sobai asanja limited vs i m bank t limited 2 others 2024 tzhclandd 5 10 january 2024

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 242 OF 2023 SOBAI ASAN3A LIMITED PLAINTIFF

VERSUS I & M BANK(T)LIMITED 1®^ DEFENDANT DR. ONESMO MICHAEL KYAUKE 2"^ DEFENDANT 3ANGID PLAZA LIMITED 3^° DEFENDANT Pate oflast order:20/12/2023. Date ofRuling: 10/01/2024.

RULING I. ARUFANI,3 This ruling is in respect of points of preliminary objections raised in the matter by the defendants. The first and second defendants jointly raised the points of preliminary objections which reads as follows: 1. That the plaintiffhas no cause ofaction against the 1^ and 2""^ defendants.

2. That the claims by the plaintiff allegedly accruing from the property agreement are time barred.

3. That the plaintlfTs properties having being placed under ■ receivership of the defendant, the plaintiff has no iocus stand!to sue the 1^ and defendants. The third defendant raised in her written statement of defence one point of preiiminary objection which is similar to the second point of preliminary objection raised by the first and second defendants which states that, the suit is time barred. When the matter came for hearing the above stated preliminary objections the counsel for the parties prayed and allowed to argue the preiiminary objections by way of written submissions. While the submission of the first and second defendants were drawn and filed in the court by Mr. Tazan Keneth Mwaiteieke and Ms. Ritha Chihoma, learned advocates, the submission of the third defendant was drawn and filed in the court by Mr. Rico Adolf Mzeru, learned advocate and the submission of the plaintiff was drawn and filed in the court by Mr. Ondijo Syivanus Leonard, learned advocate. The counsel for the first and second defendants stated in relation to the first point of preiiminary objection that, the pjaint has no facts that establishes any cause of action against the first and second defendants nor facts entitling the plaintiff rights against the first and second defendants. They argued that. Order VII Rule 1 (e) of the Civil Procedure Code, CAP 33 R.E 2019 is very dear that among the

elements of the plaint are the facts constituting the cause of action and when it arose. They stated those are essential elements of a plaint which the plaintiff has to piead in a suit and iater on prove by evidence if he or she wants to succeed in a suit. They argued that, for the cause of action to exist against the first and second defendants,the piaint has to show existence of possessory iegai right of the piaintiff in the matter against the wrong or vioiation of the piaintiff's right or breach of duty on the party of the first and second defendants. They argued that, the piaint does not show the Iegai right infringed by the first and second defendants and what duty and whose responsibiiity it was. They went on arguing that, looking at the paragraphs of the plaint that pieaded the claims of the plaintiff against the first and second defendants they do not show cause of action against the first and second defendants. They stated in their submissions how the facts pieaded in various paragraphs of the piaint have faiied to establish the claims of the plaintiff against the first and second defendants. They argued the property agreement signed on 20"^ August, 2015 annexed in the plaint as annexure LA-1 has not established the cause of action of the plaintiff against the first and second defendants because the first and second defendants were not parties to the stated property

agreement which is the center of the present suit between the piaintiff and the third defendant. They submitted that the principle of privily of contract which states it is only parties to the contract who are bound by the terms and conditions of the contract is applicable in the present suit. They referred the court to the books titled Law .of Contract by Cheshire and Fifoot, 5"' Edition P. 378 and Anson's Law of Contract, 21^ Edition P. 161 where application of the principle of privity of contract was stated. They also referred the court to the cases of Anthony Leonard Msanze & Another V.Juliana Elias Msanze &Two Others, Civil Appeal No. 76 of 2012 and John M. Byombalirwa V. Agency Maritime International and stated the remedy for the plaint which does not disclose cause of action is not for the court to dismiss the plaint but to reject it. They argued in relation to the second preliminary objection relating to limitation of time that, the plaintiff's claims or cause of action is centered on the property agreement dated 20*'^ August, 2015. They referred the court to paragraphs 6(a), 7 and 8 of the plaint which shows the claims of the plaintiff of US$ 2,469,567.04 is arising from the property agreement entered by the plaintiff and the third defendant dated 20"^ August, 2015. They stated paragraph 9 of the plaint states that, although the plaintiff compiled with payment of the

