Land Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND CASE NO. 10561 OF 2024 MS CONTRACT INTERNATIONAL (T) LTD..................................... 1STPLAINTIFF ROBERT WILFREM MWAKITWANGE.............................................. 2NDPLAINTIFF VERSUS THE PERMANENT SECRETARY MINISTRY FOR LANDS, HOUSING AND HUMAN SETTLEMENT..........................................1stDEFENTANT THE ATTORNEY GENERAL............................................................. 2nd DEFENDANT THE COMMISSIONER FOR LANDS................................................ 3rdDEFENDANT THE SOLICITOR GENERAL............................................................ 4thDEFENDANT RULING Date of last Order: 23/09/2024 Date of Ruling: 30/09/2024 LALTAIKA, J. The Plaintiffs herein MS CONTRACT INTERNATIONAL (T) LTD and ROBERT WILFREM MWAKITWANGE (referred collectively as the Plaintiffs) instituted this suit claiming against the Defendants for Judgment and Decree the details of which are irrelevant at this stage. Page 1 of 12 When the suit was called on for hearing the first to 4th Defendants enjoyed the legal services of Mr. Stephen Kimaro, learned State Attorney. Plaintiffs appeared through Mr. Ramadhani Maleta, learned Advocate. Mr. Kimaro informed the Court that the Defendants had filed their WSD whereupon they raised a point of objection (PO) therein. He prayed for the PO to be argued first for the purposes of procedural compliance. There being no objection from Mr. Maleta, the following schedule was ordered: Defendant's written submission to be filed on or before: 4/9/2024. Plaintiff's Reply: 17/9/2024, Rejoinder if any: 23/9/2024 Mention for necessary orders to schedule the date of Ruling: 23/9/2024 at 9:00 AM. I take this opportunity to register my commendations to the learned lawyers for their dedication and spotless compliance to the scheduled order. For purposes of clarity the PO raised is to the effect that: The suit is untenable and bad in law for failure to include the necessary party. The next part of this ruling is a summary of submissions by both parties. Mr. Kimaro, the learned State Attorney for the Defendants, began by stating that before addressing the merit of the raised points of law, he Page 2 of 12 wished to first define the term "pleading(s)." He explained that pleading in law refers to a written presentation by a litigant in a lawsuit that sets forth the facts on which they claim legal relief or challenge the claims of the opponent. It includes claims and counterclaims but not the evidence that will be used to prove the case, and he cited the definition of "pleading in law" from the Encyclopedia Britannica. He further emphasized the long-standing legal principle that parties are bound by their own pleadings and any evidence that does not support or contradicts the pleaded facts must be disregarded, referencing the case of James Funke Ngwagilo v. Attorney General [2004] TLR 161. Mr. Kimaro also referred to the definition of a "pure point of law" as established in the landmark case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969) E.A. 696, which describes a preliminary objection as a point of law that, if argued, may dispose of the suit. He proceeded to explain that the Plaintiffs' claims against the Defendants stemmed from a loan facility granted to the 1st Plaintiff by FBME Bank Limited, which was secured by two collaterals, including Plot No. 34 at Kunduchi Beach, Dar es Salaam. Despite the centrality of FBME Bank to the Page 3 of 12 transaction, the Plaintiffs had excluded the bank from the case. Mr. Kimaro noted that paragraph 9 of the Plaint mentioned a loan of USD 350,000 from FBME Bank Limited, supported by Plaintiffs' annexure MK-2. He observed that paragraphs 7 to 24 of the Plaint detailed the Plaintiffs' history with the bank, which was now under liquidation through the Deposit Insurance Board (DIB). He submitted that the DIB was a necessary party to the case because any decision by the court would directly affect it as the liquidator of FBME Bank. Citing Article 13(6) of the Tanzanian Constitution, Mr. Kimaro argued that the absence of the DIB would violate their right to be heard. He also referred to Order 1, Rule 9, and Rule 10(2) of the Civil Procedure Code, which allows the court to strike out or add parties as necessary to adjudicate the case effectively. Mr. Kimaro further cited the case of Nestory Msoffe & Others vs The Registered Trustees of Catholic Archidiocese of Arusha (Civil Appeal No. 254 of 2019) [2024] TZCA 536 (10 July 2024) and referred to the case of Farida Mbaraka and Farid Ahmed Mbaraka v. Domina Kagaruki Court of Appeal of Tanzania at Dar es Salaam, Civil. Appeal No. 136 of 2006 to emphasize that necessary parties must be added to the suit for a complete Page 4 of 12 adjudication. However, he