LAND CASE NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND CASE NO. 000012074 OF 2024 CASE REFERENCE NO. 202405241000012074 AFRICAN VILLAGE ESTATE CO.LTD.............................PLAINTIFF Versus SANITAS HOSPITALS LTD............................................ DEFENDANT RULING 04/11/2024 &20/01/2025 GWAE, J Upon service of the plaintiff's plaint, the defendants' counsel raised a preliminary objection, subject of this ruling, on the following points of the law:- 1. The Court has no pre-requisite jurisdiction in the suit 2. The 2nd defendant is wrongly joined in the suit 3. The plaintiff has no cause of action Initially, the plaintiff, African Village Estate Co. Ltd instituted the suit in this Court on 24th May 2024. She is claiming for the following reliefs against the defendants herein jointly;- i 1. Declaration that the 1st defendant has breached the terms and conditions of the lease agreement dated February 2020 2. A declaration that the 2nd defendant has willy and maliciously misrepresented to the plaintiff his ability to generate funds for rental payment and mismanaged the 1st defendant's fund at the plaintiff's detriment 3. Payment of Tshs. 2, 524,606, 605/= being the rent payment 4. Interest on the aforesaid sum at the court rate from the date of filing this suit to the date of payment in full 5. Costs of this suit 6. Any other relief this Honourable Court deems fir and just to grant According to the parties' pleadings (plaintiff's plaint and defendants' written statement of defence as well as annextures, the plaintiff and the 1st defendant entered into a lease agreement on dates of February 2020 for the 30 months. The parties' lease is on Plot No. 168/2, Msasani Beach, Dar es salaam. When the matter was placed before me for hearing of the defendants' PO, Mr. Victor Kikwasi and Mr. Gidion appeared representing the plaintiff and defendants respectively. The learned counsel for the defendants opted to argue the 2nd and 3rd points jointly. 2 In the first point of objection, it is the submission of Mr. Gidion that, this court lacks plaintiff's plaint as revealed by Paragraphs 3, 4 and 6 of the plaint. It is the submission by Mr. Gidion that, it is the parties' pleadings, which bind the parties. According to him, the matter at hand is based on commercial transactions and not a typical land matter as what is pleaded in the plaint is lease agreement and not any recovery of land. He urged the Court to make reference to Camel Oil (T) Limited vs. Badela Co. Ltd, Land Case No. 104 of 2021 (unreported-HC) and Mohamed Enterprises vs. Adil Ocean Mart Ltd and two others, Land Case No. 54 75 of 2023 (both unreported-H.C). Arguing the first and second points of the defendants' objection on non-joinder and cause of action, Mr. Gidion submitted that, the alleged contract is between the plaintiff and first defendant. Hence, the second defendant is pleaded nowhere. Hence, it is the view of the defendants' advocate that, the second defendant is wrongly sued in this suit. He similarly submitted that, the second defendant is sued in his personal capacity not as director of the first defendant. It is also the submission of the defendants' advocates that if the plaintiff wished to sue the second defendant in his personal capacity, he 3 could plead his interest unlike the present situation where the issue of arrears is pleaded. He invited the Court to make a reference to Order I Rule 6 of the CPC. The defendants' counsel was also of the view that, the issue of fraud or misrepresentation or misappropriation of the fund must be specifically pleaded with its set of particulars. He added that, in the plaint there is nowhere misrepresentation is pleaded. He embraced his submission by citing a case law in the case of Twazihirwa Abrahim vs. James Christin (as an administrator of the Estate of the late Christian Basil Kiria, Deceased) Civil Appeal No. 229 of 2018 where the Court of Appeal of Tanzania sitting at DSM stated that, the allegation of fraud and misrepresentation must be specifically stated. Mr. Gidion exceptionally added that, there is violation of Order vii Rule 3 of the CPC as there is no proper description of the suit premise. To buttress his submission, he referred the Court to the case of Juma Nassor vs. Kibaha Town Council and Attorney General, Land Case No. 25970/ 2023 (unreported HC). He then prayed for an order striking the plaintiff's suit with costs. 