20140617 TZHC Dar es Salaam1

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM LAND CASE NO. 97.OF 2013 HUSSEIN MAGESA EKINGO ........................................ PLAINTIFF V DODSAL HYDROCARBONS AND POWER TANZANIA PVT LTD ............................................... DEFENDANT Date of last Order 14 /5/2014 Date of Ruling 17/6 /201,4 RULING A.Shangwa, J In his written statement of defence, the defendant has . raised a preliminary_point of objection against the hearing of the suit to the effec_t that the plaintiff does not have any cause of action against the defendant and prayed the Court to strike out the suit with costs. 2 In support of this point of objection, learned counsel for the defendant, Dr. Masumbuko Lamwai cited two _reporced, cases in which the cause of action was defined namely the case of John Byombalirwa V. Agence Maritbiie · International (Tanzania) Ltd [1983] TLR 1 at page 4 a:nd the case of Stanbic· Finance Tanzania Ltd V. G.iuseppe Trupia and Chiara Malavasi [2002] T .L.R. 21 7 at P. 221 B where it was respectively observed by Kisanga,. J as he. then was and Dr. Bwana, J as he then was that the expression cause of action is not defined under the code and may be taken to mean es~ential facts which it is necessary for the plaintiff to prove before he can su·cce_ed in the suitr . and that a cause of action arises when facts which give rise or occasion to a party to make a demand or seek redress, an · depending on the cl8im. . J ' 3 In the light of what was observed by· their Lordships in I I the ·above mentioned authorities on the meaning of a cause . I . of action, my business in this case becomes as simple as one plus one which is equal to two My business is to consider now as to whether or not there! exists essential facts in the · plaintiffs suit which it is necessary for him to prove before he can succeed in the suit or !whether or not there exists facts on which liability can be founded. In order· to find out as to whether or not such facts -do: exist in the plaintiffs suit, I hLe gorie through the plaint paragraph after paragraph. AJ paragraph 7, the plaintiff .- I - - - . alleges that the defendant company unlawfully and with:out bonafide claim of right whatsoeler did trespass into the suit - - I . premises on farm NO. 2518' at Kerege area in Bagamoyo I . District which belongs to the plaintiff by creating unlawful I and artificial easement measuri¼g over seven (7) meters wide, I I I I 1· , I 4 ~ . .' '-1. to two hundred and thirty (230) meters in length causing damage and destruction of properties therein against peaceful possession and enjoyment of the suit premises bY' the plain tiff. The allegation by the plaintiff in his plaint is denied by· the defendant at paragraphs 4,5,6 and 7 of its written statement of defence where it is respectively ·stated that the plaintiffs right of occupancy only gave him surface rights' and that what it has done has been done in the exercise· of its rights under the licence issued ·to it under the Petroleum (Exploration and Production) Act cap 328 and that it did not destroy any of the plaintiffs properties. In my opinion, the defendant's denial of the plaintiffs allegation of trespass into the suit premises signifies that there are facts in the plaint that the plaintiff has _to prove in l . . . { .}_·::;· ;·;,.. ,,.,.,~.- ., 5 order to succeed in the suit, and that there are facts in the plaint which make the plaintiff seek redress. That being the case, I hold that the plaintiff hJ a cause of action against· the defendant. Thus, I overrulj the point of preliminary objection raised by the defendanl against the·suit. Costs tO be in the main cause. ~ A.sha.Jgwa . JUDGE 17/6/2014 . .. 1 Deliver~·A;p;;i; -~ C~utt, ~,~\-. thi~ 17. Iay of June, 2.014 1n the th ... r -pres~oce ca:te Neema Kaji for Dr. Lamwai for the, .\ . defend~1 \ :.,..-ftl;_ Malima fo the plaintiff. <,:t ~ A. Sharp.gwa JUDGE 17/6l,2014 r. . _. ~ , . _,,ct:,.~>.~~:#~'°'"''~;:,\ '. ;'. -~ii/J#~;:\ > ,. - I · ... .'.'~ • ,---~-~,: •·• .. 'f .... •• • .,_, O L•~••· • ;ot,~'it,,, ' • ......• O' ,1:-,- , :,,