the registered trustee of the evangelist assemblies of god tanzania vs frida mfuko as adminstratrix of the late henry felix mfukoand others 2021 tzhclandd 6704 18 june

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND CASE NO. 150 OF 2020 THE REGISTEREED TRUSTEES OF THE EVANGELISTIC N.. \ ^'\ ASSEMBLIES OF GOD TANZANIA ...PLAINTIFF VERSUS FRIDA MFUKO (As an Administratix - \\ \ of the late John Henry Felix DEFENDANT COMMISSIONER FOR LANDS.....^^};:. 2^° DEFENDANT REGISTRAR OF TITLES..^-^ '' I S "» 3'^'^ DEFENDANT THE ATTORNEY GENERAli 4™ DEFENDANT Date ofLast order;-9/4/2021 , Date ofRuling:18/06/2021 Y1 '' RULING MANGO,X \\ > The Pjaintlff ins^itiited this case claiming ownership over Plot No. 154 Block 11, Kekoluu,Terrieke Dar es salaam. The Plaintiff alleges that the disputed land has been illegally tranfered to John Henry Felix Mfuko on July 2013. In her Written Statement of Defence, the first defendant disputed the Plaintiff allegations and stated that, the Plot was transferred legally to the late John Felix Mfuko by the Board of Trustees of Evangelistic Assemblies of God Tanzania. The First Defendant filed a notice of preliminary objection on point of law containing six points. The points are as follows: i. That this Honorable Court does not have jurisdiction to entertain the suit ii. That, the suit is misconceived and bad in law for contravening section 8 of the Civil Procedure Code,[Cap.33 R. E. 2019].'X ill. That the suit is misconceived and bad in law for contravening section 9 of the Civil Procedure Code,[Cap. 33 R. E. 2Q19] ^ ■ iv. That the suit is misconceived and bad inlaw fdr contfavehing section 38(3) of the Land Act,[Cap. 113 lt.E^2019] % \ \ V. That the suit is incompetent'for containing a defective verification clause vi. That this Honourable Court isxvrdngly moved to entertain the suit before it ,s a \ ,>• \ '-v. ''> <■' ^ "'X ■ X \ The Plaintiff was represented by Mr. Didace C. Kanyambo, learned advocate while the First defendant was represented by Sylivester Sebastian, learned advoca0.1I)n 26X6ct^ this Court ordered the Preliminary Objection be argued by way of written submissions. In his submission,/counsel for the first defendant dropped the first point of objection."He submitted on the remaining points of objection. Submitting on the second point of objection, he argued that at the time of its filing, this case was res subjudice to Land Application No. 327 of 2019 before the District Land and Housing Tribunal for Temeke. He submitted that, parties to Application No. 327 of 2019 are substantially the same to this case. The Plaintiff was the Applicant while the defendant was the sole Respondent to 2 the Application. The cause of action and reliefs sought by the Plaintiff in Land Application No. 327 of 2019 are similar to this case. Thus, Land Case No.150 of 2020 contravened the provisions of section 8 of the Civil Procedure Code because, at the time of its filing, it was res subjudice to Land Application No. 327 of 2019 before The District Land and Housing Tribunal for Temeke. On the third point of objection, he submitted that, this case is now barred by resjudicata because the Plaintiff prayed to withdravy Land Application,No. 327 of 2019 before the District Land and Housing TritDunal for Temeke without prayer for leave to refile the same. .The prayer to withdraw the application was made under Regulation 17(1) pfxthe District Land and Housing Tribunal Regulations, 200,3. ; x " > He argued that, it is a cardinal principle of law that once a party has withdrawn his suit without permission to refile the same, he is precluded from filing another suit in respect of thd/same subject matter in dispute. As the Application was withdrawn without leave to refile, this case is barred by res judicata.' , v \/ On the-fourth , point of objection he submitted that, this suit has been preferred prematurely as the Plaintiff has not complied with the procedural requirements under Section 38(3) of the Land Act, [Cap. 113 R. E. 2019]. '\ 5 ■; i Accordind>tp„him> Section 38(3) of the Land Act requires the Plaintiff to ••S. challenge the disputed transfer before the Commissioner for Lands within two years from the date of conclusion of formalities necessary to complete disposition. He is of the view that, the suit contravenes the requirements of section 38(3) of the Land Act. On the fifth point, the learned counsel submitted that, the suit is defective for containing a defective verification clause. He argued that, the verification clause has been signed by Rev. Joshua Bwawa who identified himself as the chairman of the Plaintiff. The verification clause indicates that facts contained in the plaint are true according to Knowledge and belief of Rev. Bwawa. Unfortunately, the verification clause does not specify which facts are within the knowledge of Rev. Bwawa and which facts in the plaint are based on his belief. .r? . Learned counsel argued that. Order VI Rule 15(2)of the CivifProcedure Code requires a person verifying to specify by^^^^^^ to the paragraphs of pleading, what he verifies of his qwhcknowiedge and what he verified upon information received and believed to be True>\Citing the case of Kiganga and Associates Gold Mining Company versus Universal Gold NL (2002) TLR 129 in which fhe court amplified the function of a verification clause, he argued that a suit is incpm for containing