Milcah Kalondu Mrema vs Arusha Blooms Company Limited & Others (Civil Appeal No. 525 of 2020) [2025] TZCA 1157 (20 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA f COR AM: LILA. J.A.. FIKIRINI 3.A. And RUMANYIKA, J.A.^ CIVIL APPEAL NO. 525 OF 2020 DR. MILCAH KALONDU MREMA...................................................APPELLANT VERSUS ARUSHA BLOOMS COMPANY LIMITED ................................ 1 st RESPONDENT FELIX CHRISTOPHER MREMA............................................. 2 nd RESPONDENT ERICK SIKUJUA NG'MARYO....................................... . ....... 3 rd RESPONDENT JOSEPH GIOVINAZZO ...... . ............................ . .....................4™ RESPONDENT SOCIAL ACTION TRUST FUND................................ . ........... 5™ RESPONDENT TANZANIA INVESTMENT BANK ........ . .................. . .............. 6™ RESPONDENT (Appeal from the ruling of the High Court of Tanzania, at Arusha) fMaahimbi, 3.^ dated the 10th day of April, 2015 in Land Case No. 72 of 2014 JUDGMENT OF THE COURT 7th & ZO^October, 2025 RUMANYIKA, 3. A.: This is an appeal against the ruling of the High Court of Tanzania at Arusha dated 10thApril, 2015 in Land Case No. 72 of 2014. In that case, the learned Judge dismissed the appellant's suit based on a preliminary point of objection ("the objection"). The objection was registered and raised on 22n d October, 2014 by Professor Mgongo Fimbo, leaned Senior counsel for the 5th and 6th respondents, (then the defendants), among i others, that the appellant, (then the plaintiff) has no locus standi to sue the respondents. It was the learned Judge's finding that, the appellant did not demonstrate any interest in the suit against the 1st -4th respondents, with respect to the disputed plots mortgaged by the latter to the 5th and the 6th respondents. All began with the suit which was instituted by the appellant, a co shareholder to the 1st respondent company. It was claimed that, the 2nd, 3rd, and 4th respondents by-passed her and procured loans of TZS. 600,000,000.00 from the 5th respondent and TZS. 7,500,000,000.00 from the 6th respondents. And that they obtained the loans using Farm Numbers 140/1/1 and 140/1/2 property of the first respondent company, as collateral. Therefore, the appellant prayed for a court's declaratory order that the mortgage is illegal and thus, inconsequential. She also prayed for general damages, vacant possession of the said farms and costs of the case as the 5th and 6th respondents occupied the said farms illegally. She lost the battle. Aggrieved, the appellant has preferred the present appeal fronting two points of grievance, as follows; i. That the learned judge erred in law and in fact in entertaining the issue o fio cu s standi as a prelim inary objection; ii. That the learned judge erred in law and in fact in holding that the appellant had no locus standi to sue. At the scheduled hearing of the appeal, the appellant had the services of Mr. John Materu, learned counsel. For the 1st and 2n d respondents, there was Mr. Andrew Maganga, learned counsel. Mr. Deodatus Nyoni, learned Principal State Attorney teamed up with Mr. Lameck Buntuntu, learned Senior State Attorney and Ms. Zamaradi Johaness, learned State Attorney representing the 5th and 6th respondents. With regard to the 3rd and 4th respondents who were not in attendance, it transpired in Court that they were served with notice of hearing by way of publication, pursuant to the Court order dated 23rd October, 2024. Mr. Materu presented the respective cuttings of Mwananchi and Daily News local newspapers, to us. They are of the issues of 30th September, 2025 and 1st October, 2025 respectively, as proof of service forming part of the Court record. Therefore, we proceeded to hear the appeal in the absence of the 3rd and 4th respondents in terms of rule 112(2) of the Tanzania Court of Appeal Rules, 2009. On taking the floor, Mr. Materu adopted the appellant's written submissions in support of the appeal and list of authorities filed in Court on 9th October 2020 and 5thFebruary 2024 respectively, as part of his oral arguments before the Court. Elaborating on the complaint, he attacked the trial court for having dismissed Land Case No. 72 of 2014 solely based on a preliminary objection and the annexures to the pleadings. He pressed reliance on the Court's decision in Dr. Milcah Kalondu Mrema v. TIB Development Bank Limited and Another (Civil Appeal 513 of 2020) [2023] TZCA 17982 (15 December 2023; TanzLII) to cement his point. He therefore implored the Court to hold that the appeal is merited with the direction that the High Court determine Land Case No. 72 of 2014 on its merits. To Mr. Materu's submission and proposal as for the way forward, Mr. Maganga who appeared for the 1st and 2n d respondents had no qualms. He readily supported the appeal as Mr. Materu's proposal reflects the true position of the law as the procedure at the trial court was fatally flawed. In response, Mr. Nyoni prefaced his submission with an assertion that the issue of focus standi is rooted in the jurisdiction of the court. He referred us to the cases of Peter Mpalanzi v. Christina Mbaruka (Civil Appeal 153 of 2019) [2021] TZCA 510 (23 September 2021; TanzLII) and Chama Cha Wafanyakazi Mahotelini na Mikahawa Zanzibar (Horau) v. Kaimu Mrajis wa Vyama vya Wafanyakazi na Waajiri Zanzibar, Civil Appeal 300 of 2019 [2020] TZCA 193 (18 December 2020; TanzLII) to support his proposition. However, he asserted that, the preliminary objection was worth the name and well entertained by the learned trial Judge. That it needed no evidence not touching on the court's jurisdiction at all. To fortify his contention, he cited our decision in William Sulus v. Joseph Samson Wajanga (Civil Appeal 