Tanzania Telecommunications Company Limited vs Timothy Lwoga (HC. Civil Case No. 61 of 1999) [2000] TZHC 591 (5 September 2000)

-μ e - /\Ao '2:M-( , IN THE HIGH COURT OF TANZANIA, AT MWANZA. HC. CIVIL CASE NO. '61 OF 1999 (ADR NO. 31/,) THE TANZANIA TEIJOC!OMMUNICATIONS co O Ll"MITED O o Q O O O O O O O • O • 0 0 0 O O ~ 0 • O C O O o O O O O o o O O O O PLAINTIFF Versus .TIMOTHY LWOGA DEFENDANT R U L I N G NCHAIJ.A, Jo This is an application for ,_eave to defend a suit, that is, H/C Civil case Noo61/,9 which has been fied against the applicant Mr. Timothy I.Moga, by the respondent the Tanzania Telecommunications Company Limited (hereinafter re:errd to in acronym, TTCL). The said suit is a summary suit filed under order 3.5 CPC 1 66 for recovery of possession of a house on Plot N",51 Block 11 D 11 Isamilo area within the then Mwanza Municipality (now Mw,:.,.nza City effective 1st July, 2000)0. So, the said suit, to be specific, is under Order 35 Rule ·1 (f) of the CPC 1 66. This Rpplication has thus been made under Order 35 Rules 2(2) and 3(1) CPC 1 660 To be specific the applicatio-has been brought under Order 35 Rules 2(2) and 3(1)(b) (Para(b) of Rule 3 is nece- ssary and relevant because the suit is not one for a bill of exchange 111:p promisory note under para (a) of that Rule). rt is of advan~ to reproduce Rule 3(1)(b) of the Civil Procedure Code, 1966 under which this application has been filed:- 113(1) The Court shall, upon application by the defendant, give leave to appear and to defend the Guit, upon affidavits which - (a)-;..--__..(not relevant) (b) disclese such facts as the court may deem sufficient to support the applicat ion 11 g I nm-, proceed to consider this application on the facts or grounds averred by the applicant in support of his appliction. I must first state that the applicant is represented by Mr. Nasimire, 1-=arned advocate; while the respondent company is represented by Mr o Galati, learned advocat ~ The affidavit filed in supp•~t.of this application has been deposed to by the applicant/ defendant himself 1 1 1 .ro Timothy Lwogao Mro Nasimire argued the application on the averments contained in the applicant•s affidavit and also on other relevant legal material 0

2 ... Substantially,. Mr. Nasimire submitted that the applicant was and still is an employee of the respondent/plaintiff company. rtir .• Nasimire xplaip.e(i that, althoug11. the TTCL had taken steps to terminate the services of the applicant/defendant, . those steps were countermarn}ecl or foiled by the Indw-trial Court of Tanzania ii;i .'l'rade Dispute No.,6 of 1994,· whereby that Court ordered the reinstatement of .:the applicanto However, instead of reinstating the applicant, •the TTCL opted to ,pay- off the applicant, that is, by paying him: al-1 .his terminal :benefits o·· This ·'means the employment contractual relationship. between ·the- '-applicant and hie employer TTCL would only :cease and the:'parties d,ischarge:d .under that co- ntr-a:ct .·upon the empl0yer TTCL paying to ,the: applfa;ant all hi. enti- tlements· under . .'the :sa:id :service ··c;ontract O . 'Mr'- '.fjasimire submitted · u · .. that TTCL never -hor.•ur;d •its .option: =to' pay ··the-.:applicant his · ·terminaT·bene.f.its from .1994 til1,·1998 when TTGL made some payment . Th.is payment .is supported ~Y- dqcuments· annexed to the plaint filed by_ TTCL· in H/C Ci-_v:_il case. Noo 64/99, ·the .main suit. ~.'hile the ..... , ,.,~pplicant ·admits:,to :have .received<this payment, he argues that . ,· . .-,i:::. , th.e: said amount 'is a minute fract·ion. ·of wha:t· he" is entitled as

