Ampheres Geofrey Naburi vs

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI LAND CASE NO. 16 OF 2015 AMPHARES GEOFREY NABURI (Legal Representative of the late ODILIA WARASKAWA KIMARO) ……………………………. PLAINTIFF VERSUS. JOYCE CHRISTOPHER MASAWE (Legal Representative of the FRIDA WARASKAWA KIMARO) …………….………...………...DEFENDANT RULING 01st & 25thJuly 2024 A.P. KILIMI, J.: Initially this matter was held on merit in this court, wherein Odilia Waraskawa Kimaro deceased sued Frida Waraskawa Kimaro disputing over the ownership of a parcel land measuring approximately three (3) acres located at Dipu Area Kwasadala village within Hai District. On 28th October 2017 this court decided in favour of Odilia Waraskawa Kimaro. Her opponent dissatisfied lodged an appeal at the court of appeal. Unfortunately, all parties to this matter demised, their legal representatives were appointed whereby Joyce Christopher Masawe steps into the shoes of Frida Waraskawa Kimaro (the defendant herein) whereas Amphares Geofrey Naburi became the representative of Odilia Waraskawa Kimaro (hereinafter the Plaintiff). 1 It was on 12th day of December, 2023 the court of appeal having heard their appeal nullified the entire proceeding and quash the judgment of this Court in this Land Case No. 16 of 2015 and ordered retrial. (See Joyce Christopher Masawe vs Amphares Geofrey Naburi Civil Appeal No. 231 of 2020 [2023] TZCA 17930 (TANZLII). When the case was placed me for retrial on 19/2/2024 both parties through the services of their learned advocates Mr.Faraji Mangula for Plaintiff and Ms. Jackline Rweyongeza for defendant prayed for amendment of the plaint and the Written statement of Defense ‘WSD’ claiming circumstances have changed since previous pleading canvassed with deceased names. This court granted payers for both parties and made a schedule to file the same. In reply to the amended plaint, the defendant herein filed WSD with the counter claim, this prompted the plaintiff to file reply to an amended WSD with a Notice of preliminary objection basing on the following; 1. That the counter claim filed is incompetent and unmaintainable before the court as the same has been filed without this honorable Court leave. 2. That, the counter claim filed is incompetent and unmaintainable before the court since the Defendant has exceeded the scope of amendment as ordered by the court on 27/03/2024 3. That the filed counter claim is bad in law as what is claimed by the Defendant, this Honorable Court has no pecuniary jurisdiction to determine it 2 4. That the Counter claim filed is bad in law and a complete abuse of court process since it contains prayers which have been prayed in Miscellaneous Land Application No. 2569 of 2024between the parties before this Court 5. That, the counter claim filed is bad in law and a complete abuse of court process as the defendant is claiming among other things compensation for lawful actions of court broker who is not party to this case one MS Newton G. Makwale trading as Independent Agencies &Court Broker Limited who was appointed in Application for execution No. 02/2018 to execute the decree before the Court of Appeal ordered retrial of this case in Civil Appeal No. 231 of 2015. At the hearing of these preliminary objections Mr. Faraji Mangula learned advocate appeared representing the plaintiff whereas Ms. Joan Peter and Mr. Gwakisa Sambo learned advocates represented the defendant. Mr. Mangula before he commenced his arguments prayed to abandon Preliminary objection no. 3 and 4. Then in respect to first objection he argued that the counter claim filed by the defendant were incompetent and unmaintainable because no leave of the court was sought for the defendant to file a counter claim. He further maintained that after the CAT ordered retrial of the land case No.16 of 2015, what remained were plaint and the Written Statement of defence, because on 27/03/2024 this court granted parties leave to amend names of the parties without touching or amending the content of the previously filed plaint and a WSD. The counsel then concluded this ground by 3 emphasizing that it was wrong for the defendant to amend the WSD without the leave of the court. To bolster his stance invited me to be inspired by thedecision of Moto Matiko Mabaga vs. Ophir Energy plc & 6 others, Civil Appeal No. 199 of 2021, Abrashid Company Limited vs. Mwanga District Council and another Civil Case No. 12 of 2021 High Court at Moshi at page 8 and the decision of Mohamed Rajuin Hassan vs. Salim Ally Al Saad Land Case No. 34 of 2013. Submitting for the second objection, Mr. Mangula argued that the defendant is abusing a court process as in their reply they added things and claims which were not evidenced in the previous filed WSD. The counsel referred to paragraphs 3 and 21 of the amended WSD that the defendant has added and included a sketch