sauda maalim laurent vs exim bank tanzana limited 2 others 2023 tzhclandd 15780 29 march 2023

sauda maalim laurent vs exim bank tanzana limited 2 others 2023 tzhclandd 15780 29 march 2023

The suit was filed prematurely before the plaintiff exhausted the remedies available under Order XXI Rules 98, 99, and 101 of the Civil Procedure Code. Since the sale of the suit property had already taken place, Order XXI Rule 62 was inapplicable. The plaintiff did not prove possession at the time of sale and thus could not file a fresh suit. The suit was therefore struck out as incompetent.

Citation
sauda maalim laurent vs exim bank tanzana limited 2 others 2023 tzhclandd 15780 29 march 2023
Parties
Applicant: Sauda Maalim Laurent; 1st Respondent: Exim Bank Tanzania Limited; 2nd Respondent: Mabrouk Omar Mohamed; 3rd Respondent: Mabrouk Omary Mohamed Enterprises Ltd; 4th Respondent: Joshua Mwituka t/a Foster Auction; 5th Respondent: Fabian John Fimbo
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
29 March 2023
Procedural Posture
Land Case / Ruling on Preliminary Objections
Outcome
Suit struck out with costs
Legal Topics
Limitation of Actions, Mortgage, Execution of Decrees, Objection Proceedings
Source Language
English
Civil Procedure Land Law Limitation of Actions Mortgage Execution of Decrees Objection Proceedings

Case Brief

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Parties

Sauda Maalim Laurent

Applicant

Exim Bank Tanzania Limited

1st Respondent

Mabrouk Omar Mohamed

2nd Respondent

Mabrouk Omary Mohamed Enterprises Ltd

3rd Respondent

Joshua Mwituka t/a Foster Auction

4th Respondent

Fabian John Fimbo

5th Respondent

Procedural Posture

Land Case / Ruling on Preliminary Objections

Legal Issues

  1. 1 Whether the suit is time barred
  2. 2 Whether the suit is prematurely filed contrary to Order XXI Rule 101 of the Civil Procedure Code
  3. 3 Whether the plaintiff has a cause of action against the 1st defendant

Ratio Decidendi

The suit was filed prematurely before the plaintiff exhausted the remedies available under Order XXI Rules 98, 99, and 101 of the Civil Procedure Code. Since the sale of the suit property had already taken place, Order XXI Rule 62 was inapplicable. The plaintiff did not prove possession at the time of sale and thus could not file a fresh suit. The suit was therefore struck out as incompetent.

Court Disposition

Suit struck out with costs

Orders

  • The suit is struck out as prematurely filed.
  • Plaintiff to pay costs.