raimond so nicholaus changala 12 others vs nambogo village council 3 others 2023 tzhc 18264 20 june 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT SUMBAWANGA LAND CASE NO. 9 OF 2022 1. RAIMOND NICHOLAUS CHANGALLA q 2. MODEST N. CHANGALLA 3. ELIXANDA CHANGALLA 4. JELAZO DAMIAN KILAPI 5. CLEMENTCE DAMIAN KILAPI 6. JULIUS KILAPI L....... PLAINTIFFS 7. RESPIUS VENANCE NTINDA 8. VITALIS VENANCE NTINDA 9. DENIS JACOB NTINDA 10. DAUDI K. NTINDA 11. LEONARD NTINDA 12. PROTAZ GREMANIKO KASOKELA 13. PATRICK KASULE 1 VERSUS 1. NAMBOGO VILLAGE COUNCIL 2. KATUMBA AZIMIO VILLAGE COUNCIL 3. SUMBAWANGA MUNICIPAL COUNCIL .......................... DEFENDANTS 4. THE ATTORNEY GENERAL 27th April, 2023 & 2(f June, 2023 MRISHA, J. The genesis of this Ruling is the Preliminary objection raised by Mr. Mathias Budodi, Learned Advocate for the Plaintiffs, against the Joint Written Statement of Defence (WSD) filed by the defendants as their ■ response to the Plaint which was filed by the Plaintiffs in the course of instituting a Land Case No. 9 of 2022 (the main suit) before this court. The objection is mainly premised on a single point namely that the pleadings filed by the defendants are not properly verified according to the law. Submitting in respect of the said point, Mr. Budodi argued that the law requires the said document(s) filed in court to be verified. 2 He cited the provisions of Order VI, Rule 15(1)(2)(3) of the Civil Procedure Code, Cap 33 R.E. 2019(the CPC) and proceeded to argue that in the said provisions of the law the word 's/7a//'has been used which means it is mandatory to verify the pleadings filed in court; hence the omission to do so is a contravention of the cited law. In describing the alleged anomalies, the said counsel contended that the WSD of the defendants contains 14 paragraphs, but at page 8 of such document only paragraphs 1-11 have been verified; the rest are not. He further submitted that even if even though paragraphs 1-11 are verified, yet the same is not properly verified according to the law. He clarified that for instance paragraph 4 contains sub paragraphs (a), (b), (c), (d) and (e), but those paragraphs are not verified. Likewise, the counsel contended that paragraph 7 of the said pleading contains sub paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (j), (k) and (I) are not verified, and same applies to paragraph 14 which he said is defective as its sub paragraphs have not been verified. He concluded on that point by submitting that what was don^ by the defendants on paragraphs 4 and 7 amounts to blanket verification which is not allowed in law. He fortified his stance by citing the case of Jonester Traseas Rwabigendela @Jonester Jones vs Elizabeth 3 Nelson Ngaiza, Application for Revision No. 6 of 2022, HCT at Sumbawanga(unreported) where it was stated that, "The sub paragraph ought to be verified separately and not generally." Mr. Budodi went on to argue that the above case was in respect of an application which was based on the defective affidavit, therefore, to him, since the present case contains a defective verification then he prayed to this court to struck out the said joint WSD. It was his further submission that in the case of Jonester Jones {supra} this court emphasized that the defective affidavit cannot be cured by the principle of overriding objective which is provided under section 3A and B of the CPC. The learned counsel finally referred the principle of stare decisis and doctrine of precedent which put emphasize on consistence of judgment and ruling of the court. He thus prayed to this court to consider the ruling which was delivered by it and proceed to stuck out the said WSD with costs. On their side the defendants through their counsel who are Mr. Mathew Mwandama and Mr. Erasto Balua, both Learned State Attorneys, 4 opposed the instant objection on various grounds. At first Mr. Mwandama submitted in response, that on their side they concede that the said joint WSD has some defects as pointed out by the Plaintiffs' counsel. However, he said they oppose the prayer of striking out their WSD as well the prayer of costs of the suit. He submitted that Order VI, Rule 15 of the CPC which was cited by the Plaintiffs' counsel was interpreted in the case of Kigauga and Associate vs Universal Gold NL [2000] TLR 24 in which it was held that: - "Defective verification clause is a mere procedural error which is cured by the overriding amendment." The Learned State Attorney argued that the above case deals with verification clause in the plaint and the case cited by the Plaintiffs' counsel is distinguishable to the case at hand in the sense that the same deals with verification of the affidavit. He also submitted that there is a big difference between verification clause in the Plaint and the one in the Affidavit. He also argued that the provisions of Order VI, CPC cited by the Plaintiffs' counsel was not interpreted in the case of Jonester Jones {supra}. 