map, letters from church leaders, letters from Prime Minister office, letter from Legal and Human Right Centre and a valuation report of the suit land. He stated that the defendant on top of that has added a counter claim which was a separate suit. To support this assertion the counsel referred to me the decision of CRDB Bank PLC vs. Heri Microfinance Ltd and another, Civil Appeal No. 20 of 2020 CAT at Sumbawanga.Lastly for objection No.5 it was Mr. Mangula contention that the defendant in his counter claim failed to join the court broker to the counter claim as costs 4 claimed in a relief clause were done by the court broker under directives of the court, therefore proceeding without joining the Court broker renders denial of being heard. The learned counsel then concluded that it was wrong for the defendant to file new claim as there was a CAT decision which quashed the entire proceedings and judgment thus it was supposed to proceed with the previously filed plaint and WSD save for the change of names of the parties as allowed by this court. The counsel then prayed for the Objection to be sustained with costs. Rebutting on the above, Ms. Joan Peter the learned counsel was the first to kick the ball for the defendant, she contended that there were no order issued by this court on 27/03/2024 concerning amendment as the records of the case were already in this court since 22/03/2024 and on that date the plaintiff was required to file a reply to WSD instead he informed the court that he was already been served with the WSD and a counter claim. The counsel proceeded arguing that in order for the retrial order to be effective, not only parties need to be changed but due to changes and incidents occurred, the suit land was not in the same position as it was when this case was first filed. Therefore, to accommodate those changes Counter claim was necessary to be brought in court’s attention in order for the retrial order to be effective and not to repeat the same mistake so as to suit the 5 circumstances. To buttress her stance she referred to order VIII rule 9 of the Civil Procedure Code. Replying in respect to the decision of Abrashid (supra), it was her contention that the same is distinguishable since in that case pleadings were complete and hearing commenced compared to the case at hand which is still at initial stages and pleadings were not complete. Further contending in respect to second objection, Ms. Joan said that the objection is not apparent on the face of pleadings thus need scrutiny on evidence contrary to what was held in Mukisa Biscuit Manufactures Ltd. v. West End Distributors Ltd [1969] E.A. 696. Responding to the fifth objection, it was Ms. Joan contention that the issue raised required scrutiny of evidence which was not to be discussed at this stage. She was of the view that although the Court of Appeal nullified everything, it cannot be denied destruction to the properties on the suit land occurred leaving people with no place to stay and all business died, thus it was necessary all this be addressed by adding a counter claim. When the ball rolled to Mr. Gwakisa Sambo learned advocate, adamantly contended that the plaintiff’s counsel took them by surprise by submitting on the first and second preliminary objection because in 6 his raised preliminary objections he never faulted their amended written statement of defence, therefore faulting their amended WSD while submitting on preliminary objections was a surprise to them as observed in the case of Abrashid (Supra). Arguing in support for defendant to file counter claim, Mr. Sambo averred that Civil Procedure Code do not require leave of the court to file a counter claim. He then reiterated what Ms. Joan said that in order for this court to determine the real issue in controversy, the filling of the counter claim was necessary as when the suit was first instituted the land in dispute has dramatically changed as residential house were demolished and a petrol station were destroyed. Mr. Sambo was of the view that counter claim filed have never changed the issues in dispute, also said the plaintiff is not prejudice, then prayed this court to see first and second objection devoid of merit because there is no prayer to amend counter claim. He further distinguished the case of Mohamed Rajuu (supra) as in that case the plaint were amended beyond the scope, and for the case of Moto Matika (supra) the case was for extension of time. In brief rejoinder, Mr. Mangula argued that he overlooked the dates as the day this court ordered the amendment was on 19/02/2024. 