arvester william mariki vs rural energy agency and attorney general 2023 tzhc 17129 28 april 2023

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF DODOMA AT DODOMA CIVIL CASE NO. 16 OF 2022 ARVESTER WILLIAM MARIKI(Administrator of the estate of the late Fred Fatael Sam)............................................ PLAINTIFF VERSUS RURAL ENERGY AGENCY " THE ATTORNEY GENERAL ................................... DEFENDANTS RULING 28th February & 28th April, 2023 MDEMU, J:. On 15th of September, 2022, the Plaintiff instituted this suit praying for judgment and decree against the Defendants as follows: (a) A declaratory order to condemn the Defendants to pay the Plaintiff Tzs. 53,470,000.00 as specific damages. (b) The Court to order the Defendants pay general damages to be assessed by it. (c) The court be pleased to condemn the Defendants to pay the Plaintiff interest on (a) above at commercial rate of 21% per annum from the date when the cause of action arose to the date ofjudgment. (d) Interest on (a) plus (c) above at Court rate of 12% per annum from the date when the cause of action arose to the date ofjudgment. (e) Interest on (a) plus (c) above at court rate of 12% per annum from the date ofjudgment to the date of full satisfaction of the decree. (f) Costs of the suit be borne by the defendants. (g) Any other order(s) and relief(s) as the Court may deem fit andjust to grant. On 20th of October, 2022, the Defendants filed written statement of defence comprising of a notice of preliminary objection that, the Plaintiff has no cause of action against the Defendants and that the Plaintiff has no locus standi to sue in this suit. The Plaintiff was represented by Mr. Emmanuel Bwire, learned Advocate, the first and second Defendants were represented by Mr. Stanley Mahenge, State Attorney. The two preliminary objections were argued by way of written submissions. Both parties complied with a scheduling order. Submitting in support of the preliminary objections raised, Mr. Mahenge filed his written submissions on 21st of February, 2023 arguing 2 each point seriatim. On the first point of preliminary objection, he said that, upon reading the whole plaint with its annexures, the Plaintiff had failed to establish cause of action against the Defendants. He further submitted that, the Plaintiff attached a purchase order to the plaint from the first Defendant to Local Authorities Provident Fund (LAPF) who is not a party to this case. He therefore stated that, there was no contractual relations, engagement or undertaking between the first Defendant and the Plaintiff. In support of his submissions, he cited the cases of John M. Byombalilwa vs. Agency Maritime Internationale (Tanzania) Ltd. [1983] TLR 1, where the Court defined cause of action as it is in Order VII, Rule 1 of the Civil Procedure Code, Cap. 33. He also cited the case of Jeraj Sharrif and Sons vs. Chotai Fancy Stores [1960] E.A 375 on the issue that, whether the plaint discloses cause of action or not, one has to read the entire plaint with its annexures. On the second preliminary objection regarding locus standi; he said that, the Plaintiff has no interest whatsoever because the first Defendant never entered into contract with Plaintiff. He said that, as per annexure AWM-2 which is a lease agreement, the same was entered between the Board of Trustees of Public Service Social Security Fund and one Fred Fatael Sam t/a Rose Garden. In his view, even the purchase order agreement was between the first Defendant and LAPF who is not party to 3 the present suit. He also stated that, the Plaintiff being the Administrator of estate of Fred Fatael Sam, his mandate to sue has expired. In terms of section 107(2) of the Probate and Administration of Estate Act, Cap. 352, it was to be done within six months. In reply, Ms. Magazine submitted that, under paragraph 10 of the plaint, the cause of action occurred between the 1st Defendant and Plaintiff between the year 2000 and 2021 after the 1st Defendant's failure to make payment for the service rendered by the Plaintiff after hiring the Plaintiff's conference facilities, a fact which was admitted by Defendants in 3rd and 5th paragraphs of written statement of defence, save for the amount owed. On the second preliminary objection regarding locus standi, she argued that, PSSSF is now under the proprietorship of one Fred Sam Tumbotele, the fact which is also admitted in the Defendant's written statement of Defence. She said therefore that, since Fred Sam Tumbotele entered into lease agreement with the Board of Trustees of PSSSF,then he has interest on it. On the purchase order annexed to the plaint, his view was that, it is not a proof of contractual relationship/agreement between the 1st Defendant and PSSSF, but rather shows PSSSF as supplier of the said 4 service since, by the time Fred Sam Tumbotele entered into lease agreement with the Board of Trustees of PSSPF, the name of the facility remained the same. Regarding expiry of letters of administration of estate, he said that, section 100 of the Probate and Administration of Estate Act mandates the administrator to sue in respect of all causes of action that survived the deceased. He said therefore, the Plaintiff, being the administrator of estates of the late Fred Sam Tumbotele, has got rights to sue. He therefore, prayed the Court to overrule all objections with costs. I have considered the contending submissions by the learned counsels from both sides. The issue to be determined is whether the two raised objections on locus standi and want of cause of action have