FRANK NGONYANI VS

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY)

AT DODOMA CIVIL CASE NO. 10 OF 2023 FRANK JOHN NGONYANI T/A FRANGO COMPANY……..………………PLAINTIFF Versus THE CITY COUNCIL OF DODOMA…….……….………………………1ST DEFENDANT THE ATTORNEY GENERAL……………..……….………………………2ND DEFENDANT

RULING Date of last order: 19th March, 2024. Date of Ruling: 25th April, 2024. E.E. KAKOLAKI, J. The 1st and 2nd defendants herein raised six (6) grounds of preliminary objection challenging plaintiff’s suit in which this ruling seeks to address. The said grounds are to the effect that: 1. The plaint is incompetent for contravening Order VII Rule 1(e) of the Civil Procedure Code, [Cap. 33 R.E 2019].

2. The plaint is bad in law for contravening Order XXXVII Rule 1(a) of the Civil Procedure Code, [Cap. 33 R.E 2019].

3. The plaint is incompetent for contravening Order VII Rule (f) of the Civil Procedure Code, [Cap. 33 R.E 2019]. 1 4. The plaint is incompetent for contravening Order VI Rule 14 and 15 of the Civil Procedure Code, [Cap. 33 R.E 2019].

5. The plaint is incompetent for contravening Order XXVIII Rule 1 of the Civil Procedure Code, [Cap. 33 R.E 2019].

6. The plaint is incompetent for contravening Order VII Rule 1(i) of the Civil Procedure Code, [Cap. 33 R.E 2019]. Briefly the plaintiff describing himself in his plaint as a natural person is suing the defendants for breaching terms of a lease agreement which he had entered into with the 1st defendant in 2021 leasing a land measuring 60,270 square meters in which the 1st defendant allegely failed to provide him vacant possession of the rented property measured at 29,708.181 while allowed to access 29,574.438 square meters only. He is therefore praying for an injunctive order compelling the defendants from evicting the plaintiff and remedy the breach immediately, a permanent order restraining the defendants from evicting the plaintiff in the above premises, special damages to the tune of Tshs. 100,000,000/- for loss of profit, general damages to the tune of Tshs. 300,000,000/- for physical and psychological torture sustained to the plaintiff by the 1st defendant and costs of the suit among other reliefs. As stated earlier the defendants could not let the suit take a breath in Court 2 as the same was suffocated with a number of points of preliminary objection. Being a practice of the Court to dispose of the preliminary objection first when raised, parties in this matter were heard viva voce. The plaintiff hired the services of Ms. Elizabeth Kagembe, learned advocate while

the defendants enjoying the services of Mr. Omary Ngatanda, learned State Attorney. Before he could kick the ball rolling Mr. Ngatanda sought leave of the court to jointly argue the 4th and 5th grounds of objection while canvassing the rest separately the order which I am also proposing to adopt in this ruling and in that course determine one ground after another. In the first ground of objection Mr. Ngatanda contended that, throughout the plaint the plaintiff deposed facts constituting the cause of action but failed to state as to when the same arose in contravention of Order VII Rule 1(e) of the CPC mandatorily providing that, the plaint shall state facts constituting the cause of action and when it arose. With such omission he argued, the suit is incompetent before the Court and deserves to be dismissed with costs and so prayed. In reply Ms. Kagembe submitted that, paragraphs 2,5,10 and 12 of the plaint disclose the cause of action which is premised on breach of lease agreement for being availed limited square meters out of 60,270 square meters which were leased. She was of the view 3 that, this ground is wanting in merit and should be overruled. In rejoinder while reiterating his submission in chief Mr. Ngatanda maintained that, the time or period in which the alleged breach of contract arose was never stated by the plaintiff as per the requirement of the law hence

infraction of the law that renders the suit incompetent. It is true as submitted by Mr. Ngatanda that, order VII Rule 1(e) of the CPC provides mandatorily that, a plaint shall among other particulars contain facts constituting the cause of action and when it arose. Having thoroughly perused the plaint at dispute, I agree with Ngatanda that, the same does not disclose the date when the cause of action arose apart from particularizing facts constituting the alleged cause of action in a number of paragraphs, hence in contravention of the law for improperly stating the cause of action. The only remaining unanswered question is what legal effect befalls such non-compliance. Order VII rule 11(a) of the CPC in my opinion provides an answer as the remedy for the plaint which does disclose cause of action is either rejection or amendment of the same. See also the case of Rose Roezer and 3 Others Vs. National Insurance Corporation of Tanzania Limited and Another, Civil Appeal No. 291 of 2020 (CAT) Tanzlii 4 where the Court of Appeal observed on the remedy for the plaint which does not disclose cause of action: ’’…once the Court is satisfied that the plaint did not disclose the cause of action it may reject the plaint or order the plaintiff to amend the same. The discretionary powers embrace the overriding objective principle for the purposes of timely adjudication of disputes.’’ In this

