SOLAR CHEMICALS VS TENGA Final

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 25577 OF 2023 (Originating from the District Court of Kisarawe in Civil Case No. 02 of 2023) SOLAR NITROCHEMICALS LIMITED.…………….…….….…………. APPELLANT VERSUS EMMANUEL RAYMOND TENGA …….………………..……………….RESPONDENT JUDGMENT 03rd October & 18th December, 2024 BWEGOGE, J.: Way back in February, 2023 the appellant herein, a registered company, entered an oral agreement with the respondent for transportation of fertilizers from Vingunguti within llala District herein Dar es Salaam to Kisarawe region. The agreed price for each trip was TZS 800, 000/=. The respondent hauled the first consignment of the purported fertilizer bags from Vingunguti in his hauling vehicle with registration number T. 546 BXX. Unfortunately, before the hauling vehicle reached its destination, it encountered an accident at Kazimzumbwi village in Kisarawe District 1 which culminated in the death of a passenger and fatal injuries to the driver. The accident attracted the attention of the law enforcement agents. Upon scrutiny, the law enforcement agents became suspicious of the nature of the cargo carried into the respective vehicle. Further investigation revealed that the suspicious cargo comprised dangerous chemicals namely, ammonium nitrate which were transported without a permit. Consequently, notification for payment of statutory penalty was issued to the appellant by the Government Chemist Laboratory Authority (GCLA) under the Industrial and Consumer Chemicals [Management and Control] Act No. 03 of 2023 in respect of compounded counts namely, unsafe handling of chemicals, failure to report chemical accident, transportation of chemicals without permit and allowing a driver without special training to transport chemical consignment. The penalty to the tune of TZS 27,000,000/= was duly paid by the appellant. Consequent to the above, the respondent’s hauling vehicle was impounded at Kisarawe Police Station for 21 days. 2 Hence, the respondent feeling that he was taken for a ride by the appellant, commenced civil proceedings against her in the District Court of Kisarawe in Civil Case No. 02 of 2023 claiming compensation for breach of contract. It was the respondent’s case in the trial court that the appellant herein had misled him to believe that he was procured to carry fertilizers; however, later on, it was discovered that the cargo in question was a dangerous chemical substance requiring a permit to transport. Likewise, it was the respondent’s case that his hauling vehicle was seized at Kisarawe Police Station for 21 days until the penalty was paid by the appellant, to his financial detriment. Contrarywise, it was the appellant’s case that based on the chemical composition involved in manufacturing the chemical substance in question, the product was nothing but fertilizer. The trial court, having weighed the evidence adduced by both parties, reached a conclusion that the appellant, by misrepresentation, covenanted with the respondent for transportation of what purported to be fertilizers of which was later found to be the dangerous chemical substance (Ammonium Nitrate); consequently, causing the respondent’s hauling vehicle to be seized by the law enforcement agents for 21 days to 3 his financial detriment. The appellant was found liable to pay compensation to the respondent to the tune of TZS 42, 000, 000/. The appellant was not amused. Hence, this appeal. Seeking to defeat the decision of the trial court, the appellant fronted six grounds of appeal as hereunder reproduced: i. That, the trial magistrate erred in law and facts by entertaining the matter which ought to be instituted in the lowest Court. ii. That, the trial magistrate erred in law and facts by admitting and acting on uncertified secondary evidence which was tendered by the respondent contrary to the requirement of the law. iii. That, the trial magistrate erred in law and facts for failure to properly analyze the evidence; hence, reached an erroneous decision. iv. That, the trial magistrate erred in law and facts by deciding the matter in favour of the respondent despite his failure to prove the case on the standard required by law. v. That, the trial magistrate erred in law and facts by disregarding the credible evidence adduced by the appellant. vi. That, the trial magistrate erred in law in failing to endorse the documents admitted in evidence. The appellant herein was represented by Ms Lilian Nkwimba, learned advocate; and the respondent had the services of Mr David Kahyolo, learned advocate. The appeal was argued by written submissions. 4 In substantiating the 1st ground of appeal herein, the counsel argued that the respondent prayed for payment of general damages to the tune of TZS 34,000,000/= and special damages to the tune of TZS 27,000,000/=, among others. That in determining the pecuniary jurisdiction vested in a court, it is usually the specific damages that are used in determining the jurisdiction of the presiding court, not the general damages. Hence, based on the amount claimed, the case in question falls under the jurisdiction of the primary court in terms of the provision of section 18(1)(a)(iii) of the Magistrates' Courts Act [Cap. 11 R.E. 2019], not the district court of which its pecuniary jurisdiction is stipulated under the provision of section 40 (2) of the same Act. Moreso, the counsel directed the mind of this court to the case of Manjit Singh Sandhu & Others vs. Robiri R. Robiri (Civil Appeal 121 of 2014) [2015] TZCA 375. among others, to