NA TZHC Dar es Salaam Stecy 1

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 197 OF 2002 RASHMI MANGALDAS TAICHURA JAYESH MANGALDAS RAICHURA KETAN PRANLAL DEWANI. ............................. PLAINTIFFS VERSUS LAVENDER VILLAS LIMITED ........................... 18 T DEFENDANT FAKIHI AVD ALLAH RHENO JUNDU .................. 2No DEFENDANT ALLY MAHMOUD ALLY ................................. 3RD DEFENDANT RULING KALEGEYA, J: The three Defendants have raised almost same preliminary objections. Save for the 2nd Defendant who argued further that the suit cannot be mounted against him in his personal capacity as an Advocate as that would be in violation of The Advocate's Ordinance and 0. III, Rule 1 CPC, each of the three Defendants raised the following objections:- (a) that there is no cause of action (b) that the plaint is defective as it violates 0. 6, Rule 3 CPC, and, (c) that the Commercial Court has no jurisdiction as the action is based on land, the jurisdiction over which is legally placed under The Land Division of the High Court of Tanzania. . I\,. 2 While Mr. Kesaria, Advocate, represents the Plaintiffs, Mr. Maleta of Maleta and Ndumbaro, Advocates, Mr. Maira, Advocate, and Mr. Magafu, Advocate, of Malegesi Law Chambers, represent the I st, 2 nd and 3rd Defendants, respectively. Parties launched lengthy arguments in support of their preliminary objections as follows. On the alleged lack of cause of action, the I st Defendants argue that they are bona fide purchasers of the property at a public auction hence not liable, making reference to the Court of Appeal decision in Omar Yusuf versus Rahaman Ahmad Abdulkadir [1989] TLR 169, wherein it was stated, "A bona fide purchaser who is a stranger to the decree does not lose title to the property by the subsequent revision or modification of the decree", and seeking further support from Mboweto versus Kulala and another [1981] TLR 335 and Salum Malayo versus Mohamed Mteyo [1987] TLR 111, in which the court stated, "There is no need to investigate into the origins of the vendors titles beyond the inspection of the register at the land office because the purchaser is justified at law in the assumption that what the register contains is true and is all that there is about the property", and, 3 "Section 2 of the Land Registration Ordinance, Cap 334 defines owner to any estate or interest in whose name the estate or interest is registered", respectively. Regarding the 2nd Defendant's position, it is argued that he was merely advocating the cause of the client in judicial proceedings (relying on definitions as to who an Advocate is, provided in "A concise Law Dictionary by P. C. Osborn, Fifth Edition, Page 18 and, "Danis Legal Dictionary" by N .M. Dan at Page 16) first, in fiduciary relationship with his client and, secondly, as an officer of the court, making reference to the Omar case (Supra), and Charles U.S. Mwailunga vs Advocates Committee [1982] TLR 282 and Akena Adoko vs Advocates Committee [1982] E.A 290, where it was insisted that an advocate's professional misconduct should be proved beyond doubt, concluding that as this has not been established here there is no cause of action. As regards the 3rd Defendant, it is argued that there is no cause of action at all as the Plaintiffs are simply acting in accordance with what Justice Bubeshi observed in CC. No. 303 of 1999; that although only the four comers of the plaint need be looked at (referring to E.A Nanyoro V.P. Ole Saitaban 1987 TLR 44 and John M. Byombalilwa v Maritime Int (T) Limited [1983] TLR 1), the Plaintiffs are "technically trying to invite the court to reverse and/or review the decision of Hon. Mr. Justice Manento and nothing more", and that "this court has no powers to revisit the two decisions made by the Hon. Mr. Justice Manento and Hon. Bubeshi, J. and decide who is right or wrong". 4 On the 2nd preliminary objection the defendants charge that the plaint is incurably defective as Plaintiffs have given evidence and law in paragraphs 5-15 of the plaint instead of giving only concise facts and that this has violated the provisions of 0. VI, Rule 3 CPC hence the whole plaint should be struck out. The 2nd Defendant made reference to Mogha's Law of Pleading in India, 15 th Edition, Page 15 and Molla, The Code of Civil Procedure, 12 th Edition, Page 487 in support of his contention. Finally, is the challenge on jurisdiction in which Defendants urge that this matter is not a commercial case as defined under Rule 2 of the High Court Registries, Rules 1984 (as amended by GN 141/99) hence outside the ambit of this Commercial Division, and that as it relates to land, the only Division clothed