20190930 TZHC Dar es Salaam

I) IN THE UNITED REPUBLIC OF TANZANIA THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM . CIVIL CASE NO. 61 OF 2015 KAST AN MIN ING PLC -------------------------------------------- PLAI NTI FF VERSUS COLOM INVESTMENT (T) LIMITED------------------------- DEFENDANT RULING MUTUNGI. J. The defendant before the hearing of the main suit has raised a preliminary objection which has five major points of law to · the following effect: - ,. The suit is fatally defective for having been instituted, pleaded and pleadings thereto signed in violation of the provision of section 9 and 13 of the non-citizen (Employment Regulation) Act 205 which requires that only those non-citizens with valid work and residence permits can perform duties as officers of a company. 1 11. The suit is unmaintainable in law as a summary suit. 111. The suit is res-judicata to Civil Case No. 162 of 2011 between Colom Investment Limited V. Tanzania Mortgage Company Limited (Hon. Utamwa, J.). 1v. The suit of the nature requires an express Board Resolution of a Company authorizing its institution with it, this suit is unmaintainable in law. v. The suit is time barred. At the hearing of the preliminary objection Mr. Kibatala, advocating for the defendant abandon the first, second and fourth limbs. In view thereof, the learned Advocate started with· the third limb. To this he submitted that in a way the present suit emanates from CIVIL CASE NO. 162/2011 between COLOM INVESTMENT (T) LTD V. TANZANIA MORTGAGE (T) LTD as per paragraphs 16, 18 and 24 of the plaint. In the said case there is already a judgment and decree issued which relate to a Plot christened No. 1050 Block C, Ras Koronjo Gezaulole. In the Advocate' s settled opinion, the proper avenue was the plaintiff to apply for revision. To support his stance, the learned Advocate invited the court to the case of JESCA 2 DEUS V. FATUMA MAGHIMBI AND ANOTHER, LAND CASE NO. 197 OF 2014 which has similar facts and in that suit the same was dismissed. Submitting on the fifth limb, Mr. Kibatala emphasized that the same is time barred. He explained the suit is premised on the promisory note hence the summary suit. The counsel proceeded to argue that according to paragraph 3 and 13 of the plaint these were issued in 2008. Further, those are contractual in nature. According to the Law of Limitation Act, Cap. 89 R.E 2002 the time prescribed therein is six years. If one counts from 2008 to 2015 this is over and above six years hence the suit is time barred. The learned Advocate had also filed additional points of law. Submitting on the first point that the plaint is fatally defective in that, it does not state the name of the person who drew and filed it, the counsel expounded under the requirements of the Advocate's Act Cap. 341 specifically section 43 and 44 ( 1) there is a mandatory requirement that, any person who draws a document to be used in court shall have the duty to endorse on such a document. He proceeded to cite the case of ASHURA ABDULKADIR V. THE DIRECTOR OF TILAPIA 3 HOTEL, CIVIL APPLICATION NO. 2/2005 and the case of ROBERT IBANGWE V. DIRECTOR HOTEL TILAPIA (T) LTD, CIVIL APPLICATION NO. 4 OF 2010. If at all the document is not endorsed the remedy is to strike out the plaint and this is what the court should do. Submitting on the second point of law that, the suit is totally defective in that it does not contain a statement showing the value of the subject matter of the suit, which is a mandatory requirement, the learned counsel referred to order VII rule ( 1). The same provides that, there must be a statement of value of the subject matter. In this regard what the plaintiff has done is to wrote down a general statement. Lastly, the suit ought to have been filed 1n the lowest, competent court. Since there are no precise values the jurisdiction of the court can not be determined. In conclusion, the learned counsel prayed, depending on the points of law raised the court should proceed to strikeout or dismiss the suit. Mr. John Tate submitting in response to the raised preliminary objection, starting with the point on res-judicata, he 4 explained that there must be two suits one finally determine and the other still pending. These two suits should be between the same parties and the subject matter directly or substantially in issue should be the same in both suits. Mr. Tate further, elaborated that, in Civil Case No. 162/2011 the parties are COLOM (T) LTD V. TANZANIA MORTGAGE COMPANY whereas in the