Automated Summary
Key Facts
In Land Case No. 107 of 2019 before the High Court of Tanzania (Land Division), plaintiffs Said Ally Athuman, Fatma Ally Athuman, Nimeet Ally Athuman, and Amar Ally Athuman objected to an amended counterclaim filed by defendant Sudhi Athuman Ally. The counterclaim included Malapa Inn Limited as a co-plaintiff, which the plaintiffs argued was procedurally invalid under Order VIII Rules 9(1) and 10(1) of the Civil Procedure Code. The court ruled the counterclaim defective because Malapa Inn was a stranger to the original suit and could not be added as a plaintiff, striking out the amended counterclaim on 25.11.2021.
Issues
- The plaintiffs objected that the amended counterclaim is misconceived and bad in law for raising matters contrary to the order for amendment. This issue centers on whether the counterclaim properly aligns with the court's prior authorization for amendments.
- The third objection asserts that the 2nd plaintiff in the counterclaim has no locus standi to sue. This issue examines the legal authority of the 2nd plaintiff to participate in the counterclaim proceedings.
- The fourth objection highlights a procedural defect: the amended counterclaim is unsigned by the 1st plaintiff, rendering it legally incompetent under the rules of the Civil Procedure Code.
- The plaintiffs claimed the amended counterclaim is defective for violating Order VIII Rule 9(1) and 10(1) of the Civil Procedure Code. The dispute involves whether the counterclaim improperly includes non-defendant parties like Malapa Inn Limited as co-plaintiffs, which the court ruled is impermissible under the procedural rules.
- The fifth objection argues that the 2nd plaintiff lacks a mandate to act on behalf of the 1st plaintiff in the counterclaim. This issue addresses the necessity of proper representation and authorization under procedural law.
Holdings
The court ruled that the amended counterclaim is defective and not maintainable under Order VIII Rule 9(1) & 10(1) of the Civil Procedure Code Cap 33 R.E 2019. It held that Malapa Inn Limited, a non-defendant in the original suit, cannot be joined as a co-plaintiff in the counterclaim. The court emphasized that counterclaims must be raised by defendants against plaintiffs, and third parties can only be added as defendants, not plaintiffs, in a counterclaim. The amended counterclaim was struck out for violating these provisions.
Remedies
The amended counterclaim filed by the 2nd defendant was struck out by the court on the grounds that it violated Order VIII Rule 9(1) & 10(1) of the Civil Procedure Code (Cap 33 R.E 2019). The court ruled that Malapa Inn Limited, a co-plaintiff in the counterclaim, is a stranger to the original suit and cannot be joined as a plaintiff in a counterclaim. The decision was made following legal arguments regarding the proper procedures for joining parties to a counterclaim.
Legal Principles
The court applied judicial review principles to determine that the amended counterclaim was not maintainable. It held that counterclaims must be raised by defendants in the original suit against plaintiffs, and third parties cannot be added as plaintiffs in counterclaims. The court emphasized that the Civil Procedure Code only permits defendants to assert counterclaims and that joining non-defendants as plaintiffs in counterclaims violates procedural rules. This decision aligns with the interpretation of Order VIII Rules 9(1) & 10(1), which restrict counterclaims to defendants and allow third parties to be joined only as defendants, not plaintiffs, in counterclaims.
Precedent Name
- Abdulatif Mohamed Hamis versus Mehboob Yusuph Osman & Another
- Luhumbo Investment Limited versus National Bank of Commerce
Cited Statute
Civil Procedure Code (Cap 33 R.E 2019)
Judge Name
M.P. Opiyo
Passage Text
- In the event, the amended counter claim is hereby struck out owing to the reasons explained herein above. No order as to costs.
- 9 (1) "Where in any suit the defendant alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in respect of a cause of action accruing to the defendant before the presentation of a written statement of his defense the defendant may, in his written statement of defense, state particulars of the claim made or relief or remedy sought by him." 10 (1) "Where a defendant, by a written statement, sets up any counterclaim which raises questions between himself and the plaintiff along with another person (whether or not a party to the suit), he may join that person as a party against whom the counterclaim is made."