buttress her point. Respecting the 2nd ground of appeal, the counsel argued that the the trial court relied on the secondary evidence (exhibit P1) in entering the impugned judgment of which was admitted in evidence contrary to the procedure provided by the law. The counsel insisted that the respective documentary evidence should not have been relied upon by the trial court in deciding the case. The cases: M/S Quality Group Limited vs. M/S 5 Pan Paper Mills Ltd, Civil Appeal No. 34 of 2009, HC (unreported) and Tanganyika Standard Ltd vs. Mohamed Nasser, Civil Appeal No. 51 of 2013, HC (unreported) were cited to buttress the point. Regarding the 3rd ground of appeal, the counsel enlightened this court that the respondent alleged the appellant for misrepresentation in an attempt to prove the alleged breach of contract. However, the alleged misrepresentation was not proved to entitle the respondent to the judgment and decree entered by the trial court against the appellant. The counsel reiterated that the trial court relied on secondary evidence (exhibit P1) in deciding the case contrary to the law. Concerning the 4th ground of appeal, the counsel argued that the respondent failed to prove the case to the standard accepted in civil proceedings. That the respondent shouldered the burden of proof of the alleged misrepresentation and consequential breach of contract to substantiate his claim for compensation in the trial court; however, he failed to discharge the respective legal obligation. The counsel directed the mind of this court to the case of Anthony M. Masanga vs. Penina (mama Mgesi) & Another (Civil Appeal 118 of 2014) [2015] TZCA 556; and Ernest Sebastian Mbele vs. Sebastian Sebastian Mbele & Others (Civil Appeal 66 of 2019) [2021] TZCA 168 to validate 6 her assertion. In the same vein, the counsel enlightened this court that the respondent had alleged in the trial court that the appellant misled him to believe that he was contracted to transport fertilizers whereas it was later discovered that the cargo constituted chemical substance requiring a permit, among others, to transport. To the contrary, the appellant procured the attendance of an expert who substantiated that, based on the chemical composition involved in manufacturing the chemical substance in question, the product was nothing but fertilizer. However, the trial court disregarded the respective evidence and entered the impugned decision. Pertaining to the 5th ground of appeal, the counsel reiterated her submission made in respect of the 3rd and 4th grounds of appeal of which I find needless to replicate herein. Lastly, in arguing the 6th ground of appeal the counsel charged that the trial court relied on documentary evidence which was not endorsed during the admission stage contrary to the provision of Order XIII, rule 4 of the Civil Procedure Code [Cap. 33 R.E. 2019] which instructs the trial magistrate to indicate the citation of the respective case, the name of the person who tendered the same, the date on which the document was 7 admitted; and lastly, the trial magistrate is required to append his signature to the endorsement. Based on the above premises, the counsel prayed this court to allow the appeal and set aside the judgment and orders entered by the trial court. In responding to the 1st ground of appeal, Mr Kahyola contended that during the trial, the appellant raised a preliminary objection in that the trial court had no pecuniary jurisdiction to adjudicate the matter. However, the appellant’s counsel failed to substantiate the objection whereas the trial court overruled the same. The counsel enlightened this court that when the appellant’s counsel was invited to opine on which court the case should have been instituted, he failed to offer a plausible explanation. In reply to the 2nd and 3rd grounds jointly, the counsel argued that the impugned secondary evidence was properly admitted and acted upon by the trial court in compliance with the law. That secondary evidence is permissible in evidence in the circumstances where the primary evidence is under the possession of the adverse party. The counsel maintained that in this case, the secondary evidence was admitted after the trial court apprehended that the appellant was in possession of the original document. The counsel directed the mind of this court to the case of 8 Director of Public Prosecutions vs. Sharrif s/o Mohamed @ Athumani & Others [Criminal Appeal 74 of 2016] [2016] TZCA 635 to bolster his point. Otherwise, the counsel contended that this court should abide by the provision of Article 107A [2] [e] of the Constitution of the United Republic of Tanzania of 1977, as amended, which instructs the court to render substantive justice without being tied up with technical aspect of the law. Pertaining to the allegation that the trial court failed to analyse evidence and arrived at the erroneous decision, the counsel contended that the trial court had correctly subscribed to the evidence adduced by the respondent in that the appellant herein had misled the respondent to believe that he was procured to carry fertilizers; however, later on, it was discovered that the cargo in question was dangerous chemical substance requiring the permit to transport. The counsel enlightened this court that the respondent’s hauling vehicle was seized at Kisarawe Police Station for 21 days until the penalty was paid by the appellant. Hence, the trial court was right in entering judgment in favour of the respondent. Responding to the 4th and 5th grounds of appeal, the