present case the parties are KASTAN MINING PLC V. COLOM INVESTMENT (T) LTD. As much as there might be similarities but the principle of res-judicata deals with substantiality and the matters in the two suits are not substantially the same. More so, Civil Case No. 162/2011 1s a case on summary procedure against the Tanzania Mortgage Company claiming for non-payment of a mortgage under a contract, whilst the present suit, the plaintiff is praying for declaratory orders related to promisory notes. Mr. Tate referred the court to CIVIL APPEAL NO. 110 OF 2009 E.A.D.B V. BLUE LINE ENTERPRISES to bring home the point. As for the legal point on time bar, it was submitted that one would need to go to the facts. It will definitely defeat the meaning of a preliminary objection as per the decision in the COMMERCIAL CASE NO. 80/2015, MAHESH KUMAR 5 RAOJIBHAI PATEL V. KARIM SHAMSHUDDIN SULEMAN. Mr. Tate contended, the original contract in the No. 162/2011 case was amended in 20/05/2019 and the defendant accepted 13 monthly payments of USO 1,850 and that the deadline was to be on 27/05/2015 and before this the present case was filed. The plaintiff became aware of the fraudulent acts of Civil Case No. 162/2011 in July, 2014 and August, 2014. Between July, 2014 and 17/05/2015 the plaintiff had convened meetings with the defendant in good faith. In September, 2014 they had filed Miscellaneous Application No. 502 and on 17/08/2015 was struck out. It was Mr. Tate's contention that, the nine months spent should be excluded from the period of limitation. The time against this matter started running from July, 2014 when the plaintiff perused through Civil Case No. 162/2014 only to find the defendant had fraudulently obtained a judgment. The time limitation for this case was to run up to July, 2016. The foregoing notwithstanding since the matter involves an aspect of fraud, then time rans when the fraud is remedied as per the findings in the case of ARAFI DAW V. PRADIP ROY CHADHURY AND OTHERS and MISCELLANEOUS COMMERCIAL CASE NO. 70 OF 2013, ANDREW WISTON 6 - ------ -~------=,,._.__ ______ -~ KALALA NDIMBO & ANOTHER V. SULEIMAN MOHAMED KHAMIS & 2 OTHERS. Responding on the additional points of law it was submitted that, Mr. John Tate is dully authorized by the plaintiff's Board of directors to prosecute this matter as per the corresponding resolution made under the Company's Act Section 21 (4). what is provided for in law is for the "plaint to be enclorsed" in summary procedures and not endorsed. Glances through the plaint one will notice the plaint was signed, verified and authentified by Mr. John Tate. If at all the plaintiff had not enclosed the plaint then the remedy would be for the plaintiff to amend the pleadings under order VI rule 17 as per the COMMERCIAL CASES NO. 42/206, EAST AFRICAN CABLES LTD V. SPENCON SERVICES LIMITED and NO. 117 OF 2015, JY JANGERU CONSTRUCTION CO. LTD VS ANOTHER V. TRA. In so far as the point on section 43 (1) and 41 (1) of the Advocate's Act (supra) is concerned. Mr. Tate explained, this deals with advocates issues and he is not and never acted as one. In the event the court finds that, the plaint is not properly enclosed, then the court has a discretion to order for an amendment. 7 - In view of the issue of the statement of the value of the subject matter, Mr. Tate elaborated that, the court had ,. assessed the filing fee to a tune of Tsh. 134,000/=. The value of the promisory note as per paragraph 12 of the plaint is USD 130,000 and the same was attached (a copy). Be as it may order VII rule 1 ( 1) does not provide a mandatory requirement on the location or exact wording which shows the statement of value. Further, in this matter they are not asking for a reward but a declaratory order. It was further argued that, the previous case (No. 162/2011) had been filed with the High Court, Commercial Division. The same forms the foundation upon which this case is built. On the same footing the prayers by the plaintiff are matters already in the High Court. It is for this reason that the same can not be filed in the lower courts. In the end Mr. John Tate prayed the preliminary objection be dismissed for lack of merits. In rejoinder Mr. Kibatala responded, it is clear that Civil Case No. 162/2011 is the basis of the present matter (No. 61 /2015). What the plaintiffs are contesting for emanates from the 8 judgment in Civil Case No. 162/2011 . This judgment is still valid hence the issue is not similarity of the subject matter but substantiveness