CIVIL CASE NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY

AT MUSOMA CIVIL CASE NO. 0000445 OF 2024 REF NO. 20240109000000445

BETWEEN REBEKA MIRENGERI.............. . ................................................... 1st PLAINTIFF MARY MUKAMI MESSO................................................................................. 2ndPLAINTIFF BUSEGI DALIGO........................................................................................... 3rdPLAINTIFF BUTAMO NDALAHWA.................................................................................... 4thPLAINTIFF JOSEPHINE MAGIBO..................................................................................... 5thPLAINTIFF VICTOR WANZAGI........................................................................................ 6™PLAINTIFF EMA KULWA................................................................................................... 7thPLAINTIFF

VERSUS SOSPETER MGONYA BANDIO........................................................................ 1stDEFENDANT MORANDI MANYAMA GUYANI...................................................................... 2ndDEFENDANT MONICA NYAMAKARE JIGABHA.................................................................... 3rdDEFENDANT JOSEPH GASPER SHAYO................................................................................ 4thDEFENDANT THERESIA JAMES SACHAHE.......................................................................... 5thDEFENDANT

RULING 02nd & 05th September, 2024 M. L, KO MBA, J, Page 1 of 23 This is the ruling in respect of the Preliminary Objection raised by the 1st, 2nd, 3rd and 5th defendants on different points of law. One set of preliminary objection was filed by the 1st, 2nd and 3rd defendant that: 1. The plaintiffs' amended plaint does not disclose a cause of action against the 1st, 2"^ and 3d defendants and when it arose.

2. The plaintiffs have no locus stand to sue the defendants without authority from SIMDA who is a privy to the attached contract.

3. The plaintiffs' amended plaint does not plead facts showing that the court hasjurisdiction to entertain the suit. And second set of Preliminary Objection was filed by the 5th defendant that; 1. To the extent that SIMDA Mining is a registered entity with its legal personality, the plaintiffs lacks the locus stand to use its behalf.

2. The suit is a nullity having being instituted against a deceased person; and 3. To the extent that the 3h defendant is not a party to the contract complained off by plaintiffs to have been breached, the plaintiffs have no cause of action against the defendant. Briefly, plaintiffs herein filed a Civil Case against the defendants claiming for the breach of the contract which was entered on 08/01/2020. Among the orders prayed by plaintiffs includes; Page 2 of 23 1. The defendants be declared to breach the contract.

2. Payment of specific damage to the tune of TZS 800,000,000/ 3. Payment of TZS 400,000,000/ as general damages.

4. Allocation of 22% of shares. Upon service, the 1st, 2nd and 3rd defendants filed a joint written statement of defence (WSD) which contains the said Preliminary Objection (PO) as indicated. Further, the 5th defendant filed WSD with PO. As it is already settled, that PO has to be determined first before moving to the merit of the case, I did the same. See Khaji Abubakar Athumani vs Daud Lyakugile Ta D.C Aluminium 8i Another (Civil Appeal No. 86 of 2018) [2021] TZCA 32 (24th February, 2021) and Deonisia Onesmo Muyoga & Others vs Emmanuel Jumanne Luhahula (Civil Appeal No. 219 of 2020) [2023] TZCA 124 (20th March, 2023). When the matter was placed for hearing of the PO, all plaintiffs had a legal service of Mr. Boniface Sariro, the 1st, 2nd and 3rd defendants were represented by Mr. Wambura Kisika, the 5th defendant was represented by Mr. Iman Mfuru, all are advocates. It was Mr. Mfuru who started to argue his points of objection starting with the first point that SIMDA is registered legal entity and therefore the Page 3 of 23 natural people who are plaintiffs lacks locus standi to sue on her behalf of the legal entity. He cited the Written Law Misc Amendment Act No. 3 of 2019 (Act No. 3 of 2019) at section 28 and 29 where Community Based Organisation (CBO) has been recognized as Non-Governmental Organisation (NGO). He went on citing section 2 of the NGO Act which has added the definition of NGO to include the Community Based Organisation. In establishing a legal foundation of SIMDA Mr. Mfuru further cited section 8 of Written Laws Misc Amend (No.