7 Further the counsel argued that changes of time does not automatically grant leave for parties to amend the pleadings without courts leave. The counsel emphasized that the filed counter claim brings in new different dispute to previous WSD thus exceed scope of existing pleading. Mr. Mangula further admitted that it is true he did not object or pray to expunge written statement of defence or to amend it, but said this court has to see this matter as not a fresh case. He concluded by saying that, it was an abuse of court process the defendant to file counterclaim. Having considered the above rival arguments on the objections raised, first and foremost, I concede with the defendant’s advocates in respect to point of objection number five, really it needs scrutiny of evidence to realize it, which is contrary to requirement of preliminary objections. (See Mukisa Biscuit Manufactures Ltd. (supra). In respect to the first and second preliminary objections, I have considered the admission of Mr. Mangula above, that he is not objecting written statement of defence filed. Thus, upon my examination of the two remaining grounds, I am of the view they are resolved by one point for determination which is whether it was correct for the defendant to file the amended WSD with a counter claim. 8 Before embarking on the merit of these objections, I wish to highlight the propriety of the amended pleading in the absence of any court order specifying the scope and extent of amendments to the original pleading. Pleadings can be amended at any time as provided under Order VI rule 17 of the Civil Procedure Code which stipulates: "The court may at any state of the proceedings allow either party to alter or amend his pleading in such a manner and such terms as may be just, and all such amendments shall be made as may be necessary for the purposes of determ ining the real questions in controversy betw een the parties". [Emphasis added] Also, by MULLA, the learned author on the Code of Civil Procedure Volume II. 15th Edition at pages 1181 and 1185, has discussed on the manner in which power to allow amendment should be liberally exercised, but he states the following restrictions: "Hence leave to amend will be granted so as to enable the real question in issue betw een the parties to be raised on the pleadings, where the amendments will occasion no injury to the opposite party except such as can be sufficiently 9 compensated for by cost or other terms to be imposed by the order. The liberal principles which guide the exercise of description in allowing amendments are that multiplicity of proceedings should be avoided, that amendments w hich do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of any irrem ediable character are not inflicted on the opposite party under the pretense of amendment, that one distinct cause of action should not be substituted for another and that the subject m atter of the suit should not be changed by am endm ent". [Emphasis added] From the wording of cited excerpts, it is common ground that there is a limitation on the extent of what is to be amended in the pleading, the rationale in my view is to evade substitution of the cause of action and changing the subject matter or character of the suit. In this matter at hand, when advocates for both appeared before this court on 19th day of February, 2024 the following are what transpired before me; 10 “Mr. Mangula for Plaintiff:- The case is coming for mention, we pray for hearing at a reasonable time. Ms. Jackline for Defendant:- The case is coming for mention. I think we need directives since in land case No. 16 of 2015 all parties are now deceased, second there is issues of document tendered in land case no. 16 of 2015, in our part we pray to make amendment of defence, since we were engaged in the appeal process so we pray to make amend. Mr. Mangula:- I pray to make changes of the plaint since parties are all deceased, also in order to do justice I pray to see whatever important to for the justice. Order: Plaintiff to file Amended Plaint on or before 4/3/2024, amended written statement of defence to be filed on 25/3/2024.” In the light of the above prayers and order of this court, it is undisputed this court did not avow on the scope of amendment, however according to the rule enshrined in Order VI rule 17 of CPC and inspiration in Mulla’s quoted above, amendment should be necessary for the purposes of determining the real questions in controversy between the parties and cause of action should not be substituted for another and that the subject matter of the suit should not be changed by amendment. 