with jurisdiction is the Land Division in terms of S. 167, and 181 of The Land Act, No. 4 of 1999. They made reference to the decision of this court in Commercial Case No. 121 of 2002, Rasilimali Ltd vs M.I.C Tanzania Ltd. In response, on the question of cause of action, the Plaintiffs argue that in filing this suit they were complying with the order of the court issued in a ruling of 8/2/2002 in CC 301/99; that in a similar situation the Court of Appeal in Civil Application No. 15 of 2002, Bank of Tanzania vs Devram P. Vallambia, advised that the only way out is to file a fresh case; that had the first Defendants bothered to check the Land Registry they would have discovered that the title was not in the Judgment - debtor's name but that of Oxford Properties Ltd. 5 Insisting on the 2nd Defendant's involvement, the Plaintiffs submit, "the 2 nd Defendant, at the time of making the application for execution of the decree by the attachment and Sale of the property, albeit upon his client's instructions, knew very well that the Suit premises no longer belonged to the Judgment debtor, that it had already been sold, but yet proceeded with dishonesty, malafide and deliberate misconcealement of the truth misled the court into issuing the order for attachment and subsequent sale ofproperty to the first defendant", and that in so doing he violated what was stated in A.P.C Lobo and another v Saleh Salim Dyiyebi and others 1961 EA 223, that "an Advocate who appears for a client in a contested case is retained to advance or defend his client's case and not his own; this he must do strictly upon instructions and with scrupulous regard, as an officer of the court, for his duty to the court as well as to his client. " and, that at this stage we only have to look at the four comers of the plaint as observed in Commercial case No. 187 of 2001, Kurasini container Terminal v DSR Shipping Lines and Others wherein Joraj Sharrif and Sons v Chotai Fancy Stores [1960] CA at 375 was quoted with approval. 6 On alleged violation of 0. VI, Rule 3 CPC, the plaintiffs simply brushed it aside as devoid of any particulars. As regards the third objection, the Plaintiffs insist that the 11 categories defining what a commercial case is under GN 141/99 are not exhaustive and that each case has to be looked at on basis of own particular facts, making reference to decisions of this court in Commercial Case No. 204 of 2002, Hirji Holdings Ltd vs The Liquidator, Musoma Textiles Ltd and 2 others, and Commercial case No. 2000, Suryakant Ramji vs Savings and Finance Ltd; that in this case the "Ownership and title to the Suit premises evolves from a commercial transaction. They executed a Sale Agreement and transfer document, paid consideration, paid the necessary duties, fees and taxes to acquire the Suit premises, but from which they are disposed because of the actions of the defendants. It therefore follows that this Hon. Court is competent to determine this suit. " Plaintiffs further argue that even if it is found that it is the Land Division which has jurisdiction, the fact that it is not operational yet vests the other Divisions of the High Court with jurisdiction as it is the same High Court, and that in the event the contrary finding is made, the order should not be dismissal but rather transfer of the case to the proper Division. In rejoinder, the 1st Defendant states that the order in Civil case No. 303 of 1999 (Bubeshi, J.) was made per incurium as it is in total 7 disregard of the decision of the superior Court, the Court of Appeal in Rahma Abdulladir case and that if the Land Division is not operational the Plaintiffs should have filed the case in the normal Division of the High Court. The 2nd Defendant reiterating his submission insisted that the Land Act having come into effect on 1/5/2001 the Land Division cannot be said to have not become operational as there is no saving provision to that effect. He insists, " ... it is common knowledge that under the Interpretation of Laws and General Clauses Act, 1972 every Act of Parliament is to be a public Act and it is to be judicially noticed and that every section of an Act takes effect as a substantive enactment. We submit that under Section 1 (2) of the Land Act, 1999, the Act was to be operative on the date which the Minister for land would appoint, which was rt May, 2001 this included Section 167 (]) and Section 181 of the said Act. "; that the complaints against the 2nd Defendant cannot be commercial, and that in any case, the Lobo case is distinguishable as no professional misconduct has been proved in relation to his client (as the current Plaintiff was not his client) and was not in court on his own account hence the inapplicability of the principle enunciated in Joraj Shariff case. Now, for the analysis of the objections and submissions thereto, and I will start with the one concerning cause of action. 