THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION

LAND CASE NO. 000012074 OF 2024

CASE REFERENCE NO. 202405241000012074

AFRICAN VILLAGE ESTATE CO.LTD.............................PLAINTIFF

Versus

SANITAS HOSPITALS LTD............................................ DEFENDANT

RULING

04/11/2024 &20/01/2025

GWAE, J

Upon service of the plaintiff's plaint, the defendants' counsel raised a

preliminary objection, subject of this ruling, on the following points of the

law:-

1. The Court has no pre-requisite jurisdiction in the suit

2. The 2nd defendant is wrongly joined in the suit

3. The plaintiff has no cause of action

Initially, the plaintiff, African Village Estate Co. Ltd instituted the suit

in this Court on 24th May 2024. She is claiming for the following reliefs against

the defendants herein jointly;-

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 1. Declaration that the 1st defendant has breached the terms and
conditions of the lease agreement dated February 2020
2. A declaration that the 2nd defendant has willy and maliciously
misrepresented to the plaintiff his ability to generate funds for
rental payment and mismanaged the 1st defendant's fund at the
plaintiff's detriment
3. Payment of Tshs. 2, 524,606, 605/= being the rent payment
4. Interest on the aforesaid sum at the court rate from the date of
filing this suit to the date of payment in full
5. Costs of this suit
6. Any other relief this Honourable Court deems fir and just to
grant

According to the parties' pleadings (plaintiff's plaint and defendants'

written statement of defence as well as annextures, the plaintiff and the 1st

defendant entered into a lease agreement on dates of February 2020 for the

30 months. The parties' lease is on Plot No. 168/2, Msasani Beach, Dar es

salaam.

When the matter was placed before me for hearing of the defendants'

PO, Mr. Victor Kikwasi and Mr. Gidion appeared representing the plaintiff and

defendants respectively. The learned counsel for the defendants opted to

argue the 2nd and 3rd points jointly.

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 In the first point of objection, it is the submission of Mr. Gidion that,

this court lacks plaintiff's plaint as revealed by Paragraphs 3, 4 and 6 of the

plaint. It is the submission by Mr. Gidion that, it is the parties' pleadings,

which bind the parties. According to him, the matter at hand is based on

commercial transactions and not a typical land matter as what is pleaded in

the plaint is lease agreement and not any recovery of land. He urged the

Court to make reference to Camel Oil (T) Limited vs. Badela Co. Ltd,

Land Case No. 104 of 2021 (unreported-HC) and Mohamed Enterprises

vs. Adil Ocean Mart Ltd and two others, Land Case No. 54 75 of 2023

(both unreported-H.C).

Arguing the first and second points of the defendants' objection on

non-joinder and cause of action, Mr. Gidion submitted that, the alleged

contract is between the plaintiff and first defendant. Hence, the second

defendant is pleaded nowhere. Hence, it is the view of the defendants'

advocate that, the second defendant is wrongly sued in this suit. He similarly

submitted that, the second defendant is sued in his personal capacity not as

director of the first defendant.

It is also the submission of the defendants' advocates that if the

plaintiff wished to sue the second defendant in his personal capacity, he

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could plead his interest unlike the present situation where the issue of

arrears is pleaded. He invited the Court to make a reference to Order I Rule

6 of the CPC.

The defendants' counsel was also of the view that, the issue of fraud

or misrepresentation or misappropriation of the fund must be specifically

pleaded with its set of particulars. He added that, in the plaint there is

nowhere misrepresentation is pleaded. He embraced his submission by citing

a case law in the case of Twazihirwa Abrahim vs. James Christin (as

an administrator of the Estate of the late Christian Basil Kiria, Deceased) Civil

Appeal No. 229 of 2018 where the Court of Appeal of Tanzania sitting at

DSM stated that, the allegation of fraud and misrepresentation must be

specifically stated.

Mr. Gidion exceptionally added that, there is violation of Order vii

Rule 3 of the CPC as there is no proper description of the suit premise. To

buttress his submission, he referred the Court to the case of Juma Nassor

vs. Kibaha Town Council and Attorney General, Land Case No. 25970/

2023 (unreported HC). He then prayed for an order striking the plaintiff's

suit with costs.

