Afra Engineering Works Ltd vs Kiteria Menezes and Others (Civil Case No. 163 of 1998) [2000] TZHC 197 (5 October 2000)

MSUMI,JK: 1 IN THE HIGH COURT OF-TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DARES SALAAM CIVIL CASE NO.163 OF 1998 AFRA ENGINEERING WORKS LTD ... PLAINTIFF VERSUS KITERIA MENEZES & 33 OTHERS ..... :... DEFENDANT (Per the schedule annexed hereto) RULING Plaintiff has raised three points of law in the preliminary objection against the Counter Claim. The first point is that defendants have no cause of action against the plaintiff in view of the ruling in Civil Case No. 77/98 between the same parties. Secondly plaintiff is contending that this court has no jurisdiction to entertain the suit as the claim falls in four corners to the jurisdiction of the Regional Housing Tribunal. The third point of objection is that the suit is bad .,.. in law as the defendants have failed to join the p_r.evious owner of the premises who was their landlord. Starting with the first point it is an established rule of law that only the plaint and its annextures are to be considered when determining whether or not plaintiff has a cause of action. Any particular which does not form part of the plaint is irrelevant. This exposition of the law is clearly stated in Jeraji Shariff and Company Vs Chotai Fancy Store [1960] E.A. 374 and in John M. Byomabalirwa V. A2ency Maritime Internationale (Tanzania) Limited [1983]

:. i T.L.R.1. In the present case the objecti-on is based on the ruling issued in Civil Case No. 77 /98 which J1as no reference in the written statement of defence in w11ich the counter claim has -be-en raised. This point is therefore not sustainable. As for the second point it is clear from the pleadings that the defendants' claim is based on the tort of trespass and not on anything to do with the existence of tenancy agreement between the parties. \That the defendants are contending is that plaintiff had no right to enter the suit properly and demolish it after it was restrained to do so by the court order. They are not accusing the plaintiff for breach of tenancy agreement. Like the first point, this point is also rejected. With this finding the third point cam1ot similarly stand. The requirement to join the National Housing Corproation as former landlord would be legally valid if the claim arose from tenancy agreement. This being a suit on tort there is no need to join the former landlord. In conclusion, the preliminary objection is dismissed with costs. JAJI KIONGOZI. 5/10/2000 For the plaintiff: Magafu. For the defendant: Magafu/Prof. Fimbo.