MUSSA SHABAN ZAROWANGA V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CIVIL CASE NO. 11 OF 2023 MUSSA SHABANI ZORAWANGA (suing as administrator of the estate of the late Shabani Mussa) ...……………………….……….…….......... PLAINTIFF VERSUS HALIMA HASHIMU ZORAWANGA (Administratrix of the estate of the late Hashimu Mussa Zorawanga) ……………………………….……. DEFENDANT RULING 18/01/2024 & 21/02/2024 SIMFUKWE, J. The plaintiff and the defendant herein are the administrators of the estates of the late Shaban Mussa Zorawanga and Hashimu Mussa Zorawanga respectively. The plaintiff instituted a case against the defendant claiming that the defendant has interfered and breached the distribution agreement pertaining the premises located at Plot No. 20291 Ngulai Block, Same Bus stand which belonged to the late Shaban Mussa Zorawanga and his sibling the late Hashimu Mussa Zorawanga. 1 In his Written Statement of Defence, the defendant raised the following preliminary objections: (a) That the Plaint does not disclose cause of action. (b) That the plaintiff has no locus to institute the suit. (c) That Court has no jurisdiction to entertain the suit (d) That the suit is bad in law for being improperly filed before this honourable Court. (e) That the suit filed contravene the Civil Procedure Code Cap 33 R.E 2019 Order VII rule 1(e) During the hearing of the raised objections, the defendant was represented by Mr. Mbaraka Katela, learned counsel while the plaintiff was represented by Ms Fay Grace Sadallah, the learned counsel. The preliminary objections were heard by way of filing written submissions. Submitting on the first ground of objection that the plaint does not disclose cause of action; it was Mr. Mbaraka’s averment that it is cardinal principle emanating from Order 7 Rule 1 of the Civil Procedure Code Cap 33 R.E 2019 that a plaint must disclose cause of action. He said, courts in several decisions have illustrated what amounts to cause of action by giving an example of the case of Stanbic Finance Tanzania Ltd vs Giuseppe 2 Trupia and Chiara Malavasi [2002] TLR 221, which defined cause of action as a fact which give a person a right of judicial redress, or relief against another as found in the plaint and its annexure. Mr. Mbaraka referred to Mulla in the Code of Civil Procedure (12th Edition.) Vol. 1, 120 which defines a cause of action as a set of facts sufficient to justify a right to sue someone and upon proof attract remedies. On the strength of the above authorities, Mr. Mbaraka argued that the impugned plaint has a lot of controversial paragraphs which makes the same with no legal value to institute a suit against the defendant. He referred to paragraph 4 of the plaint and argued that, the same is not clear if the plaintiff is the lawful owner of part of the house or is suing for breach of agreement between the plaintiff and the defendant. Further, he said the plaint contradict itself under paragraph 5 of the plaint where the plaintiff states that the house in dispute is registered under the name of his sibling Hashimu Mussa Zorawanga who is the defendant in this suit. It was the opinion of Mr. Mbaraka that the plaintiff has no cause of action due to the fact that from the first paragraph to the last one, no single paragraph has mentioned the plaintiff to be the lawful owner of the said property in dispute but it was only joint venture business between the parties. He added that, the paragraphs of the plaint show that the plaintiff's claim is not certain as 3 it is like throwing the betting card because the plaintiff alleges on breach of agreement, at the same time plead to be the owner of the property which doesn't describe the percentage of shares of the plaintiff owned in plot No. 20291 Ngulai Block, Same Bus stand. The learned counsel noted another uncertainty of the plaint from the plaintiff’s prayers. That, the first prayer is on declaration that the defendant is in breach of the distribution Agreement; the second prayer is for the defendant to return the items mentioned in paragraph 14, while on that paragraph nothing has been mentioned. The third prayer is on permanent injunction to restrain the defendant from trespass to the property in dispute. From the stated prayers, Mr. Mbaraka stated that no prayer before this court by the plaintiff asking the court to be declared the legal owner of the property in disputed and if he owns shares in the said house which percentage of shares are owned by the plaintiff. He cited the case of