2) Act of 2005, (Act No 11 of 2005) that recognises NGO to have capacity to sue and being sued on its name. He submitted that section 18 of Act No 11 of 2005 gives NGO a power to be a body corporate with those mandate. Back to the case at hand, he said there is no dispute that SIMDA is Community Based Organisation as there is a registration certificate attached to the amended plaint as annexture SCA 7, further he analysed paragraph 1 of the amended plaint that the plaintiffs introduced themselves as they trade as SIMDA Mining. It was his position that since SIMDA is a CBO with registration certificate it has capacity to sue on its own name as a body corporate and therefore the plaintiffs who sue on their own names lack capacity to sue on behalf of SIMDA. He cited the case of Lujuna Shubi vs Registered Trustees of Page 4 of 23 Chama Cha Mapinduzi (CCM) 1996 TLR 203 and Projest Enery vs Evelina George (Bukoba HC) Land Appeal No. 65 of 2021 concluded that if the party has no locus cannot file a suit and prayed the suit be struck out with costs. On the second point Mr. Mfuru submitted that the suit is nullity having being instituted against the deceased person. He clarified that at the time of institution of the suit the 4th defendant was already deceased as noted form the plaint through annexture SCA 2 and SCA 4 where mama Shayo acted for and on behalf of Familia ya Marehemu

Joseph G. Shayo. He went on submitting that the said Joseph G. Shayo is the 4th defendant that means the 4th defendant was deceased at the time of institution of this suit. The effect of suing deceased he submitted was discussed in the Exim Bank vs Yahaya Hamisi Musa, Civil Appeal No. 275 of 2019 at page 6 that if a suit is filed against the deceased it becomes nullity and prayed the suit be struck out with costs. Arguing for the 3rd point of objection he pointed that the current suit is based on alleged breach of contract as plaintiffs are suing defendants for general damages and other costs arising out of the contract entered by the parties on 8th January 2020. Citing the 5th paragraph of the plaint, he said Page 5 of 23 the contract was entered by the 1st, 2nd, 3rd and 4th defendants and was attached as annex ACS 1. Basing on that contract he submitted that the 5th defendant is not privy to contract and there is no minutes attached to show the contract was amended. Basing on the law of Contract through the doctrine of privity it was his submission that only parties to the contract can sue or being sued in such contract and refer this court to Chesire and Fifoot, Law of Contract 17th Edition at page 557. Since the contract which is the base, this suit was made on 08/01/2020 and the 5th defendant is not party to that contract then it was his position that the plaintiffs

hava no cause of action against the 5th defendant. To bolster his argument, he supplied the case of Banny Maijo vs Medical Officer Incharge Geita Referral Hospital, Civil Case No. 12 of 2020 at page 8 where it was held that the plaintiff who initiate action has to ensure that there exists a relationship between himself and a person intend to implead as defendant. Mr. Mfuru insisted that the 5th defendant is not party to the contract and is not supposed to be party of this suit. He prayed the suit against the 5th defendant be dismissed with costs. There followed Mr. Kisika learned counsel for the 1st, 2nd and 3rd defendants. He first subscribes to two similar points as argued by Mr. Mfuru Page 6 of 23 with addition that at the verification of annexture SCA1 which is a contract, the verification clause shows that SIMDA Mining is a Company and has Company seal. He went on submit further that annexture 7 in IB plaintiffs indicate that SIMDA is the CBO. He was of the submission that Plaintiffs introduce themselves as Company and therefore they have legal personality capable to sue and being sued. However, he clarified that the company cannot sue in its name till it got the permit, which is a board resolution to sue as per decision in Boimanda Morden Construction Co. Ltd vs Tenende Mwakagile and Others, Land Case No. 8 of 2022. So far as there was no resolution attached and pleaded,

