BAKWATA 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ATTHE DODOMA MISCELLANEOUS CIVIL APPLICATION NO. 18 OF 2017 (Arising from Decree in Civil Case No. 6 of 2001 dated 30/10/2009) THE REGISTERED TRUSTEES OF BAKWATA..................... APPLICANT VERSUS THE REGISTERED TRUSTEES OF DODOMA GENERAL MUSLIM ASSOCIATION...............RESPONDENT RULING Last Order: 28th August, 2024 Date of Ruling: 6th September, 2024 The applicant had filed an application in this court praying that the court be pleased to require the respondent to show cause why the payment made to them in adjustment of and settlement of the decree in Civil Case No. 6 of 2001 should not be recorded and certified as full settlement and satisfaction of the said decree. The respondent contested the application by filing a counter affidavit and notice of preliminary objection premised on the following limbs to wit: one, the application is misconceived and untenable in law since the decree and mode of satisfaction sought by the applicant are not interrelated. Two, the application is bad in law for being premature. Three, the court has no jurisdiction since the decree in Civil Case No. 6 of 2001 did not contain any order for payment of money. The preliminary objections were disposed of by way of written submissions. The respondent's submissions supporting the preliminary objection were Page 1 of 9 drawn and filed by Mr. Ally Nkangaa, learned counsel whilst the applicant's reply submission was drawn and filed by Mr. Elias Machibya, learned counsel. Before I provide a summary of the submission, for appreciation of the preliminary objection, I will briefly narrate the factual background to the application. The applicant and the respondent were judgment debtor and decree holder, respectively in Civil Case No. 6 of 2001. In the respective decree, extracted on 30th October 2009, this court made declaratory decree as to the ownership of the suit land and the asserts therein and payment of general damages. Later on, the parties under the supervision of the late Mufti of Tanzania entered an amicable settlement as to the satisfaction of decree but the same was dishonored hence this application. The applicant is beseeching the court to require the respondent (decree holder) to show cause why the monies already paid to her should not be recorded and certified as full settlement and satisfaction of the decree. The application is sternly objected by the decree holder (the respondent). Revering to the submission, on the first limb, it was submitted that the applicant has applied for this court to issue notice to the respondent to show cause why the payment made to them on 3rd April 2015 in adjustment and settlement of the decree in Civil Case No. 6 of 2006 dated 30th October 2009 should not be recorded and certified by this court as full settlement and satisfaction of the said decree. The application ought not to have been made under Order XXI Rue 2(2) of the Civil Procedure Code, Cap 33 R.E 2019 because for an application to be preferred under this provision there is a condition that there must be an order for payment of money so as to warrant an application for certification of such payment. Therefore, since in the Page 2 of 9 present case there was no order directing such payment, the application is untenable. With regard to jurisdiction, it was argued that the powers of the executing court under section 31 of the Civil Procedure Code should only be in relation to the execution of orders. Therefore, since the argument in the first objection was that no order was extracted for payment of any sum of money, this court lacks jurisdiction to entertain the application. The last submission was in respect of the second limb of preliminary objection and it was argued that the application is incompetent for being accompanied by affidavits sworn by incompetent persons who have no locus to standi to depose the same. The applicant in the instant application is The Registered Trustees of Bakwata. In the verification clause of all the affidavits, it shows the deponents are not trustees. They have identified themselves as the former General Secretary of the Applicants and not as trustees. This contravenes section 8 (1) (b) of the Trustees Incorporation Act Cap. 3 R.E 2002 which is to the effect that once the trustees are granted a certificate of incorporation, they become a body corporate capable of suing and being sued in their own name. He argued that since the deponents are not trustees, they have no locus standi to represent the applicant and the application should, therefore, be dismissed. In reply, Mr. Machibya submitted that all the preliminary objections are misconceived and unfounded. On the first preliminary limb of the preliminary objection, he argued that the same does not qualify to be a preliminary point Page 3 of 9 of law as defined under Mukisa Biscuit Manufacturing Company Limited vs West End Distributors Limited [1969] EA 696 as the respondent is inviting the court to look and decide on the substance of the decree in Civil Case No. 6 of 2001 which is attached as Annexure MPA-1. Submitting on the second limb of the preliminary objection, Mr. Machibya argued that it is also misconceived as it touches the merit of the application itself. It seeks to move the court to decide on the merit without hearing the parties. Such an approach, he argued, would land the court into the mistake it committed previously which led to the appeal before the Court of Appeal in the Registered Trustees of Bakwata vs The Registered Trustees of Dodoma General Muslim Association, Civil Appeal No. 239 of 2020, [2023] TZCA 18013 TanzLII. He argued further that the preliminary objection on jurisdiction is misconceived as it is pegged under the provision of Order XXI Rule 2(1) of the Civil Procedure Code. Besides, the present application is not for execution as submitted by respondent's counsel and, therefore, the court has jurisdiction to determine the same. Replying on the competence of the affidavits supporting the application, Mr. Machibya argued that section 18(1) (b) of the Trustees Incorporation Act, does not deal with affidavits accompanying the applications. It provides that upon incorporation the trustees have locus to sue or be sued. He added that there is no law that provides that a person swearing the affidavit to support an application must have locus standi. In the alternative, it was submitted Page 4 of 9 further that the affidavit of Suleiman Said Lolila states that he is the General Secretary of the applicant and a trustee. It does not indicate that he was the former trustee. He added that the law governing applications is Order XLIII Rule 2 of the Civil Procedure Code which