amount agreed at paragraph 5 of the property agreement and despite various demands made by the plaintiff to the first and third defendants, the third defendant failed to hand over the entire second floor of the building comprised in four units to the plaintiff. It is their submission that, for the court to decide the issue of time limitation it has to look at the terms and conditions of the property agreement annexed in the plaint as annexure LA-1. They said although the plaintiff has not stated when she made demand of the suit property to the first or third defendants but annexure i_A-l is very crucial and relevant document in showing when exactly the cause of action in respect of the property agreement arose against the defendants. They stated clauses 1.3 read together with clause 1.4 of the property agreement shows the plaintiff would have been handed vacant possession of the property upon being fit for habitation and occupation and the completed date was anticipated to be 30"' December, 2015. The counsel for the first and second defendants submitted that, the completion date which was 30'" December, 2015 is very crucial and relevant in showing when exactly the cause of action arose against the defendants. They argued that, as the plaintiff was not given possession of the suit property immediately after the completion date which was 30'" December, 2015 the plaintiff was

required to institute a suit in court for possession or handing over of the suit property within six years counting from the stated completion date. They went on stating that, the property agreement which is the contract in question is the basis of the plaintiff's claims. They argued that, under item 7 of Part I of the Schedule to the Law of Limitation Act, Cap 89 R.E 2019, suit based on contract shouid be filed in court within six years from the date when the cause of action arose. They submitted that, the property agreement which is a contract being chailenged in the present suit was signed on 20"^ August, 2015 and the completion date was 30"^ December, 2015. They argued that,from the completion date it is more than eight years which has passed. They submitted that the suit was brought out of time and should be dismissed against the first and second defendants. As for the third preiiminary objection which states the plaintiff has no cause of action to sue against the first and second defendants the counsei for the first and second defendants stated that, the second defendant is the lawfui appointed receiver manager for the piaintiff's property. They stated that, being so appointed, the second defendant becomes the agent of the piaintiff under section 128 (5) of the Land Act, 1999. They submitted that. under the principle of principal and agent relationship, the principal

cannot sue the agent in the acts of the agent performed or not performed in the course of their relationship. They based on the above stated submission to pray the court to upheld their preliminary objections and be pleased to dismiss the plaintiff's suit with costs. On his side the counsel for the third defendant stated In relation to the preliminary objection raised by the third defendant that, Item 7 of Part I of the Schedule to the Law of Limitation Act states that, claims arising from breach of contract should be filed in court within six years from the date on which the cause of action arose. He stated that, section 5 states the right to sue commences from the date on which the right to sue accrues. He stated the pivotal issue the court is required to consider in this matter is when the cause of action in this case arose. He stated the cause of action stems from the property agreement dated 20''^ August, 2015, and the plaintiff is alleging the third defendant failed to hand over the purchased property to the plaintiff which amounted to breach of the contract. He argued the handing over of the property was to be executed on the completion date which as specified under clause 1.3 of Annexure LA-1 to the plaint was set to be December, 2015. He submitted that any claim filed in the court after 30"^ December, 2021 would be time barred. He supported his submission with the case

of Radi Services V. Stanbic Bank(T)Limited, Civil Appeal No. 260 of 2020 where it was held that, the suit filed in the court outside the prescribed six years period is time barred. He based on the above submission and the authority to urge the court to find the plaintiff's suit falls outside the six years period of time prescribed under the law of Limitation Act and dismiss the same with costs. In his reply the counsel for the plaintiff stated in relation to the first preliminary objection that, the same is not a preliminary objection as it is contravening the rules of preliminary objection. He referred the court to the case of Musa Ngang'adwa V. Chief Japhet Wanzagi & Eight Others, [2006] TLR 351 where it was stated preliminary objection cannot be raised if any fact needs to be ascertained by evidence and held the issue of cause of action based on unascertained factual matter cannot be sustained. He stated the plaintiff has sued all the defendants in the suit at hand because they have active intention to auction and sell the suit premises. He supported his argument with the case of Hilal Z. Mafta & Three Others V.Ibrahim Zakaria Mafta (As administrator of the Estate of the iate Aisha Bilal Hamis), Land Case No. 17 of 2021, HC at DSM (unreported) where it was stated that, as the defendant's intention was to seii the suit property which is iikeiy to cause damages to the