L:",T': <.r < t.e;rminal· benefits- from the employer, TTCL. Moreover~·- Mro Nasimire submitt.d that,• een this minute payme-nt Wcl.p, ma.de, aft-er TTCL was ' . ·: ... • · served by the Industrial Court with notice to shbW :eau::e why its .~, ·.:·. :- . .' : i:.. . . . ~ . ·. . . . . . . . . . . • :: . ' , TTCL paid--.the · qaid amount.>0:.ut .. of ,·pfu--iic, as -it were-- in,-order to save ,·:, · its motor-vehicles from being ·attachedo. Tt is further averred by the-applicant that he· filed an application in the Industrial court to ,.execute the decision_ of that Court in,. Trade'Di,"'pute No .. 6/94 ( see An9-exture ncn to the applicant's af :fidavit) o· ·, The Indudrial ,Cour't·heard· and decided that application in a i'ui:i:ng ·(uAMUZI) whic 1:i' was deli ~ered on 2.8th Hay, 1999 o In its r·uiirtg··:,,,hich has :.;·,:·· 000•/3.

3 not been ove:i;:turned by any superior court, the.t court fou,_'1d that the applicant is entitled to a total amount of shs. 1:@1:12Q:t:f1f= as terminal benefits from TTCL. Todate thie: amount, less ahs 4 762 ,580/50, has not been ··paid to the applicant o To be exact mathematically, TTCL is yet to pay shs. !ZJ:~~J:!~~~~~s to the applicant/defendant as his trminal enti.tle.ment which has been adjudged by a competent Triburial·whose judgment iP still inforce to-date. By Tanzania economic standards this amount is quite colossal[ This money has been long overdue for apparrently no reason in law. It is further averred by the applicant that the suit filed by TTCL against him is simply aimed at delaying and otherwise frustrating the execution of the order of the I:1dustrial Court given the conduct of TTCL in not honouring the deci."'ion of the Industrial court for an inordinate ti~ • .. In his submission, Mr. Nasimire learned advocate argued that, r the suit filed by the respondent aganst the applicant ought to have been filed in the Regional Housing Tribunal and not in ' .. the ordinary courts of law like the; High Court. Mr. Nasimire was of this view because the suit· filed by TTCL again2t the appli- .' can' ie for vacant possession of ·premiPeS owned by T'I'CL but ,-occupied by the applicant as a service tenant. Mr. Nasimire clted ,;.·11-• the Rent Restriction (Exemptionfe;pecified parastatals) order 1992 whith i_s G.N.No. 41/92 to support his argument. That Govern,- ... men:t Notice li.sts down some Institutions or parastatal or.ganizatioM the .• which are exempted from the application ofLRent Retriction Act, 1984. Mr .. Nasimire pointed out that TTCL is not one of the institutions listed down in the said Government Notice. So, th~ suit concerning the tenancy relationship of the house irt question between the parties ought to be adjudicated by and in the Housing Tribunals established under the Rent Restriction Act, 198Lt •. Mr. Nasimire also cited section 13 of the Civil Procedure Code, 1966 to support his·

