20171228 TZHC Dar es Salaam

- IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 36 OF 2017 DR. ZAINAB AMIR GAMA .............................. PLAINTIFF VERSUS TANZANIA RED CROSS SOCIETY.................... DEFENDANT RULING MKASIMONGWA, J. Dr. ZAINAB AMIR GAMA (Plaintiff) sues the TANZANIA RED CROSS SOCIETY claiming for a declaratory order that the Defendant is a non-existing entity operating illegally in Tanzania and that the plaintiff was unlawfully dismissed from the position of Vice President of the Tanzania Red Cross Society. The plaintiff also claims for general damages, costs and any other relief the Court may be pleased to grant. In 1962 the plaintiff joined membership of the Defendant ' ! Society, then designated as the Tanganyika Red Cross Society, which was established by the law under which the Defendant has been purporting to act. It is alleged that the Defendant Society is not established under any law and has no any Registered Trustees. As such the Defendant has, for many years now, been operating in Tanzania without any legal mandate. Sometime in 2008 the plaintiff became the Vice President of the Defendant Society. She 1 ,' was, however later on, unlawfully dismissed. In this suit the plaintiff now seeks from the Court for Judgment and Decree against the Defendant for the following: 1. A Declaratory order that the Defendant is operating illegally in Tanzania. 2. An order that the Defendant forthwith, ceases its activities in Tanzania 3. An order that all properties allegedly to be owned by the Defendant be placed under RITA or any Government Department. In the alternative the plaintiff seeks from the Court for Judgment and Decree against the Defendant for the following: 1. A declaratory order that the suspension and dismissal of the plaintiff from the position of Vice President were unlawful. 2. An order that the plaintiff be restored to her position of the Vice President of the Tanzania Red Cross Society. 3. Payment of general damages to the plaintiff. 4. Costs of the suit 5. Any other reliefs this court may deem fit and just to grant. The claims are disputed by the Defendant. The latter has filed a Written Statement of Defence in which he has also raised a Preliminary Objection on the following grounds: - 2 f'\ r ' 1. That the plaint is bad in law for being frivolous, vexatious and embarrassing to the Defendant for the same discloses two distinct causes of action which is embarrassing and that reliefs sought in the alternative are untenable as they are not alternative to the main reliefs. 2. That the plaintiff has not exhausted avenues available within the organs of the society to redress her grievances. When the matter came up for hearing of the Preliminary Objection CL Rtd. Laizer (Mr. Laizer) and Mr. Katemi, Advocates, appeared for the Defendant and Plaintiff, respectively. Upon being asked to argue the objections, Mr. Laizer contended that in this suit the plaintiff alleges that the Defendant Society is operating into the country unlawfully and that she was unlawfully dismissed from the position of the Vice President of the Defendant. He submitted that the plaint is bad in law for it contains two distinct causes of action. As such it does not make it clear to the Defendant what they should defend in the case. As it stands the plaint requires the parties to have distinct evidence to be adduced. The first. is for proving an illegal operation of the Society of Tanzania and the second is for proving the illegal dismissal of the plaintiff from leadership of the Society. Morgan, in his Book "Law of Pleadings" discussed this situation we are now in. The writer at page 267 of the Book defines what is a cause of action and at page 185 he discusses Order II Rule 2 of the Indian Civil Procedure Code which is pari materia with our Order II Rule 2 of the Civil Procedure Code [Cap. 33 R.E 2002] which again was discussed in the case of MASHODO GAME 3 .. FISHING LOT LTD AND TWO OTHERS V/S TANGANYIKA NATIONAL PARKS (TANAPA) (2002) TLR 319. Mr. Laizer submitted that there being two distinct causes of action in this suit, the same cannot be meaningfully heard and that they are aggrieved hence this objection raised in terms of Order II Rule 7 of the Civil Procedure Code. For the reason of Misjoinder of causes of action, Mr. Laizer prays the court that it dismisses the suit. As to the reliefs sought Mr. Laizer stated that there are alternative reliefs sought by the plaintiff. He submitted that the reliefs are untenable because the first part of the reliefs sought do not alternate to those on the second part of the reliefs sought. The learned counsel added that alternative reliefs are not a substitute to the first reliefs claimed by the plaintiff. As such they are not alternative. That is a flaw in the procedure. As regards to the avenue the plaintiff ought to have followed Mr. Lazier submitted that the Defendant Society is established by a statute and it has the Constitution that regulates its operations. The Constitution is live and is in consistent with the establishing statute. The Constitution was applied when the plaintiff was dismissed from leadership. According to the Constitution, if the plaintiff was aggrieved by the activities of the National Executive Committee she had to refer the matter to the General Assembly for decision of the matter. This was not done. As such the court has no powers at this stage to entertain and determine this matter and the plaintiff should be advised to seek remedy in the appropriate