20070313 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 124 OF 2004 SUZANA M. CHACHA • • ■ ■ • • • ■ ■ • • • • ■ • • • • • PLAINTIFF VERSUS 1. REGISTERED TRUSTEES OF EVANGELICAL LUTHERAN CHURCH IN TANZANIA DEFENDANTS 2. HEIFER PROJECT INTERNATIONAL 3. P.H. BOGASI Date of last order - 15/12/2006 Date of Ruling - 13/3/2007 RULING Shangwa, J. On 25/4/2005, the defendants filed a joint Written Statement of Defence in which they raised a preliminary objection to the hearing of the suit by saying that the plaintiff has no cause of action against them and prayed th~ .suit to be dismissed with costs. .\ 2 There are three grounds of objection which have been raised by the defendants aga·inst the suit. One, that the plaintiff made false statements at paragraphs 1, 7, 8, 9, 11, 12 and 13 of the plaint by saying that there was a contract of service between her and the 1st defendant. Two, that the plaintiff has not annexed a copy of contract of service which she alleges was made in 2001. Three, that the plaintiff's employer is the District Agriculture and Livestock Development Officer Morogoro Region and that she was sent by her employer to the 1st defendant to assist on good husbandry while her employer continued to pay her salary and other benefits. Learned counsel for the defendants the late E. S. Ngasala submitted on their behalf that the plaintiff has no cause of action against them because she h~s no contract of service with them on which her claims could be based. In reply, learned counsel for the plaintiff Mr. K. M. Nyangarika submitted on behalf of the plaintiff that the 3 defendants' preliminary objection to the suit is misconceived, baseless and of no effect as it lacks the characteristics of preliminary objection on a point of law. He argued that the defendants' preliminary objection is on points of facts and defence which do not consist a preliminary objection and that the plaint does disclose a cause of action. As to what consists a preliminary objection counsel for the plaintiff referred the court to the case of MUKISA BISKCUITS MANUFACTURING CO. LTD VS. WEST END DISTRIBUTORS LTD (1969) E.A. 696 in which LAW, J A observed as follows: •~o far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by necessary implication out of the pleadings and which if argued as preliminary point may dispose off the suit. Examples are an objection to the jurisdiction of the court or 4 a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration'~ In my opinion, the allegation by the defendants that the plaintiff made false statements in the plaint and the failure by the plaintiff to annex a copy of contract of service to the plaint or the question as to whether or not the plaintiff's employer is the District Agriculture and Livestock Development Officer Morogoro Region and not the first defendant are matters of facts which need to be proved during the hearing of the suit. These are not matters of law. Therefore, I do agree with Mr. K. M. Nyangarika that these are matters of facts which lack the characteristics of preliminary objection on a point of law. The submission made by the late E. S. Ngasala that the plaintiff has no cause of action against the defendants because she has no contract with them is incorrect. The '\ 5 term cause of action has been defined in Black's Law Dictionary Eighth Edition at page 235 to mean 11 a group of operative factors giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person'~ In this case, the fact which gives the plaintiff a cause of action against the defendants is the act of being terminated from her services and denied of her working benefits resulting from her job as supervisor of the cattle rearing project at Morogoro which is owned by the 1st defendant, sponsor~d by the 2nd defendant and administered by the 3rd defendant. Now, in view of the clear fact that the defendants have raised factual matters which have no characteristics of preliminary objection on points of law and as the plaintiff has a cause of action against them, I hereby overrule their l; 6 objection and dismiss their prayer for dismissing the plaintiff's suit. I do so with costs. First pre-trial conference with regard to the suit to he held on 20/3/2007. It is so ordered. ~ A. Shangwa JUDGE 13/3/2007 Delivered today on 13th March, 2007 in the presence of Rev. Mathias Mduma for 1st defendant and the 3rd defendant in person together with Mr. Juma for Mr. Nyangarika for the plaintiff. . C, ~oRT~, )- ,,, "1 \ 1, ;_ - A. Shangwa JUDGE (x( ~- 1"' z 13/3/2007 1\$ ~ !\~ -o- __,-·· -..;--:-;:::..... . ·.~ I I I /