4 argument that the suit 11-thich TTCL has filed againFt the applicant 1 ought to have been filed in the Regional Housing Tribunal, which is a court of the lowest grade competent to try that suit. Without belabouring this legal point raieed by Mr. Nasimire, I do not think th.::i.t the point raises a triable isRue· to entitle the applicant to be granted leave to defend the suit which has beri file.cl.. against him. As Vi.r. Salati, learned advocate for the responde*:t, rightly subinitte.cl, the applicant being a service tenant, that kind· of.. tnancy relation.shlp· (ioes __ not come squarely . . ·•, t, under the purvie1;t 0£ the )1~.pt Restriction A_ct, 84; beca·ue· that ... . ,.f kind iif teriancy:: ·is· -de.pri-ant on the co·d.tiu-ed ·existe,nc~ of the . ;) ... :.•.· :. . ·. ........ . : :··.:; •, . employme·nt·· contrac·t.- betw_e,;m the partiei:,".·· bnce the E:IPPiyment contra- ·· .. ···•; :....; . ,. ct ceases, th(:f-',ten::mcy als9 _lapses., The decision of the pourt of Appeal :b'f'·Tanzania,_in .. D.A.N. Kavi,':'he v. J{ICC Cited as AR:'-Civ:l.l : . .:......-.. . ..,..... -· '"'!'•-/ --- .& '. !·!, . , :. ., AplicaorCNo~·-1/187. (eported), ,ii":i.dh ,Mr. _Gal¥ c:Lt_ed, lehds .··.,·. - .. ··. - ~ . i support to my finding. So·, I find that, it is not necessary "for . .. .·· .,. ·J ;. "' ... ~ the suit_· 1ri·'que·stion to 'be filed first in. he Regional Tribunal.· Hence-,. theref"ore, nor is it necesary in law for::.that suit ·to be ·. ! \ filed· first· in'··the court of the lowest grade· in accordance 1;i'ith .. · ... . .. .. :,·;·,, .;.. ... ,... section-':1.3'.CPC, 66.,_ .Aft.erll, it_ is stated· in the plaint that ~ • • ; • I •:. '.:ii ! .:. • • ; • • • • . •: ''s" • • · the . . - ·. . ·· - the. value ofLsuithous,.in ·ques,tion i's over 1'2m/=, .b,:t:3:e the subordinate··tnirts wouid'. ha.ve no pecll!liary · jurisdiction to enter- '· tai- that suit .. . : M_dreb"ver;·the Rent Restriction Act84 does not/".·,. .. ;..,. . . .... _ . . , ."' .-., contain -any provision ·which specifically ousts he· origin-a:f jtirisdi..- .· ~ . . . . ··- ·- ·- ... ,. .. _ ·- .. ;, :·· ·, •,. ! . ct ion of other· ·6rdinary courts of ·1aw..:.::i:n _<fa._e_s ,_h:j..c_h ,.are governed -- . ' .. by the Rent Restriction A~·{·-·s4··:. -1·- one· wou:14, ~~~~'-:{~~ -~~--;::: ..... ' . ' . .. . -.:. ,. . .. ... ·-•· ,.,., .. '• convincingly that other ordinary courts of law like District Courts, Courts of resident magistrate.nd the High Court, have concur:r:ent original jis.dictions i~ the cases"" ve"r·ed under tr:ie Rent Reriction Act, 1984. So, I overrule . Mr. ·Nasiinire '0n his , . first.- legal point which I have discussed. a'iove .•. oooo/5 • . ; ,: C,: .

11111.... 5 Mro Nasimire further submitted that TTCL had no capacity ih law to sue the applicant for reason that on 22/8/97 there was promulgated the Public Crp('l:rations (Specified Corporations Decla- ration) order, 1997 which ic 3overnment Notice No. 543/97 published on 22/8/97__.. fv'ir. Nasirnire argued tht from 22/8/97 'ITCL became a specified Public Corporation; which is among the specified Public " corporations in the First Schedule bf the said Government Notice. As a result, the :fupctions and powers of operation of TTCL were transferred to apd vested in the CommisPion, that is the Presidential Parastatal Sectoy Reform Commission established by section 2 of the Public Corporations Act Noc 2/1992 as amended by Act No. 16/93« Mr. Nasimire argued that, the main suit filed by TTCL against the applicant· is, therefore, legally ii1compe_tent as TTCL has no power or locus standi in that· suit. Mr. N~~imire cited in support of his argument the decision of thiP court (Kalsgeya, J.)" in H/C CIVIL ' _____ .....,__ ·CASE NO. 296/1997 at D'salaam:,SAID'MNIMBOj & others (-p~intiffs/ -----,...·,--·. . . r:.e helders) VRSo STATETRAVE,L SERVICE LTD _(Defendan/juqgment ·debt9r) 1 • TOURISM SERVICES TANZANIA . ·' 2 .. PRESillENTIAL' PARASTAL SECTOR ::R'SFORM COMMISSIOi{ . . .. ~ _.On°this ·legal _peint''V1r'. Galati: learned advocate for the

• • ~ respondent TrCL, rplied that the :resp6ncl.ent 's suiL agaist the · .. : applicant -is not af fee ted by Governmeri_t .No tic; No, 53 1 n ~ becam,e the same was not effectiJ>l:irtt11 6n 3/12/99 when its effective date Wfi.S.SJ?i-f°ief by Gov,:er'nment Notice Noa 424/99, 11ihih •vias ~~ _,..- - . . . publ:l..spcl,:cm'•3/12/99. By .tnat date, t_he suit in que:;:;tion had already been f:i.led; .the same was file, pp.<'2/11/99. ,•·1.,• With regard to the dec•ision of tI1i$.·court in Sa.id Mn.imbo' (supra), ., Mr. Galati submitted that the same is diE,_tirtgu:ished from the facts . -\ ..

