Land Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND CASE NO. 9845 OF 2024 BAGAMOYO ABATTOIR AND MEAT PROCESSING COMPANY LIMITED.................................................... 1STPLAINTIFF KUWADENYI MISUGUSUGU EDUCATION CHILD CARE COMPANY LIMITED..................................................... 2NDPLAINTTFF VERSUS ATHUMAN OMARY SAID................................................................. 1st DEFENDANT KIBAHA REAL ESTATE AGENCY LIMITED.......................................2ndDEFENDANT APAK STEEL INDUSTRIES LIMITED.............................................. 3RDDEFENDANT TANZANIA INVESTMENT CENTER (TIC)....................................... 4th DEFENDANT REGISTRAR OF TITTLES.................................................................. 5™DEFENDANT COMMISSIONER FOR LANDS.......................................................... 6™DEFENDANT ATTORNEY GENERAL...................................................................... 7™DEFENDANT RULING Date of last Order: 27/09/2024 Date of Ruling: 30/09/2024 LALTAIKA, J, The Plaintiffs instituted this suit praying for the Judgment and Decree against the Defendants as follows: - Page 1 of 13 i. A declaratory order that the 1st and 2nd Defendants fraduentiy procured plot Number 1, 2, 3, 4 and 5, Block Xf Misugusugu Agreas, Kibaha Town Council, Coast Region. ii. A declaratory order that the Agreement dated 25th March 2022 and Sale of Plot No.l and 2 Misugusugu Area, Kibaha Town Council, Coast Region between the 1st, 2nd Defendant and 3rd Defendant is void ab initio Hi. Nullification of the Tittle under CT No 18266F, Plots No. 1, 2 Block X Misugusugu Area, Kibaha Town Council, Coast Region registered to the 4th Defendant by the 5th and &h Defendant and the Lease hold Title and Agreement registered between the 3rd, 5th and 6th Defendant and its assignees, ab initio. iv. A declaration that the Plaintiff are the lawful owners of Plots No. 1,2,3,4 and 5 Block, Misugusugu Area, Kibaha Town Council, Coast Region. v. Payment of Tanzania shillings Five Hundred Million (Tzs 500,000,000/=) in favour of the 1st Plaintiff. vi. General damages. vii. That the Court to impose punitive Damages against the 1st, 2nd and 3rd Defendant. viii. Interest on the decretal sum at Court rate. ix. The cost of this suit and x. Any other remedies as the Court may deem just and equitable to grant. When the suit was called for 1st PTC on the 3rd day of September 2024, the Plaintiffs enjoyed the legal services of Ms. Mariam Saleh, learned Advocate. Whereas Messrs. Kambamwene January Raphael & William Anthony Changoma, learned Advocates appeared for 1st and 2nd Defendants, the 3rd Defendant enjoyed the legal services of Ms. Lydia Susuma, learned Advocate. Ms. Frida Model learned State Attorney appeared for the 4th to 7th Defendants. Ms. Mollel informed the Court that although the matter was scheduled for the 1st PTC, she had noted a point of Preliminary Objection (commonly referred to by its acronym PO) raised by the 1st and 2nd Defendants. A Page 2 of 13 consensus was reached to argue the PO orally right away. The next part of this Ruling is a summary of submissions on the PO. Mr. Kambamwene, Counsel for the 1st and 2nd Defendants, submitted in support of the preliminary objection, stating that he would argue only one limb of the objection. He paraphrased the objection to contend that the plaintiffs had no cause of action against the 1st and 2nd Defendants. According to him, it was a pure point of law that all plaints must disclose a cause of action, and if the plaint did not, it had to be rejected or corrected if the court deemed it appropriate. He explained that determining the existence of a cause of action required guidance from Court of Appeal decisions, specifically citing the famous case of John Byombalirwa v. Agency Maritime Internationale Ltd [1983] TLR 1. He defined a cause of action as the essential facts a plaintiff must plead and later prove by evidence to win the case. Those facts, he noted, should be reflected in the plaint. In the matter at hand, he argued, the dispute arose from ownership of land. The plaintiffs' complaint was that someone had invaded their land, and thus, the cause of action should have included an assertion of ownership, along with a claim that such ownership had been violated by the defendants. Page 3 of 13 Upon examining the plaint, he pointed out that the plaintiff had failed to plead ownership of the land. On the contrary, there were facts indicating that the plaintiff did not own the land. He noted that the first plaintiff was a foreign national, and since all the shareholders were foreigners, under Tanzanian law, she could not own land. The plaint, he argued, did not explain how she had locus to own land; it only mentioned that she was in the process of acquiring land, which required obtaining a certificate from the Tanzania Investment Center (TIC) and registering it, none of which she had done. Therefore, he concluded, she was not the owner of the land. Regarding the second plaintiff, he noted that the plaint clearly indicated that she was no longer the owner, having sold the land. Consequently, the first plaintiff was not the owner, and the second plaintiff had sold the land, meaning they had no cause of action, as they were not the owners. Without ownership, they could not raise complaints or demand declarations about the validity