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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CIVIL CASE REF. NO. 202407121000016661 DR. LOUIS B. SHIJA ..…………………………………………. PLAINTIFF VERSUS ELIACKIM NZUMBE MACHUNDA ............................. 1st DEFENDANT MACHUNDA AUCTIONEERS AND GENERAL SUPPLY CO. LTD ……………………….……. 2nd DEFENDANT RULING 23rd & 27th September, 2024. S.M. KULITA, J. This is a Preliminary Objection on point of law. In his Written Statement of Defense, the Defendant raised the Preliminary Objections on the following three grounds; 1. That, the suit is bad and unmaintainable in law for want of jurisdiction of the court. 2. That, this suit is bad in law for suing the wrong party. 3. That, this suit is bad in law for non-joinder of necessary party. 1 The Preliminary Objections were argued by way of written submissions. While the Plaintiff is represented by Mr. Frank Samwel, Advocate, the Defendants are unrepresented. Mr. ELIACKIM NZUMBE MACHUNDA who is the 1st Defendant is also the Principal Officer for the 2nd Defendant, MACHUNDA AUCTIONEERS AND GENERAL SUPPLY CO. LTD. Thus, the said Preliminary Objection in the Written Statement of Defense was made by him for both Defendants. Submitting on the first ground of Preliminary Objection, Mr. Eliackim Nzumbe Machunda stated that the amount of Tsh. 150,000,000/= that the Plaintiff herein claims against the Defendants falls under the pecuniary jurisdiction of the District Court, as per Section 40(2)(b) of the Magistrates Courts Act. He submitted that the pecuniary jurisdiction of the said Court for the movable properties is vested to the claims that do not exceed Tsh. 200,000,000/=. Thus, the said Tsh. 150,000,000/= falls within that ambit. Mr. Machunda further submitted that the law requires the suits to be instituted in the court of the lowest grade competent to try the same. He added that, as for this case it was supposed to be instituted at the District Court. 2 As for the 2nd ground of the Preliminary Objection, the Applicant submitted that it was wrong for the Plaintiff to sue him in his person capacity as one of the Defendants, while the claims in the Plaint is against the legal entity, Machunda Auctioneers and General Supply Co. Ltd. who is the 2nd Defendant. He said that, under section 15(1)(2) of the Companies Act No. 2 of 2002, it is the legal entity which can sue or be sued in court. He added that the Directors or share-holders cannot be subjected to the company’s case. In his submission in respect of the 3rd limb of Preliminary Objection, Mr. Machunda stated that, it is the instructions of one Kelu Kamo Lucas who identified to the Defendants as the owner of the suit premise, that led them to act upon. And, that, in doing so they issued the 14 days’ notice to the plaintiff so that he could leave the premise vacant, for them to handle it to the said Kelu Kamo Lucas, who had a long battle with the Plaintiff in court corridors in respect of ownership of properties located on Plot No. 247 and 249 Block “Q” Nyasubi Street, Isaka Road in Kahama Municipality. The said person was thus of the views that, the said Kelu Kamo Lucas, as a necessary party, was supposed to be joined as one of the Defendants. He 3 said that failure to join him is non-joinder of the necessary party, which is wrong. That was the end of the Defendants’ submission on the Preliminary objections. In the reply thereto, Mr. Frank Samwel, Advocate, submitted in respect of the 1st ground of Preliminary Objection that, this court has jurisdiction to try the case at hand. He gave the reasons that the cause of action was the 14 days’ eviction notice to vacate, issued by the Defendants herein against the Plaintiff. Mr. Frank Samwel stated that the suit premise is located on Plots No. 247 and 249 Block “Q” Nyasubi Street, Isaka Road in Kahama Municipality which is a subject matter in the Court of Appeal cases, namely, Civil Appeal No. 63 of 2022 which is still pending before that said court and Civil Application Case No. 209/14 of 2024 whose order, dated 17th April, 2024 stayed the execution which was eviction of the Plaintiff herein from the suit premises. However, the Defendant threatens to evict the Plaintiff herein from the said premises. Mr. Frank further submitted that the main cause of action thus is the defendants’ threats to evict the Plaintiff from the suit premise while the 4 execution order made by this court has been stayed by the Court of Appeal, meaning thereby, the said matter is still pending in court. The Counsel stated that, that’s why the first two prayers in the plaint, that is, restraining the defendants from bullying the plaintiff and evicting him from the suit property, aims at barring the defendants to unlawfully evict the plaintiff from the premises. He said that the claim of compensation amounting Tsh. 150,000,000/= is just the additional prayer to the above said two. On this, Mr. Frank further narrated that the Defendants are not attacking the Plaint on the first two prayers, but the 3rd prayer