he pray the suit be struck out as plaintiffs has no locus to file the suit. Adding more point on the issue of cause of action which was the 3rd point on 5th defendant and the 1st point of objection to 1st, 2nd and 3rd defendants he submitted that the cause of action is the contract which was signed on 08/01/2020 and plaintiffs are not party of the contract as parties were Sostenes Mgonya and SIMDA Mining and Rebeka Mirengeri signed on behalf of the Company. Under the principle of privy to contract he submitted that the plaintiffs are not party to contract as parties must have Page 7 of 23 contractual relationship which do not feature in the 1st ,2nd and 3rd plaintiffs. After the additions done in two similar points, Mr. Kisika submitted on his 3rd point that plaint must be in a prescribed format as per order VII of the Civil Procedure Code, Cap 33 R.E 2022 (the CPC) and it must explain that court has jurisdiction to entertain the matter as per sub rule (1) (f) of that Order. He said paragraph 22 of the amended plaint only show the cause of action arose in Mara Region and the amount is mentioned. It was his submission that mentioning the amount and location is not enough, rather, there must be further information explaining nature of the dispute so that court can determine if it has jurisdiction as was in Bassam Company Ltd vs Tanzania International Container Terminal Services

Ltd, Civil Case No 237 of 2019. In the case at hand, he said the plaint only explains the place and no explanation on the nature of dispute. He complained that the plaintiffs has tasked this court to look for explanation which, to him that is not correct while boost his argument with John Nyaitara Steven vs North Mara Gold Mine Limited, Land Case No. 20 of 2022 at page 4 and 5. As there is no nature of the dispute in the whole plaint, it was his position that plaint failed to show if this court has jurisdiction to entertain Page 8 of 23 the matter. The defect is incurable as was in China Pesticide (T) Limited vs Safari Radio Limited, Commercial Case No. 170 of 2014 and he prayed this court to find the plaint is bad in law and be struck out with costs. Resisting the PO, Mr. Sariro was of the general opinion and submission that all the points which was submitted as points of preliminary objection has no quality of being preliminary objection as it is well known as per guiding case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] E. A 696 that it is requirement of the law that PO must be pure on point of law and not otherwise. It was his submission that objection as filed by defendants fail to point shortfalls in the plaint and all six points are mere allegations and cited the case of James R. Rugemaiira and Another vs Republic, Criminal Appeal No. 59/19

of 2017 at page 9 that section of law has to be specifically mentioned to enable the other party prepare for hearing. He went on submitting further that counsel for defendants have cited many laws but if they were certain enough, he said they ought to have indicated the provision of law breached while complaining he was taken by surprise from their submissions. However, Mr. Sariro went on submitting on the PO raised. Page 9 of 23 About locus standi as raised by all defendants it was his submission that at first paragraph plaintiffs indicate they are natural person who trade as SIMDA Mining and the same is supported by annexture lb of annexture 7 whereby SIMDA Mining is registered as a Community Based Organization (CBO), a mere group of people. It was his position that the CBO has never had legal personality. To him, legal personality is found in corporation like Company which is registered under the Company Act. About the cited provisions of section 28 and 29 of the Written Law Misc amendment Act No 3 of 2019 he said the law did not indicate clearly whether CBO is covered in the said law because under section 29(a-k) of the Act No 3 of 2019 institution with legal personality has been listed but CBO is not among them. Further Mr. Sariro distinguished Act No 11 of 2005 that it is about NGO while the plaint is concerned with CBO and therefore the law cited is irrelevant. It was

his further submission that Mr. Kisika who represented 1st, 2nd and 3rd defendants was not specific whether SIMDA is a Company or CBO and he finds the two advocate are contradicting on the position of the plaintiffs on CBO and NGO. He complained that the two counsels misinterpreted the contract as they read there are only two parties to the contract. Mr. Sariro Page 10 of 23 maintained that Mr. Sostenes who signed the contract was acting on behalf of the other parties under the contract as per annexture 1 which is the contract and renewal of the Primary Mineral Silence (PML) show partners by their names as annexed although he agrees that two persons signed. Clarifying further on the one who signed annexture 1, he cited section 201 and 202 of the Law of Contract Act, (the LCO), Cap 345 R.E 2019 that it provides for partnership and Mr. Sostenes signed on behalf of others. It was his position that there is no requirement of SIMDA to sue by its own name on this case as it is not body corporate and the requirement of board resolution for SIMDA to sue is misplaced. About durat of attestation as indicated in the annexture 1 where SIMDA was introduced as a Company, Counsel for plaintiffs was very brief that it was a typing error which can be cured under section 96 of the CPC or it can be ignored because plaintiffs has identified themselves. Submitting for the issue of the suit being

