20200428 TZHC Dar es Salaam

THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM . CIVIL CASE NO: 14 OF 2016 FILLY MICHAEL KYANDE ............................................. PLAINTIFF .VERSUS EFC TANZANIA M.F.C LIMITED ................................... DEFENDANT VERONICA DANIEL TEMBE ............................................ 3R0 PARTY

RULING MASABO, J.L:- The ruling is in respect of a preliminary objection raised by Veronica Daniel Tembe who has been brought to the suit through a third-party notice. Upon being served with the plaint she filed a notice of preliminary objection to the effect that the plaint is defective for being drawn and filled by an entity in the name of Supreme Law Chamber that legally cannot draw and file a plaint. The preliminary objection was argued in writing. Submitting in support of preliminary objection Mr. Davis Julius Katesigwa, counsel for the 3rd Party stated that the plaint contravenes the requirement of the law as the name of the drawer should be endorsed on the document. Instead, it shows that it was drawn by Supreme Law Chamber which is legally not competent to draw the plaint or any other pleading. He reasoned that, such an omission contravenes Section 44 of the Advocates Act, Cap 341 RE 2002. Fortifying his argument further he cited a decision of the Court of Appeal in the case of Ashura Abdulkadri v the Director of Tilapia 1 " II Hotel Mwanza Civil Application No 2 of 2005 Court of Appeal of Tanzania (at Mwanza) and Bernadetha A. Rwenyendera v Euginia Ruwawa High School, Land·Case No 276 of 2017 ·High court ofTanzania (Land Division) at Dar es Salaam (unreported) and proceeded to argue that in these two cases, the plaints were struck out for non-compliance with section

44(1) of The Advocates Act, Cap 341. Based of these authorities, he submitted that since the plaint in this suit was prepared by an incompetent person who is neither a party to the case nor the claimant in the case, it should be struck out for incompetence. Responding to this submission, Mr. Meswin Joseph Masinga, counsel for the Plaintiff pointed out that the preliminary objection raised by the third party was previously raised by the pt Defendant on the 25 th March, 2019 but the same was dismissed for want of prosecution. He reasoned that the preliminary objection raised by the defendant was couched in following terms: "That the plaintiff's Plaint is hopelessly bad in law for being drawn by unqualified person"hence similar to the instant preliminary objection that the " That the plaint is defective for being drawn and filed by an entity that legally cannot draw and file plaint to with {sic) Supreme Court Law chamber."· Based on this he argued that preliminary objection should not be entertained as it is an attempt to restore through a back door a preliminary objection that was dismissed for want of prosecution. In the alternative, Mr. Masinga vehemently, resisted the submission. He argued that the same is devoid of merits because Section 44 of Advocates 2 Act, Cap 341 must be read together with Section 43 which covers the unqualified person. He further submitted that the

decision in Bernadetha A. Rweyendera V Euginia Ruwawa (Supra) being the decision of this court is not binding on me. He further argued that the case of Ashura Abdulkadri v the Director of Tilapia Hotel Mwanza (supra) is distinguishable from this case because in the said case the affidavit was indicated to have been drawn by Ashura Abdukadri who is unqualified person whereas in the instant suit, the plaint was drawn by the chamber's advocate. Mr Masinga further implored this court to invoke the principle of overriding objectives as provided for under section 3A and 3B of the Civil Procedure Code Cap 33 RE 2018 which requires the court to be mindful of the substantive justice rather than being bound by technicalities. He supported his argument with the decision of this court (Rumanyika, J) in Tanzania Ports Corporation Versus Salehe Komba and Another Revision No 59 of 2018. l have carefully considered the submission by both parties. Let me say straight forward that I am in total agreement with Mr. Masinga. It is on record that on 19th March 2019, raised two preliminary objections, the first of which was that ''the plaintiffs plaint is hopelessly bad in law for being drawn by unqualified person'~ The Preliminary objection were scheduled for hearing on 18th July 2019 on which date the Defendant defaulted appearance and the preliminary objection were dismissed with costs for want of prosecution. 3 Consequently, having dismissed the preliminary objection, this court became functus officio. Under the premise, and as correctly argued by Mr. Masinga,. . ' . . . . this court cannot entertain the preliminary objection. • Accordingly, the preliminary objection is dismissed with costs. DATED at DAR ES SALAAM this 28th day of April 2020. 4