piaintiffs, the plaintiffs had claim against the defendant. He stated the plaintiff has demonstrated very well under paragraphs 10, 11, 12, 13 and 14 of the plaint the intention of ail defendants to auction and seii the suit property. He stated the first defendant has appointed the second defendant to auction the suit property and the money to be realized thereof to be paid directly to the third defendant. He relied on the case of Auto Garage V. Motokv [1971] EA 514 where three elements to support cause of action were stated to be (i) the plaintiff enjoys right,(ii) the right had been violated and (ill) the defendant is liable. He stated in relation to the element of enjoyment of right that, the third defendant have been paid by the first defendant the purchase price of the suit property thus the plaintiff could have enjoyed a right of possession of the units which has never happened, secondly, non-handing over of the suit property as well as the ill intent of third defendant to sub-lease the units, caused the right to possess and enjoy the use of the property by the plaintiff 10 to be violated and thirdly, the third defendant's failure to hand over possession of the units to the plaintiff as agreed in the property agreement is clearly breach of the contract, hence the first and third defendants are liable. He went on arguing that, the Plaintiff claims originated from

the property agreement dated 20^^ August, 2015 whereby the landed properties had been mortgaged by the plaintiff to secure a loan from the first defendant for the purpose of purchasing the suit properties but the first defendant paid the purchase money directly to the third defendant and in turn the plaintiff has been declared by the first defendant has defaulted to repay the loaned amount He submitted that without plaintiff's knowledge the first defendant wrongfully appointed the second defendant as receiver manager to auction and sale the plaintifTs mortgaged properties. He argued that, the second defendant publicly advertised to auction and sale of the suit properties as listed under paragraph 5 of the plaint thus owing to that circumstances of the case the first and second defendants are not strangers under the doctrine of privity of contract. He stated that, the plaintiff has rights and interest in the suit property which is about to be sold by way of tender then in law it suffices to sue all the Defendants in the 11 present suit. He submitted that shows the principle of pleadings were adhered by the plaintiff. He supported his submission with the case of Hilal Z. Mafta and Three Others,(supra). He continued to state that, the plaintiff's cause of action against the defendants is for handing over the suit property to the plaintiff regardless of whether the plaintiffs

mortgaged landed properties has been placed under receivership of the second defendant whom the plaintiff challenges his appointment because his appointment was unprocedural and void. He submitted the plaintiff has a right to sue all the defendants as it is provided under Order I Rule 5 of the Civil Procedure Code Cap. 33 RE 2019 that, it shall not be necessary that every defendant shall be interested as to all reliefs claimed in any suit against him. He argued that, the text book of Law of Contract of Cheshire and Fifoot, 5th Edition referred by the counsel for the first and second defendants is a persuasive authority and not binding to this court, hence it is distinguishable under the prevailing circumstances provided under Order I Rule 5 of The Civil Procedure Code. He submitted further that, the first point of preliminary objection is subject for determination in the trial and the court has to receive evidence to establish that there is a breach of the property agreement or not. He 12 added that, the dispute at hand is plainly about none handing over possession of the purchased units at Jangid Plaza Building to the plaintiff and that shows the first point of preliminary objection does not meet criteria set out in the case of Mukisa Biscuite Manufacturing Co. Ltd V. West End Distributors Ltd,[1969] EA 696. He argued in relation to the preliminary objection which states the