• 6 - ( in arid · or the instant suit,· that is the suit filed against the applicant, for reason that in the Said Mnimbo case, the State Travel Service LTD, which is a specified Public Corporation, was being sued~ while in the ir.stant case, TI'CL, also a specified Public Corporation, is suing,. Mr o Galati further argued that in the present situation, section 9(1) of the Bankruptcy Ordinance, Cap.25, which, interalia, requires the leave of the court in order ·/ ... ,.,. .... , .. to commence a suit aga"inst a debtor, does not app_ly to the respo- ndent TTCL. 'Thi~'_i ;,{because\ the-. mere ,fac;,t tha_t TTCL has been declared a. Speifid 'Pubi:l..c: ·c·drtfo:rat-ion;· that,. per se ,. does: not render it to be a banki::upt Public"-Ce-r.poration within the provisions of the Bank;;tcy; Ordiriknc:'e 9 . Cap'25.. Mr. Ga_lat i referr_ed me speci- fically :to :pge ·12 of the cy'clestyled ·copy of ·the judgme.nt in the Said Mnimbo case (supra) ~here; he submitted, lay the ratio decidendi ··. ··) . :--:-" . .. "' ':•-, bf, ,that ;case 4 . : . ; t-1;; ->-:· : With regard to this legal' point raised by Mr o Nasimire learned . . ;· advocate, I am not· prepare·d to 'me a definite finding on it as I am quite convinced in my mind that the point raises qite importa- . nt triable issues. First the question wln ther_ the_ suit_. filed by TTCL _against the applicant is covered ·and .governed by G.N. __ NO.543/97 whose effective date was not specified until on .3/1_2/99 under . . ;, G .N. NO. 424/99'.? Although the effective: _date in questi9n was spe- cified in December, 1999; yet' that effectiye dat_e war3 the very date on -which Government Notice No~· 543/97 was published,. that i.s on . )"". . 22/8/97 • . This 'me.ans the effed-ive ·date.- of Government Notice ·' ;, . • . ! • . • • ,, : - ~ .. . "'"\· . No. 543/97 was specified on 3/12/99· .to:;-.app;J.y retr,qspeqi;:ivelyA And . . . •', the title to- G.N .--rt /424/99 i.vl:i.ich specifi:ed the; _effective date of G .N. No. 543/97 reads: ·th~•·riThis Order may b~ cited as the R~~-ti.fication-;t- Prnt.ifJL;Er'i:or.?._i. (The Public Cor.pora~i_ons) (Specified Corporations Declaration Order, 1997) Order, }999

;... 7 ( underiining mine):. This shows that the effective date of G.N o No. 543/97 had already been spe-eified from the time the said Government Notice was published, but only due to a :printing error, the said date :as 01mnittedj If this in:terpretation is correct j then one \louid -cdn:vincing\y 'argue that the s:ui t againf3t the appli- cant is cveei d gvered ;y,G.TIJ :; No 543/97 and also by Act No.2/92 asa~~rided by Act No.;·r6/1993. Hoi.,jever, thir-: find'ing can· only be· made -by \he trial ji.idge iri a preliminary hearing of the · .. .,, suit',aftr-th~-ap:riica;t has been granted.leave to defend, and C 't\ec;ndly' . thre is the question ·whether the· :re.sponden't TTCL, a specified Public Corporation;· hfl.S ·the plr.i~:b anti' 16cus stadi to sue in view of the p;o;iioris , f5e¢tibn li-3· of the Public Corpora- tfons (Aendment) fl.ct~ 1993 '(Act tro/i 6/4 993)? This is al1::·o a very ' . crucial tribl. issue to be deterrriil'.ied by way of a preliminary . i,:'p-ofht;:-- o-nl;Y-if the ;defeiidani/pplicarif' is' granted leave tO defend: the suit,. )'lastly/ Mt· Nasimire ,:,1crriitted that I the appli.;,_ilt i·1ishes to set up a counterclaim in his written 'statement of defence,· The 61iiriter claihl is 'based' ·on the award granted to him by the Industrial Court as already distik,sed ~ Hee Mr. Galati replied ·that, even ' .* ,\ -: •. if the applicant still.has a claim against the respondent based on the award by the Indu.st:t±l Co;t, that alone will not entitle ' ' him to continue Occupy:i.ng r-spbndent Is hou:=:e, because ,the appli- dint 's· right fo occupy respondent' 1 s hou·se ir !'lot dependent on appli- cant 1 s be1ng ·pa.id his termhi.al rights, but on his befog an amployee of the '·responder{t' citing the decision of the Court of Appeal of ' 'J'.'a:n·zari.ia at Arusha in qivil Applir.ation No.1/1987 D.A.N. Kavishe v. Arusha I .c • Centre ( supra) Mr. Galati also submitted that, TTCL has already paid applicant all the terminal benefits due t~ hfm. fr.om TTCL, and that the

