UNIVERSITY OF DAR ES SALAAM

UNIVERSITY OF DAR ES SALAAM SCHOOL OF LAW (UDSoL)

NAME: HAMISI ARAFATI J

REGISTRATION NUMBER: 2020-04-02171

PROGRAM: BACHELOR OF LAWS (LL. B)

COURSE NAME: CIVIL PROCEDURE I

COURSE CODE: LW 401

NAME OF THE INSTRUCTOR: DR. DOMINIC

NATURE OF THE ASSIGNMENT: INDIVIDUAL ASSIGNMENT

QUESTION.

Basing on the scenario, With authorities, assess the maintainability or otherwise of

each preliminary objection.

i. Since the sale agreement speaks for itself, then, the suit does not disclose
any cause of action against the defendant.
 ii. Since the sale agreement was executed in the far back 2008, then the suit is
time barred.

Preliminary objections are objections made by a party to a suit raising issues of laws and facts that
consideration of the same deprives the court jurisdiction to entertain the suit brought before it. Also as
according to the definition from the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End
Distributors1; preliminary objection consists of a point of law which has been pleaded, or which arises
by clear implication out of pleadings, for example an objection to the jurisdiction of the court or a plea of
limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the
dispute to arbitration.

The following is the assessment whether the preliminary objections raised in the scenario given are
maintainable in law or otherwise as follows;

(i) Since the sale agreement speaks for itself, then the suit does not disclose any cause of
action against the defendant.

This preliminary objection is not maintainable in law due to the following legal justification;

a. Preliminary objections must be raised basing on pure point of law and not basing on facts that
needs to be proved. This was advocated in the land mark case on preliminary objection which is
the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors 2; where it was
held that “preliminary objections should be raised on a pure point of law, and cannot be raised if
any fact has to be ascertained. Further, that a preliminary objection is argued on assumption that
all the facts pleaded by the other side are correct and which if argued as a preliminary point may
dispose of the suit.

The same was insisted in the case of A/S Noremco Construction (NOREMCO) v. Dar es salaam
Water and Sewerage Authority (DAWASA)3, it was held that preliminary objections need no
proof since it comes from pure point of law.

1
Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696.
2
Ibid
3
A/S Noremco Construction (Noremco) vs Dar Es Salaam & Sewerage Authority (DAWASA) (Commercial Case 47 of
2009) [2009] TZHCComD 1 (14 August 2009)
Basing on the given scenario, existence of the purported sale agreement between the plaintiff
and the defendant of the house in suit is a factual matter that needs production of evidence to
prove its validity, since, while defendant claims that the document was duly executed in 2008
plaintiff disputes this allegations by arguing that she never executed such purported sale
agreement. Hence, validity of the sale agreement is a legal issue that is required to be solved
upon tendering of evidence from both sides. Hence, it would not suffice to stand as a preliminary
objection in law as it is based on facts that needs further evidence to prove its legality and not
pure point of law.

b. Cause of action can only be disclosed by a plaint and not any other pleadings including a
written statement of defense by defendant. under Order VII rule 1(e) of the Civil Procedure
Code4 prescribes the plaint to contain, among other, the facts that constitutes cause of action and
when it arose. In making assessment on whether or not the plaint disclose cause of action then
the underlining principle is that only plaint is taken into account as it is, leaving aside other
pleadings coming afterwards such as the written statement of defense and also assumes that
every facts contained in the plaint is true.

This principle was also stated in the case of in JOHN M. BYOMBALIRWA V AGENCY
MARITIME INTERNATIONALE (TANZANIA)5 was stated that the cause of action must be
disclosed and proved by the plaint only and not by any other pleading including the written
statement of defense. Also it was further stated that, the mere fact that you have a good defense
in the written statement of defense does not mean that the plaint does not disclose the cause of
action. Therefore in this scenario the mere fact that the defendant has a sale agreement as a
defense to the claims instituted by the plaintiff it is not enough to prove that the plaintiff did not
disclose the cause of action. Also the case of Tanzania Road Agency & another v. Jonas
Kinyagula6 the Court of Appeal of Tanzania ruled that cause of action cannot be discerned from
the written statement of defense.

