Land Case No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 453 OF 2024 MAHAMOOD SALUM CHIBANGO .................................. 1st PLAINTIFF CHIBANGO INVESTMENT CO. LTD..................................... 2nd PLAINTIFF VERSUS I & M BANK (T) LTD................................................. 1*t DEFENDANT FAROUGH AHMED BAGHOZAH......................................... 2nd DEFENDANT 21/05/2024 & 30/05/2024 RULING A. MSAFIRI, J In this suit the plaintiff is claiming among other things, a declaration that the 1st defendant had no any right whatsoever to enforce the recovery process by way of sale of the suit property. That the sale by auction of the suit property on Plot No. 121, with C.T. No. 37361 located at Bahari Beach Area, Kinondoni District, Dar es Salaam City to the 2nd Defendant done by the 1st defendant was illegal and ineffectual. In the suit, the plaintiff is being represented by Mr.Nehemia Nkoko, advocate while Mr. George Msandi represents the 1st defendant. On 15/3/2024, Mr. Nkoko prayed to make amendments to the plaint for the purpose of joining another party as the 2nd defendant. The party was i purported to be a person who purchased the suit property. The court granted the prayer and ordered the amendments of pleadings. The pleadings were amended accordingly and in the amendment of the 1st defendants written statement of defence, Mr. Msandi, counsel for the 1st defendant raised a preliminary point of objection that; 1. To the extent that on 15th March, 2024 when the suit came up for necessary orders, the counsel for the plaintiffs only prayed to amend the plaint for adding the second defendant in the suit as co-defendant, thus, in terms of paragraphs 4,19,20 all read together with part (b) of the relief part of the amended plaint, this suit is incompetent for want of changing and/ introducing a cause of action and adding a new relief, being part (b) of the reliefpart, contrary and/or beyond to the order to this court. The court set for the preliminary objection to be heard orally. On his submission, Mr. Msandi submitted that the plaintiff's prayer to the court was specifically for addition of the name of the 2nd defendant and not adding other more facts that were not prayed for and granted. He argued that the insertion of the new facts in paragraphs 4, 19, and 20 of the amended plaint was beyond the order of the court to amend the plaint. To bolster this point, he cited the case of Stanbic Bank Tz Ltd vs NAM Enterprises and 4 Others, Commercial Case No. 99/2015 at page 5 and pointed that in the cited case it was held that the amendment 2 would not set a new cause of action or change the subject matter of the suit. He prayed that this suit be struck out with costs. On reply, Mr. Nkoko submitted that the amendment was the result of the facts raised in the written statement of defence of the 1st defendant in paragraph 6(1) in which a new cause of action was raised which prompted the plaintiff to seek leave to amend the plaint to add the purchaser of the suit property as the 2nd defendant in the suit. He added that the intention was not only adding the name of the 2nd defendant and that the plaintiff believes it was not the intention of the court. He further added that the amendment done was to include all the facts which constitute cause of action against the 2nd defendant. He prayed that this preliminary objection be overruled. On rejoinder, Mr. Msandi reiterated what was submitted in chief and further added that it is a cardinal principle that upon amendment and whenever a necessary party is joined, it is only facts concerns that party which should be reflected in order to connect him with a suit and not new facts which raises a new cause of action. He insisted that the amendment raised new cause of action. Having gone through the submissions of the parties, I would like to put it clear that despite the fact that the preliminary objection must be on the 3 point of law, it must also convey the status of disposing of the suit, if it does not, the time and energy recycled is wasted. See the case of Mukisa Biscuits Manufacturing Co. LT.D versus West End Distributors L.T.D (1969) EA 696 (supra), which affirmed a preliminary objection to have the following tests:- " A preliminary objection consists of a point of law which has been pleaded, or which arises by dear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit".(emphasis added). The raised preliminary in this suit even if sustained, does not dispose of the suit, therefore it does not pass the above test which was set in the cited case. Nevertheless, I have gone through the proceedings of 15/3/2024 particularly on the prayer of plaintiff on was; - "...after going through the WSD, there are some issues which we have seen it necessary to make amendment to the plaint. This is arising from paragraphs 6(vii) of the WSD of the defendant whereby it is stated that the suit property has been sold to one Farough Ahmed Baghozah. Hence the amendment intends to include the said Baghozah as a party in the suit..." As pointed earlier, the court granted the prayer and stated thus; The prayed amendment should be specific that the plaint to be amended to join Farough Ahmed Bagozhah as a defendant... 4 Basing on the above statements, it is my finding that the plaintiff did not introduce new facts or new cause of action as per the claim in the preliminary objection. The intention of the amendment was not only to add the name of the 2nd defendant without any facts connected to that party. The joining of the party goes hand by hand with the facts connecting the added party. Besides, adding the name without any facts connecting that party to a suit, could raise another objection as the plaintiff will have no any cause of action against the added defendant. It is the law and procedure that there must be facts connected to the added party which inevitably must be pleaded in the plaint. Having said so I find this preliminary objection to have no any merit as the added facts were necessary and within the prayer by the plaintiff. The preliminary objection is overruled. The suit to proceed on merit. Costs to follow the event. 5