envisages that every application in court shall be accompanied by affidavit. It does not provide that the affidavit must be sworn by a person with locus standi. In the conclusion, the prayed that the objections be dismissed with costs. In rejoinder, Mr. Nkangaa submitted that the court has not been invited to look at the affidavit and its annexures but rather the decree of this court in Civil Case No. 6 of 2001. He argued further that in determining the limbs of the preliminary objection, the court will not land itself in the merits of the application. On the argument that the objection on Order XXI Rule 2(2) is incompetent as it appears to be based on Order XXI Rule 2(1), it was submitted that the two provisions are complimentary. Thus, they must be read together to grasp their meaning. Mr. Nkangaa reiterated his submission in chief by arguing that, Order XXI Rule 1 to Rule 2 cover the execution of decree containing monetary orders and not otherwise. Therefore, the adjustable decree must be in monetary form not otherwise. On the issue of jurisdiction and locus standi of the persons who swore the affidavits, he reiterated his submission in chief that the affidavits ought to have been deposed by the trustees, not other persons. I have carefully considered the submission by both counsels and will now move to determine the preliminary objection. The ultimate issue for determination is whether the preliminary objections raised have merit. As I Page 5 of 9 embark on this task, it is apposite, I think, to start with the underpinning principle of preliminary objection as articulated in the landmark case of Mukisa Biscuit Manufacturing Co. Ltd. vs West End Distributors Ltd. [1969] E.A. 696 and endorsed by the Court of Appeal in numerous decisions including in Shose Sinare vs Stanbic Bank Tanzania Limited ^Another Civil Appeal No. 89 of 2020 [2021] TZCA 476 TanzLII, Jackline Hamson Ghikas vs Mlatie Richie Assey [2022] TZCA 438 TanzLII and Soitambu Village Council and Another vs Tanzania Breweries Limited [2021] TZCA 351 TanzLII. From these authorities, it is now a cardinal principle in our jurisdiction that a preliminary objection should raise a pure point of law and not facts that have to be ascertained through evidence. Reaffirming with greater emphasis the position taken in Mukisa Biscuits (supra), the Court of Appeal in Tanzania Telecommunications Company Limited vs Vedasto Ngashwa & 4 Others, Civil Application No. 67 of 2009 (unreported) categorically stated that, a preliminary objection must satisfy three conditions namely; one, the point of law raised must either be pleaded or must arise as a clear implication from the proceedings; two, that it must be a pure point of law which does not require close examination or scrutiny of the affidavit and counter affidavits and three, the determination of such a point of law in issue must not depend on the court's discretion. Further, in Soitambu Village Council and Another vs Tanzania Breweries Limited (supra) it instructively held that: A preliminary objection should be free from facts calling for proof or requiring evidence to be adduced for its verification. Where a court needs to investigate facts, such an issue cannot be raised as a preliminary objection on a Page 6 of 9 point of law. The court must therefore insist on the adoption of the proper procedure for entertaining applications for preliminary objections. It will treat as preliminary objections only those points that are pure law, unstained by facts or evidence, especially disputed points of fact or evidence. The objector should not condescend to the affidavits or other documents accompanying the pleadings to support the objection such as exhibits. To succeed, the points of preliminary objection raised by the respondent have to satisfy these conditions. Starting with the anomaly in the affidavit, it has been argued that they are defective for want of locus standi. Upon examining the affidavit, I have found the argument devoid of merit, considering, as correctly submitted by Mr. Machibya, that the first deponent is identified as the former secretary general of the applicant and the trustee. Whether or not he is a trustee, is a factual issue that needs to be ascertained through evidence. In any case, and as correctly submitted by Mr. Machibya, while the law requires a action for or against a registered trustee to be initiated in its name, I am not aware of any law that requires that an affidavit in support of an action by a registered trustee must be deponed by none other than a trustee. Since Mr. Nkangaa did not mention such a law, I can safely assume that it does not exist and his lamentation is with no merit. The first limb of the preliminary objection is also incompetent as it cannot be ascertained without indulging into the substance of the decree in Civil Case No. 1 of 2001 to see whether it is a monetary decree and its appropriate mode of execution. Certainly, this cannot be done at this stage as that would be tantamount to prematurely determining the application. Page 7 of 9 The argument with respect to the jurisdiction of this court, is unclear and hard to grasp. Section 31 of the Civil Procedure Code from which it stems, states thus: 31. The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders. If I understood Mr. Kangaa well, he was trying to convivence this court that the present application is untenable and this court has no jurisdiction to determine it as it does not concern execution of a decree hence his reliance on section 31 of the Civil procedure Code. Later on in his argument, he acknowledges that it concerns execution but the mode of execution sought is not commensurate with the substance of the decree and in fortification he referred back to the Provision of Order XI rule 1 and 2. I will not be detained by this limb as the submission in its support have demonstrated that it is self-defeated and without merit. The wording of Section 31 of the Civil Procedure Code is very precise such that it requires no further meaning other than its ordinary meaning which as clearly seen in its wording it to extend the provisions for execution of decrees to the execution of orders. It would appear to me that the provision has been cited out of context and so is the objection because, the provision section 31 is merely directive to the court and the parties as to what should be done in the execution of court orders. In the upshot therefore, I hold without demur that on account of the reasons given above, all the limbs of preliminary objections raised by Page 8 of 9 the respondent are incompetent and I accordingly overrule them with costs. DATED at DODOMA this 6th of September 2024 J. L. MASABO JUDGE Page 9 of 9