the registered trustee of cornelius christian aid to churches and needy fountation vs equity bank tanzania limited 2023 tzhclandd 16581 23 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 289 OF 2022 THE REGISTERED TRUSTEE OF CORNELIUS CHRISTIAN AID TO CHURCHES AND THE NEEDY FOUNDATION............................................................................. PLAINTIFF VERSUS EQUITY BANK TANZANIA LIMITED........................................ DEFENDANT RULING 22nd May 2023 & 23rd June 2023 L.HEMED, J: On 2nd day of November 2022, THE registered trustee of CORNELIUS CHRISTIAN AID TO CHURCHES AND THE NEEDY FOUNDATION (the plaintiff) lodged this suit claiming against the defendant, equity bank Tanzania limited for the following relief; 1. An order cancelling the intended sale of the mortgaged property over certificate of title No. 90127 on Plot No. 573/1 Block 43, Kijitonyama area - Kinondoni is illegal and unjustifiable as the very defendant is in breach of the loan agreement dated 3rd July, 2014 and its rescheduled i one dated 15th September, 2017 read together with the lease agreement. 2. An order cancelling all penalties and interest charged on loan account No. 3007511008766 complained of from September, 2017 to date which arose from the defendants inactions. 3. An order allowing the plaintiff to apply set off of plaintiff's money unlawfully with the held by the defendant and any balance remaining to be paid to the plaintiff. 4. General Damaged to be assessed by the court. 5. Cost of the suit 6. Any other reliefs as this court deems fit and just to grant. The defendants disputed the claims of the plaintiff by filing the written statement of defence. In the written statement of defence, the defendant raised a preliminary objection that; "That, the plaint is incompetent for misjoinder of cause of action." The preliminary objection was argued by way of written submissions. The plaintiff was represented by Mr. Daniel Haule Ngudungi, learned advocate while Ms. Eugenia Mark Shayo, learned counsel acted for the defendant. The question to be determined before 2 me is whether the plaint is incompetent for misjoinder of the cause of action. In his submissions, Ms. Shayo asserted that Order II, Rule 7 of the Civil Procedure Code, [Cap 33 R.E 2019] requires that all objections on grounds of misjoinder of cause of action to be taken at earliest possible opportunity and any objection not taken shall be deemed to have been waived. It was stated that the plaint pleads two cause of action; on lease agreement and breach of loan agreement. In the opinion of the counsel for the defendant, these two cause of action cannot be joined into one suit. It was averred that under clause 9 to the 3rd schedule of the lease agreement, it expressly requires that disputes shall be resolved under arbitration rules of Tanzania. The learned counsel for the defendant pointed out that the plaintiff had filed similar suit, i.e Land Case No. 241 of 2022 which was between the same parties and same causes of action. It was struck out by this court for failure to abide with the arbitration clause in the agreement. The learned counsel maintained further that the dispute on loan agreement was supposed to be raised separately from lease agreement 3 dispute. Different authorities were cited in cementing his position and prayed that the suit be struck out for misjoinder of cause of action. In reply thereto, Mr. Ngudungi begun by giving brief background of this dispute. He submitted that the plaintiff claim is to protect and secure property which is likely to be auctioned by the defendant who is his tenant in the very same property. He was of the firm view that in the circumstance of the instantaneous case it cannot be termed as different cause of action as both claims and reliefs comes from the same transactions in the mortgage deed. According to Mr. Ngudungi the securities to the loan agreement are the rental receivable from the executed lease agreement by the very same parties in the same mortgage deed. It was his stand that according to the case of Buike Coffee Ltd and 2 others vs. Rutabi and Another (1962) EA 328, joinder of cause of action of this nature is allowed. He also admitted to have filed Land case No. 241 of 2022 involving the same parties but to him that matter is inseparable to this as this case originated from lease agreement and loan agreement. Having gone through the rival submissions presented by the learned counsel for both parties, I have noted that the plaintiff had 4 previously filed Land Case No. 241 of 2022 involving the same parties whereby the plaintiff was claiming for payment of rent areas. The said Land case was struck out by my sister at the bench Hon. Dr. T. Mwenegoha, J on the ground of jurisdiction. It was held that since the Lease Agreement had an arbitration clause parties were to refer the dispute to arbitration tribunal. It is also not in dispute that one of the claims/cause of action is rooted from the same lease agreement, which was the subject in Land Case No. 241 of 2022 that was struck out by this Court as aforesaid on the ground of jurisdiction. Additionally, it is clear from the outset that the plaintiff has filed the present suit mixing up the cause of action on Lease with that of Loan Agreement. I must state clearly that since this Court had declined in Land Case No.241 of 2022 to have jurisdiction over matters emanating from the Lease Agreement, it is functus officio to deal with the part of cause of action associated with the lease agreement. Likewise, the fact that the cause of action on Loan Agreement has been mingled with the cause of action on Lease Agreement, this Court ceases to have jurisdiction on it. From the fore going, I am not at one with the argument made by Mr. Ngudungi that there is no misjoinder of causes of action as they 5 originate from the same transaction. I am holding so because the cause of action arising from lease agreement is quite distinct from the one emanating from loan agreement, as they attract no common question of law. In the case of Vrctor Nestory Ndabagoye and Another vs. Sinda Geteba, Commercial case No. 4 of 2021 it was held that; 34 misjoinder of causes of action will occur where several causes of action are joined together in the suit which cannot be joined there being no common question of law and fact and, as such, the suit is will be bad for misjoinder of causes of action or multifariousness. I do subscribe to the above position that if causes of action attract different question of law as in the present case, such causes of action should not be joined. In the end, I find the preliminary objection meritorious and deserves to be sustained. The entire suit is hereby struck out with cost. It is so ordered. DATED at DAR ES SALAAM this 23rd June 2023. 6