Mrs. Christine vs General Manager (THC) (HC Civil Case No. 41 of 1999) [2000] TZHC 585 (6 July 2000)

IN THE HIGH COURT OF' 'I'ANZANIA · AT I'-f:h"tNZA ,...--;i:;s~---- (RC) CIVIL CA,SE· N0.41 I OF 1999 'I,·. MB<.3. CHBISTINE oo.or.tocoooeooc:onoc;oetooooooo M.ROSO, JUDG:S •. VERSUS 0 O O •" e, a. 0 ·o:• 0 (I Cl O \ l, RULING PiiINTIFF DEFENDANT The plaintiff, Mrs. Christine (sic), brought c1. suit in this Court against the General Manager (THC), presumably meaning to sue the Tanzanfa. Railways Corporation, unless :th.e Gen&ral H0narer in his official title is~ juris, capnble of being sued., The Defendant through his advocntes raised a preliminary point of Objection cont en-Jing. th;:,.t the- T-"'nz311fo. Railways Corporr:ition. had been ::kclf-!red n ,Specified Public Corporation . . . . under Act No .• , 16 of 1993 and, consequently thc).t the· P:rir01:,idential Parastatal Sector. leform Commission hen\eforth to be referred to only as the Commission, had been appointed the Official Receiver, nnd, further, that th:o provisions· of sec;:tion 9( 1) of the Brurkruptcy. Ordirnmce," ·- . Capo25 of 'the Laws applied to it. ; .• effective dc::te of the declarntion I . . The effoct b2i-ng th.-1-t from the (that:/;:~~. we..s. 11 Specified Public Corporation) the dt::fendarit could not .be f::lued without lerwe of the Court.< The defendant furtl:er contended th:::t .the effective date of the decJl3i'ation '. Order we..s 22 August, 1997, which wn.s th 1 e d;te of p1.lblicc.tion of Gove·rnment ., I. . Notice Number 543 of 1997 in the Official Gazet:te.,, I In·my ruling <1':lich I gave on 16th 1farch 1 2000 I so.id the,t the ~.. ·,:. i, .Govermnent Notice No.543 of 1997 did '.lnot inf,"•Ct shov the. effective· date., The space in the Order which would 'hc1ve shovm the cl_['..te' nnd of com:i:ng into effect WD.S 10ft bJ011k., . I, therefore i 'di2rnissGd the preliminary ' objection. / I I

2 .Subsequent to the ruling Mr. G2.lf..'..ti for the re,spondent discovered '' .= that the relevant authorities had realised the error in Government Notice Noo543 of 1997 :md p;blishd a rectification in Government Notice No8-24 of 3rd December, 1999. The rectification rc,,JdS - (TIE PUBLIC CORPOPJ1.TIONS (SPECIFIED . ..,... ... - - .,-~ ...... CORPORATIONS DECLAR!,TION) ORDEJ, 1997 ORDER, 1999.,

1. This Order may be cited as the Rectificntion of Printing Ero)s (The Public Corpo;c,ti~~) (Specified Gorpo1a~ti.iqns DeclclrE<tion) Order,

1997. Order, 19990

2. The printing error 6ccur!'ing in (,Specified Corpor.?.tions Decl;:irc..tion) Order, 1997, EL;rte hereby rectified by substituting for the bLmks after the words : 1 effect on•l the words ·'twenty second' 1 2nd for the blanks c1.fter the words ; 1 dcy of\ 1 the word ' 1 August: 1 ., This means :that Government Notice No .. 5 1 +3 of 1997 would now read that the declaration order came into effect on 22nd August,1997. · Mr .. Rug8.imuk2mu for the pla.intiff has argtte.d that there is nothing in GN. No.42L~ of 1999 to give as.sur2.nce that it was referring or relating to GW. No.543 of 1997. He further argued that the blr:mks in GJ!,. No .. 543 of 1997 cannot be S-'1id to be printing errors which could be rectified., I e..m in no douct that GN. No.424- of 1999 was referring to GN. No,,543 of 1997 and that the blaI1lrn in GN .. Noo 543 were printing errors within the meaning of . . / section 21 of the Interpretation of Lnws :-:.nd General Cl:::mses Act No.30 of 1972. '1'hc, section I h2.ve just cited~ also provides th:-1t the rectificntfon takes effect from tho date: the, f.i,.ct or Bill which h.:J.d contained the error came into effeci: • Mean in~ th:,t the -:rectification in GN. No.424 of 1999 takes effect from 22nd August,1997, in conformity with seciion 28 of the Interpretation of Laws nnd Genernl Cl2uses Act, 1972.

