ibrahim twahili kusundwa others vs crdb bank ltd alias crdb babk plc others 2018 tzhclandd 17 19 february 2018

THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 274 OF 2017 IBRAHIM TWAHILI KUSUNDWA.............. 1st PLAINTIFF THE ADMINISTRATOR OF THE ESTATE OF TWAHILI SELEMANI KUSUNDWA............ 2nd PLAINTIFF VERSUS CRDB BANK LIMITED alias CRDB BANK PLC.................................................. 1st DEFENDANT MEM AUCTIONERS AND GENERAL BROKERS LTD 2nd DEFENDANT EPIMAILI S. MAKOI............................................ 3 r d DEFENDANT PRIA. MUSHI..................................................... 4th DEFENDANT Date of Last Order: 21/12/2017 Date of Ruling: 19/02/2018 RULING Makuru. J.: In their joint written statement of defence the 1st and 2nd Defendants in this suit have raised a preliminary objection on points of law that: 1) TheHonourable court has no jurisdiction to entertain this matter. 2) The plaint does not contain facts showing that the court has jurisdiction. 3) The suit is bad for failure to contain the name of the 2nd Plaintiff 4) The 2nd Plaintiff has no locus stand to pursue this matter. 5) The 1st Plaintiff has no locus standi to pursue this matter. i When the matter was called on for hearing Mr. Joseph Rutabingwa and Miss Ida Rugakingira learned counsel appeared for the 1st and 2nd Plaintiffs, Mr. Audax Vedasto learned counsel appeared for the 1st and 2nd Defendants and Mr. Mussa Mwapongo advocate represented the 3rd and 4th Defendants. With leave of the court the preliminary objections were disposed of by way of written submissions. In the course of his submission Mr. Audax Vedasto abandoned the 4th and 5th grounds of objection. Regarding the first preliminary objection he submitted that it is divided into two limbs. The first limb is on pecuniary jurisdiction and the second limb is on jurisdiction as to subject matter. On the first limb, Mr. Audax Vedasto cited the provisions of section 37 (1) (a) & (b) of the Land Disputes Courts Act, Cap 216 R.E. 2002. In interpreting these provisions of law Mr. Audax Vedasto argued that the value of immovable property stated in section 37 (1) (a) of the Land Disputes Courts Act (supra) is relevant only when a suit is for the recovery of its possession. According to him, such value is decisive when the Plaintiff is complaining that he has been dispossess of his property and he now comes to court to seek for an order putting him back to possession. It is Mr. Audax's further contention that in the plaint there is no order for recovery of possession being sought. Hence, the present case falls under the purview of section 37 (1) (b) of the same Act if the amount exceeded Tsh. 400,000,000/=. As the amount does exceed 40,000,000/= he argued that it is within the jurisdiction of the District Land and Housing Tribunal. The learned counsel cited the case of Benny Stanslaus Kebwe Vs Director of Mesac Secondary School, High Court Land Case No. 74 of 2011 (Land Division of Dar es Salaam, unreported) in support thereof. In the said case it was held that: "Once a court lacks jurisdiction, the consequence is not to strike out the case as learned counsel for the P lain tiff suggests in his subm ission after conceding to the prelim inary objection. This is due to the fact that a jurisdiction issue dispose o f a case finally and conclusively". On the second limb of the first preliminary objection it is argued that the Plaintiff's claim is not a claim concerning land. Hence, by virtue of G.N No. 63 of 2002 which amended the High Court (Registries) Rules, 1984 by adding Rule 5(e) this court lacks jurisdiction to entertain the same. He argued that this court was meant for land disputes only. According to him, the Plaintiff's case is based on a loan facility he took and that the land involved in the matter was used as security. Mr. Audax cited the case of NBC Vs Universal Electronics and Hardware Ltd & 2 Others (2005) TLR 257 to support his argument, whereby it was held that: "In my considered view, the action before us does not concern land as such. What is before us is an action, concerning a com m ercial transaction whereby first defendants received a facility which they did not service and they are now being sued for its recovery. The question o f realization o f a debenture or mortgage is ju st ancilillary to the action and this comes into play once the main action has been decreed in favour o f the Plaintiffs. In my view, in enacting section 3 167, the Legislature had in m ind an action which centers on land, pre and sim ple. Thus, I hold that this court this court has jurisdiction Regarding the second preliminary objection Mr. Audax argued that: "it is a legal requirement that the matter should be filed in a court with jurisdiction". He contended that the 1st Plaintiff's case is based on the