5 Arguing in respect of an objective of having a verification clause, Mr. Mwandama borrowed the words of Author Mulla in Mulla-The Code of Civil Procedure, 16th Edition, at page 353 and 854 when interpreting the provisions of Order VII, Rule 15 which is pari materia with the provisions of our CPC, as follows: - "The object of this rule is to fix the responsibility for allegation made in the plaint on the person who verifies. Pleading which is not verified in the manner required by this rule may be verified at a later stage of the suit even after the expiring of limitation period. The omission to verify a pleading is a mere irregularity within the meaning of section 99 of the Code which could be cured at any stage." Having quoted the above excerpt, the learned State Attorney argued that in essence, verification clause in a plaint can be cured at any stage as opposed to verification clause in the Affidavit which, he submitted cannot be cured by overriding objective because of two reasons; one, that the verification clause in the Affidavit is governed by the provision^ of the Judicial Oath and Statutory Declaration Act, Cap 34 R.E. 2019 and; second, that an Affidavit is an alternative to oral evidence, while 6 the verification in a plaint is not an alternative to oral evidence as was stated in the book of Mulla referred above. Mr. Mwandama proceeded to submit that even if the overriding objective was not applied still section 97, CPC can be used to cure the defective verification clause. He also submitted that section 95 of the CPC vests this court with power make an order of amendment in respect of a defective verification clause. He, therefore prayed to this court to allow the defendants to amend the defective verification clause in lieu of striking out their WSD bearing in mind that the present case has taken longer without been heard on merit, which goes contrary to the main duty of courts of law which is to resolve the problems. Regarding the prayer of costs, the said counsel opposed it on the ground that the Plaintiffs' counsel surprised them as the same was not stated in the Notice of a Preliminary Objection. According to him, if the Plaintiff's counsel intended to pray for costs, then he could have notified them in the Notice of Preliminary Objection. The learned counsel finallv orayed to this court not to grant such prayer to the plaintiffs. In addition to what was submitted by his learned brother, Mr. Balua submitted that in law pleadings are governed by the CPC; and it is a 7 surprise to them that despite filing their plaint, at the same time they raised a preliminary objection. He argued that according to Order VIII, Rule 2 of the CPC, the defendant has the right of raising a preliminary objection, not the plaintiff; that position was stated in the case of Laurent Kavishe vs Enely Hezron, Civil Application No. 5 of 2012(unreported). He also referred the case of Amos Fulgence Karungula vs Kagera Co­ operative Union (1900) LTD, Civil Application No. 435/- 4/2017(unreported) CAT at Bukoba, to back up his proposition and wound up by requesting to this court to allow the amendment of the WSD. In rejoinder, Mr. Budodi reiterated his previous stance by submitting that the Preliminary Objection raised by the Plaintiffs is tenable for two reasons; first, that it is a cardinal principle that one cannot raise a preliminary objection on top of an existing preliminary objection as doing so is as good as pre-empting such objection. According to the said learned counsel, the second reason is that the defendants' counsel has conceded that their verification clause is defective; he wondered how the defendants can question the instant 8 preliminary objection while they have admitted to have a defective verification clause in their pleadings. Mr. Budodi also submitted that the cases referred by the defendants' counsel are distinguishable to the instant case because they relate to the application while the case at hand relates to the civil suit, and both cases dealt with interpretation of the Court of Appeal rules pertaining to circumstances of the court of appeal. The