Therefore according to the scenario given; the cause of action was raised in the written statement
of defense by the defendant and not a plaint as required by the law. Thus the preliminary

4
Civil Procedure Code, Cap 33 [R.E 2019].
5
John Mwombeki Byombalirwa v. Agency Maritime Internationale (T) Ltd (1983) TLR 1.
6
Tanzania Road Agency & another v. Jonas Kinyagula, Court of Appeal of Tanzania at Kigoma, Civil Appeal no. 471 of
2020 at p.5 (Unreported).
objection can not be maintained because the cause of action was not raised in the plaint rather a
written statement of defense by the defendant. I would advise the defendant instead of such an
objection he should otherwise file for counter claim than such an objection as in Order VIII rule
9 of Civil Procedure Code7

(ii) Since the sale agreement was executed far back in 2008. The suit is time barred

Item 22 of schedule of Law of Limitation Act8 provides that time limitation of land cases is 12
years. The issue at hand is how to compute such time?

Section 4 of law of limitation Act9 state that The period of limitation prescribed under the Act in
relation to any proceeding shall, commence from the date on which the right of action for such
proceeding accrues. Also Section 5 of the Law of Limitation Act 10, states right of action in
respect of any proceeding, shall accrue on the date on which the cause of action arises.

A cause of action arise when it is at the knowledge of both parties. Therefore the defendant
claims that the suit is time barred because the cause of action which is execution of sale
agreement was in 2008, however the same was not at the knowledge of the plaintiff who in 2022
demanded vacant possession of the property, whereas the defendant resisted on the ground that
the house belonged to him. It is from there that the cause of action arose as it was to the
knowledge of both parties that there is a dispute over the ownership of the house and from such
cause of action the plaintiff instituted a case in the court of law in 2023. Basing on this the
preliminary objection on the ground of time limitation can not be maintained as the suit is still
within 12 years time limit..

It was also discussed in the case of Bikubwa Issa Ally v. Sultan Mohammed bin Zahran 11 where
it was held that in determining whether the suit is time barred or not, time could not be computed
from the time when the purported deed of gift was made (as the case of execution of the sale
agreement in this scenario) since, the alleged deed of gift (as sale agreement in this scenario) is
itself an issue which needed to be proved one way or the other and it could not be relied upon to
dispose of the suit on a preliminary objection based on the law of limitation.

7
Civil Procedure Code, Cap 33 [R.E 2019].
8
The Law of Limitation Act, [Cap. 89 R.E 2019].
9
Ibid
10
The Law of Limitation Act, [Cap. 89 R.E 2019].
11
Bikubwa Issa Ally v. Sultan Mohammed bin Zahran (1997) TLR 295.
Also in Tanzania Electric Supply Co. Ltd v. Hellen Byera Nestory12, it was provided that when
the computation of time is subject to the document which is also in dispute then, it would not be
struck out on preliminary objection raised through such document. Until it is ascertained the
validity of the document that may constitute cause of action then it would be proper to assess
whether the case was filed within the required time under the law of limitation Act. Therefore in
this scenario the issue of time barred cannot be considered simply because the defendant used the
sale agreement in raising the preliminary objection which is also in dispute as it needs to be
proved its validity, hence this will be considered only when the sale agreement will be provided
to be valid.

Generally, both preliminary objections raised by the defendant Shemkai Mandonga are not
maintainable in law and they cannot be sustained and dispose the main suit between Kapama
Musonda who is a plaintiff and Shemkai Mandonga a defendant.

12
Land Case Appeal No. 113 of 2020 (unreported
BIBLIOGRAPHY

Chipeta, B.D., Civil Procedure in Tanzania; A student’s Manual. Dar es Salaam, Dar es Salaam
University Press, 2002.

Mohanlal, D., Code of Civil Procedure 4th Ed. New Delhi, New Delhi House, 1991.

Civil Procedure Code, [Cap. 33 R.E 2019].

The Law of Limitation Act, [Cap. 89 R.E 2019].

Tanzania Law Reports 1983-1995.