IN T H E H IG H C O U R T O F T A N Z A N IA

(C O M M ER C IA L D IV ISIO N )
A T D A R-ES-SA LA A M

C O M M E R C IA L C A S E N O . 128 O F 2019

F IR S T N A T IO N A L B A N K (T) L T D P L A IN T IF F
versus
Y O H A N E IBRAHIM K A D U M A ,1st D E F E N D A N T
M A RIA N N E K U S A G A K A D U M A 2nd D E F E N D A N T

R U LIN G
Date of the Last order: 10/06/2020

Delivery of the Ruling: 10/08/2020

N A N G E L A , J.:

This is a ruling in respect of two preliminary objections raised by the

Defendants. The objections are to the effect that:

(a) Th is suit is incom petent for want of issuance and service of a

Statutory N otice to the borrow ers before com m encem ent

of legal proceedings for recovery.

(b) T h e Plaintiff has no cause of action against the Defendants.

Briefly stated, the Plaintiff in this suit is a limited liability company

established under the laws of the United Republic of Tanzania and licensed to
carry on the business of banking. The Plaintiff has initiated a suit suing the
Defendants, jointly and severally, for allegedly repayment of monies advanced
to the Ist Defendant, and guaranteed by the 2nd Defendant.
Pursuant to the "Facility agreement" and "Mortgage" issued in
favour of the Plaintiff to secure the credit facility granted to the Ist Defendant
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on 4th November 20 15, the amount alleged to be claimed from the Defendants
is T Z S 5 13,916,258.48, whereby T Z S 443,155,722.86 is amount in respect
of Home Loan and T Z S 70,760,535.62 being personal loan. Together, these
monies are alleged to be constituting the amount due plus interest and other
charges as of 2ndOctober 20 19,
It is on the basis of the above background information that the Plaintiff
has approached this Court seeking for the following Orders:
1. An O rd e r that the defendants are liable and should immediately pay

T Z S 513,916,258.4.
2. Eviction, delivery of vacant possession and an O rd e r for sale of the

landed property registered as Plot.No.49, Land Office N o .605409,

Block 47, Kijitonyanyama Area, Kinondoni Municipality over C T .N o .

142409 in the name of Yohane Ibrahim Kaduma & Marianne Kusaga

Kaduma.

3. If the Plaintiff will be unable to recover the whole amount after the

sale of the landed property, the C o u rt order for recovery of any of

the balance after the sale, from any properties of the Defendants.

4. Interest on No. I above at a rate of 18% and 22% as per the loan

agreement from 02 /10/2019 to date of judgement.

5. Interest on the decretal amount at the rate of 7% per annum from

the date of judgement till the date of full and final satisfaction of the

decree.

6. Costs of and incidental to this suit.

7. Any other reliefs that this honourable court may deem just and

equitable to grant.

On 4th December, 2019, through the services of MM Attorneys, the I st

and 2nd Defendants filed their joint Written Statement of Defence (W SD). Save
for the fact that the Defendants executed the credit facility agreement with the
Plaintiff in the nature of "Home loan" and "personal loan", the Defendants
disputed each and every allegation contained in the Plaint, including the
allegation that the Plaintiff served the Defendants with a Statutory Notice prior
to the institution of this suit. Besides, the Defendants raised the earlier
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mentioned two preliminary points of law in their W SD, objecting to the suit
against them.
On 27th January, 2020, when this case was called on for necessary
orders, there being a notice of preliminary objections (POs) this Court, opted
to commence with the POs, as it is customarily correct to do so before
embarking on the other procedural and substantive issues pertaining to the
main suit. Consequently, on the Ist of April 2020, it was agreed that the POs
be disposed by way of filing written submissions. The Court issued the
following scheduling order for the filing of the submissions:
1. That, the Defendants were to file their written submission on or

before 8th April 2020.

2. That, the Plaintiff should file its written submission on o r before 15th

April 2020.

3. That, Rejoinder submission by the Defendant be filed on o r before

24th April 2020.

The Court set the date for mention of the case to be 7th May 2020 to
ascertain compliance with the orders of the Court. On the material date, the
case could not proceed but it was assigned another mention date which was
10th June 2020. On the material date, Mr. Innocent Mushi, learned Advocate,
appeared for the Plaintiff. The Defendants and their legal counsel were absent.
Mr. Mushi informed the Court that, although the Plaintiff complied with the
earlier directives of the Court, he was unaware whether the Defendant has
filed a rejoinder submission or not, since the Plaintiff was not served. Noting
that the Defendant had filed rejoinder submissions, I made an order the
Defendant to ensure that the Plaintiff is served. A date for this ruling,
therefore, was set to be 10th August, 2020 at I 1:00.
Since the parties complied with the filing order, I will now proceed by
considering their written submission. In their joint written submission, the
Defendants supported the preliminary objections. Starting with the first ground
o f objection, the Defendants submitted that, as indicated in paragraph 12 of the