loan and its re­ payment. Therefore the assets mentioned are ancillary and not cenre to the action. He also argued that Order VII Rule 1 (f) of the Civil Procedure Code, Cap 33 R.E. 2002 requires a plaint to contain facts showing that the court has jurisdiction. The cases of Assanand and Sons (Uganda) Limited Vs. East African Records Limited (1959) 1 EA 360, Lucase Mallya Vs Mukwano Industries Ltd, Commercial Case No. 60 of 2004 (unreported) and Muhumbila Vs Clarence M. Muhumbila, Land Case No. 276 of 2010 were cited in support thereof. As for the last preliminary objection, it is submitted that the 2nd Plaintiff is a ghost Plaintiff as the name is not indicated in the plaint. He argued that it is contrary to Order VII Rule (1) (b) of the Civil Procedure Code. It is Mr. Audax's argument that this omission is fatal and it renders the plaint defective. In reply thereto, Mr. Rutabingwa learned counsel for the Plaintiffs submitted on the first limb of the first preliminary objection that there is a clear statement on the pecuniary jurisdiction whereby the property is clearly indicated to have the value of more than Tanzanian shillings five billion. On the second limb of the first preliminary objection he submitted that, the cause of action is the auctioning of the suit property, that is a building on Plot Number 17, Block 30, Nyamwezi Street, Kariakoo Area and the relief sought, among others, is the nullification of the purported auction. It is further submitted that the guarantor of the suit property is deceased and that the 1st Plaintiff was appointed as Administrator of his estate and as such, a caretaker of the landed property. As for the second preliminary objection Mr. Rutabingwa argued that the characteristics of jurisdiction are four, which are subject matter, person pecuniary value of the suit and as to place. According to him, the description may be based on one, two or more characteristic at the same time. Therefore, jurisdiction may be supported by only one characteristic. He cited a book titled Mulla the Code of Civil Procedure, 16th Edition, Vol. 1 at page 454 in support thereof. It is the learned counsel's further submission that jurisdiction of this court is properly pleaded and it is not a general term as a party can rely on one or more characteristics of jurisdiction. According to him, the Plaintiffs statement is on pecuniary jurisdiction which is provided under paragraph 24 of the plaint, supported by the valuation report. On the last preliminary objection regarding the omission to name the 2nd Plaintiff, Mr. Rutabingwa again referred to Mulla the Code of Civil Procedure, 16th Edition, Volume 2 at page 1887 whereby it has been stated that:- "Where a person dies leaving a will\ the executor named in the w ill may obtain probate o f the will. Where a person dies interstate, his heirs may apply for letters o f adm inistration. The person to whom letters o f adm inistration are granted is called adm inistrator... A su it by a person as executor or adm inistrator o f a deceased person is a su it by him in a representative character." At page 1889 by the same author on the title of the suit stated that: "The description o f the P lain tiff as a liquidator for and on behalf o f the company" was held to be su fficie n t" Relying on the above provisions Mr. Rutabingwa contended that, the description of the 2nd Plaintiff is quite in order and sufficient. He also argued that in paragraph 11 of the plaint the letters of administration were attached as Annexture "B" with a photograph and name of the administrator. He was puzzled that how can someone allege that the 2nd Plaintiff is a ghost and unknown. He submitted that the 2nd Plaintiff on the title of the case is in order and proper. In the alternative, he argued that if the court finds that there is a mis-description, then that is curable by way of amendment to have a clear identity on the title under Order I Rule 10 of the Civil Procedure Code. Having gone through the pleadings and also considered the contending submissions of learned counsel, I will now determine the three preliminary objections raised in seriatim. 