a defective verification clause." \ \ )i On the sixth point of objection:he submitted that, the court has been wrongly moved to entertain this suit on the following reasons. First the plaint was not sighed by the plaintiff or his advocate. He argued that the person who signed ,the^plaint is not known and the advocate did not sign at all contrary to the requirements of Order VI Rule 14 of the Civil Procedure Code. He is of the view that such omission makes the plaint incompetent. Secondly, he submitted that, the late John Felix Mfuko was a registered trustee of the Evangelistic Church until his death. He argued that, suing a trustee in respect of the trust property, one need to institute a special suit as per part V, particularly under section 67 of the Civil Procedure Code and that an ordinary suit cannot stand. He argued further that, the Plaint indicates that the Plaintiff is challenging administrative decision dated 9*^^ May 2013 for being tainted with illegalities and unreasonableness. That being the case, he is of the view that the proper action would be judicial review of the decision and not an ordinary suit as ■"v., 'A provided by the Law Reform, (Fatal Accidents and Miscellaneous Provisions) Act, [Cap. 310 R. E. 2019]. \ \ C ^ ; > He concluded his submission that the suit desdrves to ,be dismissed with costs N'x In his reply submission. Plaintiffs' couhsel submitted that the second point of the preliminary objection's baseless.,as thdvcase at hand cannot be considered to be affected byiThe doctrine of res subjudice. He argued that, for res subjudice to arise, there must be two or more cases pending in a Court of law, between sanje parties litigating over the same subject matter. Land Application Noi 327 of 2019 has been withdrawn on 22"^ September 2020 and there is ho-anyjother case pending before a competent court of law except this suib. ! I \," ' \ ■, He hadpimilar arguments regarding the third point of objection that. Parties \ in Land Application No. 327 of 2019 are different from parties in this case. In the Application, the defendant was only one while the suit at hand has four defendants. He also argued that. Application No. 327 of 2019 was not determined on merits thus, it can be considered to resjudicata to this suit. Land Case No. 150 of 2020. He highlighted the reason for withdrawal of the Application to be the need to join the second, third and fourth defendants 5 as necessary parties to the case. He argued that, the joined defendants cannot be sued before a District Land and Housing Tribunai. Thus, it was necessary to withdraw the Application and file the suit before a competent court. In such circumstances, he is of the view that, this suit cannot be considered to be res judicata. On the issue of contravening the provisions of Section 38 (3)(a) of the Land Act, [Cap. 113 R. E. 2019] he submitted that, the remedy prpvided thereunder can only be pursued within the period of two^^ years transfer has been affected. The disputed transfer was cofripleteiy executed in the year 2018 which is almost five years ago.Tn that regard, the period within which the remedy under Section 38(3) vyas to be pursued, has already expired. He argued further that> as the dispufie, between parties involves recovery of Land, the Plaintiff instituted this suit within time because time limit for suit for recovery of,land is 12 yearsv In this, he cited item 22 of the schedule to the Law of Liniitations.Act [Cap. 89 R. E. 2019]. ■ X. On the fifth point which concerns the verification clause, he argued that the Plaint is properly yerified andfsigned by Joshua B. Bwawa, a chairperson of the board of trustees of the Evangelistic Assemblies of God Tanzania. He argued further that, the issue raised, whether the contents of the plaint are within the verifierb knowledge or belief, is not a purely point of law as determination of which need proof thus, it does not qualify to be raised as a preliminary Objection on point of law. Citing the case of East African Court of Appeal, Mukisa Biscuits Manufacturing Ltd versus Western Distributors Ltd [1969] E.A 696, he argued that, for an issue to qualify as a preliminary objection on point of law, it needs to be purely on points of law. 6 On failure to state categoricaliy facts that based on knowledge of the verifier and those based on belief, he reproduced Order VI Ruie 15(2) of the Civil Procedure Code,[Cap 33 R. E 2019] and cited the case of Aloys Lyenga versus Inspector General of Police and Another (1997) TLR 101 which all requires a verifier to itemize in the verification clause matters that are in his own knowledge and those based on inforrnation or belief. He argued that, the paragraphs in the plaint are numbered artd it contains a valid verification clause as the verifier has verified the. matters contained in the plaint to be within his own knowledge and belief., \ ^ On the requirement to have the plaint;signed by both the plaintiff and his advocate he argued that such requirement is optional and not mandatory. He submitted that, according jto-the cohstructiohvpf Order XIV, a plaint can be signed by a party and an atlvocate if any. Hence, failure by the advocate to sign the plaint is not fatal. He, argued further that, the fact that the advocate signed the drawn and filed clause, it is sufficient to serve the need to have the plaint signed by the plaintiffs advocate. He cited the case of A/S Neremco Cphstruction (NOREMCO) Versus Dar es Salaam Water and SewPge Aut^ Commercial Case No. 47 of 2009 in which; it was heldxfailure to have the plaint properly signed is not fatal. The error can be very dasily cured by an amendment. On the neMto have the suit instituted as a special suit under section 67 of the Civil Procedure Code, or through Judicial Review, he submitted that it is misconceived. He submitted further that, the approach taken by the Plaintiff to institute an ordinary suit is correct because the dispute at hand involves recovery of the suit land after its illegai transfer to the late John Henry Felix Mfuko. 