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Plaint, the Plaintiff issued the Defendant with a Demand Notice which was
followed by a Statutory Notice served on the Defendant on 17th January
20 17 and not Ist February 2017.
Referring to section 127 of the Land Act, Cap. I 13 [R.E.200] as
amended by the Mortgage Financing (Special Provisions) A ct, No. 17
of 2008, the Defendants submitted that, the position of the law is clear that
after an expiry of sixty (60) days, following receipt of the notice, the claim
must be paid, failure of which the mortgagee may exercise the right to sale the
mortgaged property. To buttress that position, this Court was referred to the
unreported cases of Grofm Africa Fund v Nagoz Minerals & 2 Others,
Commercial Case No. 193 of 2017 (unreported) and M & M Food
Processing Limited v CRD B Bank Limited & 2 Others as well as
Registered Trustees o f Africa Inland Church Tanzania v CRD B Bank P i c ,

Commercial Case No. 7 of 2017.

Besides, the Defendants submitted that, it is trite law that parties are
bound by their pleadings, and, that, unless the same are amended, the parties
must be confined to them otherwise to decide on matters that are not pleaded
will amount to an error on the face of the record. To cement that position of
the law and for reference purposes, the case of Devotha Peter v Athuman
Mtindu, Misc. Land Appeal No.42 of 2019 (unreported) was cited as an
authority.
In view of the above, the Defendants contended that, the purported
Demand and Statutory Notices were never served to the Defendants as
required by the law. Instead, it has been so asserted, the Plaintiff opted to
serve the Defendants through postal address, of which, it is argued, the same
never reached to the Defendants. It was submitted that, the postal address of
the Defendants, as per "Annex.FNB -2" is P.O. Box 8090, DAR-ES-SALAAM
but the Plaintiff is alleged to have sent the Statutory Notices to a different
postal address which is said to be P.O. Box 3600 DAR-ES-SALAAM.
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 In view of the above, the Defendants argued that, the fact that the
statutory notices were not issued and served to the Defendants subject to the
requirement of the law, makes the suit incompetent and should be truck out
with costs.
As regards the second ground of objection, the Defendants argued that,
as per O rd er VII rule I (e) of the Civil Procedure Code, C ap .33 [R.E.
2002], a plaint is required to disclose or state facts which constitute the cause
of action, and, if it does not, then the same is required to be rejected in terms
of O rder VII Rue I I (a) of the Civil Procedure Code, Cap.33 [R.E
2002.].The Defendants referred to this Court the case of John M
Byombalirwa v Agency Maritime International (T ) Ltd [1983] T LR ,
I, at page 4, and Jamal Abdullah Suleiman v Am ran Talib & 2 Others,
Com m ercial case No.40 of 2012 ( unreported) regarding what constitutes a
cause of action. It was contended that, the purported demand notice and
statutory notices attached to the plaint as A nnex.FN B -4 were never served
on the Defendants as required by the law and, consequently, the suit was filed
prematurely prior to the services of statutory notices as required by the law.
On 15th April 2020, the Plaintiff filed its reply submission. In that
submission, the Plaintiff Bank sought to adopt its earlier skeleton argument
filed in line with the dictates of Rule 64 of the High C ou rt Com m ercial
Division Procedure Rules, 2012 (as amended by G N 107 of 2019). The
Plaintiff submitted that the preliminary objections raised by the Defendants are
non meritorious and that they should be dismissed.
It was argued that, by all standards the objections do not meet the
required test of a preliminary objection for the reason that, preliminary object
worth to be entertained by the Court should be on a pure point of law which
may dispose the matter completely. It was contended that the two grounds of
objection were misconceived, confusing and misleading as they need evidence
to prove them, which evidence the Plaintiff has. To bolster that submission, the

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Plaintiff referred to this Court the case of Mukisa Biscuits Manufacturing
Ltd v W est End Distributors Ltd [1969] E.A 696 regarding what a
preliminary objection is all about.
In a further reply to the Defendant's submission, it was the Plaintiffs
contention that, the postal address of P.O.Box 3600, Dar-Es- Salaam, is the
address of the Defendant and that it was evident from Annex FN B -I and 3.
It was argued that, the Loan Agreement and the Personal Loan were signed by
the Defendants and consented to by the 2nd Defendant who is the spouse and
her address is P.O. Box 3600. It was argued that, the Defendant's Written
Statement of Defense noted the address as well from paragraph 2 of the Paint..
The Plaintiff argued that, there has never been any information regarding
change of that address.
As regards the second ground of objection, the Plaintiff argued that the
same is devoid of merit as the Plaint, in paragraphs 9, 10 and I I, read
together with A nnex.FN B 5, discloses the cause of action. It the Plaintiffs
submission, therefore, that, the objections should be dismissed.
In a brief rejoinder, the Defendants submitted that, the case of Mukisa
Biscuits (supra) does not apply here because the objections were raised in
respect of the pleadings filed and the law. Since parties are bound by their
pleadings, it was argued that the issue of calling for evidence does not arise. It
was argued that the issue is that the Plaintiff filed the suit before complying
with the requirement of the law regarding issuance of a statutory notice, as per
section 127 of the Land Act, Cap. I 13 [R.E 2002] as amended by Act No. 17 of
2008.

