shiloh trading company vs iandm bank t ltd 2020 tzhclandd 4021 4 june 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ERS SALAAM LAND CASE NO. 11 OF 2018 SHILOH TRADING COMPANY LTD PLAINTIFF VERSUS I &M BANK(T)LIMITED DEFENDANT RULING OPIYO.3. In the instant case, the plaintiff's claim against the defendant is against her intention to auction the plaintiff's property, located at Plot No. 82, Block "Lingato" area, Temeke Municipality, within Dar Es Salaam Region, Certificate Number 87684, in the name of Shiioh Trading Company Limited. It appears however from the facts stated in the plaint that, the plaintiff owes the defendant an outstanding amount of money to the tune of 206,926,584/=, being a loan advanced to her by the said defendant. When the Written Statement of Defence was served to the defendant,the following preliminary objections were advanced;- 1. That the Plaint is hopelessly bad in law for contravening Order VII Rule 1 (e)of the Civil Procedure Code[Cap 33 R.E 2002]. 2. That the Plaint is hopelessly bad in law for contravening Order VII Rule 1(f) of the Civil Procedure Code [Cap 33 R.E. 2002]. 3. That this Honourable Court lacks iurlsdiction to determine the matter. 4. That the suit is incompetent for not joining the necessary party. The objections were heard by way of written submissions, the defendant enjoyed the legal services of Advocate Seni Malimi while the plaintiff was represented by the learned Counsel Eric Mora Magige. The plaintiff did not submit her reply after the submissions in chief from the defendant reached this court, therefore the hearing of the objections proceeded ex parts against the plaintiff. Further, the defendant's counsel abandoned the 3'" and 4''' objection and remained with the first two objections only. Submitting on the and 2"'' objections together, Mr. Seni Malimi was of the view that, plaint does not disclose neither the cause of action against the defendant nor facts that show the court has jurisdiction to entertainin the matter at hand. He insisted that, in the entire Plaint, it is clear that the Plaintiff not only acknowledges the indebtedness but also the fact that, he is yet to pay the same and that she was making some efforts towards that end. Therefore, it is clear that, the plaint is bad in law as the same contains no facts that entitle the plaintiff to make a demand or seek redress against the defendant. Furthermore, there are no facts showing that, the Plaintiff's right or duty has been violated. Therefore, he contends that, the Plaint offends the provisions of Order VII Rule 1 1 of the Civil Procedure Code Cap 33 RE 2019, which insists that, the cause of action should be clear from the pleading without a need for further clarification. The present plaint is therefore liable to be rejected or struck out. He referred this court to the case of Stanbic Finance Tanzania Limited Versus Giuseppe Trupia and Chiara Malavasi [2002] T.LR 217 and the case of Legal and Human Rights Centre and 2 Others Versus Attorney General [2006] T.L.R 240 to substantiate his argument that cause of action Is only established when there Is a breach or threat to beach one's fundamental right of duty owed to him. Having gone through the submissions of the defendant through her learned Attorney and the faulted plaint as presented by the plaintiff In this case I now proceed to determine the merit or otherwise of the two objections by the defendant the plaint really offends provisions of Order VII Rule 1 (e) and (f) of the Civil Procedure Code (supra) as claimed by Mallml. For easy reference I will reproduce the said provisions as follows; "The plaint shall contain the following partlculars- (e)the facts constituting the cause ofaction and when It arose; (f)the facts showing that the court hasJurisdiction." I took time to painstakingly going through the plaint paragraph by paragraph to verify defendant's counsel contention that the plaint lacks statement showing the cause of action the plaintiff has against the defendant and statement showing the jurisdiction of the court as required by the mandatory provisions of the law quoted herelnabove. My onset observation Is that, the objections are meritorious. Apart from the plaint narrating how the plaintiff Is Indebted to the defendant and how she has been making efforts In repaying the loan as well her Intentions to settle It all upon return of her directors who are outside the country, no genuine claim has been shown against the defendant. In the circumstances of this case no cause can be established If no defendant's effort to put her alleged intention to auction the disputed property into action is shown at aii. No cause of action an arise for ienders inaction or contempiated future action. What can be picked from the plaint is that, the plaintiff's claim is based on the contempiated future actions by the defendant, foiiowing her aiieged defauit in repaying the ioan. There is nothing suggesting that, so far, there is any existing iand dispute between the piaintiff and the defendant. The plaint contains mere aiiegations resulting from misunderstanding caused by non-payment of the ioan facility between the two as correctly argued by Malimi. This court has no jurisdiction over such disputes. Not only that, but also the plaint indeed lacks specific statement showing that the court has jurisdiction as mandatorily require by paragraph f of rule one above. With these defects, it is therefore crystal dear that the plaint has to fail as those lapses are fatal, touching the competence of the suit itself before this court. They are not curable (see Mondorosi Village counsel & 2 Others versus Tanzania Breweries Limited & 4 others, Civii Appeai No. 66 of 2017, Court of Appeai of Tanzania, unreported) as they violate mandatory provisions. Consequently, 1^ and 2"'^ objections are hereby sustained. The suit is accordingly struck out with costs. M.P. OPIYO, tl >-^ II . JUDGE 4/6/2020 '> -•