20061201 TZHC Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CORAM LUBUVA, 3 A, MROSO, 3 A ,And MSOFFE, 3 A) CIVIL APPEAL NO 15 OF 2001

BETWEEN

MUKESH GAURISHANKER JOSHI APPELLANT AND 1ST 1 GINTEX SUPPLIERS RESPONDENT THE DAR ES SALAAM CITY COMMISSION .. ........ 2ND

RESPONDENT DR. CHARLES TIZEBA ....................................... 3RD RESPONDENT. (Appeal from the Ruling of the High Court of Tanzania at Dar es. Salaam) (Kalegeya,J.) dated the 16th day of March, 2000 In • Civil Case No. 102 of 1997 JUDGMENT: MROSO, 3 A The appellant, in 1997, filed a suit in the High Court at Dar es Salaam against the respondents The respondents raised preliminary objections namely, that the plaint did not disclose a cause of action, that there was non-joinder of parties and that the plaint was not properly before the High Court The High Court, Kalegeya, J , found that the plaint indeed did not disclose a cause of action and "struck it out" The Court did not consider or decide on the other two grounds of preliminary objections because it was of the opinion that once it decided on whether or not the plaint disclosed a cause of action the whole controversy before it would be disposed of The learned High Court Judge said "I am convinced that the controversy is disposable by considering only one ground of the preliminary objections This is whether the plaint discloses a cause of action The appellant believed that his plaint disclosed a cause of action He did not, therefore, accept the High Court decision as final and sought to appeal to this Court He duly sought and obtained leave of the High Court to appeal against its ruling Mr Novatus Rweyemamu, learned

advocate, who advocated for the appellant in the High Court, and has continued to do so before this Court, filed two substantive grounds of appeal and four other grounds in the alternative The first substantive ground of appeal is that if the learned High Court Judge found the plaint to have disclosed no cause of action the proper order he should have made was to reject the plaint, not to strike it out Secondly, that in any case, the plaint disclosed a cause of, action The alternative grounds of appeal revolve around the complaint that since the learned High Court Judge 3 at that stage was dealing with the preliminary objection that the plaint did not disclose a cause of action, it was premature and improper for him to deal with and decide on matters of merit in the case Regarding the first ground of appeal Mr Rweyemamu pointed out that the Civil Procedure Code, 1966 specifically provides in Order. VII Rule 11 (a) that where a plaint does not disclose a cause of action, it shall be rejected. Where a plaint is rejected a plaintiff is not precluded from presenting a fresh suit The authority for saying so, Mr. Rweyemamu further pointed out, is to be found in Rule 13 of the same Order. VII of the Civil Procedure Code, 1966. Mr Kasikila, learned advocate for the first Respondent, and who also appeared to be speaking on behalf of Mr. Mugasha, learned advocate for the second and third

respondents, argued that the learned Judge of the High Court did not dismiss the suit but merely struck out the plaint, which has the same effect as rejecting it He submitted that the High Court could not be faulted for the action it took regarding the plaint He said it was the practice in the High 5 . the court and the plaintiff in those circumstances should do or can do Now, whether or not it is the practice of the High Court, as alleged by Mr. Kasikila, to strike out the plaint instead of re]ecting it, we can only say that such a practice, including the decision of the High Court in the J B Shirima case which was cited to us, are not in conformity with the law. There is no provision of the law on whether or not the plaintiff, where his plaint has been struck out, is at liberty to file a fresh suit We think, therefore, that the High Court, Kalegeya, J•, erred in striking out the plaint instead of rejecting. it, if he found it did not disclose a cause of action As regards the second ground of appeal that in any case the • . • plaint disclosed, a cause of action, Mr. Rweyemamu argued, that if one looks at the plaint and the annextures to it only, as one should, Qne . would find that it discloses a cause of action We have looked at the copy of appellant's plaint and we observe that paragraph 17 thereof alleges the tort of trespass against the first respondent and the involvement of the second and third respondents in facilitating the alleged trespass A relief was prayed Dated at Dar es Salaam this 1 day of December, 2006. J. A.MROSSO

JUSTICE OF APPEAL E. N. MUNUO

USTICE OF APPEAL S. N. KAJI

JUSTICE OF APPEAL I certify that this is a true copy of the original. (:7 (i( "

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CHOCHA Ag. DEPUTY REGISTRAR