BANK OF AFRICA T LTD VS KAHANGARA GENERAL STORE CO

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM COMMERCIAL CASE No. 79 OF 2018 BETWEEN BANK OF AFRICA TANZANIA LIMITED.................. PLAINTIFF Versus SADICK SOUD KASUHYA.......................... 1st DEFENDANT SALMA H. KASUHYA...................................... 2nd DEFENDANT RULING MRUMA, J. The Plaintiff's bank, a registered financial institution did on 19th June 2018 presented for filing Commercial case No 79 of 2018 against the Defendants, for payment of Tanzania Shillings Fifty Six Million Eight Hundred Twenty Eight Thousand Seven Hundred Ninety Nine point Seven Six (i.e. 56,828,799.76) being an outstanding balance on the credit facility extended to the Defendants, interest at the rate of 30% per annum from the date of default to the date of payment and further interest at court's rate from the date of judgment to the date of full payment, general damages and costs of the suit. When the matter was called before me for necessary orders on 2nd August 2018, Mr. Jonathan Mbuga, Learned counsel for the Plaintiff prayed for leave to address the court on the value of the subject matter of the Plaintiff's suit versus the pecuniary jurisdiction of this court. The learned counsel contended that at the time he instituted the suit he was of the view that despite the fact that the value of the subject matter of the Defendant's claim was below T.shs 70,000,000/=which is below the pecuniary jurisdiction of this court in terms of Rule 5(2) of the High Court (Commercial Division) Procedure rules of 2012 but he nevertheless instituted it i n this court believing that Section 40(3) of the Magistrate's Courts Act which prescribes a maximum pecuniary jurisdiction of the District Court i n commercial cases to be below T.shs 30,000,000/=prevails over the High Court Commercial Division Procedure Rules and that any claim of commercial nature the value of which is above T.shs 30,000,000/= has to be instituted in the High court Commercial Division. Immediately after he instituted the matter in this division he realized that there were two decisions of this court in Commercial Case No 2 of 2018 between Commercial Bank of Africa (Tanzania) Limited Versus PatrOba Adeli Ademba and Commercial Case No. 3 of 2018 between Celestine Mathew Dominic T/a Celestine Fish Supplies versus Commercial Bank of Africa (Tanzania) Limited where the court held that it has no jurisdiction to hear and determine a commercial suit i n which the value of the subject matter i s below T.shs 70,000,000/=. In view of the decisions of the court in those two cases the learned counsel prayed for an order of the court to transfer the matter to another registry of the High court preferably the Dar Es Salam District Registry at Dar Es Salaam. I have carefully considered the learned counsel's submissions on the pecuniary jurisdiction of this court and the authority cited regarding the powers of the high court to transfer a case to transfer a case to another registry of the court and I do grant his prayers. In the first place as correctly submitted by the learned counsel under the provisions of Rule 5(2) of the High Court (Commercial Division), Procedure Rules 2012, this court has no jurisdiction to entertain a matter the value of the subject matter of which is below T.shs 70,000,000.00, but luckly, this court does not have exclusive jurisdiction over all commercial cases. It has concurrent jurisdiction with other registries of the High Court. Rule 1 (4) of Order IV of the Civil Procedure Code provides that:- "It shall not be mandatory for commercial Case to be instituted in the Commercial Division of the High Court' From the above quoted provisions of the law it follows therefore that a party has option to institute her commercial case either in this registry of the High court or in any other ordinary registry of the High Court. Counsel for the Plaintiff has requested this court to transfer the proceedings to the Dar Es Salaam District Registry of the High Court. As the request has been made before service has been effected to the Defendant, I see no harm to grant the same. Thus, pursuant to the provisions of Section 94 and 95 of the Civil Procedure Code [Cap 33 R.E. 2002] and in compliance with the requirements of Article 107 A (2) (e) of the Constitution of the United Republic of Tanzania on substantive justice, this suit is ordered to be transferred to the High court of Tanzania at Dar Es Salaam District Registry at Dar Es Salaam. The plaintiff will be exempted from paying fresh filing fees and she will not be refunded the difference between the fees paid in this registry and the fees payable in the ordinary registry of the High Court. At the Dar Es Salaam District Registry the suit will be assigned a new registration number. Order accordingly, Judge 14th August 2018 4