Zakaria Alisen Chundu Vs Melkio Noel Kanyuka, Land Appeal No. 21 of 2020 (Unreported) Hon. C.P. MKEHA J quashed the decision of the District Land and Housing Tribunal of Katavi District at Mpanda for the reason that there was a failure of the respondent to make certain, the facts constituting 4 his cause of action. Thus, the defendant’s counsel urged this court to reject the plaint for failure to disclose cause of action. Submitting on the second ground of objection that the plaintiff has no locus to institute the suit, Mr. Mbaraka explained that since locus standi is a point of law rooted into jurisdiction, it must be considered by a court at the earliest opportunity or once it is raised. He elaborated that, locus standi is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject matter. He cited the case of Lujuna Shubi Ballonzi v. Registered Trustees of Chama Cha Mapinduzi [1996] TLR 203 in which Hon. Samatta, J (as he then was) had the following to say on the issue of locus standi: Locus standi is governed by common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with. The High Court has the power to modify the applied common law so as to make it suit local conditions." Mr. Mbaraka contended that, since the impugned plaint was filed by the plaintiff in the name of Mussa Shabani Zorawanga (suing as Administrator 5 of the Estate of The Late Shabani Mussa), it is obvious that the plaintiff had no right or interest in the matter in dispute for the following reasons: First, paragraph 5 of the plaint suggests two things; one, the property in dispute is owned jointly and two, the property which is jointly owned is registered under the name of the defendant as pleaded by the plaintiff. Thus, the plaintiff has not shown any right or interest which has made him sue the defendant since the disputed property is registered under the name of the defendant. Also, nowhere in the plaint the plaintiff prayed the court to be declared as co-owner of the property in dispute. Mr. Mbaraka insisted that, the property in disputed is under the ownership of the defendant and there is no joint ownership as pleaded by the plaintiff. That, the issue of joint ownership as pleaded by the plaintiff is of empty assumption with no pleaded fact in the plaint. The learned counsel noted another issue from paragraph 5 of the plaint which is the issue of joint ownership of the property which is registered under the name of Hashimu Mussa Zorawanga now the deceased whom is the biological brother of Shabani Mussa Zorawanga also deceased. According to him, the issue of joint ownership is surprising because the plaintiff and the defendant are brothers and the certificate of occupancy is pleaded to be owned jointly while the same is registered under the name 6 of the defendant which is contrary to section 159(3) of The Land Act, Cap 113 R.E 2019 which states that: (3) An instrument made in favour of two or more persons and the registration giving effect to it shall show- (a) Whether those persons are joint occupiers or occupiers in common; and (b) Where they are occupiers in common, the share of each occupier. Based on the above provision, Mr. Mbaraka believed that from the pleaded facts, it is undisputed fact that the plaintiff has no interest in the property in dispute as his own fact plus the annexures show nothing that the plaintiff and the defendant owned the property in dispute under joint ownership. Also, Mr. Mbaraka contended that the plaintiff has no locus to sue the defendant in this matter due to the provision of section 159(4) of the Land Act (supra) which states that: 4) Where the land is occupied jointly under a right of occupancy or lease, no occupier is entitled to any separate share in the land and, consequently- 7 Elaborating the above provision, Mr. Mbaraka stated that, the joint occupier cannot divide shares of the property while in the plaint the plaintiff pleaded that the property is owned jointly while he pleaded that the defendant breached the distribution agreement (mgawanyo). It was emphasised that the plaintiff has no interest over the disputed property and there is no way parties who are brothers can own the property jointly since as per section 159(8) of the Land Act (supra) joint ownership is only for spouses and not brothers. On that basis and due to the fact that the property is registered under the name of Hashimu Mussa Zorawanga then the plaintiff has no right or interest over the property hence no locus to institute the