of documents or procedures. If they wanted to do so, they would need a different plaint. Mr. Kambamwene further highlighted that the 3rd and 4th Defendants held valid certificates of title, and the 3rd Defendant had a derivative right from the TIC over the same land. He asserted that the plaintiffs, lacking any Page 4 of 13 title or right to the land, were not the proper parties to claim ownership from those who held valid certificates. He concluded by stating that the plaint did not disclose a cause of action. Additionally, Mr. Changombe, who had been admiring his senior brother but carefully taking notes, referred to section 20(1) of the Land Act Cap 113 of 1999. He asserted that it clearly stated that a non-citizen could not be allocated or granted land unless it was for investment purposes under the TIC. He also pointed to section 19(2) of the Land Act Cap 113 RE 2019, which provided that non-citizen corporate bodies could only obtain a right of occupancy for investment as approved by the TIC. Since the 1st and 2nd plaintiffs were companies, and the 1st plaintiff had majority shareholders who were foreigners, they could not own land without TIC approval as stipulated by law. Taking up the podium, Ms. Saleh, Counsel for the Plaintiffs, vehemently objected to the preliminary objection (PO), first drawing the court's attention to the fact that the PO was filed on June 20, 2024. She noted that when the matter came for hearing on September 3, the learned Page 5 of 13 counsel for the 1st and 2nd Defendants indicated they were ready to proceed with the PO. However, when the counsel began submitting, he sought to amend the PO without prior notice. She argued that the 1st and 2nd Defendants had ample time to raise the intended PO without taking the plaintiffs' counsel by surprise, which was contrary to standard practice. Consequently, she prayed that the entire submission be disregarded as unprocedural. Despite this, Ms. Saleh proceeded to address the point raised in the PO, which asserted that the plaintiffs had no cause of action against the defendants. She recalled that the opposing counsel had provided a definition of a cause of action. Referring to paragraph 10 of the plaint, she pointed out that the plaintiffs had pleaded that the 1st and 2nd Defendants fraudulently procured the disputed land, and that the 1st, 2nd, and 3rd Defendants had entered into a fraudulent transaction. Ms. Saleh emphasized that the entire process of allocating land to the 3rd Defendant was tainted with fraud. This, she asserted, clearly demonstrated that the plaintiffs had a claim against the defendants, which was explicitly stated in the plaint. Whether the claim was valid or not, she argued, was a Page 6 of 13 matter of evidence, and determining its validity at this stage would amount to prematurely deciding the case on its merits. Ms. Saleh cited the case of Mukisa Biscuits Manufacturing Co. Ltd v. Westend Distributors Ltd [1969] EA 1, where the Court held that a preliminary objection consisted of a pure point of law pleaded or arising from the pleadings. A preliminary objection could only be raised on the assumption that all the facts pleaded by the other party were correct and could not involve the ascertaining of facts or the exercise of judicial discretion. She argued that the point raised by the defendants was not a pure point of law as it required facts to be ascertained. She further contended that the counsel for the 1st and 2nd Defendants had called for the plaintiffs to prove by evidence that they owned the land in question, which would require delving into the evidence. This, she noted, was improper at the preliminary stage. She referenced paragraph 16 of the plaint, where the plaintiffs had pleaded that they executed a sale agreement, and paragraph 21, where they pleaded that they had executed a personal guarantee and indemnity of directors and members, which had been jeopardized by the defendants' actions. She argued that these facts clearly established the plaintiffs' cause of action. Page 7 of 13 Ms. Saleh also referred to the case of Shose Sinare v. Stanbic Bank CO Ltd and Another, Civil Appeal No. 89 of 2020, where the Court of Appeal of Tanzania (CAT) held that a point involving both issues of law and fact was not a pure point of law. She also cited Mohamed Enterprises Ltd v. Masood Mohamed Nasir, Civil Application No. 133 of 2002, where the CAT observed that a preliminary objection mixing points of law and fact must fail. She then referred to the case of Roezer and 3 Others v. National Insurance Corporation of Tanzania Ltd and Another, Civil Appeal No. 291 of 2020, where the CAT overturned a High Court decision striking out a suit based on a preliminary objection that the plaint did not disclose a cause of action. On page 10 of the decision, the Court held that if a plaint failed to disclose a cause of action, the remedy was to allow the plaintiff to amend the plaint rather than striking out the suit. In conclusion, Ms. Saleh submitted that the preliminary objection failed on three grounds: first, it was raised contrary to procedure, as it had been amended without prior notice; second, it was not a pure point of law but rather a mix of law and fact, contrary to the Mukisa case; and third, the Page 8 of 13 proper remedy, if the PO were upheld, would not be to dismiss the suit, as provided for in the Mukisa case. In his