way. 4 ,. '' By way of conclusion Mr. Laizer prayed the Court that it finds the suit incompetent for misjoinder of causes of actions and that the Court has no powers to deal with this matter. As such the suit be dismissed with costs. On the other hand, Mr. Katemi referred the Court to the case of MUKISA BISCUTS MANUFACTURING CO. LTD VS. WEST END DISTRIBUTOR CO. LTD (1969) E.A 696 where a Preliminary Objection was well defined. He submitted that the counsel for the Defendant has not cited any statute to support the alleged Preliminary Objection which according to Mr. Katemi it does not meet the criteria established under Mukisa Biscuits Case. Mr. Katemi submitted that even if the Court finds that these are arguable preliminary objections, they are bound to fail because, there is no any law in this country that prohibits a suit consisting more than one cause of action. Order II Rule 6 of the Civil Procedure Code [Cap. 33 R.E 2002] makes it possible to have two causes of action in one suit. The cited case of MASHODO only defines what a cause of action is. It does not deal with the situation the Defendant grounds his objection and as the counsel for the Defendant readily admits that there exists a cause of action in this matter then Mashodo's case does not apply. As regards to the alternative prayers Mr. Katemi contended that they have not stated those to be "substitute prayers". They are "Alternative Prayers" and he submitted these are the issues to be determined by the Court at the trial of the suit. 5 ----- ------- ,, . As for the last objection Mr. Katemi stated that the Defendant asserts that the plaintiff has not exhausted the avenue available for her remedy. This according to Mr. Katemi is confusing because the Defendant had referred to the Society's Constitution which is not even part of his defence. Even if he was allowed to refer to the Constitution that is a purely the evidence and it cannot fall under the ambits of the Preliminary Objection. Secondly, the Constitution is contested as the plaintiff alleges the same to have not been registered and that is one among those issues sought to be determined by the Court in the suit. Mr. Katemi prays the Court that it overrules the objections. In a short rejoinder Mr. Laizer stated that the principles enunciated by Mukisa Biscuits Case apply in the circumstances of the case. In this matter it will require two distinct sets of evidence to prove the case and that necessitates for separation of the causes of actions. Order II Rule 6 of the Civil Procedure Code empowers the Court to make any other orders in lieu of ordering separation of the causes of action. What the Defendant has raised is purely points of law. They are in respect of mandatory procedures set by the law that have been faulted by the plaintiff. That is all what the respective counsel for the parties had in submission. Upon considering the submission, it is clear to the Court that the Preliminary Objection raised are mainly based on misjoinder of causes of action and Jurisdiction of the Court. These in my view are points of law that may ground a preliminary 6 ---------------------------~-~--------- objection. I agree with Mr. Katemi that the law does not bar joining cause of actions in one suit. We may learn this from the provisions of Order II Rule 3 (1) of the Civil Procedure Code [Cap. 33 R.E 2002] which reads as follows: - "3 (1) save as otherwise provided a plaintiff may unite in the same suit several causes of action against the same d~fendant or the same defendants jointly, and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit" Rule 7 of Order II of the Civil Procedure Code assumes the situation where causes of action have been misjoined. It is under this provision the Defendant has come with an objection showing that there is misjoinder of causes of action. There is consensus among the parties that in this suit two causes of action have been joined. The question is whether the causes of action have been properly joined. Going by the plaint, it is evident that the plaintiff has two conflicting causes of action in the same plaint. Whereas the plaintiff prays the Court that the Defendant be declared not legally existing, she prays the same Court that shall be reinstated in her position as the Vice President of the Defendant. When the counsel for the Defendant argued the second limb of the preliminary objection referring to the Constitution of the Defendant Society, the counsel for the Plaintiff contended that since the Constitution is 7 contested for having not been legally registered, it cannot be the basis of the preliminary objection for the claim of the jurisdiction of the court to entertain this matter. However, it is the same Constitution, which the plaintiff seems to lean on in her claim for her restoration to the position. This is an ambiguous situation caused by the plaintiffs act of joining two conflicting causes of action in a suit. This situation is not among those for which the Court can order for separate trials in terms of Order II Rule 6 of the Civil Procedure Code. The plaint suffers misjoinder of causes of l , which in my view renders the suit incompetent. I will therefore sustain the first limb of the preliminary objection and that deserves the suit for an order striking it out. In that premises, I will not engage time to discuss the second limb of the Preliminary Objection. The suit is hereby struck out with costs. Dated at Dar es Salaam this 28 th of December, 2017. E. J~; JUDGE 28/12/2017 8