counsel went on to argue that the defendants' counsel has not objected that it is mandatory for Order VI, Rule 15 to be complied with. He continued to argue that the case of Kiganga Associate (supra) is proper in the circumstances of this case as opposed to the case of Jonester Jones (supra) which, according to him requires more research and development of the law. In clarifying his proposition Mr.Budodi submitted that the case of Kiganga Associate (supra) is proper because it deals with pleadings while the case of Jonester Jones (supra) which deals with affidavit, is not proper because both Affidavits and pleadings are governed by the same law which is the CPC. He also pointed out that the Affidavits are governed under Order XIX and Pleadings are governed under Order VI of the CPC and both are serving the same purpose. 9 The plaintiffs' counsel went on to argue that in the book of Mulla verification was not differentiated. To him, an affidavit is also a pleading in the application and plaint is also a pleading in the suit. Hence, the writing of the jurist (Mulla) is merely persuasive which is not binding compared to the principle cited in the case law which is a binding law. Regarding the prayer of amendment sought by the plaintiffs' counsel, Mr. Budodi strongly disputed the same on the ground that section 97 of the CPC provides a right to amend the proceedings and not pleadings. His submission was preceded by Mr. Peter Kamyalile, also learned advocate who submitted that while citing the case of Jonester Jones (supra), the defence counsel failed to show the provisions of the law which governs Affidavit. According to him, Order VI, Rule 15 of the CPC governs verification of all pleadings and it was dealt with in the case of Jonester Jones (supra)', hence that case is relevant and proper in the present case. Mr. Kamyalile also submitted that the defendants' counsel who cited the provisions of Order VIII, Rule 2 of the CPC misconceived such provision. He argued that under such provision it is nowhere stated that it is only the respondent who has the right of raising a preliminary objection and the case of Laurent Kavishe (supra) does not comment about Order io VIII, Rule 2 of the CPC, hence it does not support the defence counsel's submission. The learned counsel did not end there; he further submitted that one cannot pray for an amendment if the pleadings is defective or incompetent; the remedy for such defect is to struck out. Regarding costs, Mr. Kamyalile argued that they have prayed for costs because the pleadings was prepared by the learned State Attorneys and they spent some money, time stationary to prepare and file their case. I have considered all the rival submissions by the counsel for both parties together with all the pleadings filed therein. I have also paid much attention to the authorities as well as the provisions the law cited by the said counsel. It is apparent that the hearing of the main suit was stayed pending determination of a preliminary objection raised by the counsel for the plaintiffs who has implored me to struck out the defendants' WSD with costs for being tainted with a defective verification clause. I dare not intend to reproduce the reasons given by the ,,-laintiffs' counsel to backup his objection because the same are apparent as indicated above. I will rather go straight to determine the present 11 objection and in doing so, I will be guided by a single issue which is whether the said objection is meritorious. In arguing for or against the preliminary objection, the counsel for the parties have locked horns on several issues which I find pertinent to address one after another in order to avoid missing one. It is the contention of the plaintiff's counsel that since the plaintiffs have not verified all the sub paragraphs in the verification clause then that makes the verification clause in the WSD defective and it is a contravention of the law as was stated in the case of Jonester JonesCst/pra) which emphasized on the need to verify all sub paragraphs. It also the contention of the said counsel that such defect cannot be cured by the principle of overriding objective. The counsel has also argued that the principle of stare decisis and doctrine of precedent bindings this court. Another argument by the counsel for the plaintiffs is that there is no difference between affidavits and pleadings because the two are governed by the same law which the CPC. They have also implored this court to order the defendants to pay them costs after striking out