suit against the defendant. On the third objection that the Court has no jurisdiction to entertain the suit; on the outset, Mr. Mbaraka enlightened that any court cannot proceed with any matter unless satisfied that it has jurisdiction to try the matter. He continued to tell the court that every plaint filed, must show the paragraph which reveal that the court has jurisdiction pursuant to Order VII rule 1(i) as indicated under paragraph 15 of the plaint. In this matter, Mr. Mbaraka averred that this court lacks jurisdiction because it is pleaded that the defendant breached the distribution agreement (Mgawanyo) (annexure MW-3) which is attached to paragraph 8 of the plaint. That, the distribution 8 includes some items like beds, mattresses, bedsheets pillows, tables, mosquito net and other items. Mr. Mbaraka was of the opinion that this court lacks jurisdiction to declare over the alleged items as indicated in distribution agreement. He added that, prayer number (b) as indicated in the plaint also make this court lack jurisdiction to entertain the matter because it differs with prayer (c) of the plaint. That, the plaintiff prayed the court to order the defendant to return the mentioned items under paragraph 14 while in the said paragraph there is no any item mentioned. Thus, the court has nothing to order over that prayers hence, lacks jurisdiction to entertain the suit filed by the plaintiff. Further to that, the learned advocate submitted that the High Court gets its pecuniary jurisdiction from section 37(1)(a) and (b) of the Land Disputes Courts Act, Cap 216 R.E 2019. It was contended that the plaintiff claims part of the share in that disputed property and not the whole property. However, the plaintiff has not stated the value of his share in such property but rather he estimated the value of the whole property which make this court lack jurisdiction to entertain the matter as the clear value of the property in dispute is not clearly stated. 9 On the fourth ground of preliminary objection, it was submitted that the suit is bad in law for being improperly filed before this court. He relied on two issues: First, the facts of the plaint reveal that the plaint filed by the plaintiff is neither land, civil case nor normal civil suit. Second, the plaintiff has presented 8 prayers in total. Mr. Mbaraka noted the problem with prayer (a) in which the plaintiff prayed for declaration that the defendant is in breach of distribution agreement which is civil and has nothing to do with the ownership of the property in dispute. That, prayer (b) is an order to return items mentioned in paragraph 14, which through reading the whole paragraph and the annexure, that prayer is unfounded and it has nothing to do with the property in dispute since paragraph 14 doesn’t mention the said items. Thus, the prayers sought are not pleaded in the plaint. That, prayer (c) is the only prayer the plaintiff seeks for permanent injunction against the defendant. Therefore, the suit was improperly filed because the prayers as indicated under paragraph (a), (b) and (c) left this court in a quandary without knowing the intention of the plaintiff in filing the suit as a normal civil suit or land case. He maintained that the suit is improperly filed since the plaintiff’s prayers are not clear. 10 Lastly, on the fifth objection it was stated that the suit filed contravenes order VII rule 1(e) of the Civil Procedure Code (supra). Mr. Mbaraka specified that the plaint shall contain the facts constituting the cause of action and when it arose. That, from the plaint filed by the plaintiff particularly under paragraph 11, shows how the dispute started. However, in the said paragraph the plaintiff has not pleaded when the cause of action arose. That, there is no single paragraph in the plaint where the plaintiff has mentioned when the cause of action arose. Thus, by such failure to demonstrate and show the real facts constituting the cause of action and when it arose the court will fail to know exactly if the suit has been filed within the prescribed period of time or the same is filed out of time so as to know whether the court is clothed with jurisdiction to entertain the matter or not. Reference was made to the case of Anna Joseph Luvanda v. Swaibu Salimu Hoza &: 2 Other [2014] TLR 73, in which the court observed that, the plaint was fatally defective for non-disclosure as to when the cause of action arose. In his final remarks, Mr. Mbaraka requested this court to dismiss the plaint filed by the plaintiff with costs. 