charles semwenda vs azania bank limited others 2022 tzhclandd 303 27 april 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 151 OF 2021 CHARLES SEMWENDA (Administrator of the Estate Of MAKAME MOHAMED SUNGURA (DECEASED)...................... PLAINTIFF VERSUS AZANIA BANK LTD...................................................... 1st DEFENDANT MARK AUCTIONEER AND COURT BROKERS COMPANY LIMITED.......... ................. 2nd DEFENDANT ELVIS MUSIBA (Administrator of the estate of the late Elvis Musiba).......... ................. 3rd DEFENDANT CORPORATE ADVISORY SERVICES LTD..................... 4th DEFENDANT THE HON. ATTORNEY GENERAL............ .......... 5th DEFENDANT KIGAMBONI MUNICIPAL COUNCIL............................ 6th DEFENDANT THE REGISTRAR OF TITLES........................................ 7th DEFENDANT THE COMMISSIONER FOR LANDS ...................... 8th DEFENDANT RULING Date of Last Order: 14/04/2022 Date of Ruling: 27/4/2022 A. MSAFIRI, J The plaintiff has instituted a suit against the defendants jointly and severally. The claim of the plaintiff against the defendants is for trespass, irregularity in application, hold and uses of the right of occupancy of land registration namely Plot No. 186, Block 9 at Kigamboni Municipality in Dar es Salaam the property of one Makame Mohamed Sungura (deceased). The plaintiff is suing in the capacity as administrator of the estate of the said late Makame Mohamed Sugura. On 09/11/2021, advocate Lugaila holding brief of Mangiteni Marwa, counsel for the plaintiff, prayed for the amendment of Plaint to the effect that the 3rd defendant Mr. Elvis Musiba who has passed away, to be replaced by his survivor and administrator named Zumbi Musiba. The leave was granted and amendments done accordingly. While filing his amended Written Statement of Defence, the 3rd defendant raised a preliminary objection that the verification clause on the amended Plaint is defective to the effect that, the name of the person verifying the facts differs from the name of the plaintiff. Furthermore, the 5th, 6th, 7th, and 8th defendants, also filed their amended Written Statement of Defence and raised two grounds of preliminary objection to the effect that; i. That the suit is incompetent for being time barred. ii. That the Plaint has been amended beyond the court order by introducing new party to the case through verification clause. All preliminary objections were argued orally. Mr. Rumisha, State Attorney for the 5th, 6th, 7th, and 8th defendant kick the ball running by starting submissions on the second point of objection. He said that the preliminary objection on their part suffices the requirements set in the land mark case of Mukisa Biscuits as their preliminary objections has been raised on pure point of law. / (J 2 He submitted that on 09/11/2021, the plaintiff prayed to make amendment with respect to the 3rd defendant by introducing the administrator of the estate of the late Elvis Musiba. That, the leave was granted and the amendments were done accordingly. He said that surprisingly, on the verification clause of that amended Plaint, the plaintiff introduced one MAULID ALI MWAWADO who verified the said Plaint as a plaintiff. That, the said MAULID ALI MWAWADO stated on the verification clause that, what has been stated from paragraph 1 - 26, to be true to the best of his knowledge, and that all the facts stated under paragraphs 22, 23 and 27 are information obtained from Mangiteni Marwa, his advocate. Mr. Rumisha pointed to the Court that in this suit, there is no any party called Maulid Ali Mwawado. The plaintiff in this suit is Charles Semwenda (Administrator of the Estate of Makame Mohamed Sungura). He contended that, what is called amended Plaint has no any base in this Court for the reasons that, first, it was amended contrary to the Court order as there was no any order for amending the verification clause. Second, the amended Plaint has created a serious confusion in court records by introducing a person who is not a party to the case. Mr. Rumisha arguing on the second limb of their preliminary objection, he submitted that, the base of this preliminary objection emanates from paragraphs 13 of the amended Plaint which states that the cause of 3 action in this matter began in 2002 up to 2005. He said that, this matter is a land dispute and time limit for the land dispute is 12 years, then this case is time barred as already twelve (12) years has already lapsed. He asserted that, according to sections 3 and 41 of the Law of Limitation Act, Cap 89 R.E 2012, the remedy available is to dismiss the matter. He concluded by praying for the matter to be dismissed with costs. Ms. Maira, advocate for the 3rd defendant also got a chance to submit before the Court on the single point of objection that the verification clause on the amended Plaint is defective. She pointed that Order VI Rule 15 (1) of the Civil Procedure Code, Cap 33 R.E. 2019 provides that the verification clause shall be verified by the party. She contended that, in the present matter, the verification clause is verified by one Maulid M. Mwawado, contrary to Charles Samwenda who is the plaintiff in this case. She prayed that the Plaint should be struck out as the defectiveness goes to the root of the case. In reply, Mr. Mangiteni Marwa, advocate for the plaintiff, started his submission with an apology to the Court and the defence counsels. He stated that he concede with the 1st preliminary objection to the extent of defectiveness of the verification clause. However, he argued that, the