20170929 TZHC Dar es Salaam 3

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM CIVIL CASE NO. 166 OF 2016 BARAKA NYANG'ANYI MARELA .......................................... PLAINTIFF

VERSUS JAKAYA MRISHO KIKWETE ............................................ DEFENDANT

RULING Date of last Order, 24h August, 2017 Date ofJudgment, 2!fh September, 2017 R.K. SAMEJI, J. On 30th August 2016, the plaintiff herein instituted a suit against the defendant seeking for the following declaratory orders:- (a} the Honourable Court be pleased to make an order requiring the defendant to pay United States Dollars Fourteen Thousand, Five Hundred and Eighty (US$ 14,508} and Tanzania Shillings at the tune of One Hundred Million only, {Tshs. 100,000,000/ )✓- (b) the defendant to pay the interest of 30% on principal amount per month at the current bank rates from the date when the claim arose until the date ofJudgement,· CMICuseTVo. 166 of 2016 Sgd. R.K Sameji,J 1 (c) the defendant to pay the interest of 7% decretal amount at the Court rate from the date ofJudgement until when the decree is satisfied in full; ( d) costs of the suit/ and (e) any other relief(s) this Honourable Court may deem fit andJust to grant r On the other side the defendant in his Written Statement of Defence has raised a Preliminary Objection on points of law couched to the effect that:- (a) the Plaint contravenes the provisions of Order VII Rule 11 (a) of the Civil Procedure Code, Cap. 33 [R.£2002] for failure to disclose the cause of action against the defendant/ (b) the Plaint contravenes the provisions of Section 13 Civil Procedure Code, Cap. 33 [R.£2002] (c) the plaint is an abuse of

court process. The plaintiff herein is under the services of Mr. Alphonse Katemi, the learned Counsel, while Ms. Hajra Anzuruni Munguia, the learned Counsel is representing the defendant. By consent of the parties, the preliminary objection was argued by way of written submissions. This was adequately Civil Case No. 166 of 2016 Sgd. .R.K Sameji,J 2 -•-o-•- •~•• - -; - ~ - • --- • • ,__ -~-~--~••••- •- - • - ~ - •-- -- ~ -~ •_ -•• ....:..=.:::.=--==-:-••.:::.•::. •-=...::--.~:.:~~; •.:..' ..~..-:::::.=- _..,;;:_;:- ••--::.:..'. •.•.::.-=:_=-_.;,....-=......:.. -::::::,::.., • ~. • ~ -""::-== ,:•• ::~~-~ ~: ~-;~ ~~-E~-~:::.::~~:ie~~=-~~=~~:::::=~:~~ ~ __ -·-.:~~--- __ -~:~·:-~_: ~~: :~ ___ -~---- ___ --~- ~-~- -- .. __::= _; I , : /, done and I am grateful to all Counsel for the energy and industrious research involved in canvassing the issues herein. It is important to point at the outset that, in her submission, the Counsel for the defendant Ms, Munguia has opted to drop the second point of objection i.e (b) and only submitted on (a) and (c) above. ~ Amplifying on the first point of the Preliminary Objection Ms. Munguia submitted that upon perusal of the Plaint and annexures she realized that the plaintiff has not made any allegation against the defendant. She said the nature of the dispute arose from a breach of contract between the plaintiff and some other parties who are

not parties to this suit. Munguia argued further that, the defendant herein was not party to that contract at any given time from its commencement to its termination. She thus raised a principle of privy to the contract, that the plaintiff cannot impose obligation arising under such·· contract on the defendant or any other person except the parties thereto. It was therefore the view of Ms. Munguia that, since the defendant was not part to the said contract it is practically impossible for the plaintiff to alleged a cause of action of any description against the defendant. Ms. Munguia argued further that, the Civil Ca:se No. 166 of 2016 Sgd. R.K Sameji,J 3 .. - __ - _· __ ·•--<o-• ~-.=-:---:-i:,:::-:--~~~-~;;-_· . . : ~~~----· - ,, . plaintiff only communicated to the defendant's assistant seeking assistance in recovery of his monies from one of the contracting parties and that the same does not make the defendant a party to such contract or liable to be sued. Ms. Munguia spiritedely contended that, absence of any breach of the terms and obligation by the defendant there is no cause of action by the plaintiff against the defendant. To buttress her position she cited Order VII Rule 11 (a) of the Civil Procedure Code, (supra). She as well cited the book of P. CMogha, The Law of Pleadings in India {Eastern Law House, Calcutta 1987) at page 269which reads that:- " Thus, in a suit