matter since the date or period when the cause of action arose can be disclosed if the plaintiff is allowed to amend the plaint, then I do not find the omission to be fatal. In the 2nd ground of objection it was Mr. Ngatanda’s concern and submission that, the suit is bad in law for containing injunctive prayers against the Government amongst the reliefs sought which is contrary to the proviso of Order XXXVII Rule 1(b) of the CPC as the law bars the Court to grant temporary injunction against the Government instead allows declaratory orders to the plaintiff’s rights. In reply Ms. Kagembe resisted defendants’ submission arguing that, in the plaint there is no prayer for injunctive orders as per the cited law rather the prayer for compelling the 1st defendant to remedy the breach. She added that, it is in this court's discretion to either grant or refuse to grant the relief sought by the party depending on its nature 5 and in case of refusal shall assign reasons. In rejoinder Mr. Ngatanda insisted that, what is claimed and prayed by the plaintiff is injunctive orders against the Government which contravenes the law hence the application is incompetent and should be struck out. I have given due consideration the conflicting arguments by the parties concerning the issue as to whether the claims against the defendants by the plaintiff contain injunctive orders is barred by the law or

not. I have as well visited the plaint and noted that in the relief paragraph there are claims and prayers for injunctive orders as the sought reliefs in numbers (i) and (ii) read and I quote: WHEREFORE: The plaintiff claims and prays for the following reliefs: (i) An injunctive order compelling the 1st Defendant to remedy the breach immediately. (ii) A permanent order restraining the 1st Defendant from evicting the Plaintiff in the above promise. Viewing from the above quoted reliefs it is not in dispute that the same are injunctive orders in particular the permanent order for restraining the defendant from evicting the plaintiff in the suit premise. This claim as referred in the relief prayer is going against the proviso of Order XXXVII rule 1(a) and (b) of the CPC barring the Court to grant injunctive orders against 6 the Government which is the 1st defendant. I therefore disagree with Ms. Kagembe’s submission that, there is no any injunctive relief sought by the plaintiff. Now what is the remedy for that anomaly. Again under the circumstances the provision of Order VII rule 1(c) of the CPC comes into play as it provides that, where the suit appears from the statement in the plaint to be barred by any law, the same can be rejected. And where the court is satisfied that, if the plaintiff is permitted to amend the same the plaint shall cease to appear from the statement in the

plaint to be barred by any law may proceed to allow amendment of the plaint. On the 3rd ground Mr. Ngatanda claimed that, the plaint is incompetent for contravening the provisions of Order VII Rule 1(f) of the CPC which provides that, the plaint shall contain facts showing that the Court has jurisdiction as the same does not contain any paragraph to that effect. He therefore prayed the Court to find the suit is incompetent before the court and dismiss it. In response Ms. Kagembe while conceding to the omission for not including in the plaint the paragraph showing court’s jurisdiction to entertain this suit, she was quick to argue that, the same does not render the suit incompetent as the law under section 6(4) of the Government Proceedings Act, [Cap. 5 R.E 2019] (the GPA) as amended, is very specific and requires any suit 7 against the Government to be filed in this Court. Relying to the case of Tanzania Revenue Authority Vs. TANGO Transport Company Ltd, Civil Appeal No. 84 of 2009 (CAT) in which the term jurisdiction is defined as the authority in which the Court has to decide matters that are litigated before it or to take cognizance of matter prescribed in a formal way for its decision and that, its limitation is imposed by the statute; charter or commission under which the court is constituted, she argued that, this Court’s jurisdiction to entertain the suit before it in

