Investment House Limited versus Webb Technologies (T) Ltd and 2 Others; Commercial Case No 97 of 2015: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure
- Plaint – plaint not accompanied by the Plaintiff’s Company board resolution to authorize the institution of the suit – whether it can be challenged by way of preliminary objection.
- Plaint – whether failure to specifically state jurisdiction of the court in the jurisdiction clause is fatal.
- Suits by companies – Board resolution to institute a suit on behalf of a company mandatory.
Held:-
(i) A preliminary objection to the effect that a plaint has not been accompanied by a board resolution of the plaintiff’s company cannot be qualified to be treated as preliminary objections as they do not fit in the categories of preliminary objections set out or established in the famous case of Mukisa Biscuits Co v. West End Distributors Limited (1969) E.A. 696), that preliminary objection should be on points of law or which arises by clear implication out of pleadings which if argued may dispose of the suit.
(iii) The question of authority to institute a suit on behalf of a company is not a technical matter. It has far– reaching effects. It often affects the policy and finances of the Company. Thus, unless a power to institute a suit is specifically conferred on a particular director, or manager, he has no authority to institute a suit on behalf of the Company. Needless to say such a power can be conferred by the Board of Directors only by passing a resolution (Cited Messina (T) Limited v. Quality Business Consultants (T) Limited, Commercial case No 13 of 2015 (Unreported).
(iii) In determining whether or not the court has jurisdiction in the subject matter, the court does not only look at a clause pleaded by the plaintiff in the plaint which shows that the court has jurisdiction, but the courts looks at all the statements of facts pleaded in the plaint and its annexure.