against the applicant is not affected by Government Notice Number 543 of 1997, because the same was not effective until on 3 December 1999 when its effective date was specified by Government Notice Number 424 of 1999, which was published on 3 December 1999. By that date, the suit in question had already been filed; the same was filed on 2 November 1999. With regard to the decision of this Court in Said Mnimbo (2), Mr Galati submitted that the same is distinguished from the facts in and of the instant suit, that is the suit filed against the applicant, for

156 TANZANIA LAWREPORTS[2002]T.L.R. A the reason that in the Saidi Mnimbo case, the State Travel Service Ltd, which is a specified Public Corporation, was being sued, while in the instant case, TTCL, also a specified Public Corporation, is suing. Mr Galati further argued that in the present situation, section B 9(1) of The Bankruptcy Ordinance Chapter 25, which, inter alia, requires the leave of the court in order to commence a suit against a debtor, does not apply to the respondent TTCL. This is so because, the mere fact that TTCL has been declared a Specified Public Corporation, c that, per se, does not render it to be a bankrupt Public Corporation within the provisons of the Bankruptcy Ordinance Chapter 25. Mr Galati referred me specifically to page 12 of the cyclestyled copy of the judgment in the Saidi Mnimbo case (2) where, he submitted, lay the ratio decidendi of that case. With regard to this legal point raised by Mr Nasimire learned advocate, I am not prepared to make a definite finding on it as I am quite convinced in my mind that the point raises quite important E triable issues. First the question whether the suit filed by TTCL against the applicant is covered and governed by GN Number 543 of 1997 whose effective date was not specified until on 3 December 1999 under GN Number 424 of 1999? Although the effective date in question F was specified in December, 1999, yet that date was the very date on which Government Notice Number 543 of 1997 was published, that is on 22 August 1997. This means the effective date of Government Notice Number 543 of 1997 was specified on 3 December 1999 to apply retrospectively. And the tile to GN Number 424 of 1999 which specified the effective date of GN Number 543 of 1997 reads thus: “ This Order may be cited as the Rectification of Printing Errors (The Public Corporations) (Specified Corporations Declaration Order 1997) H Order 1999. [emphasis supplied] This shows that the effective date of GN Number 543 of 1997 had already been specified from the time the said Government Notice was published, but only due to a printing error, the said date was I omitted. If this interpretation is correct, then one would convincingly

TANZANIA TELECOMMUNICATIONS COMPANY LIMITED v. ________________________________ TIMOTHY LWOGA [57 argue that the suit against the applicant is covered and governed by GN Number 543 of 1997 and also by Act Number 2 of 1992 as amended by Act Number 16 of 1993. However, this finding can c.niy be made by the trial judge in a preliminary hearing of the suit, after the applicant has bee granted leave to defend, and after he has filed his written statement of defence which will contain and raise such a preliminary point of law. Secondly, there is the question whether the respondent TTCL, a specified Public Corporation, has the power and locus standi to sue in view of the provisions of section 43 of the Public Corporations (Amendment) Act 1993 (Act Number 16 of 1993)? This is also a very crucial triable issue to be determined by way of a preliminary point, only if the defendant/applicant is granted leave to defend the suit. Lastly, Mr Nasimire submitted that, the applicant wishes to set up a counterclaim in his Written Statement of Defence. The counter claim is based on the award granted to him by the Industrial Court as already discussed. Here Mr Galati replied that, even if the applicant still has a claim against the respondent based on the award by the Industrial Court, that alone will not entitle him to continue occupying the respondent ’ s house, because of applicant ’ s right to occupy respondent ’ s house is not dependent on applicant ’ s being paid his terminal rights, but on his being an employee of the respondent, citing the decision of the Court of Appeal of Tanzania at Arusha in DANKavishe v. AICC (1). Mr Galati also submitted that, TTCL has already paid the applicant all the terminal benefits due to him from it, and that the applicant has no outstanding claim against the Corporation in the nature of terminal benefits. I find the above submissions raising crucial triable issues First whether the award granted to the applicant cannot be counter-claimed in the suit filed by the respondent against the applicant? Whether the payment of just TZS. 762 580 which TTCL has made to the applicant

