adamu ramadhani kilua vs athumani ali fundi others 2011 tzhclandd 2147 22 july 2011

M IN THE HIGH COURT GF TA N ZA N IA AT TANGA LAND CASE NO. 1 OF 2006 A D AM U R A M A D H A N I K I L U A ................................P LA IN T IFF VERSU S 1. ATHUM ANX A LI FUNDI . A& Lri b n e : M ! vi v v c k I 3. KHAL'IDI A B A S I FUNDI t 4. A D AM U SA LIM U ^ 5. R A M A D H A N I M O H AM ED I JU M A 6. M A H IM B O K A K A I ......................... D EFEN D AN TS R U LIN G Date of last order: 19/5/2011 Date of ruling: 22/07/2011 Teem ba, J; The plaintiff instituted this suit and prayed for judgment and decree joirjtly and severally against the defendants as follows:- (a) That the defendants be ordered to pay Tsh.600milion as general damages for destruction caused and inconvenience. (b)That the defendants be ordered to Vacate and not to interfere on fhe plaintiff land. (c) The defendants be ordered to pay interest at merchantice rate of 30% of the prayer (a) from the date of filling this suit to the date for fihal payment. (d) The defendants be ordered to pay further interest at court rate of 12% on the decretal amount from the date of judgment till final payment. (e)That the defendants be ordered to pay costs of the suit including advocates instruction fee. (f) Any other relief(s) which this court may deem fit and just to grant. i^ere.iaants -.vere ser\.=a /vitn cne :opy or cne piainc ana in cheir joint Written Statement of defence they raised preliminary objection on points of law as hereunder: i) That the plaint doest not disclose a cause of action against the defendants. ii) That the suit is unmaintainable for suing the wrong parties. iii) That the suit is unmaintanable for non joinder of necessary party. iv) That the suit is bad in law for failure to give notice of intention to sue the Local Government. v) That the suit is barred by Limitation. On 16/3/2011, the parties appeared before me for hearing of the preliminary point of law. By then both sides were not represented. They agreed to argue the points of law by way of filing written submissions. They adhered to the schedule given to them. On 19th May 2011, Mr. Urassa, learned counsel appeared-for the defendants. He appreciated the submissions filed by the defendants but he added one point of law as preliminary objections that, the .plaintiff's claim is below the pecuniary jurisdiction of this court. The learned counsel admitted that this point was not raised earlier but the issue of jurisdiction of a court is very crucial and can be raised at any time. It was his argument that the plaintiffs claim is based on general damages to the tune of shs.600rnilion which can not be a basis of determining the jurisdiction of this court. The counsel urged the court to dismiss the suit with costs. Being a layman on the issues of law, the plaintiff left the matter to be determined by the court As correctly submitted by Mr. Urassa, it is the substantive claim and not the general damages which determine the pecuniary jurisdiction of the court. This is the position as it is stated in the case of Tanzania - China Frien dsh ip T extile Co. Ltd V. O ur Lady o f the Usam bara S iste r (2 0 0 6 ) TLR 70. 2 The pecuniary jurisdiction of the High court is stated under section 37 o the Land Disputes Courts Act No.2 o 2002. as amended. It is provided that the High Court shail have original jurisdiction in proceedings for the recovery o possession of immovable property in which the value of the property exceeds fifty million shillings and if the subject matter is capable of being estimated at a money value, then the value of the subject matter must exceed fourty millior shillings. (Section 37 (a) and (b) supra). In our instant suit, the substantive amount which determines th i pecuniary jurisdiction of the court neither was neither pleaded nor disclosed in the plaint. This is revealed by Clauses 19 and 20 of the plaint. For the purpose of clarity they are hereby reproduced. "19. That the p la in tiff claim s against a ll the defendants jo in tly and severally fo r general damages am ount to Tshs.600,000,000/= fo r causing loss o f use, dem olition o f houses, destruction o f tea nurseries on the s a d property. 20. The cause o f action arose in Baga Lushoto D istrict within Tanga Region and that for the purposes o f the court's jurisdiction, the value o f the subject m atter claim ed exceeds Tsh.150,000,000/= hence this court has jurisdiction to entertain the s u it " From the wording of the above quoted clauses, it is clear that the pla nt does not disclose the substantive value of the subject matter. Under such circumstances, the preliminary point of objection that general damages can riot determine the pecuniary jurisdiction of this court is hereby sustained. This pcint alone disposes of the suit. For this reason I will not labour much in consider ng the other preliminary objections. The plaintiff may, if he so wishes, refile the jiuit subject to the law of limitation. J navmg saia so the suit is hereby struck out with costs. It is so ordered. ■ - . R.A. TEEMBA, 3; 2 2 / G7/2GS11 Court: The Ruling is delivered in the presence of parties Mr. Urassa, learned Counsel appeared for the defendants. a v r r 6i n * •% . •r \ m fl C C l vi u A ^ Jj 2 2 /0 7 /2 0 1 1 4