20190624 TZHC Dar es Salaam

(: ..:.', . . I .a• ~ .' > IN THE HIGH COURT OF TANZANIA C { DAR ES SALAAM DISTRICT REGISTRY) AT DAR-ES-SALAAM LAND CASE NO. 95 OF 2016 . \ TANZANIA ZAMBIA RAILWAYS AUTHORITY .... I •• I •••••••••••• I. I •••• I I. I I I ••• I •• I I •• I. I I •• I I ••••••••••• PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF THE MORAVIAN CHURCH IN SOUTHERN TANZANIA ..................... 1 ST DEFENDANT I LALA MUNICIPAL COUNCIL. ........... ..................... 2No DEFENDANT THE COMMISSIONER FOR LAND ........................... 3Ro DEFENDANT THE REGISTRAR OF TITLES ................................... 4TH DEFENDANT THE ATTORNEY GENERAL. ..................................... sTH DEFENDANT RULING MASABO J.L There is before me a suit in which the Plaintiff, the Tanzan\a Zambian Railway Authority (TAZARA) seeks to assert its ownership over a piece of land identified as Plots No. 162, 177 and 180 Block B at Tabata area in Dar es Salaam. The 1st Defendants has raised three preliminary points of law, that: 1 .1.··.The· plaintiff has no locus standto sue in respect of said plots as they ·sold the same to third parties (John Ngaraguza, Willfred Kitilya and · . Yusuph Mandai); 2. The suit had been preferred by an officer who is not empowered to do so by the Board of TAZARA; 3. That the suit violated section 13 of the Land Registration Act, Cap 334 RE 2002. With leave of the court, the three objections were argued in writing. Mr Kigua, counsel for the Respondent was the first to file his submission. In support of the first preliminary objection he submitted that the Plaintiff has already transferred its interest on the said plot by way of sale of the plots to John Ngaraguza, Wilfred Kitilya and Yusuph Mandai hence they have no locus to institute the suit. On the 2nd preliminary objection he submitted that the suit is incompetent because the plaint was signed by an unidentified person and that it is not accompanied by a Resolution of the Board Authorizing the unidentified person to file the suit on behalf of TAZARA. On the third objection he argued that the suit contravenes section 13 of the Land Registration Act, Cap 334 RE 2002 because the Plaintiff has 1 no interest in the said plots as the same were dully granted and registered in the name of the 1st Defendant. In essence his submission is that the suit is incompetent because the plaintiff did not comply with the statutory requirement of issuing a notice objecting the registration of the said land in the name of another person. In reply to the third preliminary objection, Mr. Mbamba, counsel for the plaintiff dismissed the argument in support of preliminary of objection for lack of merit. On the first preliminary objection he submitted that it does not qualify as a preliminary objection because it is not a pure point of law. 2 .f • In support of his argument he cited the case of Mechmar Corporation (Malaysia) Berhad (in liquidation) v VIP Engineering and Marketing Ltd & Others, Consolidated Civil Application No. 190 of 2013. On the second preliminary objection he argued that the suit is well founded as section 4 of the Tanzania Zambia Railway Act [Cap 143 RE 2002] gives TAZARA the power to sue in its corporate name. He further submitted that considering that the Plaintiff is a corporation, Order VI Rule 5 (1) and (2) of the Civil Procedure Code Cap 33 RE 2002 does not apply in the instant suit and that the applicable provision is Order XXVIII Rule 1 which provides for verification of a suit by or against a corporation and that the requirement of this rule has been fully complied with by the plaintiff. With regard to the third objection, he submitted that section 13 of the Land Registration At does not apply in the instant suit because what is being challenged is not 1st registration but the allocation of the said plots to the 1st Respondent. In the alternative he submitted that even if the suit was meant to challenge registration of the first defendant, the suit will not be affected by the requirement to give notice under section13 because the said requirement is not mandatory. He argued further that the Respondents' counsel's submission on this point has revealed that the objection is not purely a point of law because to determine this point the court will have to consider "annexture C" to the Written Statement of Defence. In support he cited the case of Soitsambu Village Council v Tanzania Breweries Ltd Civil Appeal No. 105 of 2011 (CAT). I have carefully considered the submissions and rival by the Counsels. Considering that the Counsel for Plaintiff has challenged the appropriacy of the two preliminary objections, I will first address myself to this issue. Under the circumstances I have found it imperative to reflect, from the 3 outset, the meaning and the general principle on preliminary objection as laid down in Mukisa Biscuits Manufacturing Company LTD v West End Distributors LTD (1969) EA 696, where it was stated that: "...... a preliminary objection consists of a point of law which has been 9 pleaded or which arises by clear implication out of the pleadings, and which, if argued as a preliminary objection may dispose of the suit. Examples are