merits. To start with the first point of objection; locus standi is a common law principle and therefore a rule of equity in which a person cannot maintain a suit or action unless he has an interest in it. It pauses a jurisdictional issue, which, as a matter of law, has to be determined at the earliest possible stage. In the case of Godbless Lema vs. Mussa Hamis Mkanga and Two Others, Civil Appeal No. 47 of 2012 (unreported), the Court of Appeal cited with approval the Malawian Supreme Court decision in the case of the Attorney General vs. The Malawi Congress Party and Another, Civil Appeal No. 22 of 1996 where the Court observed thus: - "Locus standi is a jurisdictional issue. It is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject of it, that is to say, he stands in a sufficient dose relation to it as to give a right which requires prosecution or infringement of which he brings the actions." Similar position to the above holding was also held by the Court of Appeal in Peter Mpalanzi vs. Christina Mbaruka, Civil Appeal No. 153 of 2019 (unreported) where the Court had this to say: - "Locus standi is a point of law rooted into jurisdiction. It is for that reason that it must be considered by a Court at the earliest opportunity or once it raised." Applying the above quoted decisions, is this that, for a person to have locus standi to sue, she or he has to show that her/his right has been directly affected by the act she/he is complaining about. In the case at hand, looking at paragraphs 10,11, and 13 of the plaint the Plaintiff stated her claims against the first Defendant. The paragraphs read as fol lows:- 10. That, in the years 2020 and 2021 the 1st Defendant did hire the Conference facilities described 6 herein for various purposes and as a result she failed to meet her obligations by neglecting to pay for the services rendered by the plaintiff to the tune of TZS. 53,470,000/= 11. that, till todate and without any legal justification, the 1st Defendant has failed to sett/e the invoices worthy TZS.53,470,000/= sent to her by the Plaintiffin respect of the debt under contemplation in this plaint. Copies of the invoices and Purchase Orders are hereby collectively attached and marked as A WM-3 and leave of the Court is hereby craved to make them be regarded as part and parcel of this plaint. 13. That, the acts or omissions of the 1st Defendant have caused financial hardships on the part of the Plaintiff herein, heir of the deceased and who were employees of the deceased. Looking at annexure AWM-2, lease agreement which was entered by the Board of Trustees of PSSSF and Red Fatael Sam t/a Rose Garden on 26th August, 2019, the leased property is a conference and two restaurants located at 5th and 6th floors of the PSSSF building. Furthermore, annexure AWM-3 the tax invoices and purchase orders are in respect of LAPF Conference Centres Dodoma which is nowhere to be seen in the lease agreement (Annexure AWM-2) nor in seventeen paragraph of the plaint. In essence, it shows that, the agreement was 7 between LAPF Conference Centre and the first Defendant. The fact that the Plaintiff stated that he hired the conference facilities to the first Defendant, it was expected that, the agreement to that effect was to be attached to the plaint as he did in respect to lease agreement entered with the Board of Trustees of PSSSF. Therefore, the first point of preliminary objection is sustained. The second point of objection, that is, want of the cause of action. Order VII, Rule 1 of the Civil Procedure Code, Cap. 33 requires the Plaintiffs who moved the Court by a suit to plead particulars in their plaint to disclose cause of action. Briefly, cause of action can be defined as a set of facts which gives a person (Plaintiff) a right to a judicial redress or a relief against another (Defendant). See Stanbic Finance Tanzania Limited vs. Giussepe Trupia and Another [2002] TLR 217 and John Byombalilwa vs. Agency Maritine International (T) Limited [1983] T.L.R. 1. To be able to establish if the statement of claim establishes the cause of action, resort has to be made to the contents of the statement of the claim together with their accompanying attachments. See Antony Leornard Msanze and Another vs. Juliana Elias Msanze and Two Others, Civil Appeal No. 76 of 2012; Zebedayo Mkondya vs. Best Microfinance Solution Limited and Four Others, Commercial Case No. 95 of 2016 (both unreported). The position in 8 the cited decisions was pronounced by the defunct East Africa Court of Appeal in Jeraj Sharrif and Sons vs. Chotai Fancy Stores [1960] E.A 375 where it was stated as follows: - " The question whether a plaint disclose a cause of action must be determined upon perusal of the plaint alone together with anything attached so as to form part of it and upon the assumption that any express or implied allegations of facts in it are true." As stated earlier in the first point of preliminary objection, there was no agreement between the Plaintiff and the first Defendant rather between the Plaintiff and Board of Trustees of PSSSF and Fred Fataeli Sam/Rose Garden. This is evidenced by what has been stated in a plaint together with its annextures.Therefore, the Plaintiff has no right to sue the first Defendant for damages. That said and done, the two points of preliminary objection are sustained and the plaint is hereby rejected for not disclosing cause of action against the first Defendant with costs. No order as to costs prescribed. It is so ordered. 9 . Mdem JUDGE 28/04/2024 is 28th day of April, 2023. erSoH l.Mdemu JUDGE 28/04/2023 io