BANK OF AFRICA T LTD VS ADAN SAMSON NAMUHISA COMM CASE NO

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM COMMERCIAL CASE No. 80 OF 2018 BETWEEN BANK OF AFRICA TANZANIA LIMITED................. PLAINTIFF Versus ADAM SAMSON NAMUHISA...................... 1st DEFENDANT PESHA PAULO ALENYO....................... 2nd DEFENDANT RULING MRUMA, J. The Plaintiff has instituted this suit seeking to recover from the Defendants payment of Tanzania Shillings Fifty Two Million Eight Hundred Sixty Thousand Nine Hundred Thirty One and Fourty One cents (i.e. 52,860,931.76) being payment of an outstanding balance of the credit facility extended to the Defendants, T.shs One Million Two Hundred Sixty Six Thousand Five Hundred Ninety One being the agreeable monthly remittance principal and from April 2018 until payment in full, court's interest from the date of judgment to the date of « full payment, general damages to the tune of T.shs 20 Million and costs of the suit. On 2nd August 2018 when the matter was called before me for necessary orders, counsel for the Plaintiff addressed the court on two issues namely the value of the subject matter of the suit and the pecuniary jurisdiction of the court. The learned counsel submitted that at the time the Plaintiff instituted the suit he was of the view that despite the fact that the value of the subject matter of the claim was below T.shs 70,000,000/=which is below the minimum pecuniary jurisdiction of this court in terms of Rule 5(2) of the High Court (Commercial Division) Procedure Rules of 2012 but nevertheless he instituted it in this court believing that Section 40(3) of the Magistrate's Courts Act which prescribes pecuniary jurisdiction of the District Court over commercial cases to be below T.shs 30,000,000/=prevailed over the High Court Commercial Division l Procedure Rules in 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 had instituted the matter in the High court Commercial 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 had held that it has no jurisdiction to hear and determine a commercial suit which the value of the subject matter is 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 which is the Dar Es Salam District Registry at Dar Es Salaam. I have carefully gone through and internalized the learned counsel's submissions and the authority cited regarding the pecuniary jurisdiction of this court and its powers to transfer a case to another registry 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 and 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 is effected to the Defendants, 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, and persuaded by the decision of this court in Civil Case No. 136 of 2001 between CR. F LWANYITIKA MASHA Versus THE ATTORNEY GENERAL 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 shall not . pay fresh filing fees and she ■ will not be refunded any difference between the fees payable 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 I Certify that this is a true and correct ofthe Ori~a~ord~JudPment Rdling sigi~..Jri~~ldKp... Registrar, Commercial Court. DSM. Datet...ld^l^lr.