shared interest society limited vs nkwenda rural primary cooperative society ltd 2021 tzhc 9359 15 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF BUKOBA) AT BUKOBA CIVIL CASE NO. 13 OF 2021 SHARED INTEREST SOCIETY LIMITED..............................PLAINTIFF VERSUS NKWENDA RURAL PRIMARY COOPERATIVE SOCIETY LTD............................................ DEFENDANT RULING Date of Ruting: 15.12.2021. Mwenda, J. The plaintiff instituted this suit against the defendant for judgment and Decree as follows: (a) Payment of USD 158,332 being the amount due and payable to the plaintiff arising from credit facility (loan advanced to the defendant) plus interest accrued thereon up to 20th September, 2021. (b)General demages at USD 40,000. (c) Interest on (a) above from 18th August 2015 till the date of judgment. (d)Interest on the decretal sum at the rate of 7% per annum from the date of judgment to the date of full payment. (e)Costs of and incidental to the suit, and (f) Any other reliefs this Honourable deems fit and just to grant. When the plaint was served to the defendant, a written statement of Defence accompanied by a notice of Preliminary Objection was filed. The said preliminary objection had three points to wit that: (i) The suit is incompetent and thus un maintainable in law for having been filed without any express Board Resolution to sanction the institution of these legal proceedings as required by law. (ii) The suit is un maintainable and thus barred at law for failure by the plaintiff too disclose specifically when the cause of action arose as required by law. (iii) The suit is unmaintainable at law for having an incurably defective verification clause which bears no place where the verification took place at the dated when the verification was handed down by the verifier. It is trite law that once the preliminary objection is raised the court has to determine it first. When the hearing of preliminary objection was set, the plaintiff was represented by Raymond Laurent, learned counsel and the defendant by Mr. Kabunga, learned counsel. When the learned counsels were called to show readiness to proceed with the hearing, Mr. Raymond submitted that he was recently engaged to take over the 2 matter and having gazed at the notice of preliminary objection he noted substance in it. He thus conceded to the preliminary objection but prayed his client to be exempted from paying costs as he was not properly advised. In response to the submissions by the plaintiff's counsel, Mr. Kabunga stated that they are not objecting the plaintiff's advocate concession to the preliminary objection. He thus prayed this suit to be struck out with costs. He said the defendant hired the services of an advocate who made a thorough research and then file written statement of defence and notice of preliminary objection. He stated further that they have been attending in court since the filing of this suit. He further submitted that the plaint was drawn by a competent lawyer and since they have conceded to the preliminary objection then they should be condemned to pay costs because raising a preliminary objection entail conducting research. In support to his argument he cited a case of HezekielKyakatuka vs. James Felix Nyarugenda, Civil Application No. 27 of 2020 Court of Appeal of Tanzania (unreported). In rejoinder to the prayer by the defendant that the plaintiff be condemned to pay costs, Mr. Laurent submitted that the issue of awarding costs is the discretion of the court and added that the plaint was not drawn by himself (Mr. Laurent). He thus insisted that the plaintiff be exempted from paying costs. 3 Having heard the submissions from Mr. Laurent, learned counsel for the plaintiff that he concedes to the preliminary objections raised by Mr. Kabunga, learned counsel for the defendant, this count find if pertinent to struck out the present suit as prayed by the counsels for both parties. With regard to costs, this court have considered that the defendant hired an advocate who prepared the necessary defence documents and entered appearance from the date when this matter come up for mention. This automatically consumed money and their precious time. Again the drawer of the plaint ought to have researched and exercise due care to ensure it is properly filed in court. In the case of Hezekiel Kyakatuka vs. James Felix Nyaruugenda (supra) the court of appeal while awarding costs following applicant's prayer to struck out the application on concession of preliminary objection held inter alia that: ”Z have considered the uncontested prayer by the applicant to have this matter struck out on the ground ofconcession to the preliminary objection. I have also considered the contested prayer with regard to costs and the flanking contending arguments by the parties. Admittedly the learned counsel for the applicant has readily conceded to 4 the preliminary objection. Also true is the fact that the respondent engaged an advocate who has entered appearance today and has spent time and resources to research, file an affidavit in reply and file the present preliminary objection. The respondent is certainly entitled to have his costs." Guided by the reasoning of the Court of Appeal in the case above, this court find that the defendant is entitled to have his costs. This suit therefore is struck out with costs. It is so ordered. 15.12.2021 This Ruling was delivered in chamber under the Seal of this Court in the presence of the learned counsel for the plaintiff Mr. Raymond Laurent and in the presence of the learned counsel for the Respondent Mr. Aaron Kabunga. da 2021 5