suit is time barred that, the instant matter is directly related to the interest in land which its time limit is twelve (12) years He stated that can clearly be seen by looking at paragraph 5 of the plaint and clauses 15 (b),(d) and (f) of the reliefs sought in the plaint which provides that, the landed property (Mortgaged property) is in dispute. He added that, the assertion by the second and third defendants that the plaintiff must show whether the first Defendant was party to the contract with the Plaintiff is a matter of evidence which cannot be determined at this stage. To support his submission, he cited the case of Jumanne M. Mbaruck t/a J.M. Mbaruck Architects V. Vivo Energies Tanzania Limited, Civil Case No. 123 of 2022, High Court at Dar es Salaam. He argued that, section 4 of the Law of Limitation Act provides for the commencement of period of limitation to be from the date on which the right 13 of action for such proceeding accrues. He further argued that, the piaintiff and the third defendant entered into property agreement on 20''" August, 2015 and the plaintiff paid the purchase price in full but the third defendant refused to hand over the suit property to the plaintiff as agreed. He stated that on 31=* August, 2020 the plaintiff became aware of the ill intent of the third defendant to sublease the suit properties hence the cause of action arose on 31®* August

2020. He added that Section 5 of the Law of Limitation Act provides that, the right of action in respect of any proceeding, shall accrue on the date on which the cause of action arises. He cited in his submission the Ugandan case of Victoria Kayizzi V. Juma Sewaaiinte, Civil Suit No. 438 of 2013 HC-Kampaia-Registry (Unrepo'rted). He went on to argue that, owing to the circumstance of the instant suit and as per the cited provisions of law and authorities, the breach of contract accrued on the 31^ August, 2020 when the Piaintiff realized the third Defendant's ill-intent of sub-ieasing the purchased property hence the twelve years' time limit for instituting suit for recovery of landed property has not lapsed because the computation of time has to be counted from the date of breach. He added that there is continuing breach of property agreement from the year 2020 to date due to the fact that the third defendant has not 14 handed over the possession of purchased properties, has leased the plaintiff property and she has advertised to sale the suit property through the first and second defendants. He cited in his submission section 7 of The Law of Limitation Act which stated that, where there is a continuing breach of contract or a continuing ) wrong independent of contract, a fresh period shali begin to run at every moment of the time during which the breach or the wrong, as the

case may be. He continued to submit that the time limit of twelve years has not elapsed hence the instant suit is within the time. He supported his submission with the case of Elizabeth Thomas Olotu V. Milton Lusajo Lazaro, Land Case No. 326 of 2022, HC Land Division at DSM (Unreported) where the court construed a distinction between the date of executing and or signing of the contract visa-vis the time of accrual of the cause of action. He based on the above submission and authority to implore the court to find the suit is not time barred. As for the third preliminary objection the counsel for the plaintiff stated that, the plaintiff has interest over the suit Land and the first and second defendants intends to jeopardize her interest. He argued that, section 128 (5) of the Land Act of 1999 cannot be used to take away her rights to sue 15 the defendants. He stated that, the plaintiff has not referred the second defendant as receiver of the first defendant in paragraph 3 of the piaint as aileged by the first and second defendants. He added that, the second defendant is not the receiver of the plaintiff due to the fact that neither notice of appointment of receiver nor ietter of confirming his appointment has been annexed to the plaint to show the second defendant is duly appointed receiver as per section 128 (2) of The Land Act. He argued that, the third preliminary objection

does not qualify to be preliminary objection because it contains matter of fact and law at the same time the issue that the second defendant is the receiver of plaintiff property is disputed by the plaintiff hence require full trial. To support this stance, he cited in his submission the case of Mohamed Enterprises(T) Ltd V. Masoud Mohamed Nasser, Civil Application No. 33 of 2022, CAT at DSM (Unreported). He went on submitting that, the plaintiff mortgaged the suit property to the first defendant to secure the loan for the purpose of purchasing units in the suit premises. He stated all the loan amount were paid directly to the third defendant without plaintiff consent. He said in turn the first defendant notified the plaintiff that she has defaulted repayment of the loan amount 16 and proceeded to appoint the second defendant as receiver mahager of the plaintiffs property. He stated after that, the second defendant being appointed, he proceeded to advertise auction of the suit property hence the plaintiff has the right to sue both the first and second defendants because she has interest in the suit property. To bolster his argument the counsel for the plaintiff referred the court to the case of John Mwombeki Byombalirwa V. The Regional Commisoner & Another,[1986] TLR 73 and the case of Lujuna SHubi Ballonzi Senior V. Registered Trustees of CCM, (1996) TLR 203. In their