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 Responding to the submissions by the defendants' counsel in respect

of the second and third limbs of objection Mr. Victor argued that, the 2nd

defendant is properly joined to the suit and that, there are particulars of

misrepresentation and misappropriation of fund

Regarding the first limb of objection on jurisdiction, the plaintiff's

counsel is of the view that, the submission by the defendants' advocate is

inappropriate since the suit before the Court is on rent arrears and that the

amount claimed exceeds Tshs. 300,000,000/=. Bolstering his argument, the

counsel for the plaintiff cited section 109 (1) (d) and 167 of the Land, Cap

113, Revised Edition, 2019 (LA). He went on arguing that, the parties'

transactions at issue are not commercial transactions but lease arrangement

between the plaintiff as the lessor and first defendant as the lessee. He

referred to Para. 5 of the WSD where it is stated that, it is the plaintiff who

has breached the lease agreement. Mr. Victor finally argued that, this Court

is clothed with the jurisdiction since both sides agree that, there was a lease

agreement and since there is a claim on rent arrears and the claimed amount

is well within the jurisdiction of the Court.

On the alleged failure by the plaintiff to properly describe the suit

property, Mr. Victor was of the submission that, the subject matter is breach

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of lease agreement and not leased property. Therefore, according to him,

there was no requirement of describing the leased property. Nevertheless he

argued that Paragraph No. 4 of the plaint, the leased property is properly

described.

It is also the submission of Mr. Victor in response to the second and

third points that, the alleged misjoinder and lack of cause of auction are no

longer PO since the same require hearing of the parties so that, the Court

can be in a better position to determine if there was a misjoinder. It is further

his submission that, the second and third points raised cannot be determined

at this preliminary stages unless evidence is given to prove or disprove the

allegation.

In his brief rejoinder, the leaned counsel for the defendant stated

that, the submission by the plaintiff's counsel is nothing but misconception

of the law as failure to show particulars of the misrepresentation amounts to

concession of their PO. He also stated that, there was a need to properly

describe the suit property. He further reiterated his submission in chief that,

this court lacks jurisdiction since the dispute between the parties is on issues

of malicious and unlawful acts or conducts, which are not pure land matters

except claims on rental arrears.

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 The defendants' counsel also rejoined that, the second defendant is

improperly rejoined in these proceedings. Therefore, there is no cause of

action against the second defendant.

Having briefly summarized the oral submissions of the parties'

advocates, it is now the obligation of the court to determine whether the

defendants' PO is sustainable or not.

Regarding the first point of law on jurisdiction of the Court. It is trite

law that the jurisdiction is a creature of the statute. Hence, disputants or

litigants cannot confer the court with the requisite jurisdiction to hear and

determine a matter. Similarly, it must be known that some of the cases may

be consisted of or contain elements of both commercial and land case in

nature. (See the decision of the Court of Appeal in National Commerce

Bank vs. National Chicks Corporation Ltd and 4 others, Civil Appeal

No. 129 of 2015 (unreported).

However, in our instant suit, I am not persuaded if the pleaded facts

do not clothe the Court with the requisite jurisdiction. I am holding so for

simple reason that, though the plaintiff's claim is based on breach of lease

agreement yet he lucidly claims for payment of rental arrears by the 1st

defendant. Hence, the plaintiff's claim is found to have not only based on

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breach of lease agreement but also on payment of rent arrears by the 1st

defendant. The plaintiff is thus entitled to institute this by virtue of section

109 of the Land Act (Supra) as correctly argued by Mr. Victor as the case on

the 1st defendant if the plaintiff would have breached terms and conditions

of the lease agreement under subsection (2) of section 109 of the Land Act.