8 All Counsel are agreed as regards the principle guiding our courts in determining the existence or otherwise of a cause of action in a plaint. The principle enunciated in Joraj Shariff and Sons v Chotai Fancy Stores [1960] E.A at 375, has always and still rules. Therein it was stated, . "The question whether a plaint discloses a cause of action must be determined upon a perusal of the plaint alone together with anything attached so as to form part of it and upon the assumption that any express or implied allegations offact in it are true". What does the plaint and annextures show? As the plaint is being challenged on two fronts - lack of cause of action and defectiveness for violation of 0. VI, Rule 3 CPC, even at the danger of making this ruling unnecessarily long, the arguments and findings can only be appreciated by quoting the said plaint at length. The relevant parts thereof run as follows:- " 5. On 1 I th August 1999 the third Defendant, represented by the second Defendant, commenced Civil proceedings in the High Court of Tanzania, Dar es Salaam District registry, Civil Case No. 301 of 1999 against one Amirali (Amran) E. Rahim. A copy of the plaint in those proceedings is annexed hereto marked "Annexure P 1 ". In the said plaint, the third Defendant, Advocated by the second Defendant, had pleaded, inter-alia, the following:- (i) "Paragraph 13 - The Plaintiff as the Administrator of the late Mahmoud Ally Hamad as a result of the breach of Contract by the defendant claims against the Defendant. (a) Compensation amounting to Shs. 77,500,000/= for the value of the house sold by the Defendant; (b) Refund of the price paid to the Defendant amounting to Shs.550,000/=; 9 (c) General damages amounting to Shs.50,000,000/= for loss of use of the house and inconvenience". The plaint was signed by the third defendant herein as the Plaintiff and was drawn (and signed) by the second Defendant as Advocate for the third Defendant. (ii) Annexed to the said plaint and marked "F" is a letter dated 20th July 1999 from the second Defendant to the said Amirali (Amran) E. Rahim which letter states, inter-alia, as follows:- "However. you have now sold the property to someone else. " "Our client strongly believes that the late Mahmoud Ally Hamad or his beneficiaries are in law entitled to compensation of Shs. 77,500,000/= for the said premises which your client has already sold to someone else in total disregard of the Agreement reached on 3rd June 1983 with the late Mahamoud Ally hamad" (Emphasis added) 6. The Plaintiffs herein state that by virtue of matters pleaded under paragraph 5 above, it is an indisputable fact that as long ago as July 1999 both the second and the third Defendant both knew and were aware that the property on Plot 20 Kinondoni, Dar es Salaam (hereinafter referred to as "the suit premises'') were sold off and no longer belonged to the said Amirali (Amran) E. Rahim. Consequently the third Defendant, through his Advocate the second Defendant elected to sue the said Amirali (Amran) E. Rahim for damages for breach of Contract. No claim was preferred in relation to Ownership of the property or challenging the Sale of the Property. The said second and third Defendants instead chose to demand, and did in fact sue for compensation, damages and refund of the purchase price. In other words, even at the time of commencement of Civil Case No. 301 of I 999, both the second and the third Defendants ' were full aware that the Suit premises no longer belonged to the said Amirali (Amran) E. Rahim. 7. On I ih November 2000 Hon. Mr. Justice Manento delivered Judgment in favour of the third Defendant for his claim pleaded in the Plaint. A true copy of the said Judgment is annexed hereto marked "Annexure P2 ". At pages 1/2 of the said Judgment, Hon. Mr. Justice Manento states, inter-alia the following:- "The Plaintiff has found that it was a futile exercise to pursue the Regional Housing Tribunal ... as execution had already taken place, he wants to be compensated for the value of the house his father had erected ... , for the purchase price ... general damages ... for loss of use and inconvenience caused ... interest ... " 8. Having obtained the above Judgment, both the second and the third Defendants, knowing fully well that the Suit premises no longer belonged to the Judgment debtor Amirali (Amran) E. Rahim, applied for execution of the Judgment by the attachment and Sale of the Suit premises. The said application was dishonest, malafide and deliberate misconcealement of the truth as a result of which the Court was misled into issuing an order for the attachment and subsequent Sale of the suit premises. 