their WSD. 12 Conversely, the counsel for the defendants have differed with the course taken by the plaintiffs' counsel by arguing that the circumstances of this case are distinguishable and the law allows the said defects to be cured under the principle of overriding objective and the provisions of CPC. The defendants' counsel has insisted that the plaintiffs are not entitled to be awarded costs of this suit because they have not included their prayer for costs in their Notice of Preliminary Objection. It is their submission that the defects in the WSD can be cured under the principle of overriding objective as well as the provisions of sections 97 and 95 of the CPC. Finally, the defendants' counsel has prayed to this court not to struck their WSD, but order for amendment of the same. I will start by seeing whether the defects occasioned in the verification clause of the defendants' WSD cannot be cured under the principle of overriding objective. Section 3A of the Written Laws (Miscellaneous Amendments) (No.3) Act, 2008 which amended Section 3 of the CPC, provides that: - "The overriding objective of this Act shall be to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes governed by this Act". [Emphasis added] Also, under section 3B.-(1) of the said law provides that: - 13 "For the purpose of furthering the overriding objective specified in section 3A, the Court shall handle all matters presented before it with a view to attaining the following- (a) just determination of the proceedings; (b) N/A; and (c) timely disposal of the proceedings at a cost affordable by the respective parties". [Emphasis added] Going by the above provisions of the law, it is obvious the intention of the legislature in amending section 3 of the CPC by adding sections 3A and 3B which introduced the principle of overriding objective was to insure to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. In my opinion the defects in the verification clause of the defendants' WSD in the instant case are minor and do not prejudice the plaintiffs. More so, it is my considered view that the circumstances of this case are distinguishable to those existed in Jonester Jones case(st/pra). Hence, the principle established in that case has nothing to do with the impugned defendant's WSD in the present case. In the former case the respondent's preliminary objection focused on the verification of a defective Affidavit, but in the present case the objection is targeting the defective verification clause a pleading which is the 14 WSD. Those are two different situations, as correctly submitted by the counsel for the defendants. The above court's finding is backed up by the decision of this court in the case of Loshya Investment Limited vs Visiontech Computers Limited, Commercial Case No. 56 of 2005, HC Commercial Division at Dar es Salaam(unreported) where it was stated that: - "Mr. Uronu has reffered to O. VI, r. 15 as the law governing verification of affidavits. With respect I think, he is wrong. VI, r. 15 only applies to verification of "pleadings..." Likewise, it cannot be subscribed that the affidavits and pleadings are the same and they save the same purpose. This is because affidavits are governed by Order XIX, Rule 3 of the CPC while Pleadings are governed by Order VI of the CPC read together with Rule 13 of Order VIII. Also, while Affidavits are an alternative to oral evidence, the Pleadings are not. By virtue of Order VI, Rule 1 Pleading means, "a plaint, written statement of defence, and other subsequent pleadings as may be presented under Rule 13 of Order VIII" Therefore, it is worth noting that Order VI, Rule 15 cited by Mr. Budodi, does not apply to affidavits 15 and I do not share his assertion that affidavits and pleadings fall under the same law. The above finding of this court is fortified by the decision of this court in the case of Nasreen Hassanali vs Aga Khan Health Services Tanzania, Revision Application No. 84 of 2021, HC at Dar es Salaam(unreported) in which it was observed that, "...affidavit is not a pleading and Order VI; Rule 15 of the CPC does not apply to an affidavit. The court has found the provision of the law governing affidavit is Order XIX, Rule 3 of the CPC." Another issue to be addressed here is whether the plaintiffs are entitled to raise a preliminary objection. A preliminary objection raises a point of law which if upheld, disposes of the suit and saves the time of the court and of the parties by not going into the merits of the application as the point of law disposes of the matter summarily. (See Eusto Ntagalinda vs Tanzania Fish Process Ltd, MZA. Civil Application No. 8 of 2011, CAT at Mwanza(unreported). The above principle of law means that if upheld, a preliminary objection disposes of the suit. It is surprising to see the plaintiffs' attempt to move this court through a preliminary objection while they are the ones who have sought several reliefs against the defendants. 