20151103 TZHC Dar es Salaam

1 IN THE HIGH COURT Of TANZANIA (Dar es salaam District Registry) AT DAR ES SALAAM LAND CASE NO. 10 OF 2015 HASSAN SAID(As an administrator of the estate of the late RJ\MADHANI MOHAMED SOZIGWA .....••.....•..•.••.•••..••. -=PlAINTIFF VERSUS MWANAISHA JUMANNEo .............................. u .... 1 ST DEFENDANT .. ~ . . . ND.· TIBTUS MICHAEL MWACHA ........... u . . . . . . . . . . . . . . . . . . 2 DEFENDANT RULING MWANDAMBO,J The Plaintiff herein is an Administrator of the estate of the late Ramaohani Mohamed Sozigwa per letters administration granted by Kinondoni Primary Court on 23 March 2008. Armed with " Uamuzi wa kuthibitisha mali" (Decision prove ownership of inheritance property), the Plaintiff has instituted a suit against the Defendants for a declaratory judgment in relation to a farm located at Kerege, Bagamoyo District said to be part of the properties falling under the deceased's estate. The 1st and 2nd Defendants who are seller and purchaser respectively of the land in dispute, have preferred four preliminary objections against the suit. The said preliminary objections are premised on the following grounds namely;- i) The Court has no jurisdiction to entertain the suit, ii) The plaint is bad in law for containing arguments, evidence and legal conclusions, 1 2 iii) The first Defendant has no locus standi to be sued in her personal capacity in a transact!on in_volving the estate of a deceased person iv) The suit is res judicata. Addressing the Court on the first ground M/s Chua and Company Advocates learned Counsels for the Defendants have submitted that the Court had no jurisdiction to try the suit because the Plaintiff was using a back door to execute the decision of the Primary Court at Kinondoni in Probate Cause No. 455 of 2007. Alternatively, the learned counsel contended that the Plaintiff was using the same door to challenge a decision of the Primary Court at Mwambao, Bagamoyo District in Probate Cause No. 31 of 2009 in which the first Defendant was appointed as Administratrix of the estate of the late Jumanne Mohamed Sozigwa. In reply, the Plaintiff's Advocate submits that the preliminary objection is legally untenable because the suit concerns ownership of the land situate in Bagamoyo District in which both the ·Plaintiff and the Defendants claim ownership. Having examined counsels' submissions on the first ground, I have no flicker of doubt that the preliminary objection is devoid of merits. It is glaringly dear as rightly submitted by the learned counsel for the Plaintiff that both the Plaintiff and the 1st Defendant claim ownership of the suit land which is within the territorial jurisdiction of the Court. It has not been contended that the dispute falls outside the ambit of S.167 (1) of the Land Act, [Cap 113 R.E.2002] as amended by Written Laws (Miscellaneous Amendments) Act, No. 2 of 2010 read together with S.37 (a) of the Land Disputes Courts Act, [Cap 216 R.E. 2002] Section 167(1) of Cap 113 provides:- 2 1 3 "167(1) The following Courts are hereby vested with exclusive jurisdiction, subject to the provision~ qf this part to hear and determine all manner of disputes, actions and proceedings concluding land, that is to say;- (a) n.a (b) The High Court established in accordance with the law for time being in force. (c) n.a (d) n.a (e) n.-a On the other hand, S. 37(a) of Cap 216 provides: "Subject to the provisions of this Act the High Court shall have and exercise original jurisdiction:- (a) In proceedings for recovery of immovable property in which the value of the property exceeds fifty mil!ion shillings." Counsel for the Defendants have not assailed the suit on any of the forego,ng provisions. In my view, the resort to the provisions of S 20(1) (b) of the Magistrate's Court Act, Cap 11 R.E 2002 or Order XXI Rule 9 of the Civil Procedure code [Cap 33 R.E 2002] is clear misconception of the law simply because the Plaintiff does not seek to execute any decree against the Defendants. Similarly, the Plaintiff who was not a party to Probate Cause No. 31 of 2009 cannot have any locus to challenge the decision in those proceedings by way of an appeal pursuant to S. 20 (1) (b) of Cap. lL 3 4 In the upshot, I find no merit in the first ground and I hereby reject it. I now turn my attention to the second ground in the notice of preliminary objection. -- In this ground, the Defendants contend that the plaint is bad in law for ~--containing arguments, -evidence and" le-gal conclusions contr,fry to the-provisions of Order VI Rule 3 of the CPC. The learned Counsels have made reference to paras 8, 9 and 10 of the plaint which are said to be offensive and on that basis, they invited the Court to dismiss the suit. For his part, the learned counsel for the Plaintiff submits that the paragraphs said to be offensive are in strict compliance with the rules of pleadings and thus the plaint cannot be said to be bad in law. I need not be unduly detained on this because