of the same. The proper course was for the plaintiff to file a revision with the Court of Appeal challenging the judgment of Civil Case No. 162/2011 on the ground that they were not parties therein but the decision is on the matters that will eventually affect them. Clarifying on the time bar aspect, Mr. Kibatala responded that the present suit is on promisory notes which is a contractual relation. These were of 2016/2008 and in that regard time would end on 21/06/2014. Coming in 2015 this was more than six years. The issue that the cutoff date would be 07 /07/2014 when they became aware of the judgment in Civil Case No. 162/2011, this was never mentioned in the plaint. Neither is the issue of other remedies mentioned in the plaint such as the time to be excluded. More so, even the particulars of the fraud are not pleaded in the plaint. Mr. Kibatala further, expounded that in any document the person who drew the same should be disclosed. Mr. John Tate is a verifier but the one who drew the plaint is unknown, hence an amendment is not allowed. Mr. Kibatala for the 9 rest of the points. reteriated his position in the submission in chief. On the outset, I wish to commend the conflicting parties herein for a well-researched work and eloquently presented. I also wish to state that, the parties did appraise the court with numerous authorities which I will consider in the course of deliberating the preliminary objection raised. Glancing through the raised points of Law, I will first deal with the third limb for the very obvious reasons that, this touches on the power of this court to adjudicate and decide the matter which has already been determined by another court of law. During the submissions, it came to the attention of this court and undisputed by either side that, the present suit has its roots or genesis from CIVIL CASE NO. 162/2011 between COLOM INVESTMENT (T) LTD V. TANZANIA MORTGAGE (T) LTD, it is further undisputed that, in that case there is a decision which relates to the property known as Plot No. 1050 Block C, Ras Koronjo, Gezaulole. Paragraph 16 of the plaint is very explicit that: - 10 ., "In an exceptional departure from all legal norms, practices and rules, however, Civil Case No. 162 of 2011 contains a prayer for relief against the plaintiff who is not a party to the case i.e the defendant in the instant case acting as a plaintiff in Civil Case No. 162 of 2011 prayed to be granted a decree to sell off Plot No. 1050 Block C, Ras Koronjo, Gezaulole - Temeke District, a residential properly rightly owned by the plaintiff to discharge an alleged debt owed to the defendant by Tanzania Mortgage Company". Further, in the plaint is stated in paragraph 11 that, "the plaintiff has never been joined in Civil Case No. 162 of 201 and has never been informed/asked/permitted to provided testimony or evidence in the mater not disputed the fact the defendant had prayed for and was granted an order to sell the plaintiff to discharge the claim against Tanzania Mortgage Limited. An order that appears irregular". The court has taken pains and gone through the attached annexure "KMPLC - 8" which reveals that Colom Investment (T) Limited and Tanzania Mortgage Limited had entered into 11 an agreement where Tanzonio Mortgage Limited assigned all rights, title, benefits and interests in two mortgaged properties namely; House Plot No. 1080 Block "C", Ras Koronjo, Ge_zaulole - Temeke District Dar es Salam and House Plot No. 1050 Block "C" Ras Koronjo Gezaulole, Temeke District Dar es Salaam registered in the name of KASTAN MINING PLC Limited. Despite the Tanzania Mortgage Co. Ltd clear and explicit undertakings and obligations the defendant had breached the terms thereof such that Colom Investment (T) Ltd has been unable to recover the amount so advanced. In view thereof Colom Investment (T) Ltd instituted a summary suit under order XXXV of the Civil Procedure Act, Cap. 33 R.E 2002 and obtained a judgment in its favour and was granted all the reliefs sought among which was to the effect that; "An order of the Court to be allowed to sale the mortgaged properties dully assigned to it, to recover the advanced and admitted sum of United States Dollars 200,000/=". It is the understanding of this court that the plaintiff Kastan Mining Pie and Colom Investment (T) Limited are not the same parties with the Tanzania Mortgage Company Limited 12 -••:::WWW a party to the previous case. For the doctrine of res-judicata to apply there must be first, the matter in