4 Responding to the submissions by the defendants' counsel in respect of the second and third limbs of objection Mr. Victor argued that, the 2nd defendant is properly joined to the suit and that, there are particulars of misrepresentation and misappropriation of fund Regarding the first limb of objection on jurisdiction, the plaintiff's counsel is of the view that, the submission by the defendants' advocate is inappropriate since the suit before the Court is on rent arrears and that the amount claimed exceeds Tshs. 300,000,000/=. Bolstering his argument, the counsel for the plaintiff cited section 109 (1) (d) and 167 of the Land, Cap 113, Revised Edition, 2019 (LA). He went on arguing that, the parties' transactions at issue are not commercial transactions but lease arrangement between the plaintiff as the lessor and first defendant as the lessee. He referred to Para. 5 of the WSD where it is stated that, it is the plaintiff who has breached the lease agreement. Mr. Victor finally argued that, this Court is clothed with the jurisdiction since both sides agree that, there was a lease agreement and since there is a claim on rent arrears and the claimed amount is well within the jurisdiction of the Court. On the alleged failure by the plaintiff to properly describe the suit property, Mr. Victor was of the submission that, the subject matter is breach 5 of lease agreement and not leased property. Therefore, according to him, there was no requirement of describing the leased property. Nevertheless he argued that Paragraph No. 4 of the plaint, the leased property is properly described. It is also the submission of Mr. Victor in response to the second and third points that, the alleged misjoinder and lack of cause of auction are no longer PO since the same require hearing of the parties so that, the Court can be in a better position to determine if there was a misjoinder. It is further his submission that, the second and third points raised cannot be determined at this preliminary stages unless evidence is given to prove or disprove the allegation. In his brief rejoinder, the leaned counsel for the defendant stated that, the submission by the plaintiff's counsel is nothing but misconception of the law as failure to show particulars of the misrepresentation amounts to concession of their PO. He also stated that, there was a need to properly describe the suit property. He further reiterated his submission in chief that, this court lacks jurisdiction since the dispute between the parties is on issues of malicious and unlawful acts or conducts, which are not pure land matters except claims on rental arrears. 6 The defendants' counsel also rejoined that, the second defendant is improperly rejoined in these proceedings. Therefore, there is no cause of action against the second defendant. Having briefly summarized the oral submissions of the parties' advocates, it is now the obligation of the court to determine whether the defendants' PO is sustainable or not. Regarding the first point of law on jurisdiction of the Court. It is trite law that the jurisdiction is a creature of the statute. Hence, disputants or litigants cannot confer the court with the requisite jurisdiction to hear and determine a matter. Similarly, it must be known that some of the cases may be consisted of or contain elements of both commercial and land case in nature. (See the decision of the Court of Appeal in National Commerce Bank vs. National Chicks Corporation Ltd and 4 others, Civil Appeal No. 129 of 2015 (unreported). However, in our instant suit, I am not persuaded if the pleaded facts do not clothe the Court with the requisite jurisdiction. I am holding so for simple reason that, though the plaintiff's claim is based on breach of lease agreement yet he lucidly claims for payment of rental arrears by the 1st defendant. Hence, the plaintiff's claim is found to have not only based on 7 breach of lease agreement but also on payment of rent arrears by the 1st defendant. The plaintiff is thus entitled to institute this by virtue of section 109 of the Land Act (Supra) as correctly argued by Mr. Victor as the case on the 1st defendant if the plaintiff would have breached terms and conditions of the lease agreement under subsection (2) of section 109 of the Land Act. Section 109 of the Act reads; "109. (1) where a lessee Is in breach of covenant or condition of a lease, which he is under an obligation to observe and comply with, the lessor may, instead of serving a notice of intention to terminate, commence an action against the lessee- fa) For damages; (b) For a decree of specific performance; (c) For an injunction; or (d) To recover as a debt any areas of rent, but no action commenced before the service of a notice of intention to terminate shall not be proceeded with or judgement given in respect of it until after the conclusion of any