20150417 TZHC Arusha

' IN THE HIGH COURt OF TANZANIA \, AT ARUSHA ' CIVIL CASE NO 30 I OF 2014 TOMODACHI TOURS & SAFARIS LIMITED ............. PLAINTIFF VERSUS :NIC BANK TANZANIA LIMITED .. '........................ DEFENDANT RULING Date of last Order: 28/10/2014 Date of Ruling: 17/04/2015 BEFORE S. C. MOSHI, l The plaintiff Tomodachi Tours & Safaris Limited sued the defendants. NIC Bank Tanzania Limited. The plaintiff brought this action seeking the following reliefs: (i) A declaration that the i~tention of sale of the plaintiffs land/ house contravenes the laws. (ii) A permanent injunction restraining the respondent, their ·agents servant or workmen .from evicting the applicant in the suit premises and or disturbing the applicant with his peaceful enjoyment of the suit premises. (iii) Payment of general damages .. (iv) Any other further relief (s) as this Honourable Court may deem fit and equitable to grant. . 1 As expected the defendant in their written statement of defence disputed the plaintiff's claims and raised two points of preliminary points of objection as follows:- (i) That the suit is bad in law for violation of Order XXXII Rule 1(1) of the Civil Procedure Code Cap 33. R.E 2002 for non-joinder of the mortgagor being registered owner of the suit land, one Joseph John Mwema as personal legal representative of John Ngotei Mollel. (ii) That the suit is bad in law for violation of Order VII Rule 1 (1) (e) of the Civil Procedure Code Cap 33 R.E 2002 for failure to state when the cause of action arose. Preliminary objection was disposed off by a way of written submission, the plaintiff was represented by Mr. Julius Karata learned advocate while Ms. Mariam Mrutu learned advocate represented the defendant. Arguing the preliminary objection Ms. Mrutu submitted that the plaintiff in this matter is a registered company incorporated ' ' under the Companies _Act. It is a trite law that a company duly incorporated under the Companies ·Act is a body corporate with capacity to sue and be sued, Upon incorporation of a company, it became a legal entity distinct from its. members she referred the case of.Salomon Vs Salomon and Company [1897] AC 22 Order XXXII Rule 1 (1) of th~ Civil Procedure Code Cap 33 R.E . 2002 Provides that; 2 "subject to the provision of this Code, all persons having an ' interest either in the mortgage, security or in the right of redemption shall be joined as parties to anv suit relating to the mortgage " emphasis added. She submitted that the object of the above provision is to require all persons having an interest in the mortgage, security or in the right · of redemption to b,e joined as parties to a suit. The mortgagor in the suit at hand who was not joined is one Joseph John Mwema as personal legal representative of John· Ngotei Mollel and not the plaintiff Company. The plaintiff has n6 right to be heard and no locus ·standi, prima facie, to bring an action against On the second preliminary objection,. she argued that Order VII Rule 1 (e) of the Civil Procedure Code Cap 33 R.E 2002 provides that, the plaint shall contain the following particulars " The fact constituting the cause of action and when it arose" She said that the plaintiff has deliberately not stated in the plaint when the cause of action arose, to support her argument she cited the case of Juma B Kadala V Laurent Mkande (1983). She said that in the case .at hand the facts in brief as alleged by the plaintiff . . . do not comply with Order VII ·Rule 1 ( e) of the Civil Procedure Code Cap· 2002 for -failure of the plaintiff to· comply with what is provided by the law. She prayed for this honourable court to dismiss the suit · with ·costs. 3 Replying to the above submission Mr. Karata submitted that the suit germinated . out of a loan agreement entered into between the ' ' plaintiff and the defendant, the party to the said agreement were the plaintiff and the defendant under the rule of privity of contract, only the parties to the contract has enforceable rights or obligation under it. The said Joseph John Mwema is a third party because .he was neither a borrower nor a lender. , It was his argument that the obliga,tion of the Mortgagor is to redeem his property by paying the' loan to the lender. The applicant, being the mqrtgagor is .seeking an injunction against the respondent from selling the property. herein mortgaged because pursuant to the demand letter given to it on 1th July, 2014 its right are being fettered and clogged, if the defendant decides to sell the applicant's collateral. He said that Mr Joseph John Mwema has no obligation 'whatsoever to pay the loan moreover he has no audience against the respondent because he has not borrowed from it. He has no interest because he gave out his interest to the property to the applicant who has overall decision to pay the loan or let the property go if he fails to pay. Gone through the plaint it is not in dispute that there is non joinder of the mortgagor as per the provision of Order XXXII R 1 ( 1) Of ·the CPC, as dearly sub:mitted by the defendant's ' ' ' ' ' counsel the said provision requires the party who has an interest 4 ii j in the mortgage or security to be joined as a party, in the case at hand the mortgagor ought to be joined as a party to the main suit, Therefore since the main suit relates to mortgage and the mandatory application of Order XXXII R l(I) of the CPC has been violated. I thus uphold this Preliminary Objection. On 2nd Preliminary Objection, I concede with Ms. Mrutu that the plaintiff ought to have _ stated the date when cause of action arose. See the cited I case of luma ·B. Kadal Vs Laurent Mukande (1983) T. L. R. 103. I disagree with Mr. Karata that the date of the demand letter is date of cause of action. I thus find that the plaintiff did not comply with Order VII Rule (1) (e) of the Civil Procedure Code, Cap. 33, R.E. Hence, I· uphold this Preliminary Objection. Having found as I did strike out the suit with costs for non-compliance with Order VII Rule(~) (e). It is so ordered. Right of Appeal Explained. ·s.c.:1/t;; JUDGE 17/04/2015 5