instituted against deceased person, counsel Sariro denied it to be a point of law claiming that it needs a proof although he agree that a person with the name of Shayo was represented by another person as seen in annextures to the plaint. However, he paused that it is not certain that Shayo who was represented Page 11 of 23 is the 4th defendant. He went on submitting that the case is intact under Order 22 (1) and (2) of the CPC that the death shall not cause the suit to abate if right to sue survive and so far as there is more than one defendant the Suit should continue against the surviving defendants as it does not matter when the death occurred. While insisting that plaintiffs have the cause of action against the 5th defendant counsel elaborated that at the beginning when the parties were creating legal relation on 08/01/2020, the 5th defendant was not a party. But the 5th defendant came in the agreement at the time of the implementation as explained under paragraph 8, 14 and 17 of the plaint and annexture 3. He averred that 5th defendant cannot escape liability and cannot be said is not privy as the pleading implicated her. Counsel supported his submission by the decision in John M. Bwambalirwa vs Agence Martire Internationale (T) TLR 1983, Liberatus Laurent Mwang'ombe vs AG and Others Civil Appeal No. 45 of 2016 and Anthony Leonard Msanze and Another vs Julian Elias Msanze

and Others, Civil Appeal No. 76 the CAT. Responding to submission by the counsel for the 1, 2 and 3rd defendants about when the cause of action arose. It was his submission that legal Page 12 of 23 relation commenced on 08/01/2020 and it goes up to 2023 as per annextures. Further he said the dispute arose on 10/9/2020 when defendants failed to honor their obligations. About explanation on nature of the dispute he insisted the same can be traced at paragraph 4 of the amended plaint which indicated that the plaintiffs' claim includes damages for breach of contract entered on 08/01/2020 and jurisdiction of the court can be traced from there together with paragraph 5 of amended plaint which show territorial jurisdiction and paragraph 22 of amended plaint indicated that pecuniary value. He concluded this issue by advice this court to read the whole plaint so as to know if it has jurisdiction. He finally insisted the suit to be properly filed and urge this court to dismiss all the points of preliminary objection with costs. When I allow Mr. Mfuru to make rejoinder, he submitted that Court of Appeal has it own procedures and rules in raising PO and he finds the case of James Rugemarila vs Republic (supra) is distinguishable as the counsel for plaintiffs was aware of the presence of PO. On the capacity of SIMDA to sue, counsel referred the certificate of registration where it

was recognized as CBO which under section 29 of Act No. 3 of 2019 NGO is defined to include CBO, that means Kikundi has been recognized by law. Page 13 of 23 He said the position that SIM DA is an entity capable to sue and being sued cannot be defeated. About the deceased person he clarified that Order 22 (1) and (2) of the CPC are not applicable as it deal with circumstance where death occur while the suit is in progress while the case at hand was filed while defendant was dead. He prayed me to read decision in the case of Exim Bank of Tanzania (supra) which has a position where a suit is filed against a deceased person. He further submitted that PO can be raised by any person at any stage so far as it affects the interest of others. About cause of action, he insisted that cause of action was about breach of contract which counsel for plaintiffs acknowledge that the 5th defendant was not part to contract and prayed a suit be struck out against the 5th defendant. Mr. Kisika also had a time to make rejoinder and he directed his submission on quality of preliminary objection that point of law can be provision of law or decided cases, he said so far as the Court of Appeal and the High court makes precedent, their decision are points of law. He submitted that all the points raised were supported by decided cases and some points are backed with provisions of law. He further

submitted that Page 14 of 23 SIMDA as CBO has legal personality contrary to what was raised by Mr. Sariro and the contract was signed by SIMDA. The contents of annexture 1 show the person signed the contract was Company representative and the person signed on behalf identified as a Company Director. To him plaintiff was supposed to have board resolution to file the civil suit from the Company. Mr. Kisika clarified that both Counsel for defendants were arguing as per documents before this court and there is no contradictions in their submissions. Basing on the contract, SIMDA is a Company but basing on the certificate of registration SIMDA is a CBO and he said, in both circumstances the issue of locus standi is inevitable. About cause of action, he submitted that the 1st part to the contract is Sostenes Mgonya the partner to PML and SIMDA mining. There is no proof of registered partnership which is done under the LCO Cap 345, the issue that he signed on behalf of the other is not pleaded and other meetings were conducted when the contract was already signed and insisted that plaintiffs have no cause of action against the 1st, 2nd and 3rd defendants. He further resisted the submission that word company was typing error as the SIMDA were serious people to the extent of having company seal. He also Page 15 of 23 insisted that decision in cases like China Pesticide (T) Limited vs