The Defendants reiterated what was earlier stated in their submission

chief, including reference to the cases of Grofm Africa Fund v Nagoz
Minerals & 2 Others , Commercial Case (supra) (pages 4-5) and Registered
Trustees o f Africa Inland Church Tanzania v CRD B Bank Pic (supra) at

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pages 10 and I I. It was the Defendants prayer that the suit should be struck
out.
The issue which I am called upon to resolve in this ruling is whether the
two "POs" raised by the Defendants are meritorious. I have carefully
summarized the submissions made by the parties to this case. Before I address
the main issue, I find it necessary to consider the validity of the POs which
seem to be an ancillary issue raised by the Plaintiff. It has been contended that
the two grounds of objection are misconceived, confusing and misleading as
they need evidence to prove them. In view of that, the Plaintiff contended that
the POs do not qualify as POs in law as they do not meet the tests set out in
Mukisa Biscuits Manufacturing Ltd v W est End Distributors Ltd
[1969] E.A 696. That is the Plaintiffs argument. However, the Defendants
have counteracted it, stating that, the POs are very valid as the first one is
anchored on a non-compliance with a legal requirement while the second is
based on non-disclosure of a course of action in the pleadings. I find it prudent
to start by looking at this secondary issue.
To address the above secondary issue, let me revert to what the Court
in Mukisa Biscuits case (supra) stated. In that in the famous case of Mukisa
Biscuit Manufacturing (supra) New Bold P (as he then was) defined, on
page 701, what Preliminary Objection is all about, noting that:-
"[A] preliminary objection is in the nature of what used to be a dem urrer,

it raises a pure point of law which is argued on the assumption that all the

facts pleaded by the other side are correct. It cannot be raised if any fact

has to be ascertained or what is sought is the exercise of the judicial discretion."

A number of cases have cited with approval the Mukisa's Biscuit

case (supra). These include the case of Tanzania Union O f Industrial and
Commercial Workers Tuico at Mbeya Cement Company Ltd v Mbeya Cement

Company Ltd, and National Insurance Corporations Ltd [2005JTLR 49; Sykes Travel

Agent Ltd v National Identification Authority (NIDA) and The Attorney General Civil

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Case No 21 O f 2019 (Unreported); and Mbonipa Kasase v Tanzania Revenue

Authority (Revision No.422 o f 2016) (unreported), to mention but a few.

In the case of Sykes Travel Agent Ltd V National Identification

Authority (NIDA) and The Attorney General, Civil Case No 27 of 2019

(Unreported), this Court (Hon De Mello, J.,) was called upon to discuss a
somewhat similar legal scenario regarding an objection based on non-
compliance with a requirement of the law. In particular, one of the objection
raised in the case was that, the suit is bad in law for noncompliance with
section 6 (2) of the Government Proceedings Act Cap. 5 (R.E 2002). However,
the opposing legal counsel in that case argued that the objection raised did not
qualify the test of what constitutes a preliminary objection as defined in the
famous case of Mukisa Biscuits (supra). The Court made the following
statement which I fully subscribe to, that:

"It is a settled principle of law that, objections must be of pure points of

laws without requiring another facts/evidence to prove its existence. This
principle was also insisted in the case of National Insurance Corporationof
Tanzania & Another vs. Shengena Ltd., Civil Application No. 20 o f 2017
(Unreported) approving what the Mukisa's (supra) at page 9-10 had this to
say; 'W e take that to be position of the law on the meaning of preliminary
objection. W ith this in mind, we ask ourselves does the so called
Preliminary Objection in the instance case pass this test. W e think that it
does not. The tw o so called points of objection are not self proof. They
are subjected to proof of some other material facts'"