which the Government is sued is derived from the statute under section 6(4) of the GPA and not otherwise. To her therefore the suit is competent before the court, thus prayed the objection to be overruled. In rejoinder Mr. Ngatanda argued that, it is not true GPA confers jurisdiction to this Court as section 6(4) of the Act states that all suits against the Government shall be instituted before his Court and that the plaint be served to the Solicitor General, while the format under which the said plaint should take is provided under Order VII of the CPC. Thus there is no way non- compliance of Order VII Rule 1(f) could be rescued by GPA, the learned State Attorney stressed and urged the court to so find. 8 Having given thoughtful consideration both parties’ contending arguments, there is no dispute that, the plaint does not contain the paragraph stating jurisdiction of the Court to entertain the suit as per the mandatory requirement of Order VII Rule 1(f) of the CPC. The glaring issue therefore is whether that omission is saved by invoking the provision of section 6(4) of the GPA. It is the law under section 7(1) of the CPC that, the Courts shall have jurisdiction to try all suits of civil nature (subject to the provisions of the CPC) except for suits of which their cognizance is either expressly or impliedly barred. The object of the law under Order VII Rule 1(f) of the CPC

for requiring the plaint to contain facts showing the court has jurisdiction is to enable the Court ascertain its jurisdiction to entertain the matter before proceeding with hearing as jurisdiction being the bedrock on which the Court’s authority and competence to entertain and decide the matter rests, the same cannot be assumed rather must be ascertained. See the case of Salim O. Kabora Vs. Tanesco Ltd and Others, Civil Appeal No. 55 of 2016 and Tanga Cement Public Company Limited Vs. Fair Competition Commission, Civil Application No. 10/20 of 2018 (Both CAT) Tanzlii. In this matter as rightly submitted by Ms. Kagembe, the law under 9 section 6(4) of the GPA is very categorical that, any suit against the Government shall be instituted in the High Court and the copy of plaint be served to the Solicitor General. The position in my understanding is so regardless of the value of the subject matter. In other word the High Court has jurisdiction to entertain any suit in which the Government is sued. It is uncontroverted fact that the 1st defendant herein is the Government Department while the 2nd defendant is the Chief Government legal advisor and both are sued in their capacities, hence the suit is against the Government. As the suit is instituted against the Government in which this Court is already seized with jurisdiction to entertain then, I do not see how plaintiff’s failure

to state facts showing the jurisdiction of the Court could have rendered the suit incompetent. I would have rather directed the plaintiff to amend the plaint and include the facts showing that this Court has jurisdiction to entertain the suit, had this Court not being seized with the jurisdiction under section 6(4) of the GPA which is not the case herein. It is from that stance I find Mr. Ngatanda’s argument that, the plaintiff ought to have stated facts showing court’s jurisdiction despite of existence of section 6(4) of the GPA which according to him is restricted to the Court in which the suit against the Government should be instituted to, is losing weight as 10 such omission does not render the suit incompetent before the Court which is already seized with the jurisdiction to try it. I therefore disregard this objection. I now move to the 4th and 5th grounds in which Mr. Ngatanda lamented that, the manner in which the plaint has been signed and verified contravenes the provisions of Order VI Rules 14 and 15 and Order XXVIII Rule 1 of the CPC on the following reasons. One, the plaintiff who is christened as Frank John Ngonyani T/A FRANGO COMPANY in the case, deposed at the same time as a natural person and signed the plaint as principal officer while knowing that he is not a company or corporation. Two, the verification clause is also signed by the principal officer while

in fact the plaintiff is not a company or corporation. He said that conduct is in contravention of the above cited law something that renders the suit incompetent hence deserve to be struck out, the order which he prayed the Court to issue. In reply Ms. Kagembe while conceding that, it is true the plaintiff who deposed as a natural person signed and verified the plaint as principal officer of the plaintiff Frank John Ngonyani T/A FRANGO COMPANY, she quickly argued that, that was a slip of pen hence invited the Court to invoke the principal of overriding objective under section 3A of the CPC which its 11 intention is to facilitate just, expeditious, proportionate and affordable resolution of dispute and allow the plaintiff to correct the error by pen ink. Otherwise she prayed the Court to find the objection is immaterial and overrule the same. In rejoinder Mr. Ngatanda resisted plaintiff’s submission and prayer that, the error was a slip of the pen slip of the pen and therefore should be corrected as use of the term principal officer is repeated in the signature and verification parts, thus was intentionally done to identify the plaintiff as a company and not a natural person. As to the applicability of the principle of overriding objectives he said, in the case of Mondorosi Village Council and 2 Others Vs. Tanzania Breweries Limited and 4 Others, Civil Appeal No. 66 of 2017