11 According to the original pleadings in this matter, the cause of action was a dispute of ownership of a parcel of land measuring approximately three (3) acres located at Dipu Area Kwasadala village within Hai District. Moreover, before the hearing parties agreed therein on two issues; first, who is the owner of the suit land and second; what are the reliefs entitles to the parties. As alluded hereinabove vide the decision of the court of appeal in Joyce Christopher Masawe vs Amphares Geofrey Naburi (supra), the court has nullified the entire proceeding and quash the judgment of this Court in this Land Case No. 16 of 2015 and ordered retrial. I have considered the above order of the court, in my considered view, the court ordered retrial in order to settle the existed disputed between the parties, and that dispute is nothing but the competing interest on the ownership of the suit land. Hence the submissions by the defendant counsels that the amendment of a WSD and adding a counter claim were necessary due to changes and occurrences of events, in my view is a misconception assertion because when there is a retrial order as per the authority above, the cause of action and the issue in controversy should not change otherwise by doing so the subject matter of the suit will be changed or added with other disputes which did not exist before the case itself tried in this court. 12 For instance, I have entirely measured the counterclaim filed together with the written statement of defence by the defendant and reply of the said counter claim, I am equally satisfied according to paragraphs 7, 8,9, 11 and 12 of the said counter claim and paragraphs 22, 23, 24,25 and 26 of reply to it by the plaintiff, issues may be raised as to whether it was justified to make demolishment of erected structures on the suit land, whether the court broker did so according to the law, whether decree holder was right to execute his annulled decree and whether has prompted followed the procedure of doing so. But also, whether the plaintiff is liable for the act of the court broker who is not a party in this matter. Discussing all these issues might lead to another cause of actions rather than a merely existed one of who is the lawful owner of the suit land, thus, I am settled other cause of actions may accrue from the above issues contrary to the authority above and order of the court of appeal for retrial. In view of the above observation, I am not in agreement with the defendant’s advocates that the lodged counter claim will never change issues between the parties. Nonetheless, the records reveal the plaintiff did not execute the annulled decree by his own hands, it was through 13 the court broker, in that regard suing him alone I am of considered opinion the suit cannot go without being prejudiced; thus I am not supporting defendant’s counsels when maintained that the plaintiff will not be prejudiced. I am aware there are some changes occurred on the suit land as depicted by defendant’s advocates, and I know some happened after the plaintiff got a decree of this court which later was annulled by the court of appeal; In my view obvious it was done for advantage secured by one of the parties who is still in contest of the same suit land. Therefore, the same is among the proceeds of this court decision which was nullified. However, in my opinion as alluded herein above, the point of controversy remains the same who is the owner of the said suit land. Therefore, I am settled judiciously, whatever have been done on the said land its consequent and fate should wait for determination of who is the owner of the suit land. For the foregoing reasons, I am not in agreement with the defendant’s advocates for their stance that in order to accommodate those changes Counter claim was necessary to be brought in this court’s attention in order for the retrial order to be effective. Nevertheless, for 14 those reasons stated, they cannot be refuged under order VIII rule 9 of the Civil Procedure Code as they attempted to depict. Finally, I am mindful counterclaim is the separate suit which bring cross suit on the existed case, however according to the reasons and authority advanced above, I am of considered view according to the nature of this counterclaim as alluded above, it should wait for the determination of who is the real owner of the suit land by this court. Then the outcomes will lead the parties to the right road to justice in such respect. On the whole, on account of what I have endeavored to discuss hereinabove, I find the first and second preliminary objections raised by Plaintiff are meritorious and are accordingly upheld and sustained. In the premises and from the foregoing reasons, the counterclaim filed by the defendant is hereby expunged from the record of this court. In the circumstances I make no order as to costs. It is so ordered. DATED at MOSHI this 25th day of July, 2024. 15 X JUDGE Signed by: A. P. KILIMI Court: Ruling delivered today on 25th day of July, 2024 in the presence Mr. Richard Thomas Ngida holding brief of Mr. Faraji Mangula with instruction to proceed for the Plaintiff, whereas Defendant is represented by Ms. Joan Peter and Beatrice Kivuyo holding brief of Mr. Gwakisa Sambo also Plaintiff and Defendant present. Sgd; A. P. KILIMI JUDGE 25/07/2024 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 25/07/2024 16