only, which, in fact is a product of the 1st and 2nd prayers. He added that, the Defendants’ submission show that he has no problem with the said two prayers of the Plaintiff in his plaint, which, in fact, are the ones constituting the cause of action in this case. Further submitting on this ground of Preliminary Objection, Mr. Frank stated that jurisdiction of the High Court is unlimited, that it can entertain any case, depending on its nature. To strengthen his argument, Mr. Frank cited Section 2(1) of the Judicature and Application of Laws Act [Cap 358 RE 2019] which states that the High Court has full jurisdiction in Civil and Criminal matters. In connecting the said averment with the case at hand, Mr. Frank submitted that since there are execution proceedings before this court which have been 5 stayed by the Court of Appeal, then the only court which has the jurisdiction to entertain and decide upon the first two prayers is this court, not the District Court. Submitting on the 2nd ground of Preliminary Objection, Mr. Frank Samwel, Advocate, stated that, since the notice for evicting the Plaintiff herein from the suit premises which is a source of the case was signed by the 2nd Defendant for the 1st Defendant, then the Plaintiff was right to combine all of them as co-defendants. As for the 3rd ground, the Counsel replied that the said Kelu Kamo Lucas had no cause of action against the Plaintiff herein. He said that, if the Defendants find that there is a cause of action against the said person, it is upon the Defendants to seek for him to be joined as the defendant, through the 3rd party notice, under Order 1, Rules 14 – 18 of the Civil Procedure Code [Cap 33 RE 2019]. In rejoinder, the Plaintiff submitted that jurisdiction of the court is determined by the Specific Damages claimed which is Tsh. 150,000,000/= for this matter. He further stated that the current suit has no relation with the Execution Proceedings nor Application for Stay of Execution that the 6 Plaintiff has mentioned. As for the cause of action, the Defendant stated that paras 13 – 16 of the plaint explain in deep the substantive claim of the Plaintiff being the said specific damages amounting Tsh. 150,000,000/=. He said that the Plaintiff’s claims on eviction and bullying suits are the factors for the said claim of Tsh. 150,000,000/=, hence, it is the District court, the lowest court with jurisdiction to try it, has to entertain the case. As for the other grounds of the Preliminary Objections, the Plaintiff reiterated the same submissions that he had made in the submission in chief. That was the end of written submissions from both parties. From the above submissions the issue is whether the Preliminary Objections are meritorious. In my analysis on the 1st ground of the Preliminary Objections, I have this to say; I know that section 40(2)(b) of the Magistrate Courts Act [Cap 11 RE 2019] vests the pecuniary jurisdiction to the District Court to entertain civil cases for the matters involving the monitory sum that does not exceed Tsh. 200,000,000/=. As for the matter at hand the cause of action was the 14 days’ eviction notice issued by the Defendants herein for the Plaintiff to vacate the suit premises located on Plots No. 247 and 249 7 Block “Q” Nyasubi Street, Isaka Road in Kahama Municipality, which is a subject matter in the Court of Appeal cases namely Civil Appeal No. 63 of 2022 which is still pending before that said court and the Civil Application Case No. 209/14 of 2024 whose order, dated 17th April, 2024, stayed the execution order of the High Court, that is, eviction of the Plaintiff herein from the suit premises. However, there is allegation by the Plaintiff that the Defendants herein threatens to evict him from the said premises, regardless the fact that there is such a stay order of the Court of Appeal. Therefore, the main cause of action is the defendants’ threats to evict the Plaintiff from the suit premise while the execution order made by this court has been stayed by the Court of Appeal. It means that the purported execution would be prematurely conducted, as the said matter is still pending in courts. That’s why the first two prayers in the plaint, that is, restraining the defendants from bullying the plaintiff and evicting him from the suit premises, which aims at barring the defendants to evict the plaintiff from the premises, have been sought. Thus, the claim of compensation amounting Tsh. 150,000,000/= is just the additional prayer to the above said two. Therefore, the requirement of the law couched under 8 section 13 of the Civil Procedure Code that suits should be instituted in the court with the lowest grade competent to try it, has not been violated, as the Plaintiff’s claims are more than that sum of Tsh. 150,000,000/=. I went through the plaint and noted that, the Plaintiff seeks for the following reliefs; 1. The court be pleased to restrain the defendants from bullying the Plaintiff. 