an objection to the Jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving to the suit to refer the dispute to arbitration. '' 1 fl preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is the exercise ofJudicial discretion. '' This has been the position of the law. The question therefore is whether the two objections pass this test. On the issue of locus standi the 1st Respondent's case rests on the fact that the Plaintiff sold the said plots to John Ngaraguza, Wilfred Kitilya and Yusuph Mandai and that following this sale, the ownership of the said plots transferred to third parties thus they have no locus to institute the suit. The Plaintiff's counsel is of ·the view that this is a purely point of facts hence does not qualify to be a preliminary objection. Having read the 4 pleadings, it is clear from the facts narrated in the Plaint that the Plaintiff's main averment is that the said plots have been unlawfully allocated to the 1st Respondent and therefore his main prayers is for a declaratory order that it is the rightful owner of the three plots. Under the circumstances, I entirely agree with Mr. Mbamba that the question as to whether the plots were transferred to third parties is a factual issue which can only be determined upon evaluation of material facts of the suit and the testimony thereto. In other words, the court should interrogate how and when did the Plaintiff's interest transfer to third parties. These questions cannot be determined by exclusively looking at provisions of the law. There must be some material facts showing that, indeed there was a sale and that the interest was transferred as a result of this sale. Certainly, at this juncture it would be premature to hold that the plot belongs to third parties. This point therefore fails the test and is accordingly disqualified from being a preliminary objection. As held in Mechmar Corporation (Malaysia) Berhad (in liquidation) v VIP Engineering and Marketing Ltd & Others (supra), the points raised by the 1st Respondent on the locus standi of the plaintiff to sue are matters which cannot be answered without asking the questions why and how and since the question how have to be asked it means that the inquiry has to be conducted in order to resolve the issue of locus standi. The 3rd preliminary objection rests on the fact that the Plaintiff has overlooked a legal step. According to the 1st Respondent Counsel, the suit plots were dully allocated and registered in the 1st Respondents name. He has referred me to annexture 3 of the 1st Respondent's Written Statement of Defence which contains a certificate of title over the said plots which bears the name of the 1st Respondent. On the basis of this, he argues that 5 since the land has already been registered in the name of the 1st Respondent, the Plaintiff is restrained from filing the instant suit. He argued that the plaintiff ought to have asserted his interest by filing an objection to the Registrar of titles to prevent the registration of the 1st Respondent pursuant to section 13 of the Land Registration Act. And that, since the registration has already been effected the Plaintiff have no cause. He argued that if the Plaintiff was aggrieved by the registration of the 1st Defendant he ought to have appealed to the High Court within 3 months after the Decision of the Registrar. On the Plaintiffs side, it is argued that section 13 is applicable for application for first time registration hence irrelevant in the instant case where the Plaintiff seeks to challenge the allocation of the said plots to the 1st defendant. In the alternative it is submitted that, even if the suit was aimed at challenging a first registration the requirement to give an objection notice under s. 13 is not mandatory as the section uses the word 'may' which is, pursuant to section 53 of the Interpretation of Laws and General Clauses Act, Cap 1 RE 2002, optional. It is argued further that the fact that the determination of this issue is to be based on an anexture to the written statement of defence, the issue cannot be said to be a purely point of law and therefore it does qualify to be a preliminary objection. Section 13 provides that: Any person who claims to have any estate or interest in the land comprised in an application for first registration may, at any time prior to the determination of the application by the Registrar, give the Registrar notice in writing objecting to the first registration of the land in the name of the applicant, and setting out the grounds of his objection. 