registered trustees of masjid haq zaidi khamsini buguruni vs kambi furahisha others 2018 tzhclandd 91 20 april 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE N0.20 OF 2008 THE REGISTERED TRUSTEES OF MASJID HAQ ZAIDI KHAMSINI BUGURUNI.................................................... PLAINTIFF VERSUS KAMBI FURAHISHA& 12 OTHERS.......................................DEFENDANTS RULING Date of last order: 09/03/2018 Date of Ruling: 20/04/20 J 8 S.A.N. WAMBURA J: This ruling is in respect of a preliminary objection raised by the defendants Kambi Furahisha and 12 Others in Land C ase No 20 of 2008 filed by The Registered Trustees of Masjid Haq Zald Khamsini Buguruni to the effect that:- a) The plaint is b a d in law for contravening the provisions of Order 6 Rule 14 of the Civil Procedure C o d e C a p 33 R.E. 2002 . b) The Hon. Court has no jurisdiction to entertain the suit. l Submitting on the preliminary objection Mr. Nassoro Counsel for the respondents was of the view that:- I) The Plaint herein filed contravenes the provisions of Order VI Rule 14 as it has not been signed by Mr. Bushaka the A d vo cate who filed it in Court and has only been signed by one Trustee. He argued that the plaint is unlawfully before the Court and so ought to be struck out with costs. II) That the Court has no jurisdiction to entertain the matter as it has been alleged in paragraph 3 of the plaint that the defendants have forcefully entered into the mosque and removed the leadership thereof; renting and collecting rent as well as bringing in other believers being Answar Sunna instead of Sunni as stated in paragraph 6. As these are not land issues but administrative ones, then this Court lacks jurisdiction to entertain the matter. He thus prayed that the matter be struck out as it is not properly before the Court. Responding to these submissions Mr. Matumla Counsel for the Plaintiffs was of the view that:- I. These issues are not preliminary objections as defined in the case of Mukisa Biscuits but mere technicalities to delay the matter which should not be entertained as was held in the cases of Iddi Simba Vs (1988) TLR 88 and Nimrod Mkono Vs State Travel (1982) TLR 24. He argued that the Rule states that one of them can sign the plaint and not both of them so the preliminary objection should be dismissed and the matter proceeds to be heard on merit. He submitted that in the case of Moses Sesewata Vs Morris (1979) HCD 158 citing the case of Cooper Smith the Court also warned Judicial Officers to avoid entertaining technicalities. II. That the Counsel brought an application to set aside the dismissal Order so that parties can be heard on merit. So the preliminary objection should be dismissed and the matter heard on merit as this Court has jurisdiction to entertain the matter under Sections 95 and 68 (e) of the Civil Procedure C ode. In his rejoinder Mr. Nassoro insisted that Order VI Rule 14 of the Civil Procedure C o d e has to be complied with fully and that the A d vo cate did not sign the same so the plaint is defective. That the preliminary objection raised stands as it has the conditions set in the case of Mukisa Biscuits. Mr. Nassoro further submitted that under Section 3 of the Land Disputes Court A ct C a p 218 this Court is m andated to adjudicate on land matters only. Other disputes such as leadership as stated in the plaint have their own Courts. That the provisions of Section 95 and 68 (e) of the Civil Procedure C ode do not issue jurisdiction to this court to entertain the matter whose jurisdiction has been provided for under the law. It is worth stating that indeed the case of MUKISA BISCUITS defined what is m eant by a preliminary objection. It states and I quote:- “ .................................... a preliminary objection consists of point of law which has been pleaded or which arise by clea r implication out of the pleadings , and which if argued as a preliminary point m ay 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 rise to the suit to refer the dispute to arbitration". A nd at p a g e 701, Sir Charles Newbold, P. stated as follows:- “A preliminary objection is in the nature of what used to b e 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 if what is sought is the exercise o f judicial discretion". [Emphasis mine] So exam ples of what can be raised as a preliminary objection are an objection to the jurisdiction of the court, or a plea of limitation or when the court has been wrongly moved either by non- citation or wrong citation of the enabling provisions of the law, where an ap p eal is lodged when there is no right of appeal; where an ap p eal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; etc. All these are clear pure points of law as stated in the case of Shahida Abdul Hassanali v. Mahed M.G. Karji, Civil Application No. 42 of 1999 (CAT). Under the circum stances I do find that the preliminary objection raised is valid as it is in respect of jurisdiction and non com pliance with the law. Now in resolving the first ground I believe is worth reading the relevant provision which states as herein quoted:- “Order VI Rule! 4 Every pleading shall be signed by the party and his advocate (if any) provided that where a party pleading is by reason of absence or for other good cause unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf”. [Emphasis is mine] As the word is shall it means where a party has an a d vo ca te then that a d vo ca te has to sign the pleading as well. So indeed the A dvocate was duty bound to sign the pleadings and so I uphold the first ground accordingly. It is also worth noting that the Rule has gone further by stating that where a party to the pleadings is unable to do so, the one signing on his behalf has to be dully authorized as was emphasized in the ca se of MASSAWE &Co. Vs JASBHAI PATEL [1998] TLR 445. Now the plaintiff is a Registered Trustee who cannot sign the pleading. One of the Trustees has signed the same but there is no proof that he has been so authorized. More so because in the attach ed letter to the plaint (not the authorization) some of the Trustees have been indicated to have passed aw ay. The letter w as written in O ctober 2001 while the suit was filed in January 2008, meaning even the Trustees could have also changed hands. Thus though one of the alleged Trustee signed the plaint there is no proof that he was dully authorized to do so. As for the second ground I believe I need not labour much on it. There is no dispute that the matter in dispute is on the administration of the mosque and not ownership. So it is not a land dispute as provided for under Section 3 of the Land Disputes Court A ct which is herein quoted:- In the circum stances I also uphold the 2nd ground of the preliminary objection herein raised. I accordingly strike out the suit but make no Orders as to costs for had the sam e been raised earlier the matter would not have taken this long in court. 20.4.2018 8