rejoinder the counsel for the first and second defendants reiterated their submissions in chief and added that the case of Elizabeth Thomas Olotu (supra)cited by the plaintiff is distinguishable to the present suit for the fact that, in the stated case all parties agreed that the plaint showed the claim and cause of action were based on land and the issue was when the cause of action starts to run in the suit based on fraud and another issue was whether the cause of action starts to run on a date of signing the joint venture agreement or when the alleged wrong was committed. 17 He stated that, the joint venture agreement in the case of Elizabeth Thomas Olotu (supra) was the basis for providing joint purchase of the suit property whiie in the present suit the plaintiff's daims are directiy.related to the terms of the property agreement. He stated that, according to the terms of property agreement completion date is the date when the cause of action arose and not the date of signing or executing the property agreement as it was in the foregoing cited case. They reiterated their prayer in chief that the suit be dismissed with costs. Having duliy considered the rival submissions from the counsei for the parties the court has found the issue to determine here is whether the preiiminary objections raised by the defendants deserve to be sustained. I will start with the second

preliminary objection raised by the first and second defendants which states the ciaims by the plaintiff allegediy accruing from the property agreement are time barred together with the point of preiiminary objection raised by the third defendant which states the suit is time barred because they are similar. The court has decided to start with the stated preiiminary objection after seeing the issue of limitation of time to institute a suit in court is paramount and when raised by the parties, the court is compeiled to 18 determine It in the earliest possible opportunity for the reason that it touches jurisdiction of the court to entertain a matter. The stated position of the law was stated in the Case of NBC Limited & Another V. Bruno Vitus Swaio, Civil Appeal No. 331 of 2019 CAT at Mbeya (unreported) where it was held by the Court of Appeal that; - "...courts are enjoined not to entertain matters which are time barred. Limitation period has an Impact onjurisdiction. Courts lack jurisdiction to entertain matters for which litigation period has expired." The court has found it is also a settled position of the law that, an objection on account of limitation of time is one of the preliminary objections which is based on pure point of law. It touches jurisdiction of the court and its determination does not require ascertainment of facts or evidence. To determine such an objection,

the court needs to look only into the plaint and its annexures without any further facts or evidence out of the pleadings to be ascertained in determining whether the suit is time barred or not. The above stated position of the law can be seeing in the case of Ali Shaban and 48 Others V. Tanzania National Roads Agency & Another, Civil Appeal No. 261 of 2020 (unreported) where it was stated that: - 19 "It is dear that an objection as it were on account oftime bar is one of the preiiminary objections which courts have held to be based on pure point ofiaw whose determination does not require ascertainment offacts or evidence. At any rate, we hoid the view that no preiiminary objection wiii be taken from abstract without reference to some facts plain on the pleadings which must be looked at without reference examination ofany other evidence." While being guided by the position of the law stated hereinabove the court has examined the facts pieaded in the piaint and its annexures and find that, as rightly argued by the counsel for the first and second defendants the plaint does not contain a statement of facts showing when exactly the plaintiff's cause of action against the defendants arose as required by Order VII Ruie 1 (e) of the Civil Procedure Code. The foregoing cited provision of the law states clearly that, a plaint is required to contain facts constituting cause of action

and when it arose. However, the court has found that, the facts pleaded in the piaint together with the documents annexed thereto and specifically annexure LA-1 shows the claims of the plaintiff against the defendants is based on breach of the property agreement executed on 20"^ August, 2015. 20 As stated by the counsel for the parties and stated in annexure LA-1, the parties agreed at clause 12.1 of the stated property agreement that, vacant possession of the property shouid have been delivered to the plaintiff as soon as practicable on or around the completion date. The completion date as defined at clause 1.3 of the property agreement means the date on which the property should be fit for habitation and occupation In conformity with all the requisite Municipal and City permits, licenses, laws, ordinances regulations and other similar requirements. • It was further stated In the same clause that, the anticipated completion date would be on or around 30"^ December, 2015. Therefore, as the plaintiff's claims Is based on failure of the third defendant to hand over to the plaintiff the suit premises, then under normal circumstances the plaintiffs cause of action against the defendant ought to be taken It arose from the date when the third defendant failed to hand over the suit premises to the plaintiff Which as stated herelnabove Is from 30® December, 2015. However, the court has