7 In his rejoinder counsel for the First Defendant reiterated his submission in chief and submitted that this suit was filed on 9^^^ September 2020 while Land Application No. 327 of 2019 was still pending before the District Land and Housing Tribunal for Temeke. The Application was filed on 17^^ December 2019 and was withdrawn without leave to refile on 22"^ September 2020. He argued that, the Application and this case involve substantially same parties who are litigating over the same subject matter. Thus, this^ suit was res subjudice to Application No. 327 of 2019 at the time of its filing and is barred with resjudicata after the Application has been, withdrawn with^ to refile. - < On the fourth, fifth and sixth points ofiaw, the learned counsel is of the view that the errors contained in the Plaint are,so Obvious and fatal. I have considered submissibhs by both parties Und court record. The raised preliminary objection on point\of law concerns the competency of the plaint that was filed to institute this case and the competency of the suit itself. The points of objectioh that concerns the competency of the Plaint are the alleged defective verifidatiori clause jihd failure of the Plaintiff and his advocate to sign the Plaint,from the submissions by both parties it is not disputed that the verification clause need to itemize facts that are within the knowledge of the Plaintiff and those on information believed by the plaintiff to be true. Parties conceded that Order VI Rule 15(2) of the Civil Procedure Code, [Cap.33 R. E. 2019] requires a party to state categorically what facts are within verifiers own knowledge and what facts are in his belief. The provision reads: 8 "The person verifying shall specify by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verified upon information received and believed to be true,(emphasis added)" According to the cited provision a party can verify contents of paragraphs of the pleading in two categories, first his own knowledge on the issues that are within his knowledge and second, belief on issues that are based on information that he believes to be true. It is not possible to have matters that are both within the verifiers knowledge ahd belief. In the case of Anatol ''.V ■ y \ Peter Rwebangira versus The Prihcipal Secretai^, Ministry of Defence and National Service and the Attorney General, Civil Application No. 548/04 of ZGlS Ggurt'of/\ppeahof Tanzania at Bukoba, the Court of Appeal of Tanzapia' when faced with, a verification clause in an affidavit in which the Applicant verlfiedThe contents of the affidavit to be in his knowledge and belief; it held that; / It is thus settled law facts contained In the affidavit are based on knowledge, then It can be safely verified as such. • However, the law does not allow a blanket or rather a general verification thatfacts containedIn the entire affidavitare on what W Is true according to knowledge, belief and Information without speclflfylhg the respective paragraphs The verification clause of the plaint in this suit reads; That, I Rev. Joshua Bwawa being a chairman of the Plaintiff do here by verify that what is stated above under paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29,30, 9 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, and 41 are true to the best of my knowledge and belief. The Plaintiff's counsel did not dispute that the piaint contains a verification clause in which the verifier, verified the contents of ali paragraphs of the plaint to be on his knowiedge and belief. This kind of verification clause is what has been referred- by the Court of Appeal in Anatol Peter Rwebangira's case, as a blanket vefificationxlause through which one cannot identify which paragraphs are base^ on the verifiers knowledge and which are based on his,belief.\ " I agree with the counsei for the First defendant that> such .v^ dause is defective and it makes the plairit incbmpetentvbefore this Court. As I have ruied that there is no com^^tent piaiht before me, I find no reason to determine points of objection which,cbncerns competency of the suit fiied by the Plaintiff in this,Court. !hold so because to determine such points wili be a mere academic exefciise as there is no plaint, no suit before me. For those reasons thp fifth point of objection is hereby sustained and the plaint is;sfr:uck duffor being incompetent. Given the nature of litigants in this case, That is, bdth parties are members of Evangelistic Church and their dispute js over pwnership of the believed to be church property, awarding costs wilkmake relationship between parties more sour. In that regard I award no costs. couiir Z. D. o JUDGE V. s 18/06/2021 H I? ?!V IJii 10 if. sr. dms^