brought on contract, the contract must first be alleged, and then its breach, and then the damages. The actual contract which was in force between the parties at the date of breach should alone be alleged. .. The breach must be stated in terms of the contract or words co-extensive with effect or meaning of it .. " She then argued that, since in this case the, plaintiff has not alleged· any" breach of contract on the part of the defendant then the plaintiff has no cause of action against the defendant. She referred to the case of Sullivan Civil Ca...-e No. 166 of 2016 Sgd R.K Sameji,J 4 _,., __ ~------~·-...-- .. ~ ' . ' Vs Alimohamed Osman [1959] EA 239 (Annex SBC-3) where the Court of Appeal for East Africa held that, where the Plaint does not disclose a cause of action in terms of Order VII Rule 11 of the Civil Procedure Code of India (which was applicable then and which is in pari material with the Code in force now) it made it mandatory for the Court to reject the Plaint. She thus prayed the Plaint to be rejected. As for the third point of objection, Ms. Munguia argued that, this is the third time the plaintiff is unsuccessfully trying to sue the defendant. She said the first case was Civil Case No. 84 of 2016 which was before Hon. Feleshi, J and the second one was before Hon. Mwandambo, J. She stated that all these two cases failed because of the same issue of non

disclosure of cause of action. She noted that this is an abuse of court process and as such prayed the Court to reject the Plaint with costs. In response, Mr. Katemi challenged the points of preliminary objection raised by the defendant that, they do not qualify the test of a preliminary objection, because in order for one to determine the same need microscopic eyes to see any semblance of argument therein. He strenuously argued that, the objections are purely on facts. CM/ Cc,se No. 166 of 2016 Sgd. R.K Sameji,J 5 ,-.: ------~·~-- _-__ .; . - ··...:._ - --- - - -----==--- ·--- -- ---- ---- . , ,...,.. . ... - -·· . - - - . . . -~-·-- -~----~ __ _ ---------~,--.:.....~:-:_· .... -· - . ~- ~ .. · : ~;~::~~- - - . ::~::~=--- -_ ·,;·-. ~~ - - --~ - - -- - ~ .. _ ....;.;:;::_.,__ ' -. - ·---'•- -· - He insisted that the preliminary objection must be purely on matters of ( law. He cited the famous case of Mukisa Biscuits Manufacturing Company Ltd Vs West End Distributors Company Ltd [1969] EA 696, where Law, J.A. held that:- "So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit .. " [Emphasis supplied]. In the same case at page 701, Sir Charles Newbold, P. added that:- " The first matter that relates to the

increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on assumption that all the facts pleaded by the other side are correct It cannot be raised if any fact has to be ascertained or If whatls sought is the exercise of judicial discretion. The improper raising of points by way of objection does nothing but unnecessarily increases costs and, on Civil Cas;e No. 166 of 2016 Sgd .R.K Sameji,J 6 . ~••• - =-·- + • .: ~=.~••:~~~-~• . -:.:~ ····- -~-- . --.. j-~- ~ . .. - f ~ - ~~~---~~,~~=~~:;:,- . . - . -- . . ~ ..-->·- . ~~L~ _;~7 - ~•~• • • -- ~-- =~~ -·· - ' ____.,.. + --- ' -•-: ~:~~-~ ~-• ~ , ~ • •::_ -:,-• •• .•~~;=• ---c~ occasions, confuses the issues. This improper practice should stop'~ After citing the above authority, Mr. Katemi noted that, the Court of Appeal of Tanzania have issued a number of decisions confirming the position laid down in Mukisa's case. He then argued that, the plaintiff's Plaint has fully disclosed the cause of action against the defendant. That, the defendant had made commitment to repay the money claimed but later changed his mind. It was the view of Katemi that, the cause of action is established by looking at the contents of the Plaint. He cited cases of

Stanbic Finance Tanzania Ltd Vs Giuseppe Trupia and Chiara Malawasi (2002) TLR 221 and John M. Byombamilwa Vs Agency Maritime International {Tanzania) Ltd (1983) TLR 1 at page 5. In Stanbic Finance's case it . was held that:- "A cause of action arises when in my view, facts exists which gives rise. or occasion" to a party to make a demand or seek redress, all depending on the kind of claim. In other words, a Civil Cas.e No. 166 of 2016 Sgd. R.K Sameji,J 7 cause of action arises when facts on which a liability is founded . exist'. Mr. Katemi spiritedly argued that, paragraphs 7 and 9 of the Plaint have clearly indicated the cause of action of the plaintiff against the defendant. He said the defendant . by using his . position he made commitments to pay the monies claimed by the plaintiff from the defendant's relative one Khalifan Kikwete, the thing which he then failed to honour. He argued that all these matters are to be proved during the trial and cannot be determined at the point of preliminary objection. It was therefore the view of Mr. Katemi that the Plaint has not offended Order VII Rule 11(a) of _the Civil Procedure Code as claimed by Ms. Munguia. He as well stated that even if the Court will agree with the defendant that the Plaint has not disclosed the cause of action the remedy is to reject the Plaint, but not to dismiss the suit as prayed by Munguia. On the third

