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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO DISTRICT REGISTRY AT MOROGORO LAND CASE NO.4244 OF 2024 BETWEEN AHMED MWINGE 1®^ PLAINTIFF GANO A. MWINGE 2^° PLAINTIFF MPELWA A. MWINGE 3'^'' PLIANTIFF ALLY A. MWINGE 4™ PLAINTIFF NEEMA A. MWINGE 5^" PLAINTIFF VERSUS HAROUN KHATIBU PANDE 1®^ RESPONDENT MOROGORO MUNICIPAL COUNCIL 2^" RESPONDENT THE COMMISSIONER FOR LANDS 3^° RESPONDENT ATTORNERY GENERAL 4™ RESPONDENT RULING MRUMA,3 Plaintiffs instituted this suit against the Defendants for the following orders Page 1 of 8 1. That this Court be pleased to Issue a declaration that, plaintiffs are owners of the suit property and the Defendant has no right whatsoever to occupy the same. 2. That this Court be pleased to Issue a declaration that any transactions entered or performed by the 2"^ and Defendants or their assignees Is a nullity 3. Thar this honourable Court be pleased to order the 3'"^ Defendant to cancel the title deed Issued and delivered to the Defendant. 4. That this Honourable Court be pleased to order the 2"^ defendants to order the Defendant to deliver the title deed back to Defendant to be cancelled. 5. Permanent Injunction against the Defendant from entering and making any development and changes of whatsoever nature In their property. 6. Payment of specific damages by the Defendant to the tune of 100,000,000 for Illegal demolition of a brick wall of the Defendants. 7. Jointly or severally payment of general damages by the 2"^ and 4'^ Defendants as per paragraphs 24 of the plaint, as may be assessed by the Court. 8. Costs of this Suit to be borne by the Defendant. Page 2 of 8 9. Any other reliefs that this Honourable Court may deem fit and just to grant. Upon being served with the plaint the Defendants filed their written statement of defence containing two points of preliminary objections namely:- 1. That the suit is bad in law for failure to submit and serve Ninety days statutory notice to 2"^^ and 3^^ defendants contrary to section 6(2) of the Government Proceedings Act(Cap 5 R.E. 2019) 2. That the plaint is bad in law for contravening Order VI Rule 14 and 15 of the Civil Procedure Code. At the hearing of the preliminary objections parties were represented. The second and fourth Defendants were represented by Mr. Abdallah Makulo, learned State Attorney while the plaintiffs were represented by Mr Hamis Mbandwa, learned advocate. The two preliminary objections were argued by way of written submissions. In support of the first preliminary objection Mr Makula submitted that it is trite law that preliminary objection must be on a pure point of law and he cited the famous case of Mukisa Biscuit Manufacturing Company Ltd vs West End Distribution Ltd(1969) EA 671 and also the case COTWU (T) ottu union and Another vs Hon. Idd Simba, Minister of Page 3 of 8 Industries and Trade and others [2002JTLR. The learned State Attorney contended that the plaint filed in this case is not signed and verified by the plaintiff contrary to Order VI Rules 14 and 15 of the Civil Procedure Code [Cap 33 R.E. 2019]. According to the learned State Attorney signing and verifying of a plaint by the plaintiff is of paramount importance but in the present case the plaint was signed and verified by their advocate contrary to the provision of the law. The learned State Attorney stated further that an advocate is neither a party nor an authorized person qualified to sign or verify on behalf of a party. He said that in civil proceedings a person duly authorized is not an advocate of the party and that the authorization must categorically be pleaded in the plaint to enable the authorized person to sue or defend on behalf of plaintiff. The learned State Attorney referred this court to the decision of this court in the case of Hamza Omari Pandamilango &48 others vs Namera Group of Industries Ltd, Land Case No.42 of 2019 High Court of Tanzania at Oar es salaam District Registry. Based on his submission the learned State Attorney invited this court to sustain the Preliminary Objection and strike out the entire suit. Responding to the submissions of the learned State Attorney Mr Hamis Mbangwa, counsel for the plaintiff submitted that the rules of Procedure in civil proceeidngs allows pleading to be signed by the party and his Page 4 of8 advocate or by any other person duly authorized to sign the same. He said that the