nelson johnson lovs others vs cecilia johnson lova others 2019 tzhclandd 54 20 september 2019

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 322 OF 2015 NELSON JOHNSON LO V A ..................... .................. 1st PLAINTIFF JIMMY JOHNSON LO VA................ .............................2nd PLAINTIFF WINFRIDA JOHNSON LO VA ................. ..................... 3rd PLAINTIFF NEEMA JOHNSON LOVA (A person of unsound mind suing through WINFRIDA JOHN LOVA as her next friend)............... 4th PLAINTIFF

VERSUS CECILIA JOHNSON LOVA (Administratix of the estate of the late JOHNSON MUSIMBE LOVA)..................................... 1st DEFENDANT JAMAL IBRAHIM M ALYA......................................... 2nd DEFENDANT EQUITY BANK (TANZANIA) LIMITED.................. ...3rd DEFENDANT M/S ASAKA ENTERPRISES COMPANY LIMITED..... 4™ DEFENDANT MS NKYA COMPANY LIMITED................................. 5th DEFENDANT

RULING Date of Last Order: 11/09/2019 Date of Ruling: 20/09/2019 MALLA BA, J In this matter, the 4th defendant has raised a point of Preliminary Objection (PO) with 3 limbs that: Page 1 of 7 (i) This honourable court has no jurisdiction to try this matter. (ii) The plaintiff has no cause of action against the 4th defendant. (Hi) The suit is bad in law for failure to plead the necessary party, namely> the Commissioner for Lands and the Attorney General. Hearing of the PO proceeded by way of written submissions. Parties submitted their written submissions in accordance with the schedule provided by this court. This court will thus turn to consider the PO along the submissions submitted by the parties. This court will deal with one limb of the PO after another. On the first limb of the PO, the 4th defendant submitted that, the value of the subject matter of the suit has not been mentioned in the body of the Amended Plaint filed on 13th September, 2018. Further, the amount of Tshs 110,000,000/= referred to in paragraph 20 of the amended plaint, is below the pecuniary jurisdiction of this court in terms of Section 33 (2) (a) of the Land Disputes Courts Act (Cap 216 RE 2002) as amended by the Written Page 2 of 7 Laws (Miscellaneous Amendments) (No.

4) Act, 2017. In their submissions, the plaintiffs submitted in reply that, the suit was filed in court in 2015 when the pecuniary jurisdiction of this court was any amount exceeding Tshs 50,000,000/=. Thus, the amount of Tshs. 110,000,000/= mentioned in the amended plaint, is within the pecuniary jurisdiction of this court. In their rejoinder submissions, the 4th defendant submitted that, amendments of pleadings are subject to procedural laws as stands at the time of the amendment. The 4th defendant was not a party before the amendment uplifting the pecuniary jurisdiction of courts in land disputes. He was added as a party by the amended plaint. He couldn't have been bound by pleadings which were filed before he was joined in the suit as a party. In the first place, this court agrees with the plaintiffs that, a suit is instituted on the day when the plaint is filed in court. This is what Section 22 of the Civil Procedure Code (Cap 33 RE 2002) specifically states. In the present matter, the plaint, as submitted by the plaintiffs, was indeed filed in 2015, well before the amendments of the provisions pertaining to pecuniary jurisdiction of this court. Parties appear to agree that, in 2015, the suit was within the pecuniary jurisdiction of this court. Page 3 of 7 The complication in this matter is that, the 4th defendant was not a party in 2015, when the matter was filed in this

court. He was only added as a party in 2018, when the pecuniary jurisdiction of this matter had already changed upwards, such that, the suit became below the pecuniary jurisdiction of this court. Now, should the suit be taken to have been filed against the 4th defendant in 2015? In a suit, a person may be added as a party in two ways. One is by substitution or addition of parties under Order I Rule 10 of the Civil Procedure Code. Two is, as is in the present case, through amendments of the plaint. This court is of the view that, when a party is added in a suit through the first way, then the date of the suit being instituted against the added party is the date on which the plaint was filed in court. This court is further of a considered view that, the situation is different when a party is added through the second way. Where a party is added in a suit through an amendment of the plaint, then the case against the added party has to be taken as having been instituted on the day when the amended plaint is filed in court. This is because commonsense dictates that, a person cannot be taken to be a party in a suit, before the respective plaint reflects him as a party. Also, even though section 22 provides generally for institution of suits Page 4 of 7 on presentation of a plaint in court, the Civil Procedure Code contemplates other incidences where a suit is not taken to have been

instituted on the date of presentation of plaint. For example, where the government is a party in a suit. Order IV Rule 1 (1) of the Civil Procedure Code provides for institution of a suit against the government when the plaint is delivered to the Attorney General. This means that, if the government was to be added as a party, through an amendment of a plaint, the suit will be taken to have been instituted against it only when the amended plaint is delivered to the Attorney General. Admittedly, this court is not dealing with a government in the present matter, but we can borrow a leaf in that, not in every case a suit may be taken to have been instituted on the day of filing the plaint in court, in deserving occasions, like where a defendant is added though amendment of the plaint, the suit against such added defendant has to be taken as having been instituted on the date of filing the amended plaint, which adds the said person as a party. Thus, as of that date, that is when the added defendant will have all the rights of a defendant. In the view of this court, the aspect of jurisdiction will be looked into, as regards such party, on the date when the amended plaint is filed in court. However, because the suit may not be severed, it may have to be looked into against all defendants, even for those who were already parties when the amended plaint was filed. Page 5 of 7 As of the time when the amended plaint in the present matter was filed in court, the Written Laws (Miscellaneous Amendments) (No.

4) Act, 2017 was already in place and in force. Thus, at that time, the jurisdiction of this court in terms of Section 37 of the Land Disputes Courts Act, in proceedings for recovery of possession of immovable property, was for proceedings in which the value of the property exceeds three hundred million shillings. In terms of section 33 (2) (a) of the Land Disputes Courts Act, the amount of Tshs. 110,000,000/= stated in paragraph 20 of the amended plaint, fell within the jurisdiction of the District Land and Housing Tribunal. Thus, this court agrees with the 4th defendant that, this court is not the lowest court competent to deal with the same, in terms of Section 13 of the Civil Procedure Code. Thus, without the need of looking at the other two limbs of PO, this court sustains the 1st limb of PO. In terms of Order VII Rule 10 of the Civil Procedure Code, the plaint is accordingly returned to the plaintiff for presentation to the court/tribunal to which the suit should have been instituted, that is, to the respective District Land and Housing Tribunal. The reason for returning the plaint is for the same to be filed in the lowest court/tribunal competent to try the matter. Page 6 of 7 For purposes of limitation, the suit to be reinstituted will have to be taken as having been filed on 25th day of September, 2015; the date when the suit in the present matter was first filed in court. No order as to costs. It is ordered accordingly. Page 7 of 7