9. Annexed hereto and marked "Annexure P3" is a true copy of the Title Deed of the property which shows that the suit premises was Sold by the said Amran E. Rahim to one Oxford Properties Limited in the year 1999, who in turn Sold the said property to the plaintiffs herein in May 2001 (duly registered at the Land Registry in December 2001). 10. When the Plaintiffs' herein became aware of the order for attachment, they filed objection proceedings in the said Civil Case No. 303 of 1999. Following an order for filing of Written Submissions, Hon. Justice Bubeshi delivered her Ruling on 8th February 2002 a true copy of the said Ruling is annexed hereto and marked "Annexure P4 ". In her said Ruling, the Learned Judge has found as a matter offact the following: "The objectors have executed the agreement of sale, paid consideration, taken possession of the property, taken possession of the Title deed, obtained consent for the transfer and paid stamp duty, registration fees and all other statutory payments. This is evidence that the objectors have an interest in the property. And on the authority of the Mashoto vs Kaunga case (supra) the house at Plot No. 20 Kinondoni is not subject of attachment in execution of the decree. " 11. The Learned Judge further went on to state: "However the record of this matter does indicate that the suit property was sold by auction on 23/9/2001 and the Sale was certified on 27/12/2001 this being the current position, it is evident that some other party, namely, Mis. Lavender Villas Limited, the purchaser has now entered the scene, as it were. Now that the sale is complete, the objectors relief lie under the provisions of Rules 62 and 76 of order XXI In short they are free to file a claim against both the purchaser and the plaintiff decree holder to establish their claims. " 11 . 12. It is the Plaintiffs' averement that the Sale to the first Defendant was erroneously certified by the High Court in Civil Case No. 303 of 1999 on 2?1h December 2001, again as a direct result of the second defendant deliberately misleading the Court. Following the Plaintiffs' herein objection application filed on 9th October 2001, the Learned Judge set a timetable for the filing of Written Submissions, the last of which was to be file on 3(jh December 2001 with Ruling on notice. Knowing full well that a Ruling in relation to the objection application was awaited, the second defendant deliberately and dishonestly wrote on 8th December 2001 to the Registrar of the High Court applying for a Certificate of Sale of the property to the first Defendant. This deliberate representation by the second Defendant led to a Certificate of Sale being issued by the Registrar of the High Court in favour of the first Defendant. In the event, when the Ruling was finally delivered on 8th February 2002, the Judge found that the plaintiffs' herein have an interest in the Suit premises, that the Judgment debtor was not the Owner of the property and that the Suit premises was not subject of attachment in execution of the decree (emphasis added). 13. However, as a Certificate of Sale had already been issued by the Court to the first defendant by then (which the plaintiffs ' aver was directly as a result of the recklessness, malafide and actions of the second defendant) the Hon. Judge ordered that the plaintiffs' herein should file a claim against the first defendant herein and the third defendant herein to establish their rights, hence this present Suit. The Plaintiff's have joined the second Defendant as well for being one of the persons responsible for his deliberate acts, misconcealments and malafide resulting in the present state of affairs. 14. The plaintiffs' have also discovered that the first defendant, based upon the Certificate of Sale issued by the High Court, has now been registered as the Registered Owner of the Suit premises at the Land Registry, notwithstanding the fact that the original Title deed of the Suit premises, showing the plaintiffs ' as the Registered Owner remains in the possession and custody of the plaintiffs. 15. On 13th March 2002 after the Ruling of Hon. Justice Bubeshi (referred to at paragraphs 11 and 12 above) was delivered, the Registrar of the High Court issued instructions to the Police to assist the Court broker in evicting the plaintiffs from the Suit premises. A true copy of the Registrar's letter is annexed hereto and marked "Annexure P5". As a result, on that date the plaintiffs ' were forcibly removed from the Suit premises and continue to be dispossessed of the property. 