abella bertha vidtfeldt vs registered trustees of the congregation of the holy ghost epiphany parish 2014 tzhc 2249 16 april 2014

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM LAND CASE NO. 45 OF 2013 ABELLA BERTHA VIDTFELDT............................PLAINTIFF V THE REGISTERED TRUSTEES OF THE CONGREGATION OF THE HOLY GHOST EPIPHANY PARISH.......................................................DEFENDANT RULING Date of last Order 28/3/2014 Date of Ruling 16/4/2014 A.Shangwa. J At page one of the written statement of defence, learned counsel for the defendant Dr. Masumbuko Lamwai raised a preliminary point of objection that the defendant is a non - existent entity and that a wrong defendant is being sued. For that reason, he prayed the Court to strike out the suit with costs. He submitted that there is no bodyCorporate registered under the Trustee incorporation Act in the name of the Registered Trustees of the Congregation of the Holy Ghost, Epiphany Parish and that the Epiphany Parish is not owned by the Congregation of the Holy Ghost. Learned counsel for the plaintiff Mr. Rwegasira submitted that Dr. Masumbuko Lamwai’s submission is misleading. He said that the two Points of Preliminary Objection do not qualify to be points of preliminary objection because the two points do not raise points of law but matters of fact which have to be proved by evidence. He referred the Court to the celebrated case of Mukisa Biscuits Manufacturing Company Ltd V. West End Distributors Ltd 1969 EA 696 in which the meaning and purpose of a Preliminary Objection was given as follows and I quote:- “A preliminary objection is in the nature o f what used to he a demurrer. It raises a pure point o f law that all the facts pleaded hy the other side are correct It cannot be raised if any fa ct has to be ascertained ... and that a preliminary objection consists of points o f law ... which if argued as a preliminary point may dispose o f the suit Examples are an objection to the jurisdiction o f the Court, or a plea o f limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration The issue to be determined by the Court in this matter is whether or not the two points of objection raised by Dr. Masumbuko Lamwai do qualify to be points of objection and if so what should happen to the suit? In my view, the two points of objection do qualify to be points of preliminary objection to the hearing of the suit. Therefore, the Case of Mukisa Biscuits Manufacturing Co; Ltd cited above does not apply here. The two points of objection do qualify to be points of law because if the defendant is in law a non existing entity and a wrong party to be sued as defendant, it would be of no use in law to proceed with the hearing of the suit against it. Proceeding with the hearing of the suit against a non- existing entity is like proceeding with the hearing of the suit against a dead person. In fact, Dr. Masumbuko Lamwai had a professional duty to raise the two points of Preliminary Objection at the earliest stage as he did in his written statement of defence so that the Court may determine as to whether or not the suit is maintainable. In view of the fact that the plaintiff did not annex to the plaint a certificate of incorporation of the defendant, it is obvious that the defendant is not registered as a body corporate under the Trustees Incorporation Act. If that is the case, then the suit is against the wrong defendant. The Trustees Incorporation Act is Cap 318 R.E 2002. From the pleadings, it can be gathered that the suit between the parties concerns ownership of land on Plots NO. 3 and 4 at Sanzale area Bagamoyo urban. In its written statement of defence, the defendant pointed out that the land in issue is occupied by Epiphany Parish. That this Parish belongs to the Registered Trustees of the Morogoro Roman Catholic Diocese to whom this land originally belonged and that the plaintiff illegally caused it to be surveyed and to be allocated to her in the ignorance of the lawful owner. From what the defendant pointed out above, it can be gathered that in actual fact the suit is against a wrong defendant and against a defendant who in law’ does not exist for lack incorporation. That is the Registered Trustees of the congregation of the Holy Ghost Epiphany Parish. A question may now arise as to whether or not the plaintiffs suit which has been filed against a wrong defendant and against a defendant who in law does not exist is maintainable for the purposes of determining the issues involved in it. The answer to this question is simple. The plaintiffs suit is not maintainable for having been instituted against the wrong defendant and against the defendant who in law does not exist. Therefore, I strike it out with costs. ^.Shangwa. ? JUDGE 16/4/2014 Delivered in open Court in the presence of Ms Assey for defendant holding brief of Mr. Rwegasira for the plaintiff this 16th day of April, 2014. A.Shangwa. JUDGE 16/4/2014