6 Undoubtedly, the provision is confined to matters pertaining to registration of titles. I do not agree with the plaintiff that this section is irrelevant as the suit does not involve first registration. The Plaintiff being, as it claims, the rightful owner of the disputed plot, ought to file an abjection to prevent the registration of the 1st Defendant. It had a duty to bring to notify the Registrar of titles that the said plots had already been registered. Failure to inform the Registrar would be tantamount to breach of the legal duty. Considering the circumstances of the instant case, this issue can only be established upon evaluation of testimony tendered in court. The reference to "annexture C" to the written statement of defence is further testimony that the point raised by the 1st Defendant cannot be determine without considering testimonies adduced in court. Moreover, it is very clear from the plaint and as stated above that the dispute centers on allocation of the said plots. For easy of reference I will reproduce the Plaintiff's main prayers as stated in page 5 of the plaint: "l. A declaration that plot number 162, 177 and 180 block B Tabata belong to the plaintiff 2. A declaration that allocation bv the Z'd and Id Defendant of the suit plots to the 1st Defendant and the registration of the 1st Defendants as owner by the ,lh defendant was improper and procedural. 3. Restoration of the suit plots to the plaintiff. ...... " 7 As it would appear in these prayers, registration is consequential to the declaratory orders on ownership of the suit plots. Considering that the Annexture refereed by the 1st Defendant bears the name of the 1st Defendant as a registered owner of the three plots, relying on the this annexture will be tantamount to holding prematurely that the 1st Defendant is the rightful owner of the said plots. Under the circumstances, it cannot be overstated that this too does not pass the test of a preliminary objection. The third preliminary objection has two elements. One that the suit is incompetent_ as it has been preferred by unauthorized personnel and two, that the person who signed the verification clause is not identified. The first element will not detain me. The suit bears the name of TAZARA as Plaintiff. With all due respect to the counsel I have failed to appreciate his line of argument considering that, TAZARA being a body cooperate is vested with power to sue and to be sued in its own name pursuant to section 4 of the Tanzania Zambia Railway Authority Act. I On the second element I agree with the 1st Defendant's Counsel on the importance of verification. Order VI Rule 15 (1) verification of pleadings a must. Considering that the Plaintiff is a body cooperate, a question is who can sign on its behalf. The answer to this is found in order XXVIII rule 1 which provides that: •1n suits by or against a corporation any pleading may be signed and verified on behalf of the corporation by the secretarv or bv anv director or other principal officer of the corporation who is • able to depose to the facts of the case" 8 In the instant suit, the plaint is verified by principle officer of the Plaintful • whose name is not identified. I agree with Respondent that it is important to identify the name of the person verifying the plaint because as held by this court in Kiganga and Associates Gold Mining Company Limited V. Universal Gold Mining NL (2002) T.L.R 129 at 138 the importance of the verification clause is to fix responsibility and abuse of court process. In line with view, it has been held that although Rule 15 of Order VI of the CPC does not expressly require the Plaintiff to identify his or her name, it is desirable to do so. In Usangu Logistics (T) Ltd And Tanzania National Road Agency & 2 Others, Commercial Case No. 58 OF 2007 it was stated that: "There is no rule that requires the full identification of a person who verifies a pleading, but I think it is desirable to do so/ if the object of verification is to be achieved. " However, I am mindful of the fact in suits involving corporations "it is optional for the mentioned officers to verify the pleadings under Rule 1 of Order XXVIII of the Civil Procedure Code." As stated in LTA Construction (Tanzania) Limited vs Peter Schuman & 3 others, HC Com.mercial Division No. 39 of 2010: "This is so because while under the provisions of sub rule (1) of Rule 15 of Order VI, the requirement that the pleadings must be verified by persons mentioned therein is 9 mandatory as the term used is 'shall~ under the provisions of Rule 1 of Order XXVIII of the Civil Procedure Code/ the requirement that pleadings be signed and verified by the secretary, director✓ or principal officer of the corporation is optional. The term used there is "may" which denotes an option to the mentioned officers to sign and/or verify the pleadings. " The court held further that, ''It follows that if the officer concerned does not exercise that option any other person proved to the satisfaction of the court as directed by sub-rule (1) of Rule 15 of Order VI. In order to prove that an officer is versed with the facts of the case the court has to embark upon close scrutiny of facts before it and perhaps calling witnesses. This is not the purpose of preliminary obiection as stated bv the then East Africa Court of Appeal in the case of Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributors Ltd [1969 7EA at pg 701" 10 In view of this, I dismiss all preliminary objections with costs on the 1st Defendant. It is accordingly ordered. DATED at DAR ES SALAAM this 24TH day of June 2019. J.L. MASABO JUDGE Ruling delivered this 24TH day of June 2019 in the presence of Advocate Aziza Msangi for Plaintiff, the 1st Defendant appearing in person and Mr. Ally Kwikazanya, solistor for the 2nd to 4th Defendant J.L. MASABO JUDGE 11