16. The plaintiffs' aver that they are and were at all material times the rightful Owners of the Suit premises and the present state of affairs 12 has been caused directly as a result of the mischief, malafide and deliberate misconcealement of the truth by the second and the third defendants. 17. This Hon. Court has jurisdiction because the Suit premises is in Kinondoni District, Dar es Salaam and its value exceeds the pecuniary jurisdiction of Shs.12, 000, 000/= of this Hon. Court. Where/or, the plaintiffs pray for the following judgment, orders and reliefs against the defendants:- (]) that the plaintiffs be declared the lawful Owners of the Suit premises namely, Plot 20 Kinondoni, Dar es Salaam Certificate of Tile number 186039/95. (2) that the Registrar of Titles be ordered to rectify the Land register by deleting the name of the first defendant and to restore the names of the plaintiffs in the said Register. (3) the second and third Defendants jointly and severally be condemned to refund any monies or compensation should this Hon. Court find is due to the first. (4) an order for the immediate eviction of the first defendant and any other occupier from the Suit premises and for the plaintiffs' to be restored to the Suit premises. (5) an order for the second and third Defendants to jointly and severally pay punitive and exemplary damages to the plaintiffs for the distress and inconvenience caused to them as a result of the second and third defendants' actions and deliberate misconcealments for such amounts to be assessed by this Hon. Court as just and equitable. 6. Costs of this suit. 7. Such further orders and reliefs this Hon. Court deems just and convenient. " Briefly, from this eight paged plaint with its 31 paged annextures, we gather the following. The 3rd Defendant's father, Mahmoud Ally Hamad, now deceased, purchased a house foundation from one Amirali (Amrani) E. Rahim in 1983. The latter undertook to supply a title deed 13 later but allowed deceased to proceed with the construction of a house using the approved site plan and building permit. A single residential house, now valued at shs.77,500,000/=, was constructed and duly accupied by deceased and 'his' family. However, the title deed was not handed over as it was allegedly still being held by a Bank as collateral for a loan facility. After Mahmoud Ally Hamad's demise in 1995, one Nahrunisa M. Suleman acting under Amirali (Amran) E. Rahim's power of Attorney successfully filed an action against Mahmoud Ally Mohamed for eviction as a trespasser - this was before the Dar es Salaam Regional Housing Tribunal. The third Defendant as the personal legal Representative of Mahmoud Ally Mohamed did not wish to contest the finding which had been passed exparte. Instead, using the services of the 2nd Defendant, he successfully filed civil case No. 301 of 1999 against Amirali (Amran) E. Rahim. A decree in the sum of shs.77,500,000/= as compensation; shs.550,000/= as refund of the purchase price and shs.5 million as general damages was duly secured on 17/11/2000. However, in July, 1999, Amirali (Amran) E. Rahim had sold the premises to Exford Properties Ltd who in tum, in May 2001, sold the same to the present Plaintiffs although the third Defendant had as early as March, 1999 filed a caveat with the Land Registry against any transfer of the title. Meanwhile, upon securing the decree, the third Defendant proceeded and applied to the court for execution of a decree against Amirali (Amran) E. Rahim by attachment and sale of the disputed property. The Plaintiffs filed objection proceedings against the application. However, before this could be heard and determined, possibly being unaware of all facts on ground, the court proceed to issue the order for attachment and sale of the premises which were subsequently sold by public auction on 23/9/2001 14 and the sale was certified on 27/12/2001. The 1st Defendant was declared the highest bidder hence the buyer of the premises. Thus, by the time the court (Bubeshi, J) was delivering the ruling (on 8/2/2002) regarding the objection proceedings there was nothing to be objected upon as the subject matter had already passed hands (for the third time). In that ruling, the court observed as follows: "However the record of this matter does indicate that the suit property was sold by public auction on 23/9/2001 and the Sale was Certified on 2 7I 12/2001 this being the current position, it is evident that some other party, namely, MIS Lavender Villas Limited the purchaser had now entered the scene, as it were. Now that the