my examination of the paragraphs alleged to be offensive of Order VI R.3 of the CPC does not lead to the conclusion the learned Advocates for the Defendants have invited me to arrive at. I am unable to see anything in the said paragraphs closer to a suggestion that evidence or legal arguments has been pleaded making the pleading bad in law. In any event, even if I was to agree with the Defendants, learned Advocate that the said paragraphs are offensive, I would not dismiss the suit because the CPC does not provide for that eventuality. If anything, I would only order amendment or striking out the offensive pleadings which appeal to be unnecessary or, embarrassing or scandalous on the authority of Orders VI R. 16 of the CPC. In Walter Tzurn V. The National Bank of Commerce and 2 others, Civil Case No. 60 of 1992 (unreported) a similar objection was successfully raised but the Court (Mushi, J-as he then was) declined to strike out the pleading instead, he ordered an amendment to be made to the reply to the written statement of defence said to be in contravention of O.VI R. 3 of the CPC. Had I upheld the objection, I would have ordered an amendment rather than 4 5 - dismissing the suit. Otherwise, the second grou □ d too is found to be untenable and is accordingly rejected. In the third ground, the Defendants contend that the 1st Defendant has no locus to be sued in her personal capacity in a transaction involving the estate of - a deceased person. Before I consider the· merits or otherwise of this ground, let me attempt to provide a definition of the phrase locus standi. Black's Law Dictionary, 8th edition by A. Gardner defines locus standito mean: place of standing, the right to being an action or to be heard in a given forum(at page960). Oxford Dictionary of law defines the phrase to mean: The right to bring an action or challenge some decision... Oxford Dictionary of Law, 5th edition, Elizabeth E. Martin (at page 269). Osborn's Concise Law Dictionary, 11th edition, Sweet & Maxwell defines focus standi to mean: A place of standing, the right to be heard in court or other proceeding (at page258) I gather from the definitions that locus standi has reference to a party seeking to bring an action and be heard in court rather than a person against whom an action is instituted. Having examined the submissions by the learned counsels for the Defendants, I am satisfied that the objection is dearly misconceived. This is so because the 1st defendant has not brought any action in her personal capacity so as to bring into play an objection based on lack of locus standi. Secondly, whilst it may be correct that the 1st Defendant ought to have been sued in her capacity as Administratrix of the estate of the late Jumanne Mohamed Sozigwa, I am unable to say that the omission is fatal. In my view, the omission is curable under the provisions of Order I Rule 10 (2) of the Civil Procedure Code, [Cap 33 R.E 2002]. That provision empowers the court to 5 6 strike out a party who should not have been joined and add a party who should have been joined or whose presence before the court may be necessary In order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit. In this case, the Plaintiff has omitted to indicate that the 1st Defendant is an administratrix of the late Jumanne Mohamed Sozigwa who should step into the shoes of the deceased to defend the suit and thus her presence in this suit is necessary in order to effectually and completely adjudicate the matter and settle all questions involved. With respect, the cases cited to me in support of the preliminary objection namely; Robert Defi V. Anna and Gasper Aloyce Kiria High Court Land Case No. 58 of 2011 as we!! as Hassan Said V. Mwanaisha Jumanne & Tibtus Michael Mwacha, Land Case No. 96 of 2011 (both unreported) are distinguishable. Both of them dealt with Plaintiffs suing in their personal capacities instead of their capacities as Administrators of the deceased Plaintiffs. Secondly, I doubt if their Lordships who determined preliminary objections in both cases dlrected their minds to the provisions of order I Rule 10(1) (2) j of the CPC and if so what would have been their position. I have taken the view that the omission to indicate that the 1st Defendant is sued in her capacity as Admnistratrix of the estate of the late Jumanne Mohamed Sozigwa to be inconsequential and I would, in the circumstances order the plaint to be amended so as to indicate the 1st Defendant's capacity as aforesaid. In fine, the preliminary objection is dismissed. Save as indicated, all preliminary objections argued are hereby overruled. Costs shall be in the cause. Order a cordingiy. -----~ ' c_-.t-dlb~J'.mjtn'"So...,,_~SIS-""""'~=-_;_:-·~ 02/11/2015 6 ----------------,..,...,._,__ 7 Ruling delivered in court_in the pr~sence pf ~oh,:-i Mus~i, !_earned counsel for the Defendant also holding brief for Alexander Kyaruzi Advocate for Lhe Plaintiff this 30th day of October 2015. DGE 03/11/2015 7