advocate who signed and verified the plaint was duly authorized to do so therefore no there is contravention of the law. To support his arguments the learned counsel cited the case of Jackline Ntuyabaliwe Mengi & 2 others Vs Benson Benjamin Mengi & 5 others Miscellaneous Civil Application No. 486 of 2019, HC Dar es Salaam and Nyusta Peter Kabezi t/a Nyudiah Enterprises vs Herodious Mborowe & 3 others. Civil Case No. 153 of 2019, HC - Dar es Salaam and contended that the Preliminary Objection raised by Defendants have no merits and should be dismissed with costs. As rightly submitted by Mr. Makulo, it is trite law that once a preliminary objection is raised court has to determine it first before going to the trial of the matter. The preliminary objection raised is pegged under Order VI Rules 14 and 15 of the Civil Procedure Code, which provides that:- 14. Every pleading shallbe signed by the party and his advocate (If any), provided that, were a party pleading Is by reason of absence or for other good cause, unable to sign the pleading. It may be signed by anyperson duly authorized by him to him the same or to sue or defend on his behalf Page 5 of 8 15.(1)Save otherwise provided by anylaw for the time being in force, every pleading shaii be verified at the by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. (2) The person verifying shaii specify, by reference to the numbered paragraphs ofpleading, what he verifies of his own knowledge and whathe verifies ofhis own knowledge and what he verified upon information received and believed to be true. (3) The verification shaii be signed by the person making it and shaii state the date on which and the piace at which It was signed The word used in the above quoted law Is "shall" which means that pleadings must be signed by the party and his advocate or by any person authorized by the party. The law suggests that where a party by reason of absence or good cause a party Is unable to sign the pleadings It may be signed by any person dully authorized by him. The law does not diflne who Is an authorized person but generally an authorized person means a person who has been given the authority or permission to do something specific by another person. Page 6 of 8 In case at hand Plaintiffs' pleadings are signed by an advocate of the Plaintiffs, the question is whether he is authorized to do so. At the foot of the plaint there is a statement to the effect that the said Advocate was dully authorized to sign on behalf of the Plaintiffs. The Defendants have submitted that there is no such authority appended to the plaint. I have carefully considered this argument and I find that it does not constitute a point of law as held in Mukisa Biscuit's case (supra) where it was held to the effect that to constitute a preliminary objection the point argued should be capable of preventing the case from moving forward and it must be pleaded basing on pure point of law. In the case at hand the question whether the advocate who signed and verified the pleadings had authority or not cannot be a pure point of law because evidence would be required to ascertain that fact. As regard, to verification, the law under Rule 15(1) of Order VI of the Civil Procedure Code requires pleadings to be verified by one of the parties or some other person proved to the satisfaction of the could to be acquainted with the facts of the case. As in the case of signing verification of the pleadings were done by advocate for the plaintiffs. Again the question whether the said advocate is acquainted with the facts of the case or not is not a pure point of law. It is a point of law mixed with facts hence the law requires the same to be proved to the satisfaction of the court. Page 7 of 8 Finally, In my view, the intention of law under Rule 14 and sub-rule (1) of Rule 15 of Order VI of the Civil Procedure Code was to cover a situation where by reason of absence of a party or for other good cause a party is unable to sign or verify her pleadings. In such a situation his advocate would sign or verify for him/her. Otherwise this is fit case in which the overriding principle embodied under Section 3A and 3B of the Civil Procedure Code would come into rescue. In my conclusion, I find that the preliminary raised and argued by the Defendants lacks substance and it is dismissed. Costs will be in the cause. 0^ A.R. MRUMA Uj UDGE -"o.: a: W* V- 11. 2024 Page 8 of 8