rejoinder submission, Mr. Kambamwene addressed the last three points raised by opposing counsel. He clarified that, contrary to her belief, he had not raised a new preliminary objection (PO) nor had he amended it. Instead, he had merely paraphrased it. He reiterated that the entire discussion cantered on ownership of land, which was the crux of the matter. The original PO, in its raw form, asserted that the applicant had no right to own land, and the paraphrasing was done because the issue at hand was ownership. Regarding the claim that the objection was mixed with facts, Mr. Kambamwene maintained that it remained a pure point of law. He pointed out that under the Civil Procedure Code (supra), a plaint must disclose a cause of action, and if it failed to do so, it was subject to rejection. According to him, the plaint in this case could not be amended to disclose a cause of action and, therefore, had to be rejected. He emphasized that the submission on the lack of a cause of action constituted a pure point of law because it could lead to the rejection of the Page 9 of 13 plaint. He referred to the Byombafirwa case, where the Court of Appeal of Tanzania entertained a PO based on the absence of a cause of action. Mr. Kambamwene emphasized that he noted that, in her submission, opposing counsel had failed to identify a single paragraph where the plaintiffs pleaded that they owned the land. He stressed that the plaintiffs needed to plead and later prove ownership in order to acquire the capacity or standing to complain about others’ ownership. Otherwise, Mr. Kambamwene stated jokingly, the situation would be akin to the Kiswahili saying, "Ni kweli lakini hayakuhusu" (It is true, but it does not concern you). In conclusion, Mr. Kambamwene restated that, due to the plaintiffs’ failure to plead or prove ownership of the land, they had no cause of action. He urged the court to reject the plaint, asserting that it was incapable of being amended. I have dispassionately considered the rival submissions. The main issue for my determination is whether the preliminary objection raised by the 1st and 2nd Defendants has merit and whether the plaint discloses a cause of action against the Defendants. Page 10 of 13 A preliminary objection is defined in the case of Mukisa Biscuits Manufacturing Co. Ltd v. Westend Distributors Ltd (supra), as a point of law that must be pleaded or arise by implication from the pleadings and, if successful, can dispose of the entire suit. It is trite law that a PO cannot be raised if any fact needs to be ascertained or if the matter involves the exercise of judicial discretion. The 1st and 2nd Defendants7 PO is based on the assertion that the Plaintiff has no legal right to own land in Tanzania, and therefore, the plaint does not disclose a cause of action. Under Section 20(1) of the Land Act, a non­ citizen or a company whose shareholders are predominantly foreign may only acquire land in Tanzania for investment purposes through the TIC. More importantly for purposes of this decision, the Plaintiffs have not pleaded in their plaint that they acquired the land for investment purposes or that it holds any approval from the TIC. This omission is fundamental, as it goes to the root of the Plaintiff's legal capacity to claim ownership of the land in dispute. Moreover, as established in John Byombalirwa v. Agency Maritime Internationale Ltd (supra), a cause of action refers to essential facts that Page 11 of 13 the plaintiff must plead and later prove in order to win the case. In the present case, the Plaintiffs have not pleaded the essential fact of legal ownership or the right to own the land, which is a necessary element to sustain the claims against the Defendants. Without ownership, the Plaintiff has no standing to challenge the validity of the Defendants' title deeds or allege fraud in the land allocation process. Ms. Saleh's argument that the matter involves facts that need to be determined by evidence is not persuasive in the context of the current PO. The Plaintiff's capacity to own land is a prerequisite for establishing a cause of action. The absence of any pleading on this key issue makes it impossible for the court to proceed to a trial on the merits, as it would require the court to speculate on the Plaintiff's capacity. In the present case, the PO relates solely to the legal requirement for a plaint to disclose a cause of action, which is a pure point of law. The issue of the Plaintiffs' legal capacity is not a factual matter to be proven at trial but rather a legal prerequisite for maintaining the suit. In the upshot, I find that the preliminary objection raised by the 1st and 2nd Defendants has merit. The Plaintiff has failed to disclose a cause of Page 12 of 13 action against the Defendants, and as such, the plaint is fatally defective. The appropriate remedy in such circumstances is to reject the plaint. Accordingly, I hereby uphold the preliminary objection and order that the plaint be struck out with costs to the 1st and 2nd Defendants. It is so ordered. JUDGE 30/09/2024 Court Ruling delivered this 30th day of September 2024 in the presence of Ms. Lilian Machage, Senior State Attorney for the 4th to 7th Defendants, Ms. Mariam Saleh, learned Counsel for the Plaintiffs and Mr. William Changoma learned Counsel for the 1st and 2nd Defendants. E.I. LALTAIKA JUDGE 30/09/2024 Page 13 of 13