Section 109 of the Act reads;

"109. (1) where a lessee Is in breach of covenant or condition

of a lease, which he is under an obligation to observe and

comply with, the lessor may, instead of serving a notice of

intention to terminate, commence an action against the

lessee-

fa) For damages;

(b) For a decree of specific performance;

(c) For an injunction; or

(d) To recover as a debt any areas of rent,

but no action commenced before the service of a notice of

intention to terminate shall not be proceeded with or

judgement given in respect of it until after the conclusion of

any proceedings commenced in connection with an order of

termination arising from the same breaches, including any

appeal against any decision given in connection with that order

of termination". (Emphasis supplied)

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 Guided by the above provisions of the law and carefully looking at the

plaint especially at paragraph No.10 and 11, the plaintiff' claim, in my

considered view, revolve in the rent arrears. Thus, the suit is the land related

matter. For clarity paragraph No 10 and 11 of the plaint are reproduced

herein under;-

1. That, the 1st defendant has failed to pay the rent due for several
months, resulting in accumulated rent arrears totaling Tanzania
Shillings Two Billions Five hundred twenty-Four Million, six Hundred
Six hundred and Five Thousand (2,524,606,605/=).
2. Despite numerous reminders and demands for payment, and
unhonoured promises, the defendants have neglected and/or
refused to settle the outstanding rent arrears....

In the light of the above quoted excerpts, I am satisfied that, this

Court is certainly clothed with jurisdiction to entertain the dispute unlike the

stance taken by the defendants' counsel as issue of the tenancy and rental

arrears are directly involved in this civil suit and not mere commercial

transactions. This position was rightly articulated in KCB Bank Tanzania

Limited vs. Ramadhani Myolela, Civil Appeal No. 197 of 2018

(unreported) when this court faced the similar situation where in original suit

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the plaintiff claimed for recovery of a purchase price and not possession or

ownership of the landed property and it was stated;

"For the matter to be considered as the land dispute there

are two indicators which are; either ownership of land or

right to possession which includes occupation by tenancy.

And his Lordship concluded that, the recovery of purchase

price does not amount to a land dispute." Boided mine.

Having discussed as herein above, the first limb of objection is hereby

overruled.

Now coming to the alleged non-disclose of cause of action against the

2nd defendant and that, the 2nd defendant is wrongly joined. Examining the

parties' pleadings and submissions, from outset I find that this issue is

prematurely raised. However, I am in agreement with the counsel for the

defendants that, particulars of the alleged misrepresentation are not clearly

pleaded to enable the 2nd defendant to sufficiently defend his case. This legal

requirement of the law was rightly stressed by the Court of Appeal in City

Coffee Ltd vs. The Registered Trustee of Holo Coffee Group, Civil

Appeal No. 94 of 2018 (unreported), when faced with a similar situation, the

it was stated thus:

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 "....it is dear that regarding allegations of fraud in civil Case

the particulars of fraud, being serious allegation; must be

specifically pleaded and the burden of proof thereof,

although not that which is required in criminal cases; of

proving a case beyond reasonable doubt, it is heavier than

a balance ofprobabilities generally applied, in civil cases. "

See also judicial precedent in the case of Omari Yusuph vs. Rahma

Ahmed Abdulkadr [1987] TLR 169

Basing on the above case law and looking at the plaint particularly

paragraph 6 and 7 of the plaint, I am of the formed opinion that, the

particulars of the misrepresentation or fraud are not clearly pleaded as

required by the law. More so, annexture 2 to the plaintiff's plaint is indicative

that the letter dated 10th February 2020 written by one Murthy is written by

him under the capacity of Chief Executive Officer (CEO) and not in his

personal capacity.

I have further observed that, the plaintiff has not fully describe the

leased house nevertheless considering the nature of the relief sought, that

alone is, in my considered view, not capable of qualifying the Court to invoke

its powers to strike out the suit since the claim is wholly based on recover of

arrears and not immovable property.

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 Despite the above findings, I am not confident in holding that, the

errors committed by the plaintiff justify, this court to issue an order striking

out the suit instead of issuing an order of amendment by virtue of Order VI

Rule 17 of the CPC. By issuing an order of an amendment, time and costs

will certainly be saved.

In the upshot, I hereby overrule the first point of objection but I

sustain the second and third limbs of objection to the above explained

extent. I consequently proceed directing the plaintiff to file an amended

plaint, which shall be filed within fourteen (14) days from the date of this

ruling. Each party shall bear his or her own costs of the defendants' PO.

It is so ordered.

DATED at DAR ES SALAAM this 20th January 2025

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