found It Is averred at paragraph 9 of the plaint that, despite the plaintiff compliance with payment of the agreed amount of purchasing the suit premises In accordance with the terms and conditions of the property agreement and despite various demands made by the plaintiff 21 to the first and third defendants, the third defendant failed to hand over the suit premises to the plaintiff. . Reverting to the core of the issue required to be determine in the second preliminary objection the court has found that, as the plaintiff is arguing her claims are based on interest on land which its limitation of time is twelve years and the defendants argues the plaintiffs claims is based on breach of contract which its limitation of time is six years the issue to determine here is whether the plaintiff's claims are based on claim of recovery of land or breach of contract. The court has found the claims of the plaintiff against the defendants as averred at paragraph 5 and the relief sought in alternative of the payment sought at clause'e'of the reliefs clauses is a claim of the landed properties agreed by the parties. The court has found the further claims by the plaintiff against the third defendant as stated at paragraph 6 of the plaint and its subparagraphs read together with clauses g, e, h and I of the reliefs the plaintiff is seeking from the court are payments of various damages and

interest arising from breach of the terms and conditions of the property agreement. That being the claims of the plaintiff the court has found the cause of action of the plaintiff are arising from claims of interest on land and breach of property agreement. If 22 one of the claims of the plaintiff is a claim of landed property which is dearly stated at paragraph 5 of the plaint, the court has found as rightly argued by the counsel for the plaintiff and as provided under item 22 of Part I of the Schedule to the Law of Limitation Act the stated claim was supposed to be filed in the court within twelve years from when the cause of action arose. The above finding caused the court to come to the view that, if it will be taken the cause of action of the plaintiff in respect of the breach of the property agreement accrued on 30"* December, 2015 is for recovery of landed properties which its limitation of time is twelve years it cannot be said the claims of the plaintiff is time barred. The court has come to the stated finding after seeing that, counting from 30"^ December, 2015 when it is alleged the third defendant was required to hand over the suit property to the plaintiff until 28"^ July, 2023 when the instant suit was filed in the court, it will be seeing it was only about eight years which had passed while the stated claim of recovery of the suit property ought to be filed in

the court within twelve years from the date when the plaintiff's right to claim for handing over of the suit property accrued. If it will be taken the plaintiffs cause of action is based on breach of contract as argued by the counsel for the defendants,then as provided under 23 item 7 of Part I of the Schedule to the Law of Limitation Act the plaintiff's suit was supposed to be filed in the court within six years from when the alleged cause of action arose. The court has found as stated earlier in this ruling it is averred at paragraph 10 of the plaint that, on 31®* August, 2020 the third defendant entered and signed a new lease agreement with Tanzania Security Limited for units Nos. 201 and 202 which are parts of the suit premises the plaintiff is claiming from the defendants. It is also averred at paragraph 12 of the plaint that the second defendant has unlawfully advertised to sale the suit property on ground that the plaintiff has failed to pay the loan advanced to her by the first defendant. That being the facts averred in the plaint the court has found that, as the first allegation of the plaintiff about breach of the property agreement is that the third defendant failed to hand over the suit property to her after the completion date, then the subsequent allegations by the plaintiff that the third defendant leased the suit property to another person and that the second