11 Opposing the objection that the plaint does not disclose a cause of action, the counsel for the plaintiff submitted that, order VII rule 1 of the Civil Procedure Code (supra) provides clearly the contents of the plaint. The learned counsel went on to explain the meaning of cause of action by referring the case of Stanbic Finance Tanzania Limited vs Giusppe Trupia and Chiara Malavas (supra). Basing on the above definition, the counsel for the plaintiff stated that paragraph 4 of the plaint clearly states the cause of action in connection with paragraph 5 and 6 of the plaint. Ms. Fay continued to submit that; the defendant failed to understand what amount to breach of distribution agreement as provided under paragraph 4 of the plaint which clearly shows the cause of action. On the second ground, the learned counsel averred that the allegation by the defendant that the plaintiff has no locus to institute the suit has no legs to stand since the plaintiff is the administrator of the estate of the late Shaban Mussa Zorawanga and is suing as an administrator which in our jurisdiction is accepted. She continued to state that, paragraph 5 of the plaint provides connection of the late Shaban Mussa Zorawanga with the premises located at Plot Number 20291 Ngulai Block at Same bus stop. So, his administrator has all rights to step into the shoes of the deceased to sue 12 or to be sued on the disputed property. She continued to submit that the defendant quoted section 159 (3) (9) of the Land Act (supra) while arguing the issue of joint ownership which is premature argument due to the fact that preliminary objection is argued on pure point of law only. She cemented her argument with the case of Registered Trustee of the Baptist Convention of Tanzania @ Jumuiya Kuu ya Wabatisti vs James Kasomi and 4 Others, Misc. Civil Application No. 35 of 2021 (Tanzlii) at page 8. On the third ground, Ms. Fay for the plaintiff submitted that paragraph 8 and 9 of the plaints show the right of the deceased according to distribution agreement and the same was attached to the plaint as MW3. The first and second paragraphs express the rights of Hashim and Shaban but the defendant counsel submitted only on the confiscated property from the plaintiff’s room which were described in the distribution list to be part of Shaban Mussa Zorawanga’s share. It was insisted that, prayer number (a) and (b) cannot be isolated because it goes to the root of cause of action. That, the property confiscated by the defendant was from the rooms owned by the late Shaban Mussa Zorawanga according to distribution agreement. 13 The learned counsel continued to submit that; the issue of jurisdiction must clearly be stipulated in the pleadings. In this case, she stated that paragraph 15 of the plaint states the value of the rooms that were given to one Shaban Mussa Zorawanga. On the fourth ground, the counsel for the plaintiff strongly contested the argument by the defendant’s counsel that the suit is bad in law for being improperly filed before this court by submitting that the plaintiff needs the defendant to honor the distribution agreement only. On the last ground the counsel for the plaintiff specified that paragraph 11 of the plaint and its annexure (MW-5) provides the time when a defendant started to write letters to the tenants who used to pay rent to the sibling of the late Shaban Mussa Zorawanga. Having heard the submissions for and against the preliminary objections, the issue for determination is whether the raised preliminary points of objection have merit. I will start with the third objection which concerns jurisdiction for the reason which has being stated by Mr. Mbaraka that the court cannot proceed to entertain any matter unless it is satisfied that it has jurisdiction to try the 14 matter. Thus, I will start scrutinizing this objection followed by other grounds of objection. On the issue of jurisdiction, Mr. Mbaraka submitted that from the facts which are pleaded by the plaintiff in his plaint, it is hard to determine whether the suit is civil case or land dispute. That, the plaintiff pleaded that there is breach of the distribution agreement (mgawanyo). The said distribution (MW3) indicates some items which the plaintiff prayed the court to order the defendant to return. Also, the plaintiff prayed for the share of the disputed property without stating the value of his share for the court to ascertain