sale is complete, the objectors relief lie under the provisions of Rules 62 and 76 of Order XXI In short they are free to file a claim against both the purchaser and the plaintiff decree holder to establish their claims. " What then are the basis of the grievance? The Plaintiffs' complaint is that when 2nd and 3rd Defendants were applying for attachment and sale of the premises they were fully aware that they (premises) were no longer the judgment - debtor's property; that when in Dec. 2001 the 2 nd Defendant wrote to the Registrar, High Court for certificate of sale of the property to first Defendant, he knew that ruling on objection proceedings was being awaited; that all this was dishonesty, malafide and deliberate misconcealment of the truth intended to, and that indeed, misled the court. And they rely on the above quoted excerpt from the ruling of 8/2/2002 as being the authority for the filing of the present case. 15 • With greatest respect to Mr. Kesaria I cannot go with him on this. Courts never order parties to sue others. Courts are there to determine controversies as and when they are presented by parties springing entirely from their (parties) own decisions. And, by whatever stretch of imagination and interpretation, the quoted observation by the court (Bubeshi, J) cannot be taken to have been an order or even a direction to the objectors (present Plaintiffs) that they should proceed and file a case against the present Defendants or any person for that matter. It was just an observation. That said however, what Mr. Kesaria can justifiably say is that under the law i.e. 0. XXI, Rules 62 and 76 there is nothing wrong in filing such action. The said Rule 62 provides, "62. Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive, " while Rule 76 is as under, "76. No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for 16 •· the recovery of the specific property and for compensation in default of such recovery. " Now, as to whether the Plaintiffs have a cause of action against 1st Defendant I don't hesitate to answer the same positively. These are the buyers of the disputed property, the very property whose disposition is being challenged by the Plaintiffs. Any positive decision would impact on them and indeed impleading them is necessary and to their advantage. These are proper parties. Suffice to quote what was persuasively stated in India (a country we share almost common provisions on the matter) in Shitladin vs Board of Revenue, AIR [1963] Allahabad 549 (550), "In respect of every suit there are certain persons who are essential to be impleaded as defendants; if they are not, no relief can be granted against them or in the suit. These persons fall in two classes: (1) those against whom the relief is sought, and (2) those whom the law requires to be impleaded as defendants even though no relief is sought against them ... Persons who are not essential to be impleaded as defendants again fall in two classes: (1) those who are in some way interested in, or connected with, the relief sought against others, and (2) those who are not at all interested in or connected with it. Persons of the latter class cannot be impleaded at all, but persons of the former class may be impleaded as proper parties at the discretion of the plaintiff by way of abundant caution, or to avoid future litigation and the relief 17 will not be refused on the ground that they have not been pleaded". The first Defendant's complaint on lack of cause of action has no merits. What about the 2nd Defendant. The plaint is full of allegations that the 2 nd Defendant in concert with the third Defendant, acted dishonestly, malafides and deliberately to conceal the truth in the process misleading the court (para.6, 8, 12, 13, 16). At this stage we are not determining the merits of the case hence the arguments that no professional misconduct has been established cannot be entertained. The battle regarding the extent to which an advocate can be held liable for acts/omissions he commits while prosecuting his client's plight will rage during the trial and not at this stage. The Plaintiffs allege that the 2 nd Defendant has a hand in this saga. The Plaintiffs sufficiently portray a cause of action and it matters not that the 2nd Defendant is a partner under a firm of advocates - the Plaintiffs have decided to proceed against him personally, and as already stated, it is not the duty of this court to decide for parties as to who should sue who. As regards the third Defendant the plaint clearly paint him as a necessary party as he is the key prayer in the transaction complained against. The complaint on lack of cause of action by all the three Defendants is meritless and stands dismissed. 