158 TANZANIA LAWREPORTS[2002]T.L.R. A satisfies the award of TZS. 18 156 421 which the applicant has been given by the Industrial Court, and which award has not been set aside by any competent superior Court? Also whether the respondent ’ s option to pay the applicant his terminal benefits instead of reinstating B him, did not create a binding agreement between the parties, whereby the applicant ’ s employment with the respondent would cease only upon TTCL paying to the applicant all his terminal benefits entitlement in accordance with the respondent ’ s option, and in accordance within c the award by the Industrial Court? Assuming this last question is to be answered in the affirmative, then it would mean that the applicant is still entitled to continue residing in the suit premises which, according to Mr Galati, and even according to law, the applicant ’ s occupation D of the same is dependent on the applicant still being an employee of TTCL. All these questions raise triable issues which can only be justly and efficaciously decided by way of a preliminary hearing when the defendant has presented his written statement of defence. So the decision of the Court of Appeal cited by Mr Galati in DAN Kavishe (1) can be properly considered and applied to the facts of the instant case when the same is heard either by way of a preliminary trial on preliminary points, or in a full trial on the issues to be framed. F I have carefully referred to the decision of the Court of Appeal for Eastern Africa in Kundanlal Restaurant v. Devshi and Company (3) at page 77 which sets out the conditions for a court to grant to a defendant leave to defend a summary suit. It was held in that case, interalia “ If there is one triable issue contained in the affidavit supporting the application for leave to appear and defend then the appellant (defendant) is entitled to have leave to appear and defend unconditionally ” . Also rule 3(l)(b) of Order 35 Civil Procedure Code 1966 under H which this application has been filed enjoins the court to grant an application for leave to defend where the court is satisfied that the affidavit filed in support of such an application discloses such fact as the court may deem sufficient to support the application, I am of j the considered view and am satisfied on the authority of Kundanlal Restaurant (3) and under Rule 3(1)(Z>) Order 35 Civil Procedure

MOHAMED ENTERPRISES (T)LTD v. BIASHARA CONSUMER SERVICES LTD Code , 1966 that this application meets the required test. Accordingly I grant the application with costs. I give the applicant 21 days effective from to-day ’ s date within which to file his Written Statement of Defence. I order accordingly. Application granted. MOHAMED ENTERPRISES (T) LTD v. BIASHARA CONSUMER SERVICES LTD HIGH COURT OF TANZANIA AT DARES SALAAM (Bwana, J.) COMMERCIAL CASE No. 36 OF 2000 Civil Practice and Procedure - Summary suit - Application for leave to appear and defend - Order XXXV, rule 3 of the Civil Procedure Code 1966. Civil Practice and Procedure - Summary suit - Leave to appear and defend in a summary suit - Circumstances under which leave to defend may be granted. The plaintiff sold 33,330 bags of rice at an agreed price of TZS. 100 000 000 on 3 March 1998 but the cheque issued in part payment was returned unpaid with the remark “ payment stopped by drawer. ” The plaintiff then filed a summary suit under Order XXXV of the Civil Procedure Code. The defendant filed an application for leave to appear and defend the suit, stating in the accompanying affidavit that the plaintiff lowered the price of the rice the plaintiff was selling elsewhere and thus making it impossible for the defendant to sell its rice, and further that the amount being claimed was different from what was really due. The defendant argued that there were triable issues which were: that the plaintiff deposited the dishonoured cheque contrary to an earlier agreement not to do so; that the amount outstanding was less than what was being claimed and the existence of a new agreement whereby the defendant was paying TZS. 2 000 000 every Saturday. The plaintiff, in a counter