issue in the suit is directly and substantially in issue in a previously instituted suit between the same parties. For any stretch of imagination, the parties are not the same. The case of UMOJA GARAGE V. NBC HOLDING CORPORATION cited by my Sister, Hon. Judge Mansoor in LAND CASE NO. 196 OF 2014, JESCA DEUS V. FATUMA MAGHIMBI & ANOTHER, to the contrary, the two suits subject to the said decision were instituted between the same parties unlike in the instant matter (section 9 of the Civil Procedure Code). This limb of the objection categorically fails. As regards the fifth limb on the aspect of time bar the plaint under paragraph 3 states; "the plaint is being brought under order XXV civil Procedure Code Cap. 33 rule (1) (a) as it relates to the promissory note (US 00002 - C 1) dated 25th June, 2008 as amended issued by the plaintiff as security for the loan made in favour of the plaintiff to purchase a residential property that is Plot No. 1050 Ras Koronjo, Gezaulole in Temeke District". 13 Mr. Kibatala has insisted that, since the dispute is contractual in nature then the time limit is counted from 2008, filing this matter in 2015 is definitely out of time (i.e 20/06/2008 to 21/06/2014). He however, did not place his mind on the word used by the plaintiff i.e "as amended" this would suggest there is more to the promissory note of 2008. As properly submitted by Mr. Tate this would mean going into the facts of the case. The legal principle laid down in the most celebrated and cited case of MUKISA BISCUITS CO. LTD V. WEST END DISTRIBUTORS [1963] E.A is that, "A preliminary objection is only on a point of law and not fact". To determine the point raised on time limitation in the circumstances of this case will mean indulging in points of facts. The point so raised has no merits. Let me now turn to the legal points raised in the additional preliminary objection, these are two fold i.e the second and third points are to the effect that the suit is totally defective in that it does not contain a statement showing the value of the subject matter of the suit which is a mandatory requirement and that the court has no monetary jurisdiction to hear and determine this suit. It ought to have been instituted in the 14 1•1,11W- lowest court competent to try it. The same has been provided for in order VII (i) as hereunder; "The plaint shall contain the following particulars; .................................... .....••••...•.....•••.....•....•••.. (i) A statement of the value of the subject matter of the suit for the purpose of jurisdiction and of court fees, so far as the case admits". On the same footing the court finds the plaintiff had not mentioned in the plaint the value of the subject matter. Reading from the way the provision has been coached, it is in mandatory terms by using the word "shall". There was no option available to the plaintiff other than to state down a statement of value of the subject matter. Mr. Kibatala has brought to light that the suit ought to have been filed in the lowest competent court. The court is alive with section 13 of CPC that: - "Every suit shall be instituted in the lowest grade competent to try it and for the purpose of this section, a Court of a Resident Magistrate and a 15 ..... District Court shall be deemed to be of the same • grade". Mr. John Tate for the plaintiff submitted that, their claim was for USD 130,000 but there were no special facts to give this court jurisdiction. The jurisdiction of this court is laid down by law hence not every Tom, Dick and Harry can just decide out of their own wishes to just file cases in this court. They must establish the basis thereto or else file the same in the court of the lowest grade competent to do so. The two points raised are sustained. What then is the effect of failure to establish the two points raised. The question of jurisdiction is fundamental in the administration of justice. Now that the plaintiff's plaint has not clothed the court with monetary jurisdiction, the suit is accordingly struck out with costs. I need not venture in to the first additional point raised since this will only be an academic exercise. r . B. R. MUTUNGI ""l JUDGE 30/09/2019 16 if Read this day of 30/09/2019 in presencE? of Mr. John Tate for the plaintiff and Mr. Omari Msemo for the defendant. a~ ~- , - ~ ~ . .,, ~ U :.-'- V ;;/~~-;Ir&~;;_:;~ k '-.)' t!f(ll;t!lf!~~ ~~ B. R'.MUTUNGI t~t¾t1 t)ffel) JUDGE ,t:f::s:::Jfl 3010912019 Right of appeal explained. r f B. R. MUTUNGI JUDGE 30/09/2019 17