PAZI SAFII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT DAR ES SALAAM LAND CASE NO. 26400 OF 2024

BETWEEN ABDALLAH JUMA ALI................................................ PLAINTIFF

VERSUS HAMISI BUSHIRI PAZI............................................................. 1st DEFENDANT KASSIM ALLY OMARI (as administrator of TATU BUSHIRI PAZI)............ 2nd DEFENDANT HAMIS BUSHIRI PAZI (as administrator of NEEMA BUSHIRI PAZI)........ 3rd DEFENDANT HAMISI BUSHIRI PAZI (as administrator of MWAJUMA BUSHIRI PAZI).4TH DEFENDANT STUMAI BUSHIRI PAZI................................................................................. 5thDEFENDANT SALIMA BUSHIRI PAZI................................................................................. 6thDEFENDANT HATUJUANI BUSHIRI PAZI................... 7th DEFENDANT

RULING 02/12/2024 & 13/02/2025 N.E. MAN DI A, J This is a ruling on a preliminary objection taken at the instance of the 1st, 3rd, 4th, 5th, 6th, and 7th defendants, attacking the competence of the suit which is pending in this court. On 22nd October, 2024 the plaintiff instituted a suit against the defendants. The suit has encountered impediment, coming by way of preliminary objection raised by the said defendants on 20th November, 2024 while filing their written statement of defence. The objection is to the effect that the Plaint does not disclose a cause of action. i Hearing of the preliminary objection was done through written submission as per the order of this court. The plaintiff enjoyed the legal services of Mr. Silas Adam Mziku, learned counsel whereas, the 1st, 3rd, 4th, 5th, 6th, and 7th defendants had the legal services of Mr. Eliphafra Ally, learned counsel. The 2nd defendant despite being dully served he never appeared nor filed his defence in court. As the practice of the court, I had to determine the preliminary objections first before going into the merits or demerits of the suit if at all it happen that way. In support of the preliminary objection, Mr. Eliphafra submitted that the cause of action must be found in the plaint alone and not otherwise. That Order VII Rule 1(e) of the Civil Procedure Code, [Cap 33 R.E. 2022] ("the CPC") makes it mandatory for the

plaintiff to plead particulars in the plaint which disclose a cause of action. The counsel submitted further that the plaint does not disclose any cause of action against the 1st, 3rd, 4th, 5th, 6th, and 7th defendants hence, contravene the mandatory provision of Order VII Rule 1(e) of the CPC. That the remedy for the plaint that does not disclose a cause of action is to be rejected as stipulated under Order VII Rule 11 (a) of the CPC. He persuaded this court by citing the case of JEM 2 INTERNATIONAL CO LTD, JONAS EPHRAIM MCHOM VS. NATIONAL MICROFINANCE BANK, U INTERNATIONAL LIMITED, Land Case No. 13 of 2019, which held that: - "It is trite law that where the Plaint does not disclose a cause of action, the remedy is not for the court to dismiss the Plaint, but to reject it. See also JOHN M. BYOMBALIRWA v AGENCY MARITIME INTERNATIONALE (Supra). Now, in terms of Order VII Rule 11 (a) of the Civil Procedure Code, Cap 33,1 find it proper for this court to reject the plaint for non-disclosure of the cause of action and I hold so". The counsel prayed for the court to reject the plaint with costs. In rebuttal, Mr. Mziku submitted that it is trite law that in determining whether a plaint discloses a cause of action, the court must examine the plaint together with all its annexures. He also persuaded this court by the decision in RAJABU MIKIDADI MWILIMA MFAKWENDA VS. THE EDITOR HOJA

NEWSPAPER & OTHERS (Civil Case 29 of 2010) [2011] TZHC 2062 (31 October 2011). He submitted further that paragraphs 3, 4, 5, 6, 7, 8, 9, and 10 of the plaint clearly discloses the cause of action which are further substantiated by annexures 01, 02, and 03 which consist of binding contracts between the plaintiff and the defendants. 3 The counsel contended that the plaint and its annexures demonstrates that the defendants have failed to fulfill their contractual obligations, thus leading to the dispute before this court. He contended further that the defendants have failed to provide any substantive argument to prove absence of a cause of action in the plaint instead, they merely asserted that the plaint does not disclose a cause of action. That the approach used contradicts the procedural requirements for raising a preliminary objection and fail to meet the standards for not proving that the plaint does not disclose a cause of action. Mr. Mziku submitted that it is evident from the plaint and its annexures that the dispute arises from breaches of contractual obligations by the defendants after failure to honor what was agreed between the parties hence, the preliminary objection lacks merit and is unfounded. The counsel prayed for court to dismiss the preliminary objection with costs. No rejoinder was filed. Having gone through the rival submissions of the parties, the pertinent

issue for determination is whether the preliminary objection is meritorious or not. At the outset, it is vital to understand the meaning of cause of action. The Black's Law Dictionary, 11th Edition defines cause of 4 action as a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in a court from another person. In other words, cause of action is the reason or ground for an action, or the subject matter of a law suit. The Civil Procedure Code(supra) does not define the expression "cause of action" however, in the case of JOHN M. BYOMBALIRWA v. AGENCY MARITIME INTERNATIONALE (TANZANIA) LTD [1983] TRL 1 the Court of Appeal of Tanzania held that cause of action may be taken to mean essentially facts which it is necessary for the plaintiff to prove before he can succeed in the suit. I am also persuaded by the holding of Hon. Juma, J (as he then was) in RAJABU MIKIDADI MWILIMA MFAKWENDA VS. THE EDITOR HOJA NEWSPAPER & OTHERS case(supra) that in Tanzania it is now settled that the question whether a plaint discloses a cause of action must be determined upon perusal of the plaint alone together with anything that is attached to the plaint so as to form part of it and upon an assumption that any express or implied allegations of fact in it are true. After a careful examination of the plaint, particularly

paragraphs 3, 4, 5, 6, 7, 8, 9, and 10, and annexures 01, 02, and 03 titled "MKATABA WA 5 UPANGAJI", "MKATABA WA MKOPO" and "MAKUBALIANO YA KUFIDIA GHARAMA ZA MKATABA WA UPANGAJI NYUMBA NA. 113 KIWANJA NA. 4/7 MTAA WA CONCO/MCHIKICHI KARIAKOO DAR ES SALAAM" respectively, I am of the settled view that the plaint disclosed no cause of action against the 1st, 3rd, 4th, 5th, 6th, and 7th defendants. What I observed from the foregoing paragraphs of the plaint is a narration of how the parties entered into several agreements attached as annexures 01,02 and 03 and how they were performed. It is unclear to me as to what exactly is the plaintiff claiming against the defendants. I do not see any factual allegation that is made or laid against the defendants that requires proof by the plaintiff for him to succeed in his suit. Having said so, and without prejudice to my observation, i hereby sustain the preliminary objection that the plaint does not disclose the cause of action against the 1st, 3rd, 4th, 5th, 6th, and 7th defendants. Consequently, the plaint is hereby rejected with costs. N.E MAN DI A

JUDGE 13/02/2025 6