argued that the DIB could not be added in this case without violating the Government Proceedings Act, which requires a 90- day notice for suits against government agencies. Additionally, he noted that the Plaintiff had not made any claims against the DIB, meaning no cause of action existed against it. Mr. Kimaro pointed out that paragraph 23 and annexure MK-6 of the Plaint indicated that statutory notice was served on the Defendants, but the DIB was not included, which he argued would amount to abuse of court process if mandatory procedures were bypassed. In his conclusion, Mr. Kimaro reiterated that the DIB was a necessary party in this case, and any decision made in its absence would affect the board's interests. He asserted that the misjoinder of the DIB was fatal to the case, as the court could not proceed without it, citing the case of Hamis Salum Kizenga vs Moses Malaki Sewando and Others (Land Appeal 51 of 2019) [2020] TZHCLandD 115 (29 April 2020) to support this argument. He concluded by reminding the court that the Bank of Tanzania had appointed the DIB as the liquidator of FBME Bank in 2017, and the Plaintiff's legal counsel should have been aware of the procedural requirements before filing the suit. Page 5 of 12 Taking up the podium, counsel for the Plaintiffs Mr. Maleta asserted that the Defendants' submission should be rejected due to a lack of the filing date and the absence of a signature from an officer of the Court's Registry. He argued that the written submission was fatally flawed and should be completely rejected since the copy served to the Plaintiffs did not include a filing date and was not signed by any officer at the court's registry. Mr. Maleta emphasized that, according to well-established law, any legal document filed in court must have a filing date and be signed by a registry officer. This requirement applied to all copies, including those served to the opposing party. To support his argument, he cited the case of SGS Societc General De Surveillance S.A & Another vs. VIP Engineering & Marketing Limited & Another, Civil Appeal No. 124 of 2017, where the Court of Appeal held that a document not properly endorsed and served to the other party was considered invalid, even if other copies in the court's record were properly filed. He quoted the court's decision, stating that the absence of a filing date or signature from the registry officer on the document served rendered the entire document defective. Page 6 of 12 In this context, Mr. Maleta asserted that the Defendants' written submission should be rejected entirely, as the copy served to the Plaintiffs lacked the required date and signature. He concluded that no valid legal document had been filed by the Defendants to support their points of preliminary objection. Therefore, he prayed for the rejection of the preliminary objection and for the case to proceed on its merits. In response to the merits of the Defendants' submission, Mr. Maleta argued that the Plaintiffs' claim arose from the Defendants' failure to fulfill their commitment to compensate the Plaintiffs for their mortgaged property. He clarified that the Plaintiffs had no claims against the bank or its liquidator, as the dispute was not related to the loan agreement but to the Defendants' failure to compensate the Plaintiffs. He stated that the Plaintiffs and the bank had been on good terms, and any disruption in the loan servicing was due to the Defendants' failure to honor their commitments. Lastly, Mr. Maleta addressed the Defendants' argument that the liquidator of FBME Bank should be a necessary party to the suit. He argued that since the Plaintiffs' claims were solely against the Defendants for their unfulfilled promises regarding compensation, the liquidator was not a necessary party. He distinguished the case from the precedent cited by the Page 7 of 12 Defendants, asserting that the present case could be fully determined without involving the liquidator. Consequently, he prayed for the preliminary objection to be overruled with costs. Having dispassionately considered the rival submissions. Apparently, the plaintiffs, through their counsel Mr. Maleta, seek to have the defendants' written submissions rejected for being procedurally defective. The plaintiffs argue that the submissions do not bear a filing date and were not signed by an officer of the court's registry. They further submit that this procedural flaw renders the submission invalid. In support of their arguments, the plaintiffs relied on the decision of the Court of Appeal in SGS Societc General De Surveillance S.A & Another vs VIP Engineering & Marketing Limited & Another (Supra). The plaintiffs also provided an alternative response on the merits in case their procedural objection is not upheld. The plaintiffs' first