ISHENGOMA RULING

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA CIVIL CASE NO. 21554 OF 2024 TIMOTHY DANIEL KILUMILE…………………………………………1ST PLAINTIFF DAVIS SIFUEL MWARI @MMARI……………………………………2ND PLAINTIFF

VERSUS PATROBERT DAVID ISHENGOMA………………………………………DEFENDANT

RULING 29th November, 2024 & 21st February, 2025 KAMANA, J. Patrobert David Ishengoma, the defendant, raised four preliminary objections against the suit instituted by Timothy Daniel Kilumile and Davis Sifuel Mwari @Mmari, the plaintiffs. The objections were that: One, the suit is bad in law as it offends the mandatory provisions of Order VII Rule 1(e) of the Civil Procedure code, Cap. 33 RE 2019; Two, the suit is premature, vexatious, frivolous and an abuse of court process; Three, the suit has been contrary to the procedures; and Fourth, there is no valid contract under which a suit for specific performance can stand. The preliminary objections were disposed of by way of written submissions. 1 Submitting on the first PO, the defendant contended that the suit contravenes the provisions of Order VII Rule 1(e) of the Code for not disclosing when the cause of action arose. He held the view that by not disclosing when the cause of action arose, it is difficult for this court to ascertain whether it has jurisdiction or not. He buttressed his view by citing the case of Edna John Mgeni v. National Bank of Commerce and Another [2016] TLR 446. He went on to argue that, apart from not stating when the cause of action arose, the plaint discloses no facts that led to the alleged breach of contract. In his view, by failing to disclose the facts, the plaintiff failed to disclose a cause of

action. On the second PO, the defendant contended that the suit was prematurely filed and is characterized by vexatiousness and abuse of court processes. He amplified that he borrowed money from the plaintiffs to finance his suit against Bulyanhulu Gold Mine Ltd on the understanding that he would refund them upon completion of the legal battle between him and Bulyanhulu Gold Mine. He held the view that since the said case is still at the appellate stage, the plaintiffs were not justified to institute the suit as it was premature. 2 On the third PO, the defendant contended that the suit was instituted contrary to laid down procedures. He argued that he was served with the summons dated 27th August, 2024 while the suit was admitted on 2nd September, 2024. Given that, he contended that there was an abuse of the court process as it is untenable for a summons to be issued before the institution of the suit. The defendant held the view that the suit was not maintainable for that reason. To bolster his view, he cited the case of JV Tangerm Construction Co. Ltd & Technocombine Construction Ltd Ltd (A Joint Venture) v. Tanzania Port Authority and Another, Commercial Case No. 117 of 2015-HC (Unreported). Concerning the fourth PO as to whether there is a valid contract under which a suit for specific performance can stand, the defendant submitted nothing on that. Responding, Mr. Otieno

Onyango, learned Counsel for the plaintiff prefaced his arguments by contending that a PO must raise a pure point of law. Given that he held the view that the raised POs did not raise pure points of law as they require evidential proof. He strengthened his argument by citing the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A 696. 3 Replying to the first PO, Mr. Onyango contended that paragraphs 3 to 8 of the plaint disclose a cause of action which is a breach of contract that was annexed to the plaint. He added that in his submission, the defendant admitted to having a contractual relationship with the plaintiffs. On the second PO. Mr. Otieno contended that the argument that the suit was prematurely filed and vexatious is not based on the pure point of law. He asserted that by contending that the repayment of the loaned sum was to be effected after the completion of the case between the defendant and Bulyahulu Gold Mine Ltd, the defendant was raising factual issues that need evidential proof. Concerning the third PO, Mr. Otieno contended that according to the system that is used to file cases, the suit was admitted on 2nd September, 2024. He held the view that it was a slip of the pen for the summons to reflect 27th August, 2024 as the date when it was issued. In his rejoinder, the defendant reiterated his position in the submission in

chief. The issue that I am called upon to resolve is whether the advanced POs are meritorious. 4 First and foremost, I shake hands with Mr. Otieno that a PO centers on a point of law. When the purported PO revolves around facts or a mixture of facts and law, that PO is unsustainable. This position was well articulated by the defunct East African Court of Appeal in the classic case of Mukisa Manufacturing Co. Ltd v. West End Distributors Ltd (Supra) where it was stated: ‘……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 or if what is sought is the exercise of judicial discretion….’ (Emphasis added). Starting with the first PO that the plaint does not disclose a cause of action, Order VII Rule 1(e) of the Code stipulates that the plaint must disclose the facts that reveal the cause of action the plaintiff has against the defendant and when such cause of action arose. For the benefit of the defendant whom I presume to be a layman when it comes to legal matters, a cause of action is made of facts that give a person a right to judicial redress or relief against another. The facts are contained in the 5 plaint and its annexures. See: Stanbic Finance Tanzania Ltd vs. Giuseppe Trupia and

Chiara Malavasi [2002] TLR 221. My perusal of the plaint satisfied me that the plaintiffs have disclosed in their plaint the facts that constitute the cause of action and when it arose. Without reproducing the paragraphs, the contents of paragraphs 3 to 8 state clearly how the defendant borrowed money from the plaintiff and promised to pay them on the date stated in the contract they signed. The paragraphs contain the plaintiff’s allegation that the defendant did not honour his promise to pay them. That is sufficient to establish that the plaintiffs have a cause of action. The PO is overruled. Coming to the second PO that the suit is prematurely and vexatious, I hasten to state that the PO centers on factual issues. This is because, the defendant’s submission that he promised to pay the plaintiffs after being paid by Bulyanhulu Gold Mine upon the completion of the legal battle, is a factual issue that needs evidential proof. The second PO fails. Concerning the third PO that the suit was filed contrary to the laid down procedures, I agree with Mr. Otieno that the date reflected in the summons as the date when the summons was issued is a slip of the pen. I take that position considering the fact that the case management 6 system reveals that the same was instituted on 2nd September, 2024. In that case, there is no way a summons could be issued before that date. The third PO fails. Worthy to note is that the defendant did not submit the fourth PO. However, the said PO, on the face of it, revolved around factual issues that needed evidence to prove that there was no valid contract to warrant specific performance. The PO crumbles. In the upshot, I dismiss the POs with costs. Order accordingly. DATED at MWANZA this 21st February, 2025.

KS KAMANA

JUDGE 7