6 I will determine the first preliminary objection in the manner which was used by both learned counsel. I will start with the first limb of the first preliminary objection regarding pecuniary jurisdiction. The pecuniary jurisdiction of this court is provided for under section 37(1) (a) and (b) of the Land Disputes Courts Act, Cap 216 RE 2002 which provides that: "37. Subject to the provisions of this Act the High Court (Land Division) shall have and exercise original jurisdiction­ a l In proceedings for the recovery o f possession o f immovable property in which the value o f the property exceeds fifty m illion shillings; b) In other proceedings where the subject m atter capable o f being estim ated a t a money value in which the value o f the subject m atter exceeds forty million shillings;" In order to determine the pecuniary jurisdiction of a court we look at the nature of the claim, cause of action and the subject matter. In the instant case the cause of action arose from auctioning of the suit property. The subject matter is therefore the suit property and the pecuniary jurisdiction of the court will be determined by the value thereof. Looking at paragraph 24 of the plaint it is stated that the suit property is estimated to have the value of shillings five billion. Therefore, it is in line with the provisions of section 37 (1) (b) (supra). With respect, I agree with Mr. Rutabingwa that this suit is within the jurisdiction of this court. On the second limb of the first preliminary objection the issue to be determined by this court is whether the Plaintiff's claim is a land matter. As I stated herein above, the Plaintiff's claim arose from auctioning of the suit 7 property. Going through paragraph 20 of the plaint the Plaintiff stated that:- "20 Plaintiffs aver that there was no demand notices (sic) served on them by first Defendant as borrower and mortgagor and there was no notice served on the Plaintiffs by the second Defendant save for the advertisem ent in Uhuru new spaper From the above paragraph, the nature of the Plaintiffs' claim is centered on the fact that the auction was a nullity as procedures were not complied with as there was no demand notice served upon the Plaintiffs by the Defendants. Hence, this is to me a land matter as the nature of the claim is not based on mortgagee and mortgagor relationship and the manner of repaying the loan but on the manner on which the auction was carried out. Further to that, in determining the nature of the claim the court also looks at the prayers made by the Plaintiff. The Plaintiff is praying for, among other things, the following a) An order nullifying the purported auction of the landed property on Plot on Plot No. 13 Block 30 Nyamwezi Street Kariakoo under Certificate of Title Number 32 350. From the foregoing, it goes without saying that this is a land matter and this court is vested with jurisdiction to try. Having said all that, I find the first preliminary objection to be devoid of merits. As for the second preliminary objection I will directly reproduce the provisions of Order VII Rule 1 (f) of the Civil Procedure Code for the purpose of clarity. It states:- 8 "The p lain t shall contain the follow ing particulars: a ) ....... b ) ....... c ) ....... d ) ....... e ) ............ f) the facts showing that the court has jurisdiction " In the instant case, the facts showing that the court has jurisdiction have been stated in paragraphs 6, 15, 17, 20, 24 and 26 of the plaint. These paragraphs show that the court is vested with territorial jurisdiction as the subject matter is located at Kariakoo, Dar es Salaam within the jurisdiction of this court. Further to that, the value of the subject matter has been stated to be within the jurisdiction of this court, and the cause of action has also been stated. Therefore, it is undoubted that the plaint contains facts showing that this court is versed with jurisdiction. Again the second preliminary objection fails. On the third preliminary objection, that the suit is bad for not containing the name of the 2nd Plaintiff, looking at the plaint the 2nd Plaintiff is described as the Administrator of the Estate of Twahili Seleman Kusundwa. However, going through paragraph 11 of the plaint it has been clearly stated that upon passing away of Twahili Seleman Kusundwa on the 18th of May, 2008, the first Plaintiff was appointed administrator of the estate. The letters of administration showing that Ibrahim Twahili Kusundwa, the 1st Plaintiff herein was appointed as Administrator of estate were attached as Annexture B. As a matter of practice the name of the said administrator of estate ought to have been indicated. However, this omission is not fatal as the plaint under paragraph 11 is self-explanatory. Hence, the anomaly is curable by amendment as it is not prejudicial to either of the parties. In the upshot, having found that all the three preliminary objections are devoid of merits, I hereby overrule them to the extent provided herein above with costs. The Plaintiffs to amend the plaint to include the name of the Administrator of the Estate of the late Twahili Kusundwa within 7 days. C.w. MaKuru JUDGE 19/ 02/2018 Court: Ruling delivered in court this 19th day of February, 2018 in the presence of Mr. Brush assisted by Eda Rugakingira learned counsel for the Plaintiffs, Mr. Ditrick Msigwa learned counsel for the 1st and 2nd Defendants and Mr. Mussa Mwapongo learr ' '' 'he 3rd and 4th Defendants. C.............. ............... JUDGE 19/ 02/2018 10