Pita Kempap Ltd v. Mohamed I. A. Abdulhussein Civ no 69 of 2005

THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 128 OF 2004 c/f NO. 69 OF 2005

In the Matter of Intended Appeal

BETWEEN

PITA KEMPAP LTD.        …             APPLICANT

          AND

MOHAMED I. A. ABDULHUSSEIN   …     RESPONDENT

(Application to Strike Out the Notice of Appeal and to Stay Execution of the Decision of the High Court of Tanzania at Dar es Salaam)

(Mihayo, J.)

dated the 3^rd day of September , 2004

in

Civil Revision No. 66 of 2004

RULING

RAMADHANI, J.A.:

Upon the agreement of the learned advocates of both parties, I decided to consolidate the two applications between the same parties but in different capacities. In Civil Application No 128 of 2004, the respondent is seeking to stay execution of the order of MIHAYO, J. and in Civil Application No 69 of 2005 the applicant is seeking to strike out the notice of appeal lodged against that order of MIHAYO, J. For reasons not difficulty to fathom, I have treated the latter as the application with PITA KEMPAP Ltd. as the applicant and Mohammed Abdulhussein as the respondent. Throughout this ruling I shall refer to the applicant as the Company and the respondent simply as Abdulhussein.

Briefly, Abdulhussein is a tenant of the National Housing Corporation (NHC) in their Ilala apartments. With the leave of the NHC, Abdulhussein subleased to the Company but some problems arose and Abdulhussein filed Civil Case No. 192 of 2003, in the District Court of Kinondoni. The Company was evicted from the apartment.

The Company went to the High Court (MIHAYO, J.) for a revision on two grounds: One, the District Court of Kinondoni did not have territorial jurisdiction as the suit premises are in Ilala. Two, as the dispute is over land then the proper forum was the District and Housing Tribunal established under the Land Disputes Courts Act, 2002, Act No. 2 of 2002, and not the District Court. MIHAYO, J. upheld both arguments and quashed the decision of the lower court. Abdulhussein being aggrieved with that lodged a notice of appeal in this Court on 17^th September, 2004.

When these applications came up for hearing Abdulhussein raised a preliminary objection which was argued by Ms. Magdalena Rwebangira, his learned advocate. The ground was that the application has been commenced without authority. The learned advocate cited a number of decisions to the effect that a company requires a resolution of the directors or shareholders authorizing court proceedings. Ms. Rwebangira also referred me to section 67 Table A of Schedule I of the Companies Ordinance, Cap. 212.

On behalf of the Company was Mr. Moses Maira, learned counsel, who said that Table A does not apply to all companies and he pointed out that Ms. Rwebangira has not shown whether it applies to the Company, that is, the applicant. As for the authorities cited he argued that they deal with a company instituting court proceedings and not where a company is defending itself as in the present application. The learned advocate made a distinction between maintaining and defending an action and that the authorities relied upon by Ms. Rwebangira refer to the former while the Company is involved with the latter.

Ms. Rwebangira conceded the distinction but argued that in this case the Company has made an application to strike out the notice of appeal which is tantamount to maintaining an action and so, she submitted, the authorities are relevant.

 Mr. Maira is supported by Bunyerere Coffee Growers Ltd. v. Sebaduka and Another [1970] EA 147 where it was held that:

When companies authorize the commencement of legal proceedings, a resolution or resolutions have to be passed either at a company or Board of Directors’ meeting and recorded in the minutes …

In the present case legal proceedings were commenced by Abdulhussein, and not the Company, in the District Court of Kinondoni. Then the Company went to the High Court, still defending itself as the decision was against it. Even in this application to strike out the notice of appeal, the Company is defending itself against Abdulhussein by trying to avoid his appeal from being heard at all. Therefore, there is no need of any resolution. So, the preliminary objection is dismissed with costs.

I have to preface considering the applications by a precise factual background: The appeal against MIHAYO, J. requires leave to appeal which was sought but was struck out by SHANGWA, J. on 10^th May, 2005, because of a defect in the affidavit supporting the application. Abdulhussein has now filed two applications in the High Court on 23^rd May, 2005: One, asking for the extension of time within which to apply for leave to appeal and the other for leave to appeal. Ms. Rwebangira stated from the bar that the applications shall be before SHANGWA, J. on 17^th August, 2005. Mr. Maira conceded that but added that that date is for mention.

Mr. Maira seeks to strike out the notice of appeal on the grounds that an essential step has not been taken, that is, there is no leave to appeal. Ms. Rwebangira pointed out that there is an application for leave to appeal before the High Court. She also said that a similar move of striking out the notice of appeal was dismissed by MSOFFE, J. A. as premature in Civil Application No. 140 of 2004. So, she submitted that this application, too, be dismissed as being premature. I agree with her.

Mr. Maira argued that since an application for leave to appeal was struck out by SHANGWA, J., it amounted to refusing leave, and so, the proper cause of action for Abdulhussein is to seek for leave from this Court and not to go back to the High Court. I do not buy that. When a court strikes out a matter that does not mean that the matter has been refused. All that the court says is that for some reasons the matter is incompetent and so, there is nothing before the court for adjudication.  So, the proper cause of action is to rectify the error and to go back to the same court as Abdulhussein has done.

Abdulhussein has come with an application to stay the execution of MIHAYO, J’s order. Ms. Rwebangira has submitted that the intended appeal has great chances of success, and that there is no prejudice that would be caused on the Company as the Company is not in possession of the premises at the moment. Mr. Maira cited to me a ruling I made that since there is no leave to appeal then stay of execution cannot be granted. But that stand has been overruled by the full Court.

Mr. Maira’s other submission was that the decision of MIHAYO, J. returned the parties to the position they were in before the matter went to the District Court of Kinondoni. That is correct. But Ms Rwebangira has said that the Company is not in possession of the premises at the moment. The Company did not deny that. I, therefore, take it to be so. Now, the balance of convenience dictates that the status quo should not be disturbed pending the intended appeal.

So, I grant stay of execution and order that costs to follow the event.

DATED at DAR ES SALAAM this 22^nd day of August, 2005.

A.   S. L. RAMADHANI

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

( S. M. RUMANYIKA )

DEPUTY REGISRAR

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