16 If, say, their objection is sustained, automatically the end result will be to struck out the defendants' WSD which means the matter will have to be prolonged for some days awaiting the defendants to refile their WSD after rectifying the alleged defects. Will that not cause them to delay their case against the defendants? I think they have not chosen a proper way in pursuing their case. In a normal practice a preliminary objection is raised by the applicant, not the respondent. In a case like this, the one who ought to raise a preliminary objection could be the defendant especially under Rule 2 of Order VIII of the CPC as rightly submitted by Mr. Balua. Under Rule 2 of Order VIII it is provided that: - "The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of taw, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint". To bolster his proposition on the above point, Mr. Balua has referred this court to the case of Laurent Kavishe vs Enely Hezron, Civil Application No. 5 of 2015, CAT at Tabora(unreported) where it was stated, inter alia that: - 17 "...the raising of a preliminary objection is a weapon available to a respondent, not to an applicant. In the present case the applicant is purporting to move us through a preliminary objection. This effort is clearly misplaced. We find the preliminary objection raised by the applicant devoid of legality and strike it ouL [Emphasis added]. On my side, I find the above case intertwined to the circumstances of this case where it is the plaintiffs who raised a preliminary objection instead of the defendants. I think that is wrong; the plaintiff ought to move this court through matters of merit regarding their claims as indicated in their respective plaint. Their attempt to move this court through a preliminary objection contributed to unnecessary delay in the determination of the main suit. That goes contrary to the spirit of the law as per the overriding objective cited above. As for the way forward, the counsel for the defendants has implored me to order for amendment of the defendants' joint WSD so that the matter can proceed inter partes. Basing on the reasons which I have endeavoured to advance above, I find that the defendants are entitled to be granted such prayer. 18 However, while I am inclined to grant the prayer sought by the defendants' counsel, I am not in one with them on the use of section 97 of the CPC because, as correctly submitted by one of the plaintiffs' counsels, such provision deals with amendment of any part of the court proceedings and not pleadings. I think the proper prOVISIOHS tO 3llOW ttlG prayer sought by the defendants are section 95 of the CPC and sections 3A and 3B of the Written Laws (Miscellaneous Amendments) (No.3) Act,2008. Having stated the above, I hold that the preliminary objection raised by the plaintiffs is devoid of legality and lacks merit. Consequently, the same is overruled and the defendants are given 14 days within which to amend their respective pleading. The time stipulated above will count from the date of delivery of the present ruling. It is so ordered. 20.06.2023 Dated at Sumbawanga this 20th Day of June, 2023 20.06.2023 19 Date - 20/06/2023 Coram - Hon. M.S. Kasonde - DR. 1st plaintiff 2nd plaintiff 3rd plaintiff 4th plaintiff 5th plaintiff 6th plaintiff 7th plaintiff All present and Ms. Neema Charles Advocate 8th plaintiff 9th plaintiff 10th plaintiff 11th plaintiff 12th plaintiff 13th plaintiff 20 1st Defendant 2nd Defendant All presented by Mr. Erasto Barua, State attorney 3rd Defendant 4th Defendant Mr. Erasto Barua State Attorney: I am assisted by Mr. Siyumwi Shaban, State Attorney to present all defendants. This matter comes for Ruling and we are prepared. Ms. Neema Charles - Advocate: we are prepared too. Sgd:M.S. Kasonde Deputy Registrar 20/06/2023 Ruling delivered this 20th day of June, 2023 in the presence of all plaintiff and being presented by Ms. Neema Charles, heard Advocate and in the presence of Mr. Erasto Barua, State Attorney being assisted by Mr. Siyumwi Shabani State Attorney. M.S. Kasonde Deputy Registrar 20/06/2023 21 Order: Mention on 02/08/2023. 22