whether the same falls within the jurisdiction of this court. In reply, briefly Ms. Fay argued that this court has jurisdiction to entertain the matter because paragraph 15 of the plaint states where the dispute arises. Also, she said that paragraph 9 indicates the distribution of each person while paragraph 8 reveals that the property was divided among the parties. She contended that paragraph 8 cannot be read in isolation of paragraph 9. The same applies to the prayers, that is, the same should not be read in isolation. I have keenly read the plaint and the prayers thereto. I will quote specifically paragraph 8, 9, 11 and 15 of the plaint, for ease reference: 15 “8. That on 2/09/1998 at Same in the presence of people whom some are still alive and at the instigation of their father MUSSA ZORAWANGA and young brother ALDINA MUSSA ZORAWANGA (who is now deceased) the two divided the properties among themselves so that each to know his share and right in the said properties and each signed by their own hand in the presence of witness MZEE MUSSA ZORAWANGA (deceased) and ALDINA MUSSA ZORAWANGA.(Copy of distribution (hati ya mgawanyo) is annexed and marked MW-3 leave of this court is craved to form part of this plaint). 9. That from that distribution (mgawanyo) the deceased SHABANI MUSSA ZORAWANGA occupied in the suit guest house seven (7) rooms and 4 rented shop rooms (frames) and his sibling HASHIMU MUSSA ZORAWANGA got other rooms as per the said document of distribution (mgawanyo). Each used his rooms and pocked (sic) the proceeds though the business licence was common. 11. …his sibling HASHIMU MUSSA ZORAWANGA went further to initiate his evil mind by issuing notice to all tenants to the said 16 house to inform them that he is taking control of the house and all agreements shall be made between the tenants and him. All information and records of rent were to be supplied to him; in effect he had severed plaintiff continued right over the suit premises. That no any plausible reason was advanced for the change of the heart till to date. (Copy of the said letter is hereby annexed and marked MW-5 leave of this Honourable Court is sought to form part of this plaint) 13. That the act made by Hashimu Mussa Zorawanga was unreasonable and was against the agreement hence breached the agreement (Mgawanyo) having evil mind to abduct all the right of his brother Shabani Mussa Zorawanga over the house which was distributed before both to pass away. (sic) The plaintiff further advanced his prayers as follows: a. A declaration that the defendant is in breach of the distribution agreement (Mgawanyo); b. An order to return items mentioned under paragraph 14 of this plaint or pay cash of TSHS 10,000,000/= which is a value amount of such items confiscated by the defendant. 17 c. .. d. …. From the above facts, I agree with the learned counsel for the plaintiff that this court has jurisdiction to try this matter. The paragraphs and prayers should not be read in isolation as suggested by Advocate Fay. I also agree with the learned counsel for the plaintiff in respect of the rest grounds of objections. On the first ground of objection that the plaint does not disclose cause of action, as correctly submitted by the learned counsel for the plaintiff, paragraph 4, 5 and 6 of the plaint, disclose the cause of action. On the second ground which is respect of locus standi, the pleadings are self-explanatory that the plaintiff is suing as administrator of the estate of the late Shaban Mussa Zorawanga. Administration letters were attached to the plaint (Annexure MW-01). That fact was not disputed by the learned counsel for the defendant. On the fourth ground, the plaintiff’s prayer is clear that the defendant should honour the distribution agreement. Thus, it is not true that the reliefs sought are not certain. 18 On the last ground of objection, paragraph 11 of the plaint and its annexure states the time when the defendant wrote to the tenants. Annexure MW-05 is a notice which indicated that from 2019 tenants should pay rent to Hashim Mussa (Ngulai). The deadline of the said notice was 31/12/2018. Hence, it is easy to determine whether this matter was filed within time or not. Based on the findings above, I hereby overrule the raised preliminary objections and order this matter to proceed on merit. No order as to costs. It is so ordered. Dated and delivered at Moshi this 21st day of February 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 21/02/2024 19