20191203 TZHC Dar es Salaam 1

-' IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 62 OF 2015 THE VOi SISAL ESTATE LIMITED (Suing by its Attorney, Farida Kennedy) ••••••••••••••••••••••••••••• PLAINTIFF VERSUS THE PERMANENT SECRETARY, MINISTRY OF FINANCE AND PLANNING .............. 1 ST DEFENDANT THE MINISTER FOR FINANCE AND PLANNING ....... 2No DEFENDANT THE ATTORNEY GENERAL. .................................... 3RD DEFENDANT RULING The subject of this ruling is the preliminary objection raised by defendants that, the suit is incompetent having being filed in contravention of section 17 of the Specified Sisal Estates (Acquisition and Regrant) Act, Act No. 11 of 1974 and contravention of section 15 of the Village Land Act No. 5 1999. Prior to dwelling on the merit of the preliminary objection, I am called upon to determine two preliminary issues. All concerns the appropriateness or otherwise of the preliminary objection. The first part of this involves time, that is whether or not the preliminary objection has been raised at the right time. The second is whether the point raised by the defendants qualifies as preliminary objection. __. I In the first preliminary point, the plaintiff counsel has opinioned that the PO is misconceived as it ought to have been during the pleadings. As rightly argued by the Plaintiff, Order 8 rule 2 requires the defendant raise preliminary objections at the time of filing his pleading (the written statement of defence) so as to avoid taking the other party by the surprise. Under the normal order, preliminary objection are raised by giving a notice of preliminary objection which as rule of practice must be raised and determined at the earliest opportunity during trial (Civil Case No. 252/00 - Rhino Security Guards Services Co Ltd vs NIC (T) Ltd) save in cases where the objection involves the issue of jurisdiction which can be raised at any time, including during the appeal. The question therefore is whether or not the po has been raised at the earliest opportunity. When this rule is applied to the facts of the present case the answer is in the affirmative. The suit was instituted in this court in August 2015 whereupon the procedures for filing of defence and other preliminary proceedings and pretrial conferences ensured. Meanwhile the parties resolved to pursue an amicable settlement which turned futile and the matter was scheduled for hearing but before commencement of hearing the plaintiff herein prayed to amend his plaint to provide a description of the properties found at the estate on the date of acquisition. The prayer which was granted on 11th July 2019. Pursuant to this Order the Appellant filed an amended plaint in which he effected amendments other than the amendment for which the leave to amend was granted. Consequently, on 14th November 2019, the plaintiff was ordered to expunge the facts for which the leave was (, r not granted and pursuant to this he filed a 2nd amended plaint on 29th November 2019. The impugned PO was raised the preliminary objection on 2nd December 2019. In my settled opinion, the PO has been raised at the earliest opportunity. The plaintiff's argument would only hold water if he did not amend his plaint. Even then, this would still be arguable as there are decisions that favour the position that a point of law can be raised at any time. My determination of the second issue on whether the point raised by the Defendant qualifies as a preliminary objection, will be guided by the landmark authority Mukisa Biscuit Manufacturing Co Ltd v. West End Distributors Ltd [1969] EA 696 in which preliminary objection is defined as: " .... a point of law which has bee.n pleaded or which arises by clear implications out of pleadings, and which if argued as a preliminary point may dispose of the su,it. 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 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 ... " ,1 n This has been the position of the law (see Shahida Abdul Hassamali Kassam v. Mahed Mohamed Gulamali Kanji, Civil Application No. 42 of 1999, CAT (unreported) and Hotels and Lodges {T) Limited v. The Attorney General (II) Chapwani Hotels Limited, Civil Appeal No.27 of 2013, CAT (unreported). The question therefore, is whether or not objection raised by the Respondent passes this test. In other words, can the point raised be determined without much reliance on factual issues? The Court of Appeal has consistently held that there can be no pure point of law where there are facts that require proof by evidence (see, Hezron M. Nyachiya v Tanzania Union Of Industrial and Commercial Workers and Another, Civil Appeal No. 79 Of 20012 CAT (unreported). In the instant case, the point raised concerns compliance of section 17 of the Specified Sisal Estates (Acquisition and Regrant) Act, Act No. 11 of 1974 and contravention of section 15 of the Village Land Act No. 5 1999. Both Provision are reproduced below for clarity: 17.-(1) Every person claiming to be entitled to any debt due from any previous owner in relation to a transaction connected with the acquired farmland shall, on or before 31st July, 1974 lodge with the Treasury Registrar a statement signed by him giving all particulars in relation to the transaction including (a) the date of the transaction; (b) the nature of the transaction; (c) the amount due; ( d) such other particulars as the Treasury Registrar may by notice in writing require. ' (2) Where any person to whom subsection (1) applies fails to comply with the provisions of that subsection or with the requirements of any notice given under paragraph (d) thereof, the Treasury Registrar may certify that he will not be liable in respect of the debt, and where the Treasury Registrar so certifies the debt shall, notwithstanding that the debt is a liability which has vested in him under section 3 or is a liability which he has already transferred to a specified organiza_tion unde~_ section __ 10, cea~e, ~o b~ a liability for which the Treasury Registrar or a specified organization shall be liable: On its part, the Village Land Act provides as follows: "15.-(I) An allocation of land made to a person or a group of persons residing in or required to move to and reside in a village at any time between the first Confirmation of validity of interests in day of January 1970 and the thirty first day of December 1977, whether made under and in pursuance of a law or contrary to or in disregard of any law, is hereby confirmed to be and to have always been a valid allocation capable of and in law giving rise to rights and obligations in the party to whom the allocation was made and extinguishing any rights and obligations vested in any person under any law which may have existed in that land prior to that allocation" As rightly submitted by Mr. Rumisha, these provisions have the potential of resolving the matter. However, from the face of these provision and the pleadings filed in court, the issue as to whether the plaintiff did not comply with the requirement of Act no. 11 can not be resolved without much reliance on the factual issues. In the amended plaint the plaintiff has pleaded that he made several complaints but the same received no response until 1985. It therefore needs evidence to establish when actually did he lodge his complaint and whether the complaints were raised out of time. The fact that the suit land falls under the scope of section 15 of the Land Act, Cap 114 can hardly be decided in the absence of proof that the disputed land was allocated to other persons in the course of operation Vijiji between 1970 and 1977. Under the circumstance, I agree with the Plaintiff's counsel that the PO fails the test of the authorities above as there can be no pure point of law where factual issues are required to establish the compliance or otherwise with the requirement of the law. Based on the above, I overrule the preliminary objection. ~' J.L. Masab6;,. Judge 3/12/2019