remedy of a defective pleadings that arose from defective verification clause is not to strike it out but to amend it as provided under order VI Rule 17 of the Civil Procedure Code (supra). /Ip I 4 He said that, this is a matter of technicality which the Court would not be tied with, and this is derived from Article 107 A (2)(e) of the Constitution of the United Republic of Tanzania 1977. On the second limb of preliminary objection by Mr. Rumisha, Mr. Marwa submitted that it does not meet the criteria of the preliminary objection as set in the case of Mukisa Biscuits (supra). He argued that, this preliminary objection is a matter of evidence and fact to be established. He opposes the contention by Mr. Rumisha that it is paragraph 13 of the Plaint which gives the cause of action. He stated that, in contrary, it is paragraph 21 of the same which establishes a cause of action. He added that there is nowhere in the pleadings which shows that the cause of action arose in 2003. As it needs evidence to prove or disprove that, then the raised preliminary objection is not on point of law and it should be dismissed. On rejoinder, Mr. Rumisha reiterated his submissions in chief and added that Order VI Rule 17 of the Civil Procedure Code is not applicable in this matter because the same is used to normal amendments and not in the case where there is a preliminary objection. Ms. Maira also rejoined by reiterating her submissions in chief. She added that, Order VI Rule 17 of the Civil Procedure Code allows the amendment for the purpose of determining the question in controversial between the parties. She pointed that however, in the present matter, the Plaint has created a new party which creates inconsistence in the 5 pleadings. She added that, an amendment is a meant to change or correct but not to cure an error. Having heard and considered the submissions from the parties, the issue here is whether the preliminary objections raised by the defendants are tenable. I will start by determining the preliminary objection which was raised by both counsel for the 5th, 6th, 7th and 8th defendants and counsel for the 3rd defendant which is based on the defectiveness of the verification clause. It is clear from the records that, the verification clause has been verified by MAULID AU M. MWAWADO who is unknown character in this suit. The plaintiff is Charles Semwenda who is suing as the administrator of the estate of Makame Mohamed Sungura (deceased) while the advocate for the plaintiff is Mangiteni Marwa. In the submission, Mr. Marwa has conceded to the defect and apologized to the court and counsel for the defendants (who refused to accept the apology). He added that, the remedy of a defective pleading is not to strike it out but to amend it pursuant to Order VI Rule 17 of the Civil Procedure Code. Mr. Marwa has further referred this Court to Article 107 A (2) (e) of the Constitution of the United Republic of Tanzania (supra) which guide the Court to avoid technicalities when dispensing justice. He also pleaded for the Court to consider the principle of overriding objection. JV 7 6 However, I don't agree with the submissions by Mr. Marwa that this is a matter of technicality which can be cured by an amendment. The defectiveness of a verification clause of the Plaint in this matter goes to the root of the case as it introduce a new character who has deponed on the said Plaint to have knowledge of this matter while he is not a party to the suit. The major question here is what is the effect of having a Plaint with the defective verification clause? With due respect, I again don't agree with the prayers of amendment of the Plaint under Order VI, Rule 17 of the Civil Procedure Code by the counsel for the plaintiff. I agree with the submissions by the counsels for the defendants that, Order VI Rule 17 (supra) is not applicable in the circumstances, as the amendments preferred under the said provisions cannot be used to amend errors where there is raised a preliminary objection pointing out the said errors which are apparent on face of record. I am also aware that the principle of overriding objective which has been pleaded by the counsel for the plaintiff, requires courts to deal with cases justly, speedily and to have regard to substantive justice. However, it is also emphasized by various judicial decisions that the principle of overriding objective was not meant to be a refuge to each and every blunder committed by parties in Court proceedings. In the Court of Appeal case of Mondorosi Village Council and 2 others Vs. Tanzania Breweries Limited and 4 others, CAT at Arusha (unreported), the Court of Appeal was of the view that the 7 principle of overriding objective cannot be applied blindingly against mandatory previsions of the procedural law which goes to the foundation of the case. On the question of the effect of having a Plaint with the defective verification clause, I am bound by the Court of Appeal decision in the case of Samwel Kimaro vs. Hidaya Didas, Civil Application No. 20 of 2012, where it was held that; "...Any pleading with defective verification clause, is bad in law and the consequences of which is to strike it out". Guided by the above principle, I have no option but to strike out this case before me with costs. Since this ground of preliminary objection has the effect of disposing of the matter, I need not discuss the remaining ground raised by the counsel for the 5th, 6th, 7th, and 8th defendants. Order accordingly. Dated at Dar es Salaam this 27th day of April, 2022. A. MSAFIRI, JUDGE 8