2. The court be pleased to restrain the defendants from evicting the Plaintiff from the premise located on Plots No. 247 and 249, Block “Q” Nyasubi Street, Isaka Road in Kahama Municipality. 3. The Defendant be ordered to pay compensation to the Plaintiff amounting Tsh. 150,000,000/=. 4. Costs of the suit 5. Any other relief that this court may find fit and just to grant. On this, the Defendants are not attacking the Plaint on the first two prayers, but the 3rd prayer only, without touching the 1st and 2nd prayers. The said three prayers in collective are the ones which constitute the cause of action in this case. Thus, this court has powers to try, keeping in mind that the same emanates from the cases which have been entertained by this court 9 whose execution have been stayed by the Court of Appeal, that, there are some cases involving the same matter which are still pending at the Court of Appeal and this court. As well, the said claim of Tsh. 150,000,000/= is just the additional prayer by the Plaintiff, that this court should restrain the Defendant from evicting the Plaintiff from the suit premises. In that sense, this is a proper court for entertaining the matter in question. Further, jurisdiction of the High Court is unlimited, that it can entertain any case, depending on its nature. Section 2(1) of the Judicature and Application of Laws Act [Cap 358 RE 2019] states that the High Court has full jurisdiction in the Civil and Criminal matters. As for the matter at hand, since there are execution proceedings before this court which have been stayed by the Court of Appeal, then the only court which has the jurisdiction to entertain and decide upon the matter, particularly on the first two prayers mentioned in the plaint is this court, not the District Court. It is therefore my finding that, this court has mandate to entertain this case. This 1st limb of Preliminary Objection is thus unmeritorious, hence overruled. In the 2nd ground of Preliminary Objection, the Defendants alleges that the Plaintiff is wrong to sue Eliackim Machunda, the Executive Director for the 10 2nd Defendant, Machunda Auctioneers and General Supply Co. Ltd. while the case involves the company. It means that the Plaintiff ought not to sue him in his personal capacity. In his reply the Plaintiff’s Counsel, Mr. Frank Samwel, Advocate, argued that since the notice for evicting the Plaintiff herein was signed by the 2nd Defendant for the 1st Defendant, then the Plaintiff was right to combine all of them as co-defendants. On this, I can agree with the Defendants, that, the fact that the matter involves a company as alleged, it is wrong to sue its Executive Director in person. According to section 15(1)(2) of the Companies Act No. 2 of 2002, the company, as a legal entity, has a capacity to sue or being sued. The Directors or Share- Holders cannot be subjected to the company’s case. That was also held in YUSUPH MANJI V. EDWARD MASANJA AND ANOTHER [2006] TLR 127 and SAGUDA MAGAWA SALUM AND 3 OTHERS V. NAM COMPANY LIMITED AND ANOTHER (Misc. Civil Application 34 of 2012) [2022] TZHC 12907 (13 July 2022). That being the case, I hereby order that, the pleadings should be amended by removing the name of the 1st Defendant and substitute thereon with his official/Directorate name in the company. I find this ground of Preliminary Objection meritorious, hence sustained. 11 As for the 3rd ground, the cause of action was the Defendants’ act of threatening to evict the Plaintiff herein from the suit premises. According to the eviction notice to the Plaintiff, dated 1st July, 2024 whose copy has been attached in the plaint, it was issued by the 2nd Defendant, Machunda Auctioneers and General Supply Co. Ltd. through its Executive Director namely Eliackim Machunda who is the 1st Defendant. The allegations by the Defendants that, what they were attempting to do was not their personal decision against the Plaintiff, but the instruction of Mr. Kelu Kamo Lucas who had a case against the Plaintiff herein and that the said person asked them to execute the court’s order by evicting the Plaintiff from the suit premises. As such, the fact that the Defendants so allege, the law is very clear under Order 1, Rules 14 – 18 of the Civil Procedure Code [Cap 33 RE 2019] that, it is upon such Defendants to seek for the said person to be joined as the defendant, through the 3rd party notice. From the above analysis, I hereby sustain the 2nd ground of Preliminary Objection, that the Plaintiff was wrong to include and sue the 1st Defendant, Eliackim Machunda, in his personal capacity instead of his official capacity in the Company, that is, Executive Director. It is thus, the order of this court that the pleadings should be amended to that extent. 12 In upshot, save for the said 2nd ground, I find the other grounds of Preliminary Objection with no merit, hence overruled. It is thus ordered that the matter should proceed on merit upon rectification of the 2nd Defendant’s name. Costs to follow the event. S.M. KULITA JUDGE 27/09/2024 DATED at SHINYANGA this 27th day of September, 2024 S.M. KULITA JUDGE 27/09/2024 13 14