hussein magesa ekingo vs dodsal hydrocarbons and power tanzania pvt 2014 tzhc 2250 17 june 2014

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 L T D ............................. DEFENDANT Date of last Order 14/5/2014 Date of Ruling 17/6/2014 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 effect that the plaintiff does not have any cause of action against the defendant and prayed theCourt to strike out the suit with costs. ; In support of this point of objection, learned counsel for the defendant, Dr. Masumbuko Lamwai cited two reported cases in which the cause of action was defined namely the a* case of John Byombalirwa V. Agence Maritime International (Tanzania) Ltd [1983] TLR 1 at page 4 and the case of Stanbic Finance Tanzania Ltd V. Giuseppe Trupia and Chiara Malavasi [2002] T.L.R. 217 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 essential facts which it is necessary for the plaintiff to prove before he can succeed in the suit, and that a cause of action arises when facts which give rise or occasion to a party to make a demand or seek redress, all depending on the claim. 3 In the light of what was observed by their Lordships in the above mentioned authorities on the meaning of a cause 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 have gone through the plaint paragraph after paragraph. At paragraph 7, the plaintiff alleges that the defendant company unlawfully and without bonafide claim of right whatsoever did trespass into the suit premises on farm NO. 2518 at Kerege area in Bagamoyo District which belongs to the plaintiff by creating unlawful and artificial easement measuring over seven (7) meters wide, 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 plaintiff. 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 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 has a cause of action against the defendant. Thus, I overrule the point of preliminary objection raised by the defendant against the suit. Costs to be in the main cause. A. Shangwa JUDGE 17/6/2014 Delivered* in Cou^t this 17th day of June, 2014 in the presence >cate Neema Kaji for Dr. Lamwai for the defen&anTOIIPRff- Jtfr. Malima for the plaintiff. A. Shangwa JUDGE 17/6/2014