counsel conceded that the respondent herein shouldered the burden of proof of his claim in the trial court in terms of the provisions of sections 110 and 111 of the 9 Law of Evidence Act [Cap. 6 R.E. 2022]. The counsel asserted that the respondent discharged her legal burden of proof; hence, was entitled to judgment and decree entered by the trial court. The counsel reiterated that the evidence tendered by the respondent (exhibit P3) proved that the respondent’s vehicle was hired to transport fertilizers whereas, to the contrary, it was later found to be dangerous chemicals. The counsel opined that the trial court properly evaluated the evidence and arrived at the conclusion that the appellant is liable for breach of contract based on misrepresentation. Lastly, in respect of the 6th ground of appeal, the counsel contended that during trial, the presiding magistrate properly endorsed all documents admitted in evidence as required by the provision of Order, XIII, rule 4 of the Civil Procedure Code. Hence, the 6th ground of appeal is patently misconceived. Based on the submissions above, the respondent’s counsel prayed for the dismissal of the appeal herein in its entirety with costs. In rejoinder, the appellant’s counsel maintained his submission in chief of which I find needless to reiterate herein. 10 Now, I proceed to delve into the 1st and pertinent ground of appeal herein. The charge made herein is that the trial magistrate erred in law and facts by entertaining the matter without considering pecuniary jurisdiction as the matter ought to be instituted in the lowest Court. Ab initio, I find it pertinent to clarify that though the pleading filed by the respondent doesn’t specifically allege breach of contract, yet the averment thereof clearly depicts that the respondent was misled, by deceit, to believe that he covenanted with the appellant to transport 24 bags of fertilizers, to the contrary, it was later found by the police and authorized government agency that the respective consignments comprised dangerous chemicals requiring permit and special procedure for handling. Moreso, the decision of the trial court depicts that two of the issues raised for determination of the matter were thus: 1. Whether there was a valid contract between the parties; and 2. Whether there was breach of the contract. Likewise, the decision of the trial court speaks volumes in that the appellant was found liable for breach of contract and ordered to pay the impugned damages. 11 Primarily, the jurisdiction of the court to preside over a suit is a pertinent question to be resolved by the trial court beforehand. The essence of my assertion is based on the observation made in the case of Salim O. Kabora vs. TANESCO Ltd & Others (Civil Appeal 55 of 2014) [2020] TZCA 1812 wherein the superior Court instructed thus: “We need not overemphasize that jurisdiction is the bedrock on which the court's authority and competence to entertain and decide matters rest.” [Emphasis mine]. Further, in interpreting the meaning of the term “jurisdiction,” the Court expounded: “The essence of court's jurisdiction was discussed in great deal in the case of Tanzania Revenue Authority vs Tango Transport Company Ltd, Civil Appeal No. 84 of 2009 (unreported) and the Court had this to say: - ‘Jurisdiction' is defined in Halsbury's Laws of England\ Vol. 10 para. 314 to mean: "the authority which a court has to decide matters that are litigated before it or to take cognizance of matters prescribed in a forma/ way for its decision. The limits of this authority are imposed by the statute; charter or commission under which the court is constituted, and may be extended or restrained by similar means. A limitation may be either as to the kind and nature of the claim, or as to the area which jurisdiction extended, or it may partake of both these characteristics." Principally, objection to jurisdiction of a court is a threshold question that ought to be raised and taken up at the earliest opportunity, in order to save time, costs and avoid an 12 eventual nullity of the proceedings in the event the objection is sustained.’ " And the Court concluded by opining that: “.......before a court dwells into the determination of any matter brought before it, it is elementary that it should, in the first place, satisfy itself that it has the requisite mandate to determine the matter.” See also the same view in the cases: Commissioner General of Tanzania Revenue Authority vs. JSC Atomredmetzoloto (ARMZ) (Consolidated Civil Appeal 78 and 79 of 2018), [2020] TZCA 306 and Fanual Mantiri Ngúnda vs. Herman M. Ngúnda (1995) TLR 155. Having observed the above guiding principles, I revert to the case at hand. As aforementioned, the charge in the 1st ground of appeal alleges that based on the pecuniary jurisdiction, the trial court presided over the suit which ought to be instituted in the lowest court in this land. This allegation obliges me to probe. Primarily, the jurisdiction of the District Court to preside over civil proceedings is provided under the provision of section 40(2) of the Magistrates’ Courts Act [Cap. 11 R.E. 2019]. I beg to quote the relevant provision verbatim: “Section 40; (2) A district court when held by a civil magistrate shall, in addition to the jurisdiction set out in subsection (1), have and 13 exercise original jurisdiction in proceedings of a civil nature, other than any such proceedings in respect of which jurisdiction is conferred by written law exclusively on some other court or courts, but (subject to any express exception in any other law) such jurisdiction shall be limited- (a) in proceedings for the recovery of possession of immovable property, to proceedings in which the value of the property does not exceed three hundred million shillings; and (b) in other proceedings where the subject matter is capable of being estimated at a money value, to proceedings in which the value of the subject matter does not exceed two hundred million shillings.” Likewise, the pecuniary jurisdiction of the primary court in presiding civil proceedings is provided forth under section 18 (1) of the Magistrates’ Courts Act [Cap. 11 R.E. 2022]. The relevant provision provides thus: “18.