(CAT) Tanzlii, it was held the same is not applied blindly to defeat mandatory procedural requirements of the law in which the cited infracted provisions of the law are couched in mandatory terms. From the above contending arguments by the parties it appears to the court that they are both at one that under Order VII Rules 14 and 15 of the CPC a plaint must be signed by the party and/or the advocate if any or any authorized person and duly verified by the party or one of the parties if more than one or some other persons acquainted with the facts of the case. It is 12 also one of the uncontroverted fact that, under Order XXVIII rule 1 of the CPC in any suit by or against a corporation/company the pleadings may be signed and verified by either company/corporation secretary or any director or the principal officer. To paint the real picture of what the plaintiff did, I find it apposite to reproduce the last part of the plaint bearing verification part: Dated at Dodoma this 25th day of July, 2023. Sgd: Sgd: P rincipal officer of the applicant Counsel for the P laintiff

VER I FI CATI ON I, Frank John Ngonyani T/ A FRANGO Com pany, being the Principal officer of the dully authorized to states these facts, DO hereby verify that, what is stated in paragraphs 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17 and 18 is true to the best of my own knowledge, save as to matters deponed to on information and belief, the sources and ground whereof are respectively specified and set out herein above. Sgd: P rincipal officer of the applicant. In this matter as it can be clearly seen above and ably conceded by Ms. Kagembe, it is the plaintiff who is described as natural person in paragraph 1 of the plaint who signed and verified the plaint as principal officer of the 13 plaintiff though used the term applicant which is inapplicable under the circumstances of this case. The defence advanced by Ms. Kagembe is that, it was a slip of pen to describe a person signing and verifying the plaint as the principal officer of the applicant while in fact was a natural person. The issue for determination therefore is whether there is justification in the plaintiff’s argument. Having given thought the said defence, I do not purchase Ms. Kagembe’s proposition that it was a slip of pen rather embrace Mr. Ngatanda’s view that under the circumstances it was done by design may be without considering its consequences. I so hold for two good reasons. One, the plaint though indicates to

have been drawn by the applicant, the fact is that it was prepared by the learned advocate with sufficient legal skills in drafting of documents, who also appended her signature and stamp as counsel for the plaintiff. Secondly, there is no way use of the terms principal officer of the applicant could have been repeated twice considering the fact that, the learned counsel who prepared the plaint is full aware of the use of the term principal officer and under what circumstances is the same supposed to be applied. What the plaintiff and her advocate had in mind is that suing as a natural person who is trading in the name of FRANGO Company would be treated as a company while in fact 14 is a natural person. This glaring error in my humble view cannot be treated as a slip of pen rather a designed one to meet the intended purpose which unfortunately appears to be against the law for contravening procedural law and renders the plaint incompetent. It is also out of that infraction of the provisions of procedural laws, I find the prayer by Ms. Kagembe for the Court to invoke the principle of overriding objective is not accommodative as the same cannot be blindly applied to defeat the purpose of having procedural laws in place. See the case of Mondorosi Village Council and 2 Others Vs. Tanzania Breweries Limited and 4 Others, Civil Appeal No. 66 of 2017 (CAT) Tanzlii. In view of the

above I find the 4th and 5th preliminary objection meritorious and sustain it as I hold the suit to be incompetent before this Court. These two grounds in my opinion suffices to dispose of the matter as I see no reason to venture into determination of the rest of the grounds. Next for determination is what course should the Court take against such incompetent suit. As alluded to above the law under Order VII Rule 11(a) of the CPC provides that, the suit which does not disclose cause of action or is undervalued or is barred any law shall be rejected otherwise the party can be allowed to amend the plaint. See also the case of Rose Roezer and 3 15 others (supra). In this matter the defects rendering the plaint incompetent before the Court do not fall under the above specified order. Since the suit is incompetent before the Court the only remedy is to strike it out, so as to allow the plaintiff bring a fresh suit should it please him and not dismissal as prayed by Mr. Ngatanda, since you cannot not dismiss an incompetent matter. All said and done I proceed to struck out the suit for being incompetent before the Court. I order each party to bear own costs. Order accordingly. Dated at Dodoma this 19th April, 2024. E. E. KAKOLAKI

JUGDE 19/04/2024. The Ruling has been delivered at Dodoma today on 19th day of April, 2024, in the presence of Ms. Elizabeth Kagembe, advocate for the Plaintiff, the plaintiff in person, Mr. Nicodemus Abweyo and Ms. Helen Njowoka, State Attorneys for the Defendant and Ms. Veradina Matikila, Court clerk. Right of appeal explained. 16 E. E. KAKOLAKI

JUGDE 19/04/2024. 17