19961128 TZHC Dar es Salaam

\ IN Tllii: HIGH COUHT OF •rANlANIA (DAR ES SALA,'i.M DISTRICT REGISTRY) AT____Di'.R _... ES SALAAM .............,,~-- ---- CIVIL APPJ1AL NOo.59. - OF•• .1995 f"Z?.-. _................,~....,...-.,...~a - PROP.;!;RTY CONSUL'r.l\NCY t: Sli:HVICi LIMITED API-ELLANT V.CRSUS NA'rIONAL HOUSING CORPORA'l'ION 000000000000000 Rt!JSPONDENT JUDGMENT F~'---•·-•·•...'""---·--..........._"'1:-..:a MSUMI, J.: In the original case, respondent National Housing Corporation sued: one Mauladad.and Roee Tanzania Limited under summary procedure. The appellant Property Cons~ltaricy a,,d Service Limited filad a Chamber application praying for: . --- (a) The applicant be joined as a party to tl:le suit. (b) The name Property. Consultancy and Servic.es Limited be substituted for Mula Dad. (c) That leave to appear and defend be granted to the applicant. The application was supported by the affidavit of one Paul Mushi~ Objecting the application, respono.ent filed the counter affidavit of one Simon Shekigenda controverting the affidavit of Paul Mushi. Among other things, the counter affidavit stated in paragraphs 8 and 11 as follows:- - 11 8 That the contents in paragraph No.6 is highly disputed to the reasons that the Property Consultancy and Services Limited is not a party of this case and has no any right to join f:N._ this particular suit as he is a trespasser in \ the suit premises. ... 2 11 'rhat the contents in paragraph No. 9 is totally de~ied because the applicant is not~ party of the suit and has no any right to defend this-suit on behalf of our tenant because he has no any legal authority to represent our tenant·~ After .the applicant had filed a reply to the said Counter affidavit, as noted earlier, the application was granted. Indeed in their defence, ../ appellants rais,,d a counterclo.im ag;;~inst the respondents who responded by \ filing a defence. However, witho~t prejudice to their defence, respondents :raised· a preliminary objectibn based on two issues: "(a) the second defendant is a tresf)asser and therefore has no cause of action against the plaintiff. (b) the second defendant has n~-~.2,_standito prosecute this case"• The learned trial magistrate upheld the objection hence dismissed the suit. The appellant is now challenging the said ruling which upheld the prelimin3ry objection~ This appeal is sustainable on one basic ground. The argument that appellant is a trespasser hence has no !~S.1:t.':3~-~t~ in this case was raised by the respondents in thair counter affidavit when objecting the appellant's application for leave to be joined as a·party to the suit and defend it. The fact that the court granted these prayers trienns that the resp6hdeflt's contention was overruled~ In other \·✓0rds the court was not pursuaded by the respondents' claim that appellants were trespassers. This question could not, properly, be rc..ised again interlocutorily. After th.a court had given the appellants leave to be joined as a party and defend the suit, it could not l-3.ter uphold a preliminary objection that respondents had no interests in the suit because they are trespassers except by way of review. The earlier order and the subsequent ruling of the trial court cannot proparly coexist. The question of .whether appellants are trespassers can only be raised in the main pleadings as '. an issue to be proved by evidence in the final determination of the suit. Not as a preliminary issue.· / •••••• 3 . .... I \ 3 For this reason alone, this appe~l is .allowed. The case is returned to the trial court which is directed to hear it on merits before another Magistrate with competent _jurisdiction. / 28/11/96 ......__ Appellants: Kifunda/Maftah. Respondents: Kifunda • .... r··