In the instant case, the controversy on which the first ground of

objection is anchored, is whether this suit is incompetent for want of issuance
and service of a Statutory Notice to the borrowers before commencement of
the legal proceedings for recovery. The Defendants have locked horns with the
Plaintiff on this. Each part opposes the version of the other and above all, the
Plaintiff has argued that the Ist ground of objection, which is anchored on that
issuance notice, is not a pure preliminary objection.
In my view, I am fully convinced that the Ist ground of objection does
not meet the Mukisa Biscuits' case criterion. I hold so because, it invites
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evidence to be tendered to establish whether such Notice was issued or not,
and, if it was indeed issued, whether it was issued properly. In view of what was
stated by this Court in Sykes Travel Agent Ltd v National Identification
Authority (NIDA) and The Attorney General (supra), an objection must be

of a pure point of law, requiring no further facts or proof/ to establish its

existence. The I st ground of objection is not self-evident or self proof, but each
party will have to adduce evidence in support of their version of the story.
I am also alive to the wisdom of the Court of Appeal as expressed in
the case of Karata Ernest & Others v Attorney General, Civil Revision No.
10 o f 2010 (unreported). In that case, the Court of Appeal of Tanzania held

that:
"W h ere a point taken in objection is premised on issues of mixed facts and
law, that point does not deserve consideration at all as a preliminary
objection. It ought to be argued in the normal manner when deliberating
on the merits o r otherwise of the concerned legal proceedings."

In view of the above legal position, I uphold the Plaintiffs submission

that, the Defendant's first ground of objection falls outside the parameters of
what an objection should be in law as it calls for additional facts/evidence to
substantiate it. That first ground, therefore, is hereby dismissed. But what
about the second ground of objection?
The second ground of objection raised by the Defendants is that, the
Plaintiff has no cause of action against the Defendants. To expound
more on this point, the Defendants submitted that, O rd er VII rule I (e) of
the Civil Procedure Code, Cap.33 [R.E. 2002], requires a plaint to
disclose or state facts which constitute the cause of action, and, that, failure to
do so, O rd er VII rule I I (a) of the same Code requires such plaint to be
rejected. Indeed, that is the correct legal position. However, can it be said that
the plaint filed in this Court by the Plaintiff does not disclose a cause of action?
What constitutes a cause of action in law was aptly defined in the case
of John M Byombalirwa v Agency Maritime International (T) Ltd
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[1983] TLR , I, at page 4, and Jamal Abdullah Suleiman v Am ran Talib
& 2 O thers, Com m ercial case No.40 of 2012 ( unreported) regarding what
constitutes a cause of action.
In the case of MIC (T) Limited v T T C L , Com m ercial Cause
No. 146 of 2002 (unreported), Mr. Justice, Bwana, J (as he then was) stated
that: "the question whether a Plaint discloses a cause o f action must be determined
upon perusal o f the Plaint alone together with anything attached so as to form part o f

it." A similar view was held by the Court of Appeal in the case of John M

Byombalirwa v Agency Maritime (supra), at page 5, where the Court of

Appeal stated, that: "for purposes of deciding whether or not the Plaint
discloses a cause of action, the Plaint and not the Reply should be looked at."
In this instant case, the Plaintiff has argued that the Plaint does disclose
the cause of action. He has referred this Court to paragraphs 9, 10 and I I,
read together with A nnex.FN B 5. However, it is a settled principle of law
that, a plaint should be read or looked at as a whole, including all its
Annexures, if any, when determining whether it discloses a cause of action or
not. It cannot be read in a piecemeal as the Plaintiff seems to suggest to this
Court. I will thus be guided by the existing legal principle.
Looking at the plaint and its Annexures, I find no doubt to hold that it
discloses, in its fullest measure, what the cause of action is in this case. In
particular, the cause of action is a breach of secured credit facility agreements
(Facility Agreements) which the Plaintiff and the Defendants concluded in

2015/2017. Essentially, apart from paragraphs I to 3 of the plaint, which are

purely introductory in nature, facts disclosing the cause of action as being
breach of the facility agreements entered between the parties and secured by a
legal mortgage in favour of the Plaintiff, and that the said breach has never been
remedied, are disclosed in paragraphs 4, 5, 6, 7, 8, 9, 10, I I , and 12 of the plaint
and its Annexures. In view of this finding, I am fully convinced, therefore, that

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the Plaint has sufficiently disclosed the cause of action. The second objection is
therefore unmerited.
In view of the findings that the two objections raised by the Defendants
are devoid of merit, this Court settles for the following orders:
1. THAT, the two preliminary objections are hereby dismissed with costs,

and;

2. THAT, the suit should proceed to its next stage o f conducting a first pre­

trial conference.

It is so ordered.

D E O JO H N N A N G E L A
JU D G E,
High C ou rt of Tanzania (Com m ercial Division)
1 0 / 0 8 12020

Ruling delivered on this 10th day of August 2020, in the presence of Ms. Linda
Mafuru, Advocate for the Plaintiff also holding the briefs of Mr. Leonard Masatu,
Advocate for the Defendants.

D E O JO H N N A N G E L A
JU D G E
rt of Tanzania (Com m ercial Division)
10 / 08/2020

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