Safari Radio Limited (supra) must be given consideration that clause has to be specific and explain nature of the dispute and he insisted the plaint contravene Order VII (1) (f) and pray it be struck out with costs. The gist of Preliminary Objection on points of law can be traced from the famous case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] E. A 696 which defines what is a preliminary objection and prescribes when it can be raised. It is noteworthy that, the preliminary objection cannot be raised if any fact has to be ascertained. The relevant extract reads: - 'A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise ofjudicial discretion'. From the principle in Mukisa case, a PO may be raised form the pleading with assumption all facts by the plaintiff is correct versus the section of law or position of the law as interpreted by courts. Page 16 of 23 The issue which I am called upon to decide is whether PO has merit. I shall start with the third point of the 5th defendant about cause of action against the 5th defendant. Mr. Mfuru submitted so far as cause of action as per plaint was a contract which was signed on

08/01/2020 and this suit is based on alleged breach of contract as plaintiffs are suing for general damage and other costs arising out of the contract. Parties to a contract are SIMDA and 1,2, 3 and 4th defendants as per plaint. I had time to read the plaint and found parties were Sostenes Mgonya and SIMDA Mining. And paragraph 5 of the plaint categorically mentioned the names of parties to the contract to be the 1st 2nd 3rd and 4th defendants. Plaint is governed by Order VII of the CPC and specifically plaintiff must state cause of action in the plaint. This court in supplied case of Banny Maijo vs Medical Officer Incharge Geita Referral Hospital (supra) discussed in length what it means by cause of action including a quotation from Muller on Civil Procedure, 13th Edition. In short cause of action is a bundle of facts which taken with the law applicable gives the plaintiff a right to relief against the defendant. Also is considered as a set of facts which gives a person rights to judicial redress or reliefs against another. Page 17 of 23 See Stanbic Finance Tanzani Ltd vs Giussepe Trupia & Another, [2002] TLR 217. In the case at hand, plaintiff is claiming to sign a contract with four people whom the 5th defendant is not among them. Further, as per plaint the plaintiffs are complaining of the breach of the contract. A reasonable person may ask how a person who is not a party

to contract can breach terms of contract. Basing on principle of privity of contract as submitted, only parties to a contract can sue or being sued. Without much doing I find the 5th defendant was not part to contract and therefore plaintiffs cannot demand damages from her and therefore plaintiffs have no cause of action against the 5th defendant. This point has merit and the suit is hereby struck out against the 5th defendant. Another point for analysis is the locus standi of plaintiffs. Simple definition of the locus standi is the right or legal capacity to bring an action or to appear in court. Locus standi is the rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject matter. Further, locus standi is the point of law rooted into jurisdiction. See Peter Page 18 of 23 Mpalanzi vs Christina Mbaruku (Civil Appeal No. 153 of 2019) [2021] TZCA 510. In present case, both counsel for defendants contended that plaintiffs failed to prove they have locus standi to file and maintain this case basing on the contract signed by another person. I cautiously read the plaint together with its annextures and find, just as submitted by defendants that plaintiffs are CBO as per certificate of registration and plaintiffs are Company as per contract. Mr. Sariro think there is contradictions on submission by counsels for defendants. There cannot be

variance due to the fact that one, the two advocates are representing different parties so it is possible to have different angle of submission as both submitted from the contents of plaint and its annextures. From the certificate of registration which was supplied, SIMDA Mining is CBO and many of the annexture to the plaint prove activities done by SIMDA Mining even one party to the contract which is the base of this suit is SIMDA Mining. The issue now is whether CBO has capacity of acquiring legal personality. It was submitted by Mr. Mfuru that there was amendment of NGO act which took place via Written Law Miscellaneous (Amendments) (No.