proceedings commenced in connection with an order of termination arising from the same breaches, including any appeal against any decision given in connection with that order of termination". (Emphasis supplied) 8 Guided by the above provisions of the law and carefully looking at the plaint especially at paragraph No.10 and 11, the plaintiff' claim, in my considered view, revolve in the rent arrears. Thus, the suit is the land related matter. For clarity paragraph No 10 and 11 of the plaint are reproduced herein under;- 1. That, the 1st defendant has failed to pay the rent due for several months, resulting in accumulated rent arrears totaling Tanzania Shillings Two Billions Five hundred twenty-Four Million, six Hundred Six hundred and Five Thousand (2,524,606,605/=). 2. Despite numerous reminders and demands for payment, and unhonoured promises, the defendants have neglected and/or refused to settle the outstanding rent arrears.... In the light of the above quoted excerpts, I am satisfied that, this Court is certainly clothed with jurisdiction to entertain the dispute unlike the stance taken by the defendants' counsel as issue of the tenancy and rental arrears are directly involved in this civil suit and not mere commercial transactions. This position was rightly articulated in KCB Bank Tanzania Limited vs. Ramadhani Myolela, Civil Appeal No. 197 of 2018 (unreported) when this court faced the similar situation where in original suit 9 the plaintiff claimed for recovery of a purchase price and not possession or ownership of the landed property and it was stated; "For the matter to be considered as the land dispute there are two indicators which are; either ownership of land or right to possession which includes occupation by tenancy. And his Lordship concluded that, the recovery of purchase price does not amount to a land dispute." Boided mine. Having discussed as herein above, the first limb of objection is hereby overruled. Now coming to the alleged non-disclose of cause of action against the 2nd defendant and that, the 2nd defendant is wrongly joined. Examining the parties' pleadings and submissions, from outset I find that this issue is prematurely raised. However, I am in agreement with the counsel for the defendants that, particulars of the alleged misrepresentation are not clearly pleaded to enable the 2nd defendant to sufficiently defend his case. This legal requirement of the law was rightly stressed by the Court of Appeal in City Coffee Ltd vs. The Registered Trustee of Holo Coffee Group, Civil Appeal No. 94 of 2018 (unreported), when faced with a similar situation, the it was stated thus: io "....it is dear that regarding allegations of fraud in civil Case the particulars of fraud, being serious allegation; must be specifically pleaded and the burden of proof thereof, although not that which is required in criminal cases; of proving a case beyond reasonable doubt, it is heavier than a balance ofprobabilities generally applied, in civil cases. " See also judicial precedent in the case of Omari Yusuph vs. Rahma Ahmed Abdulkadr [1987] TLR 169 Basing on the above case law and looking at the plaint particularly paragraph 6 and 7 of the plaint, I am of the formed opinion that, the particulars of the misrepresentation or fraud are not clearly pleaded as required by the law. More so, annexture 2 to the plaintiff's plaint is indicative that the letter dated 10th February 2020 written by one Murthy is written by him under the capacity of Chief Executive Officer (CEO) and not in his personal capacity. I have further observed that, the plaintiff has not fully describe the leased house nevertheless considering the nature of the relief sought, that alone is, in my considered view, not capable of qualifying the Court to invoke its powers to strike out the suit since the claim is wholly based on recover of arrears and not immovable property. li Despite the above findings, I am not confident in holding that, the errors committed by the plaintiff justify, this court to issue an order striking out the suit instead of issuing an order of amendment by virtue of Order VI Rule 17 of the CPC. By issuing an order of an amendment, time and costs will certainly be saved. In the upshot, I hereby overrule the first point of objection but I sustain the second and third limbs of objection to the above explained extent. I consequently proceed directing the plaintiff to file an amended plaint, which shall be filed within fourteen (14) days from the date of this ruling. Each party shall bear his or her own costs of the defendants' PO. It is so ordered. DATED at DAR ES SALAAM this 20th January 2025 12