20111027 TZHC Dar es Salaam

. . 1 IN THE HIGH COURT OF TANZANIA. . AT DAR ES SALAAM CIVIL CASE NO. 1 79 OF 2009 A. M. STEEL & IRON MILLS-LIMITED ... PLAINTIFF Vs NATIONAL BANK OF COMMERCE ... ~ . . DEFENDANT Date of last order- 8/9/2011 Date of Ruling - 27I 10/2011 RULING Shangwa, J. ' . On 17 th December, 2009, the plaintiff lodg~d its suit against the defendant and on 22 nd March, 2010, the defendant lodged its Written Statement of Defence. At paragraph 1 of its Written Statement of Defence, the defendant raised a preliminary objection on a point of law that as the plaintiff's claim for special damages is USD 2,000, this suit ought to have been filed in the lowest court 2 competent to try the same. The defendant Bank is represented by Messrs Ishengoma, Karume, Masha and Magai, Advocates. The point of objection raised by the defendant was argued by way of written submissions. In their written submissions, counsel for the defendant submitted that USD 2,000 which are claimed by the plaintiff are equivalent to Tshs.3,000,000/= and that under S. 40 (2) (b) of the Magistrate's Courts Act No. 2 of 1984 as amended by the Written Laws (Miscellaneous Amendment) Act No. 25 of 2002, the District Court and the Court of the Resident Magistrate which are the courts below the High Court have pecuniary jurisdiction of one hundred and fifty . million for immovable properties and one hundred million for movable properties. They contended that ~as the District Court and the Court of the Resident Magistrate have pecuniary jurisdiction. to entertain the . suit, the plaintiff ought to have filed it in the District Court or in the Court of 3 ·the Resident Magistrate rather than filing it in this court. In support of their contention, counsel for the defendant referred the court to S. 13 of the Civil Procedure Code Cap. 33 R. E. 2002 which provides as follows: · ". . . Every suit shall be instituted in the Court of the lowest grade . competent to try it and for the purposes of this section, a Court of the Resident Magistrate and a District Court shall be deemed to be Courts of the same grade". Counsel for the plaintiff Messrs Rutabingwa and Co; Advocates are .of the view that the plaintiffs suit had to be filed in the High Court as the plaintiff is claiming for an amount of money which is within the jurisdiction of the High Court. They submitted that apart from the plaintiffs claim of specific damages of USD 2,000, the plaintiff is .'. ·.· . ·4 claiming for general damages of not less than five hundred million. In their written submissions, counsel for the defendant contended that general damages are awarded at the discretion of the court and cannot be used to determine the jurisdiction of the court. In support of their contention, they referred the Court to CAT Civil Appeal No. 84 of 2002 Ms. Tanzania China Friendship Textile and Our Lady of Usambara Sisters in which it was held among other things that it is the substantive claim and not"' the general damages which determines the pecuniary jurisdiction of the court. First of all, I agree with counsel for the defendant that as the District Court and the Court of the Resident Magistrate have pecuniary jurisdiction to try the suit, the plaintiff was supposed to file it either in the District Court or in the Court of the Resident Magistrate. In fact, it is well .. 5 settled in the filed of law that general damages do not determine the pecuniary jurisdiction of the court. The reason behind this idea is that general damages are granted at the discretion of the court. It is well settled also that in exercising its jurisdiction the court has to do so judiciously. I believe that once the suit is filed in the Court of the Resident Magistrate or in the District Court which have jurisdiction to hear it, the trial Magistrate will use his or her discretion judiciously in determining general damages suffered by the plaintiff as alleged in the plaint. For these reasons, I strike out this suit with costs. ~ A.Shangwa JUDGE 27/10/2011 6 Delivered in open court this 27 th October, 2011 1n the presence of Mr. Rutabingwa for the plaintiff and 1n the absence of counsel for the Respondent. ~ A.Shangwa JUDGE 27/10/2011 - ,