18 We tum to the 2nd objection. On this I am on all fours with the Defendants that the plaint contains a lot of undesired material in a pleading. 0. VI, Rule 3 of the CPC provides, "3. Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers may be expressed in figures. " Among the reasons which compelled me to quote the plaint in extenso is to portray this anomaly. Apart from the obvious that even the non-offending paragraphs could have been better framed, certain inclusions are unnecessary. This can be seen in the whole of paragraph 5 (i) and (ii); the whole of the 2 nd part of paragraph 7 including the last two sentences of part one; the whole of the 2nd part of paragraph 10 including the last sentence of part one and para.11. This anomaly is so obvious that I am surprised by Mr. Kesaria's bold refutation that he does not see the basis of the complaint! That said however, I have asked myself what should the consequences be. The Defendants urge that the plaint should be struck out. 19 In my considered view, though indeed Order VI, Rule 3 CPC has been offended as portrayed, the offensive inclusion does not lead to the consequences urged. Why? These are mere unnecessary additions to what should be included in a pleading. They do not cause any prejudice or inconvenience to the Defendants. It would have been different if it were an exclusion of essential particulars because, then, we would have justifiably said that the Defendants cannot be called upon to face or respond to non existing aspects. As it is, the Defendants are clearly made aware of the nature of the claim against them. In my view, a proper course to follow is simply to hold them as being superflous (as indeed they are) rather than issuing an order striking out the whole plaint. The 2nd preliminary objection succeeds to the extent indicated. We tum to the last preliminary objection. Indeed, the Commercial Division of the High Court was established with the objective that the same be a Division wherein proceedings concerning commercial cases may be instituted (section 5 A of the High Court Registries Rules, 1984 as amended by GN 141 of 1999). The same GN defines what a commercial case is - "Commercial Case" means, "a civil case involving a matter considered to be of commercial significance, including but not limited to "(i) The formation of a business or commercial organization. (ii) The governance of a business or commercial organization. (iii) The contractual relationship of a business or commercial organization with other bodies or person outside it; 20 (iv) The liability of a commercial or business organization or its officials arising out of its commercial or business activities. (v) The liabilities of a commercial or business person arising out of that person's commercial or business activities. (vi) The restructuring or payment of commercial debts by or to business or commercial organization or person. (vii) The winding up or bankruptcy of a commercial or business organization or person. (viii) The enforcement of commercial arbitration award. (ix) The eeforcement of awards of a regional court or tribunal of competent jurisdiction made in accordance with a treaty or mutual assistance arrangement to which the United Republic is a signatory and which forms part of the law of the United Republic. (x) Admiralty proceedings; and (xi) Arbitration proceedings. " It is clear from the above that the facts at hand cannot aptly fall in any of the enumerated categories. The question is whether it is a commercial case. The Defendants urge that it is not while the Plaintiffs maintain that it is as categories of a commercial cases are not closed by the 11 above enumerated. Parties referred to me to my own decisions in Rasilimali Ltd case and Suryakant Ramji case. In the former case I dismissed the preliminary objection but upheld the same in the latter. In both cases I held, as urged by the Plaintiffs, that categories of commercial cases are not closed but those to be included have to have trappings of commercial transaction. Suffice to restate here what I stated in Rasilimali Ltd case: 21 "Although the definition ... includes but is not limited to matters falling under the eleven items, meaning that the court may define a case as commercial though not listed, nevertheless such case should have a resemblance of the items enumerated. Invariably it must have commercial trappings as between the parties. The commercial relationship envisaged is that which governed the transaction leading to the cause of action and not the status of the parties as the Plaintiff seems to imply ... " In Rasilimali Ltd case the