,. I.. I. 3 In the:light of ,:tne new -facts .the defendant' prays that the Ruling of this Court dated 16th Map,ch,2000 be reviewed) However, Mr .• Rugaimukamu. :for the pl·aintiff, submitted that whe.n it is considered that the. printing .error. took .. 2?· -months, and 22 days to be rectified, a lot of things- have t-aken p},acG 2,.nd .injustice•. could be caused to'· the plaintiff.: .. ,Furthermore, tha-f;• todate tqer.e .t~ ru;, yet. o .e_ffect.ive date for the Commission to s:1.ct as the official, reeiver of •the. defendant, ,meru}ing· to say th.::-,t there has been no basis for the plaintiff to seek leave of ,the Court to sue the defendant. t ,. f • There is no denying that at the time the plaintiff filed :the··. suit tticourt against the dfendruit, thit'·;f' on 22nd 'JulyiPl99,9, ·ther~ was no declaration· Order. in ·force because ,Goverrunent Notice No.424 of 1999 was yet to be published. So, even though.G~N" DJo., 424 has retrospective effect, one cannot, say in all sincerity tho.t on. 22nd July, 1999 tls. ;•: plaintiff knew or our:;ht to h?.ve k.novfl1 . .-. t.h,?,:t, T.RC was_, a.•.: ; specified· public cor:poration as .of 22nd Ap.gus;t;.1997•,.., Is ft fair, therefo:r:e·;. fo:r·': this· Co.urt to rule• th".1.t_ the sμit .μi court is incompe:t~nt for non-complbnce • -,ith the provisions of .sept:ion 9( 1) · . .- .. of the Bankruptcy Ordinance? I th):nk'this is a, circ:umsto_nce_in which the proviso to t5ection 28 of the Interpretn.tion of Laws and General Clauses Act, 1972 would apply.,·-· Sections 28 together with its proviso reads as follows:- 1128., /L1y subsidiary legislation may be me.de to operate retrospectively to any d:lte, not being a date earlier th£111 the commencement of the Act under which it is made. f Provided that no person shll, unless it is otherwise expressely provided in the Act, be made or become liable to any I penalty whatsoever in'respect of any act committed or the failure to do nnything before the date on which such subsidiary legislation is published in the Gazette" o·

4 I j It may well be ared th.:it the use of the te·rm "penalty: 1 whi'ch normally means punishment, particul,.ry ,,_·fine.+ monoy payment (See Osborn's ''A Concise Law Dictiona.ryf 1 Fifth Edition), suggests a f .. Criminal situation or offence. But I think that in a situation like in the case under discussion in which the pl::i.intiff sued the defendant at a point mn time when there We.J3 not infact a requirement to obtain leave of the court (becP.J.use GN. No.543 of 1997 was then meeningJ.ess and the rectification in GN. No~ 424 of 1999 had not yet been published), to strike out such a suit because of the retrospect1vity of GN. No.-424 of 1999 can be construed to be a penalty. I must, therefore,- refuse to strike out the suit for the reason adv.meed by the defendant because it would be inequitable and :r:'l;l!):1£mw,:iA: to justice. I am prepared to accept the defendants alternative prayer that the Commission be ·made a pnrtyo This is also to acknowJ.edge the fa.ct the Minister has already declared the adefendant a Specified Public Corporation for the purposs of section 4; of the Publi Corporations (Amendment) Act, No. 16 of 19930 I, therefore, order that the plaintiff joins the Commission as a party in this suit in order to give it (the Commission) opportunity to be hearq~ The plaint to be amended to join the Commission in 14 day!s time from today .• • . At Mwanza, c· 6/7/2000, i , I I I