8 applicant, }?-as no 9ut1?tndi.ng __ cla_im.ae;ainst TrOL in. the nature of ~ :- . .. . \ ' : . . -· . . .. . ' .. terminal benefitso .. ,. I find the above submissions raising crucial triable isues. "/°•~~.)•;c:: -. '. • ' : . . -i) I --...r_{ • First. whether the awd __ granted _to the applicant cannot be counter- L;'"" \f,_i, :-:'; --' .;• •. ; .7, ••' claimed in the suit filed by ht?. rAc-:pond.,;;::.t against the_-applicant'? Whether the P?yment of just shs •. 19?:..s5Qf5.Q which TTCL -ha_s made to th~_ applicant _satisfies the ;ward o.f ;sp.s. 18;156,-4:21/= .which the .,· . . . . . ,,. ... . .. . ============ applicant has been given by the lp.dμstrial,Court, .and which award "! • ,- •) ~ : : • • • • , • •o • • • • • has not been_ .set_ asid .by_ any comptent super.Jor -9i.μ:J?. .. Also · · • ~ .. : •, 1 0 n: I' ' : 0 -• • O O i 1 • • O O O .. •L \ • • " • whether, te. respondent's_ ?Pion _to -pa,y the applicant his terminal benefi,ts in:=itea?- of reinstatn,.g_ him, did not creat, ;binding·, -- agreement. b_etween the part:j_es, .where by .. the ... applicant 1 s. employment . . . ·, with the respondent would cease only upon TTCL paying to -the • ~ I : ( applicant all his terminal benefits ntitlement. in accordance with . ,•.• the respondent's option, and in accordance with the awd--by the ~ . . . ; Industrial Court? . As?u.ming t_hi::;- lat. question if:; to be ,ans\t1ered in the affirmative, then it would mean ·t!J.a\ __ th~ applicant is still entitled to continue residing in the suitpremises which, - aco:)rding . to Mr o Galati, and even accordL1g to law, the applicant's occupation of the same is dependent 0:1 the applicant still being an employee of TTCL. All these questions re.iee triable issues which can only be justly and efficacio~'decided by way of a preliminary hearing ::.L, _.,, ~ ·.;'; .. . .; when the defendant has presented his written statement of'defence. So, the decision of the court of Appeal cited by Mr. Galati in D.A.N. Kavishe (supra) can_be properly considered and applied to ;': ,· .. , . . the facts of the instant case _when th~ same is• heard e·ither by way of a preliminary trial on preliminary points, or in a full trial on the issues to be framed. -I have carefully referred to the deciPion of the Court of Appeal for Eastern Africa in Kundanlal R_estaurant v .• Devshi & Co. --~-------·------- (1952) 19 EACA P.77 (. which sets out the condition:::, for a ·colint 0 0 ./9.

\ 9 to grant to a defendant leave to defend a summary suit. It was held in that case, interalia 11 If there is one triable ii;;sue'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 / 1 Also Rule 3( 1) ( b) of Order 35 CPC, 66 under which this a:ppli- cat iori"' has heert ·filed enjqins the court to grant an application for leiive' 'to defe'r).d i;1here the court is satisfied that .the affida-

• . . . . ' . vit filed in support of such an application discloses such facts as the court mEi:y dem sufficient to support the.,c1pplication. I am of the considered view and· am satisfied on the authorit;z .. in the case ·or Kundanlal Restaurap.t ( supra) and under Rule 3( 1) (b) Order 35 CPC\ · '66 that· this application meets the required test. Accordingly' I 'r-;rant the application witμ costs. I give the appli- cant'21 d.a_ys effective from to-day's d'.a.te within which to file his -!: ''·' written statement of defence. I order accordingly • . 5/9/2000 Coram: M.D. Nchalla J. Fot' Applicant: Mro Nasirnir:e':, Advocate~. present. · . For Respondent: Mr. Galati, Advocate, ,present C .c. Restituta Court: Ruling delivered in open court in the presence of the parties at Mwanza this the 5th day of September, .20000 Right of appeal explained. AT MVJANZA 5th/9/2000