Plaintiff's claim was that the Defendant had simply landed into Plaintiffs premises and therefore a trespasser. Clearly, there was no commercial elements in the alleged transaction. Such cases have no place in the Commercial Division of the High Court. In Suryakat Ramji case however, the Plaintiff had alleged that him and Defendants had entered into an understanding whereby the former purchased the house (belonging to Defendant) he was occupying as Defendant's worker and that the purchase price was to be payable in instalments deductable from his salary, deductions which are alleged to have duly been made although the Defendant failed or refused to perfect his part of the bargain. I held that the relationship was of commercial transaction as it involved selling and buying. Defining the term "Commercial", the Blacks Law Dictionary, 6th Edition, at page 270, has the following: "Relates to or is connected with trade and traffic or commerce in general: is occupied with business and commerce ... Generic term for most all aspects of buying and selling. " 22 In my view, provided the transaction, involves selling and buying, whether for profit or for any other reason, even if it be a sole transaction, is commercial. Now, in the case at hand, the whole dispute revolves around buying and selling transactions between the various parties: the dispositions of the disputed premises from one hand to another. In my view, it matters not that not all the parties were party to the original transaction. What is important is the nature of the centre-piece of the controversy. The question is, who, flowing from the series of these commercial transactions, has a paramount title to the premises. And, the alleged flaws and illegalities cannot be seperated to form separate actions as indeed these are the veins and blood that make these commercial transactions controverted. That would have concluded the aspects of the third preliminary objection if there was no other leg of argument that as the matter involves land the jurisdiction to try it lies with the Land Division of the High Court and not this Division. There is no doubt whatsoever that The Land Act, No. 4 of 1999, at High Court level, vests exclusive jurisdiction of determination of land disputes in the Land Division of the High Court. S.167 of the said Act is very clear on this. It provides:- 23 . ;, "] 67.(1) The following courts are hereby vested with exclusive jurisdiction, subject to the provisions of this Part, to hear and determine all manner of disputes, actions and proceedings concerning land, that is to say - (a) (b) the Land Division of the High Court established in accordance with law for time being in force for establishing courts divisions,· ,, That Act however did not repeal the establishment of the Commercial Division nor inhibit its jurisdiction (S. 181 thereof not withstanding). And this takes me to the following observations. Having carefully considered the laws establishing the two Divisions of the High Court (Commercial and Land Divisions) I am of the view that relevant disputes, triable therein, can be looked at from four scenarios. The first scenario is where there is no element of commercial transaction and does not touch land in whatever aspect. Such dispute cannot be tried in any of the Divisions. The second scenario 1s where the dispute has no element of commercial transaction but is based on land. The Rasilimali Ltd case is classic example on this. Here, the jurisdiction clearly lies with the Land Division. 24 • The third scenario is where the transaction is commercial and the question of land merely comes in as an ancillary relief. These transactions include disputes concerning loans and overdraft facilities recovery. Here, the jurisdiction lies with the Commercial Division because although one of the reliefs sought may be foreclosure, this latter element is not the basis of the controversy. The controversy centres on the granting and failure to service the loan or overdraft facility. Finally, is where the transaction is basically commercial but has land transfer issue as is the case here. In my considered view, this scenario stands in same capacity as the third scenario as the controlling aspect is that of being a commercial transaction. The Commercial Division is the one versed with jurisdiction. With the above finding, the question of whether the Land Division has become operational or not, and if not, what would be the effect on cases which exclusively fall under its jurisdiction, become irrelevant. The 1st and yct preliminary objections stand dismissed while the 2nd objection stands allowed to the extent indicated. L.B. KALEGEYA JUDGE Delivered