3) Act of 2019 where CBO has been recognized as NGO hence has Page 19 of 23 legal personality. Mr. Sariro insisted that SIMDA is Kikundi cha Kijamii, it is just called CBO and kikundi cannot acquire legal personality while insisting that CBO is not NGO. I had ample time to read all provisions of law as cited by all counsels in this case. Starting with section 5 of Act No 11 of 2005 which amends section 2 of the NGO Act and re define NGO as a voluntary group of individual but it does not include CBO. This was the position of Mr. Sariro. However, in the year 2019 via Written Law Miscellaneous (Amendments) (No.

3) Act of 2019 the Act under section 29 introduce new definition of NGO, the section reads; 29. The principal Act is amended in section 2 by deleting the definition of the term Non-Governmental Organisation and substitute for it the following: Non-Governmental Organisation" also known by its acronym "NGO" and which includes Community Based Organisation (CBO) means a voluntary grouping of individuals or organisations which is non-partsan or non-profit sharing established and operates for the benefit or welfare of the community or public organized at the local, national or international levels for the purpose of enhancing or promoting economic environmental social or cultural development or protecting environment, good governance, law and order, human Page 20 of 23 rights and lobbying or advocating on such issues but does not include r/ Further, section 8 of Act No 11 of 2005 amends section 18 of the principal Act at subsection (2) to read; '(2) A registered Non-Governmental Organisation shall, by virtual of registration under tills Act, be a body corporate capable in its name of- (a) suing and be sued; (b) acquiring purchasing or otherwise disposing of any property, movable or immovable; (c) entering into contract; Doing or performing all acts which can be done by a body corporate and which are necessary for the proper performance of its duties and functions' From the quoted

provisions of law, CBO is recognized by law and has legal : personality. In the case at hand, plaintiffs introduced themselves as natural person who trade as M/S SIMDA MINING and have listed their names a plaintiffs. However, at paragraph 5 it was said they entered into an agreement on 08/01/2020 and the claim as picked from paragraph 4 of the amended plaint is for the breach of contract signed on 08/01/2020. In justification of facts as narrated in amended plaint, plaintiffs attached the Page 21 of 23 TIN certificate as annexture la and certificate of registration of CBO as annexture lb. This is where Mr. Mfuru base his submission that SIMDA is CBO and it has legal capacity. I agree with him. However, I have read the registration certificate and there is no doubt that SIMDA was registered as CBO and it was registered on 22/01/2020. That is to say, by the time of signing the contract which is subject of this suit, SIMDA was not CBO and therefore, it cannot be said it has legal personality under NGO Act. The question who is SIMDA MINING of 08/01/2020 is not yet answered. I read the contract which was signed on 08/01/2020, SIMDA Mining as party to it, introduced herself as a Company as it has Company seal and Company Director who witnessed the contract. Mr. Kisika submitted that SIMDA is a Company. I agree with him. A company Director is found only in Companies as per Company Act, Cap 212 R.E.

2002. Under section 71 of the Cap 212 it is director who exercise all powers of the Company as was done by a person called Rebeka Mirengeri in the contract. I find that was not a typing error as it was repeated, the seal of the company was fixed to the contract and the Company Director endorse her signature on behalf of the Company. The Company has a status of a body corporate as per Page 22 of 23 section 15 and therefore it has capacity to sue and being sued by its name. So far as there is no name of SIMDA Mining in the plaint or SIMDA Mining is not a plaintiff in this case, then I agree with counsel for the 1st, 2nd and 3rd defendants, Mr. Kisika that plaintiffs above named has no locus standi to institute a suit concerning a contract which they were not party. For them to succeed they had to show their rights was breached or terms in a contract which they all signed was breached which was not the matter here. See Lujuna Shubi vs Registered Trustees of Chama Cha Mapinduzi (CCM) (supra). I find the two analysed points of objection are enough to determine the matter. Plaintiffs has no cause of action against the 5th as he was not party to contract and plaintiffs have no locus stand to file this suit. The PO is found with merit and I hereby sustain it with costs. As a consequence, the suit is hereby struck out with costs. Idk M. L. KOMBA Judge 05th September, 2024 Page 23 of 23