defendant has advertised to sale the suit property amounts to new different causes of breach of the property agreement and not continuing cause of auction as argued by the counsel for the plaintiff. The court has come to the stated finding after seeing the expression continuing cause of 24 action was defined in an oid English case of Holes V. Chard Union,[1894] 1 Ch. D 293 to be as follows: - "WhatIs called continuing cause ofaction is a cause ofaction which arisesfrom the repetition ofacts or omissions ofthe same kind as thatfor which the action was brought" Since the first allegation of the breach of the property agreement is failure of the third defendant to hand over the suit property to the plaintiff, then limitation of time for the subsequent causes of breach of the property agreement stated by the plaintiff, gives the plaintiff right to institute a suit in court to challenge the alleged new causes of breach of the property agreement. The stated finding of this court is getting support from section 7 of the Law of Limitation Act which states as follows: - "Where there is a continuing breach of contract or a continuing wrong independent of contract a fresh period of limitation shaii begin to run at every momentofthe time during which the breach or the wrong, as the case may be, continues." That being the position of the law the court has found that, if it will be taken the

matter is based on breach of contract as alleged by the counsel for the defendants, then the claims of the plaintiff relating to the act of the third defendant to lease the suit property to Tanzania Security Limited 25 without Informing the plaintiff, which as averred at paragraph 10 ofthe plaint it took place on 31^ August, 2020 and the act of the second defendant to advertise sale of the suit property averred at paragraph 12 of the plaint which states the suit property would be sold by 31^ July 2023 have caused the court to find the suit filed In the court by the plaintiff to challenge'the stated actions is not time barred. The court has arrived to the stated finding after seeing six years for filing In the court the suit based on breach of contract provided under item 7 of Part I of the Schedule to the Law of Limitation Act, the breach which occurred on 31^^^ August, 2020 and July, 2023 respectively had not elapsed when the instant suit was filed in the court on 28^^ July, 2023. It is because of the above stated reasons the court has come to the settled finding that the preliminary objection raised by the defendants In the instant suit that the plaintiff's suit is time is devoid of merit as in all dimensions the suit Is not time barred. Back to the first point of preliminary objection raised by the first and second defendants which states the plaintiff has no cause of action

against the first and second defendants, the court has found proper to have a look on what is the meaning of the expression "cause of action". The court has 26 found the stated expression was defined in the case of John Mwombeki Byombalirwa V. Agency Maritime Internationale(T)Ltd,[1983] TLR 1 cited in the submission of the counsei for the first and second defendants where it was stated that: - "The expression cause of action is not defined under the Civii Procedure Code 1966 but may be taken to mean essentiaiiy facts which itis necessaryfor the piaintiffto prove before he can succeed in the suit" That being the meaning of the expression cause of action the court has gone through the plaint and find the claims of the plaintiff against all defendants as alleged under paragraph 5 of the plaint is for the plaintiff to be handed over the landed property listed thereunder. The court has found the stated claims of the plaintiff are vehemently disputed by the first and second defendants in their joint written statement of defence and they have stated the plaintiff is not entitled to any relief claimed in the stated paragraph. The court has found the plaintiff claimed further under paragraphs 11, 12, 13 and 14 of the plaint that, the first and second defendants unlawfully advertised to sale the suit property on wrongful account that the plaintiff defaulted to repay the loan advanced to

her by the first defendant. 27 The above stated averments show there are allegations of facts raised by the plaintiff in the piaint against the first and second defendants which the plaintiff is required to prove by evidence to succeed in the suit and if the stated aiiegations are not proved would give the defendants' rights over the suit property. The argument by the counsel for the first and second defendants that as the first and second defendants are not parties to the property agreement then the plaintiff has no cause of action against them is a misconception of the expression cause of action defined hereinabove. The court is in agreement with the counsei for the first and second defendants that, the piaintiff was required to show existence of her iegal right against the defendants in the piaint and wrong or vioiation of the pialntiff's right committed by the defendants. However, the court has found the piaintiff has cieariy demonstrated in the piaint the wrong and vioiation of her right done by the first and second defendants entitling her to bring the suit to the court against them. The court has found as stated hereinabove the plaintiff has averred in the piaint the wrong and violation aileged were committed by the first and second defendants against her, which gives the piaintiff entitiement of suing them In the instant suit. To the view- of this 28 court the stated