contention is that the written submissions from the defendants lack a filing date and a signature from an officer of the court's registry. They argue that these omissions render the document invalid, as every copy of a document served on the parties must bear the date of filing and be duly signed or endorsed by a registry officer. Page 8 of 12 The plaintiffs placed reliance on SGS Societc General De Surveillance S.A & Another vs VIP Engineering & Marketing Limited & Another, (supra) where the Court of Appeal held that failure to have a filing date and proper endorsement by a court registry officer on a legal document served to the opposing party constitutes a fatal defect. This is because the legal document served to the other party is effectively considered a different document from the one filed in court. In that case, the Court of Appeal rejected a memorandum of appeal that was served without a filing date and signature, even though the court's own record bore the proper endorsements. In the present case, it is undisputed that the copy of the written submission served on the plaintiffs lacked both the filing date and the signature of a registry officer. As per the Court of Appeal's ruling in the SGS case, such a defect is fatal. Compliance with procedural requirements in filing legal documents is essential to ensuring fair litigation. A failure in this respect deprives the other party of certainty about the documents authenticity and timing of filing. Page 9 of 12 Therefore, based on this legal position, I find the plaintiffs' submission well-founded. The defendants' written submissions must be rejected for procedural non-compliance. Although the plaintiffs primarily seek the rejection of the defendants' submission for procedural reasons, they have also addressed the merits of the defendants' preliminary objection as an alternative argument. The defendants argue that the suit is unsustainable because the plaintiffs failed to include the Deposit Insurance Board (DIB), the liquidator of FBME Bank, as a necessary party. The plaintiffs had taken a loan from FBME Bank, secured by the mortgaged property, Plot No. 34, Kunduchi Beach. The defendants assert that the dispute over the compensation for the acquisition of this property cannot be resolved without involving DIB, which they argue is a necessary party. The plaintiffs, however, contend that their cause of action is based on the government's unfulfilled promise to compensate them for the mortgaged property, not on any dispute with FBME Bank or its liquidator. They argue that the failure of the government, through the 1st defendant, to Page 10 of 12 compensate them caused financial loss and hardship, and that FBME Bank's actions were justified under the loan agreement. The plaintiffs further distinguished this case from Netory Msoffe & Others vs The Registered Trustees of Catholic Archdiocese of Arusha, (Supra), which the defendants cited. The plaintiffs noted that in the Msoffe case, a necessary party had to be joined because the question in dispute could not be decided in their absence. In contrast, the plaintiffs in the current case maintain that the dispute is entirely between them and the government authorities over the compensation for the acquisition of the property and does not involve the liquidator of FBME Bank. The legal principle governing the joinder of necessary parties is that all parties whose presence is essential for the complete and final adjudication of the dispute must be joined. However, in this case, the plaintiffs' cause of action, as framed in the plaint, is based on the government's failure to honour its commitment to compensate them for the acquisition of the mortgaged property. The plaintiffs do not allege any wrongdoing on the part of FBME Bank or its liquidator, and the involvement of DIB is not necessary to resolve the question of whether the government fulfilled its obligations. Page 11 of 12 In the upshot, the plaintiffs’ objection regarding the procedural defects in the defendants' submission is upheld. The defendants' written submission is rejected for failure to comply with the procedural requirements of having a filing date and the signature of a court registry officer. For avoidance of doubt, the defendants' preliminary objection is hereby overruled. I order that the matter proceed on the merits of the main case. The main case shall be called for Mention on 8/10/2024 at 10:00 AM. I make no orders as to costs as the suit is ordered to proceed to determination on merit. It is so ordered. E.I. LALTAIKA P JUDGE Court Ruling delivered this 30th day of September 2024 in the presence of Ms. Lilian Machage, Senior State Attorney for the Defendants Mr. Ramadhani Maleta learned Counsel for the Plaintiffs. / JUDGE ^430/09/2024 Page 12 of 12