point of objection on abuse of Court processes Mr. Katemi submitted that, in all the previous suits, the Court rejected the Plaint. The . act of rejecting a plaint does not act as a bar for the plaintiff not to file. fresh suits. He cited Order VII Rule 13 of the Civil Procedure Code, (supra). Civil Cusl! Nu. 166 of 2016 8 Sgd R. K SflmPji,.I - . -~..;:...:.;. -· .,__ ..a~ -~--- -._----.- .. . . - . ·- ··-,. - ... ·-· .. - -~- .... ·- .. ..:..:..;,.;.;;_- __ .... · . - . -_ -::--...-~-:~ .. . =-·= _..:,t~~----~--~-~--~. ~-:~·- - - - - --- - -:-- -_:_;.-_~.· -·---·-- .. -- ~ .... _ _____ -..... _.,_ ·· ... -~,--.,.i;;;..._:;..... ·---· ~ ·--·· - - .-_f•_·..... .......... ---- - ---·- He finally, prayed the Court to overrule the points of preliminary objection (. raised with costs for lack of merits. I have given a careful consideration to the arguments for and against the preliminary objections advanced by the learned Counsel for the parties and I am settled that the main issue for my determination is whether the points ofpreliminary objection submitted by the defendant are meritorious. As regards the first point of objection, I wish to point at the outset that, the expression cause of action is not defined under the Civil Procedure Code rather it has been expounded by the Court of Appeal in the case of John M. Byombalirwa's case which has been cited by the parties.

From the said case it is clear that the cause of action has been defined to mean; ''essentially facts which are necessary for the plaintiff to prove before he can succeed in the suit'~ Pursuant to Order VII Rule 1 ( e) of the Civil Procedure Code, (supra) the plaint shall contain inter alia the facts constituting cause of action. . Therefore, from the above authorities the facts alleged in the plaint must constitute a cause of action .. In order for me to detect whether the plaint Civil Case No. 166 of 2016 Sgd. R.K Samejl,J 9 --- -~-- ---· --- --·. - -- ' • - ·--·- _ . . --- --- . ·_·-..,,.· ~~.. - :i• ........ :.::=:....:::..._..;....;;...;_ herein has disclosed cause of action against the defendant, I have scanned the said Plaint and I obtained the following faets:- "The plaintiff as a managing Director of NBM Yuetan International Offshore forwards and Trading HK Company Limited in year 2011 he ordered 500 cotton lint of bales from Chintan Cotton Agency Ltd and deposited part payment of Tanzanian Shillings One Hundred Twenty Four Million Two Hundred Seventy Thousand {Tshs 124,270,000/ ) whose 35% shareholders were Kha/fan Kikwete/ Yasin Mikidadi and Charles Bujimu. The Shareholder Chintan Cotton Agency Ltd failed to deliver the cargo and the plaintiff made ·efforts to demand for payment but in vain. Then, the plaintiff was introduced to the defendant as a relative to

Kha/fan Kikwete where a meeting was convened on 2d" September 2014 and the defendant promised to pay the said money. The plaintiff believed that the defendant will pay the money and he had incurred costs of travelling from China to Tanzania and wrote demand note to the defendant claiming the payment of the costs incurred but in vain'~ It is clear from the above facts alleged in the Plaint that there is no clear link or legal relationship between the plaintiff and the defendant. I have Civil Cuse No. 166 of 2016 Sgd. R.K Samejl,J 10 ... ,. - ==-- _..... -~~··" ~ - - - - . __ ,... __ _ ~-- •--• . -•-·- even perused the attachment to the plaint and there is nothing tangible attached to indicate the said relationship. I am aware that, Mr. Katemi had since argued that the points of preliminary objection raised is on facts, with due respect to Mr. Katemi, since the law is clear that the cause of action is set in the Plaint, there is no way for one to identify the existence of the cause of action without first perusing the Plaint. If the Plaint does disclose the cause of action as envisaged under Order VII Rule 1 (e) of the Civil Procedure Code, (supra), then the same can be easily detected. It is on record that, the agreement alleged herein was between the plaintiff and other people who were not even made party to this case. It is a principle of the law that someone cannot just be

sued. The plaintiff herein though claimed that, the defendant had since promised to pay the amount of monies through meetings he has not attached copies of those meetings at least to indicate and substantiate the basis of his claims. ~ As I have said earlier, going through the plaint filed before this Court, I am satisfied that, the plaintiff's plaint has not disclosed cause of action Civil Ct,se No. 166 of 2016 Sgd. R.K Samejl,J 11 against the defendant and the same is herby dismissed. I make no order as to costs. DATED at Dar es Salaam this 29th da Delivered in Court Chambers in the f Mr. Alphonce Katemi, the learned Counsel for the pla· · R. K.

JU GE 29/09/2017 Civil Case No. 166 of 2016 Sgd. R.K Sameji,J 12 : ·- -· -- ..._:- •r ,.,~...,,•"':_--:~.-:-- -- . ---• - • ~~:~-~--~-. - - ~-~ ~ . -..::_-::-· '" . .. ~ . -- . •---=--•"' - ---- . . ,__ •