allegations established the plaintiff has cause of action against the first and second defendants. Coming to the third preliminary objection raised by the first and second defendants, the court has found it reads the plaintiff has no locus standi to sue the first and second defendants. The counsel for the first and second defendants argued that, as the second defendant was appointed receiver manager of the plaintiff's property then under section 128 (5) of the Land Act Cap 113 R.E 2019 the second defendant is an agent of the plaintiff. They argued that, under the principle of the principal and agent relationship the plaintiff cannot sue her agent for the act performed or not performed in the course of executing the stated relationship. The cited provision of the law states as follows: - receiver appointed under this section shaii be deemed to be the agentofthe mortgagor for the purposes for which he is appointed inciuding power ofsaie of mortgaged iand so that the mortgagor shaii, uniess the mortgage instrumentprovides otherwise, besoieiy responsibie for the acts and defauits ofthe receiver." The court has found that, it is true that the wording of the above cited provision of the law shows a receiver appointed by a mortgagee shall be deemed is an agent of the mortgagor and the mortgagor is responsibie for 29 the acts and default of the receiver done in the exercise of his

duties as an agent of the mortgagor. However, it is the view of this court that the agency of the receiver to the mortgagor is only in respect of the acts which were supposed to be done by the mortgagor stated in the instrument of appointing the receiver. It does not bar a mortgagor to challenge appointment of a receiver as the plaintiff is doing in the instant suit. The court has found the plaintiff is challenging appointment of the second defendant as a receiver of the suit property after seeing one of the reliefs of the plaintiff sought at paragraph ''b" of the relief clause of the plaint is for the court to declare the second defendant is acting without being duily appointed as a receiver and manager in accordance with the law. That being the claim and prayer of the plaintiff the court has found it cannot be said the plaintiff has no locus standi to sue the first and second defendants in the instant suit on ground that the second defendant is the agent of the plaintiff. The court has also gone through paragraph 3 of the plaint which the counsel for the first and second defendant argued is describing the second defendant is the agent of the plaintiff but failed to see anywhere in the stated paragraph of the plaint stated the second defendant is an agent of the plaintiff's property. The court has come to the view that, as it is not pleaded 30 anywhere in the pleadings filed

in the instant suit by all parties that the second defendant is an agent of the plaintiff, then the stated preliminary objection cannot be determined as a point of preliminary objection. The court has come to the stated finding after seeing it was held in the famous case of Mukisa Biscuit Manufacturing Company Ltd (supra) that, preliminary objection cannot be raised if the objection raised will require evidence out of what is in the pleadings filed in the matter to ascertain the same. The stated principle of the law was also stated by the Court of Appeal of Tanzania in the case of Shose Sinare V. Stanbic Bank Tanzania Ltd & Another, Civil Appeal No. 89 of 2020 CAT at DSM (unreported) where it was held that: - "A preliminary objection mustbe free from facts caiiing forproofor requiring evidence to be adducedfor its verification. Where a court needs to investigate such facts, such an issue cannot be raised as preiiminary objection on a point ofiaw. From the position of the law stated in the above referred authorities the court has found the third point of preliminary objection raised by the first and second defendants that the plaintiff has no locus standi to sue the first and second defendants in the instant suit has failed to meet the condition of I 31 being determined as preliminary objection in the instant suit. In conclusion the court has found alt points of preliminary objections raised in the matter by the defendants are devoid of merit. Consequently, all preliminary objections are hereby overruled and the costs to be within the suit. It is so ordered. Dated at Dar es Salaam this 10^ day of January, 2024. ® t: I. Arufani. V-

JUDGE 10/01/2024 Court: Ruling delivered today 10"^ day of January, 2024 in the presence of Mr. Daniel Yona, learned advocate holding brief for Mr. Leonard Syivanus, learned advocate for the plaintiff and in the presence of Ms. Ritha Chihoma and Mr. Ibrahimu Kibanda, learned advocates for the first and second defendants and in the presence of Mr. Rico Adolf, learned advocate for the third defendant. Right of appeal to the Court of Appeal is fully explained. gf V\\ /- A- ^ I. Arufar Arufani. ■ * JUDGE 10/01/2024