20180926 TZHC Dar es Salaam2

\""· \ . .... P.!· (,; IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM · CIVIL CASE NO. 21 OF 2016 ANITA KAVEVA MARO (ALSO KNOWN AS ANITHA MARO KAVEVA, ANITA KAVEVA, ANITA MARO & ANITA MWAMGIGA KAVEVA ......... PLAINTIFF Versus MUHIMBILI NATIONAL HOSPITAL. .......................... DEF EN DANT RULING B.R. MUTUNGI, J: The plaintiff herein has sued the defendant for the following reliefs; 1. A declaration that Defendant's act of writing letters to the Plaintiff's employer denying medical services rendered to the plaintiff by the defendant as illegal and malafide. 2. A declaration that the defendant was negligent in dealing with the plaintiff. 1 3. Payment of Tanzania Shillings 387,000,000/= being compensation for loss of plaintiff's salaries. 4. Payment of Tanzania Shillings 315, 360,000/= being compensation for loss of plaintiff's allowances; 5. Payment of Tanzania Shillings 58,050,000/= being compensation for loss of the plaintiff's employer's contributions to the plaintiff's pension fund. 6. Payment of Tanzania Shillings 11,610,000/= being compensation for the loss of plaintiff's employer's NHIF contribution. 7. Payment of Tanzania Shillings 1,500,000,000/= being general damages; 8. Interest on the decretal sum at bank's rate from the date of judgment till payment in full. 9. Costs of the suit. The defendant through the legal services of Mr. Raphael Rwezahura learned Advocate from Apex Attorneys Advocates apart from filing the written statement of defense in opposing the claim has also raised a preliminary objection against the same. The raised point is to the effect, 2 the court is not vested with pecuniary jurisdiction to . adjudicate the matter. The matter was argued by way of written submissions. Mr. Rwezahula in his submissions in support of the preliminary . objection argued, the amount claimed as specific damages in paragraph 18.1 (ii), (iii), (iv) and (v) of the plaint are based on assumptions. He was of the view the same fall under the category of general damages which do not determine the pecuniary jurisdiction of the court. He referred this court to the case of Tanzania-China Friendship Textile Co. Limited versus Our Lady of Usambara Sisters [2006] T.L.R 70and Bernard Kabonde Versus Methusela Bundala and Another, HC Civil Case No. 27 of 2011 (High Court of Tanzania at Mwanza) (Unreported) to support his position. Further, he was of the view the plaintiff was supposed to institute the suit in the court of the lowest grade 3 competent to try the same under section 13 of the Civil Procedure Code [Cap.·33 R.E 2002] He thus prayed the suit be struck out with costs for want of pecuniary jurisdiction. In response to the above, Mr. Evold Mushi learned Advocate for the plaintiff urgued to the contrary. He submitted the raised preliminary objection is a mixture of law and fact which is contrary to the principle governing preliminary objections .. He referred this court to the cases of Mukisa Biscuit Manufacturing Co. Ltd Versus West End Distributors Ltd [1969] EA 696, Hezron Nyachia Versus Tanzania Union of Commercial Workers and Organization of Tanzania Workers Union, Civil Appeal No. 79 of 2001 and Selcom Gaming Limited Versus Gaming Management (T) Ltd and Gaming Board of Tanzania, Civil Application No. 175 of 2005 (All Unreported). 4 The counsel for the plaintiff went further by submitting, the plaint specifically in paragraph 4 clearly stated the specific damages as Tshs. 742,020,000/=, whereas Tshs. 1,500,000,000/= as the general damages. He thus argued the cited case of Tanzania China Friendship Textile Co. Ltd (supra) is distinguishable from the instant matter since in that case no specific damages were pleaded. He further argued whether the claimed specific damages are inconceivable or otherwise is the matter of evidence to be adduced. He referred this court to the case of Qamara Kwaslema Gwareh Versus Anwary Hassan and 2 Others, Civil Appeal No. 92 of 2015 (Cat-Ar) (Unreported). Thus, he prayed the raised preliminary objection be dismissed with costs. In the rejoinder, Mr. Rwezahula did maintain his position as submitted in the submission in chief. He further referred 5 this court to the case of Tanzania Saruji Corporation Versus African Marble Company Limited [2004] T.L.R 155 where the court insisted specific damages must be direct, natural or probable consequence of the act complained off. He thereafter submitted the cited case of QUAMARA KWASLEMA GWAREH (supra) is distinguishable in the instant matter. He thus prayed the suit be dismissed with costs. The boiling point is whether the raised preliminary objection has merits or otherwise. From the outset, I find the raised preliminary objection has no merits. The reason being, as correctly submitted by Mr. Evold Mushi that whether the- alleged specific damages of Tshs. 742,020,000/=as per paragraphs 18. 1 (ii), (iii) (iv) and (v) as well as 21.0 of the plaint are inconceivable this is a matter of the evidence to be adduced, hence the same 6 cannot be determined at this earliest stage as suggested by the defendant's counsel. In the event, I find the amount pleaded as stated above are within the pecuniary jurisdiction of this Court. The court of Appeal 1n one occasion faced with a similar scenario. In the case of QAMARA (supra), found the High Court did raise the issue suo mottu as to whether the court was vested with pecuniary jurisdiction to try the matter since the plaintiff in the plaint pleaded Tshs. 172, 160,000/=. The parties were invited to address the court on the same. In the end, the court ruled that, it had no jurisdiction. At pages 8 and 9 the Court of Appeal had this to say; ' ... we have given due consideration all the submissions of the three learned Advocates. To us, what was pleaded in paragraph 11 of the plaint can be measured with complete accuracy and, as such, in agreement with -both Messrs Sang'ka 7 " and Materu, the pleading was, so to speak, for specific damages. As to whether or not the claim was inconceivable or not provable was a matter of the evidence to be adduced. On that account, what was decided in Tanzania- China Friendship (supra) is distinguishable to the situation at hand. To that end, we are satisfied that the substantive claims as pleaded in paragraphs 8 and 11 of the amounted to a sum of Shs. 172, 160,000 /= which was within the pecuniary jurisdiction of the High Court. We accordingly allow the appeal, quash the decision of the High Court and remit the record back for it to resume trial before another judge of competent jurisdiction ... ' [Emphasis is mine] In view of the foregoing and the legal position stated, I find the raised preliminary objection as already stated has no merits. The suit is hereby sanctioned for hearing on merits. The preliminary objection is overruled with costs. It is so ordered. 8 • -¥ 0 B.R. MUTUNGI JUDGE 26/9/2018 Read this day of 26/9/2018 in the presence of Miss. Asia Mgoji for the defendant and in the absence of the plaintiff dully notified. ~ J B.R. MUTUNGI JUDGE 26/9/2018 Right of Appeal Explained. 'f I..J B.R. MUTUNGI JUDGE 26/9/2018 9