Builders (V.M. Chavda) Limited vs Mrs. Alka V.G. Chavda (Civil Case No. 108 of 1997) [1999] TZHC 148 (22 June 1999)

IN THE HIGH COURT OF TAl'iJZANIA (DAR ES SALAAM DISTRICT RBGISTRY) AT DAR ES SALAAM ·CIVIL CASE N0 1 108 OF 1997 $, .4 BUILDER$ (V.M~ CHAVDA) LIMITED OOO!)OOOOCO Versus MRS l.LKA V. G. G HJ VDA oeooooooooeoGJ••••••• R·U·L ING CHIPETA 7 J. : PLAINTIFF DEFENDANT The plaintiff, Builders (V .M. Chavda) Limited, 'has filed a suit against Mrs. Alka V. G. Chavda claiming restoration of two motor vehicles. The defendcu1t denies the claim and raised several preliminary objections. These were: (a) that the suit is barred by the law of limitation; (b) that the suit does not disclose any cause of action against the ; defendant; (c) that the suit is bad on account of non-joinder of a nece- ssary party; and d) that the suit is an abuse of the process of the court. With the permission of the court, the parties' advocates' filed I written submissions regarding those preliL .\nary objections on which they _,- were at issue. I have carefully perused 2,nd considered those submissions as well as authorities referred to. I propose to deal with the preliminary obje·ctions in the order in which they have been raised. On the question of limitation, learned counsel for the defendant submitted that the ·suit had been filed more than three years after the cause of action aro·se, that iE>, in 1993 when the plaintiff filed a similar suit in 1.;isutu Resident Magistrate:V.s Court which was struck out, which was filed againt one V.G. Chavda, who is a husband of the \

.J , 2 defendant. Learned counsel for the plaintiff countered by submitting that since this is a suit in detinue, the cause of action or right of action arose from the date the plaintiff demanded restoration of the property, that is, 3rd March, 1997. It is quite clear that the suit in Kisutu Resident Magistrates' Com;;-,t was between different parties: the defendant was not a party; 'f and'.; respectfully agree that in cases in detinue, the cause action arises I\ on the day the plaintiff demands restoration of the property and not earlier. That being the position, it cannot be sa.id that this suit, which was filed · in April, 1997, is time-barred • . i- I now turn to the question of cause of action. It has been submitted that no cause of action has been disclosed in that the plaintiff did not plead facts as to when the cause of action arose. A cause of action may be defined as all material facts which it is essary for the plaintiff to allege a..1d p£2Y_e in order to succeed ine ~ (See John M. Byombalirwa v. JLI.M. (T) Limited; (1983) TLR. 1.). In determining whether a plaint discloses a cause of action, the court must look at the plaint alone, together with anything attached so as to form part of it, and on the assumption that any express or implied allegation of fact in it are true. 1 he court does not consider the possible defence at that stage. (See Byombalirwa 1 s case - supra; and Shariff & Company v. Chotai Fancy Store~, (1960) E.A. 374, 375). In a suit in detinue, . the plaintiff must allege the following essential facts, that is, ownership, immediate possession, and non-restoration after demand. Here, the plaintiff has alleged that it. is entitled to immediate possession; and that the defendant is detaining those motor vehicles despite the demand. Those are essential and material facts which a plaintiff must allege in a suit in detinue .in order to show a cause of action. Clearly, therefore'., the objection on this point is without merit.

3 The third objection is that the suit is bad in law for non-joinder of a necessary partY.• I think that this is irrelevant. The plaintiff has alleged that the motor vehicles belong to the company as anne.xtures appear to show, and that the defendant is the person who is detaining the motor vehicles. A third party, therefore, is irrelevant. It is for the defendant to establish that she is not detaining the same or that she is lawfully in possession of the same. Finally, I turn to the preliminary objection that the suit is an abuse of the process of the court. On this point, I note that the defendant has not been a party to the earlier cases referred to, and she has specifically pleaded that she is in possession of the motor vehicles; / that she is using the same; and that the plaintiff is not entitled to restoration. In the circumstances, therefore, I cannot see how it can be said that the suit is an abuse of the process of the court. In the upshot, I see no merit in any of the preliminary objectioL:. The same are hereby dismissed with costs in any event. , / /,/· .. · / .... /'/ ,· ;:·, i , , I !, . B. D\ CUIPETA JUDGE. Ruling delivered in Chambers this 22nd day of June, 1999. Parties: Absento JUDGE i ( r ·i / GHIPETA' JUDGE 22/6/1999