20151229 TZHC Dar es Salaam

,. . :; .... ~. : . ,S'{I ,. . " ~ s;..I , 'JJ ~ l<f-1~ . IN THE HIGH COURT OF TANZAN;IA . ~ AT DAR ES $ALAAM ,// CIVIL APPEAL NOJ 105 OF 2013 It! cfcArising from the Ruling of the Dis~rict Court of Ki'nondoni in Civil ~ I , Cause No. 14 of 2011) i . . I ! JOHN BOA_Z .. ................................. •111••· ••••••• APPELLANT V. TELESIA MAZWAZWA ....................... .ua ■ 1 ST RESPONDENT GEORGE MACHA....................... J....... u.2No RESPONDENT ! RD ! . RASHID MMBONDE. .. m ■ ••·•• ■ m••···············3 I · RESPONDENT . JOSEPH SEMPOLI..m ■■■u ■ ••····••aa•••luu ... u.4TH RESPONDENT , ' ; I LUCY WADU ...... u.•u ■ u• . . . . . . . . . . . u . . . . . . . . . . . 5 RESPONDENT TH • , MBUGI MAHOHELA■ouuNn••••••■■••L••u■m•■•6TH RE;SPQNDENT JJIDGMiN"( Date of last Order.................. 21/12/2015 Date of Judgment.................. 29/12/2015 Shangwa, J. · This is an appeal against the decision of the District Court of I ' I Kinondoni in Civil Cause No. 14 of 2011 in vvhich it was decided that it was wrong for the pl.aintiff/Appetlant to sue the I , defendants/Respondents in their Individual cap1city instead of I 1 ~ suing Sinza 'D'. CCM Branch for compensation of his properties which were seized by the defendants/Respondents. The back ground to the dispute between the parties is laid ·· down at paragraph 1 of the District Court's typed ruling . by Makabwa, RM where he wrote as follows and I quote:- "The brief back ground to this dispute is that the plaintiff John Boaz has filed a suitJn this court claiming for return of his properties·· amounting to Tshs. 8~958/000/··-_ ·being compensation of the actual price of the property which the defendants Jolntiy and severally seized from the plaintiff. " Looking at paragraph 4 of the plaintiff/Appellant's plaint, it is stated that on 7th April, 2011, the defendants jointly and severally trespassed to the plaintiff's shop located at Sinza 'D' and 2 I un~awfully broke. the shop, 'seiz:ed: j nd confiscatef the plaintiff's properties valued a_t Ts~s. 85,958,000/=. • . It . is -not Jn dispute that tJ seizure of ~he Appellant's properties vvas made by the Respon1ents in the c1urse of evicting the Appellant Jrom the CCM premises at Sinza 'D' which he used 1 to rent for .. ~usiness purposes. It is quite dear that the defendlants/Respond~nts evicted the plaintiff/Ap~llant from CCM premi!s at Sinza 'D' as CCM agents I I . ' .. ·-· or employees~and,not. as i_ndiyiduais. Therefore,, in my view, the District Co~rt .of l(inondoni did f ot err in. hJ;din~ that the· Appellant-was . . required to. sue CCM. Sinza 'D' Br~nt I . In his written submissions, counsel for the Appellant contended. that as CCM Sinza 'D' Branch is not a corporate body nor a natural person capal;Jle of being sued i1 lts own name except the registered Trustees o .CCM, the District Court of 3 - : - .-_, .. _<- .... Kinondoni erred in holding that the Appellant was required to sue · CCM Sinza 'D' Branch. As I have already said, the District Court of Kinondoni did not err in holding that the Appellant was required to sue· CCM Sinza 'D' Branch. In my opinion, although CCM Sinza 'D' Branch is not a corporate body and is not a registered Trustees of CCM, it was_ capable of being held responsible fo!, the seizure and confiscation of the plaintiff's/ Appellant's properties after failing to payirent of its premises "Mabandas". - Furthermore, counsel for, the Appellant contended that the prelimina-ry objection which was entertained by the trial court was not based on a point of law but that it was based on pure matters of fact that required to be proved by evidence during trial. For instance, he said, the question _ as to whether the defendants/Respondents acted on their own will or under the 4 " • ., I • • . . I I - - instruction of their employer Le CCrYI Sinza 'D' Branch is a matter - I which required to be proved at the hearing of the main suit. I : I In my-view, the preliminary olDjection against the suit which . . . 'I I I . was raised _-by the •d_efendants/ Respondents was(_based on pure point of. law that they were wrdng ly sued by! the plaintiff / - . - . !I i Appell.ant instec1d of suing CCM Sin~a 'D' Branch. flways, the law 11 • r_eqLJires _a-,lit-i.g~nt to sue a right parw The questidn as to whether · . 1 1 1 I the ·pefendants /Respondents acteq under the ins~ructions of CCM 1 Sinza 'D' Branch. required no proJ during trial ~s it. is common . :) - - - ~I - - . - . - knowledge that the defendants/Respondents c1~teq __ u_nder__ Jhe :.·-· ,.,, .. ,. :·F:·~- - .-. ·.. - I--, - r-· · ·- instructions of CCM Sinza 'D' Branch to evict, seize and confiscate · - , ··· ..\. ':· :· :. ·;· · - · - - · . 1 -_- : - - - ·1- -- -- - - the Appellant's properties for his failure to pay rent of its ;•·<.· .. ;:. . .. . . I! ! "Mabandas~ I I I · For these reasons, I dismiss t~is appeal witQfOS~: I A.Shangwa - I I JUDGE I i[ I 5, I I I I i . 29/12/2015· Delivered in open court this 29th ~ay of December, 2015 in the presence of Mr. Kunambi for the Respondents and in the absence of the Appellant. A.Shangwa JUDGE· 29/12/2015 6