193 of 2019) [2023] TZCA 92 (9 March 2023; TanzLII). Rounding up his point, Mr. Nyoni urged the Court to dismiss the appeal with costs. In his short rejoinder, Mr. Materu reiterated his prayer for the Court to find the appeal merited and allow it with costs. Narrowed down, the appellant's two points of grievance make one central issue, namely, whether the tria l court was right to dism iss the su it based on the prelim inary objection that the appellant has no locus standi to sue the respondents. First and foremost, we note that, it is one thing lack of locus standi itself to constitute a ground of preliminary objection while it is the other thing to have a case dismissed solely on that ground, as it happened in the present case. The Court has observed so in a number of cases such as in Dr. Milcah Kalondu Mrema (supra). That being a factual point that requires trial, no case shall, in any event even be struck out for want of locus standi to sue. Also, see- Sweetbert Mathias Kutaga v. Eugenia Rutatora & Others (Civil Appeal 565 of 2023 [2024] TZCA 2016 (12 April 2024; TanzLII). Fortunately, Mr. Nyoni also took cognizance of that position, but allegedly for there being conflicting decisions which may not be subject of the instant appeal. With respect, he may have misconceived the ground upon which the learned trial Judge dismissed the suit. The grounds fronted in the memorandum of appeal appearing on page 1 of the record of appeal apart. As a matter of fact, Land Case No. 72 of 2014, subject of this appeal was not dismissed for want of cause of action against the 5th and 6th respondents as alleged by Mr. Nyoni. For ease of reference and clarity, the corresponding part of the impugned ruling appearing on page 324 of the record of appeal reads as follows; 7 think the prelim inary objection raised by Prof. Fim bo has m erits and co n se q u e n tly I su sta in th e o b je ctio n th a t th e p la in tiff h a s no lo cu s s ta n d i to bring this action. Having said that, I dism iss this su it with costs" (Emphasis added) With regard to the propriety of the learned trial Judge's decision being based on the annexures to the plaint, we find merit in this complaint Apparently, in this regard, the operative part of the impugned ruling on page 323 of the record of appeal reads thus; "H avin g gone th ro u g h th e c o lle c tiv e an n exu re B to th e p la in t, particularly para 2 o f a statutory declaration for a caveat file d a t the Land O ffice by the p lain tiff. .... she is only contesting the subsequent borrowing which happened after she ceased to be in the management o f the com pany... The p la in tiff h a s fa ile d to e sta b lish a n y fa c t th a t w ill e n title h e r to b rin g a p e rso n a l rig h t o f a ctio n a s a g a in st th e 1st, 2nd, 3 rd , a n d d e fe n d an ts with respect to the mortgage to 5th and &h defendants..." (Emphasis added) Flowing from the quotes above, therefore, certainly we agree with Mr. Materu on a contention that, in arriving at the decision, the learned trial Judge relied on the annexures to the plaint improperly as they were not tendered in evidence. They were not tested and admitted as exhibits as appearing on pages 323 and 324 of the record of appeal. At least it is common ground that, in any judicial proceedings annexures to the pleadings are not exhibits. They become exhibits only when they are cleared for that purpose, tested and marked as such. It could be by way of examination or cross examination of the witnesses, as the case may be. It is so because the issue whether or not the appellant had locus standi to sue the respondents is purely a point of fact which needs evidence for proof. See- Mechmar Corporation (Malaysia) Benhard (in Liquidation) v. VIP Engineering and Marketing Ltd. & 3 Others (Consolidated Civil Applications No. 190 and 206 of 2013) [2014] TZCA 2388 (27 November 2014; TanzLII) and Godfrey Hosea Ayo v. Christopher Michael Gee and 2 Others (Civil Appeal No. 48 of 2014) [2014] TZCA 267 (24 September 2014; TanzLII). Moreover, it was such a contentious preliminary issue upon which the trial court should not have dismissed the suit in the first place. If anything, that case should have only been struck out, because the point raised only touched on the competence of the matter and not on its merit for it to be dismissed. See-Ngoni Matengo Cooperative Marketing Union Ltd. V. Ali Mohamedi Osman (1959) E.A 577. We have quoted it with approval, on a number of occasions such as in Petrofuel (T) Ltd. V. Bahdela Company Ltd. (Civil Appeal 318 of 2022) [2025] TZCA 50 (21 February 2025; TanzUI). Before penning off, this is yet another wake-up call. Court users may wish to know that, overriding in any judicial proceedings is to have cases determined on merits always. In this particular case, to terminate a case on such a preliminary objection be it on lack of locus standi to sue or cause of action, as the case may be, is tantamount to short circuiting the substantive justice of the case. In view of the observations above, we find merit in the appeal. It is hereby allowed to the extent shown above with costs. Consequently, we 8 remit the record to the trial court for determination of Land Case No. 72 of 2014 immediately in accordance with the law. DATED at DODOMA this 20th day of October, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 20th day of October, 2025 in the presence of Mr. Mitego Methusela holding brief of Mr. John Materu for the appellant and Mr. Andrew Maganga for the 1st and 2n d respondents, Mr. Hance Mmbando, State Attorney for the 5th and 6th respondents, Ms. Hilda Mcharo, Court Clerk and in absence of the 3rd and 4th respondents via virtual Court; is hereby certified as a true copy of the original.