-(1) A primary court shall have and exercise jurisdiction: - (a) in all proceedings of a civil nature- (i) where the law applicable is customary law or Islamic law: Provided that no primary court shall have jurisdiction in any proceedings of a civil nature relating to land; (ii) for the recovery of civil debts, rent or interests due to the Republic, any district, city, municipal or town council or township authority under any judgment, written law (unless jurisdiction therein is expressly conferred on a court or courts other than a primary court), right of occupancy, lease, sublease or contract, if the value of the subject matter of the suit does not exceed fifty million shillings, and in any proceedings by way 14 of counter-claim and set-off therein of the same nature and not exceeding such value.” [Emphasis mine]. In the same vein, the provision of section 7(1) of the Civil Procedure Code [Cap. 33 R.E. 2002] in no uncertain terms provides thus: “Subject to this act, the courts shall have jurisdiction over suits in civil nature excepting suits of which their cognizance is expressly or impliedly barred.” And the provision of section 13 of the Code echoes that: “Every suit shall be instituted in the court of the lowest grade competent to try it……….” Having revisited the law pertaining to the pecuniary jurisdictions of the subordinate courts, I now direct my mind to the plaint filed by the respondent in the trial court. The reliefs sought in the trial court as depicted by the plaint are as follows: (a) Payment of general damages to the tune of TZS 34,000,000/= (Thirty-Four million Tanzania Shillings only). (b) Special damages to the tune of TZS 27,000,000/= (c) Interest at commercial rate at 31% per annum from the date the cause of action arose to the date of judgement in (a) and (b) above to payment in full. (d) Costs of the suit. (e) Any further orders and relief(s) as the Court may deem fit to grant. 15 Thus, it is apparent that the monetary claims on the plaint are constituted of two prayers; one, payment of general damages to the tune of TZS 34,000,000/=; and two; payment of special damages to the tune of TZS 27, 000,000/. As rightly submitted by the appellant’s counsel, it is the substantive claim, not general damages which determines the pecuniary jurisdiction of the court. See the cases: Tanzania-China Friendship Textiles Co. Ltd case [2006] TLR 70; John Mome Morro vs. Gratian Mbelwa and Three Others, Civil Case No. 80 of 2011, CA (unreported); Mwananchi Communications Limited & Others vs. Joshua Kajula & Others, Civil Appeal No. 126/01 of 2016, CA (unreported); and Khamis Muhidin Musa vs. Mohamed Thani Mattar (Civil Appeal 237 of 2020) [2021] TZCA 735. In particular, in the case of Khamis Muhidin Musa (supra), on page 11, the Apex Court had this to say: “The position of this Court has quite a long time been that general damages cannot and do not form the basis of determining the court's pecuniary jurisdiction. Substantive, specific or liquidated damages do........For instance, in Mwananchi Communications Limited case (supra), this Court observed: ‘It is obvious from the plaint that the claims were not for specific damages and thus fall under general 16 damages. As expounded above, the position of the law as pronounced in various decisions is that it is the substantive claim which determines jurisdiction and not general damages as expounded hereinabove in our holding in Tanzania-China Friendship Textiles Co. Ltd case (supra).’" [Emphasis mine]. Hence, abiding with the decisions of the superior Court mentioned above, it was the substantive claim (special damages) to the tune of TZS 27,000,000/= which ought to determine the pecuniary jurisdiction of the trial court to try the suit which is subject of this appeal. Unarguably, the claimed amount mentioned above, which arose from the breach of contract, falls under the jurisdiction of the primary court in terms of the provision of section 18(2) (a) (ii) of the Magistrates’ Courts Act. Therefore, considering the provision of section 13 of the Code, read together with the provision of section 40(2) of the Magistrates’ Courts Act, the suit ought to be instituted in the lowest court (primary court). Thus, the trial court assumed the jurisdiction it didn’t have. The procedural sin occasioned by the trial court is fatal to the case herein as it renders the proceedings, decision, and orders entered thereof a nullity. I find the 1st ground of appeal with merit. 17 Having found the 1st ground with substance, I find it needless to further delve into the remaining grounds of appeal. In summary therefore, I find the 1st ground of appeal meritorious. I would allow the appeal in its entirety. Accordingly, the decision and orders entered by the trial court are hereby quashed and set aside. The appellant shall have her costs. I so order. DATED at DAR ES SALAAM this 18th December, 2024. O. F. BWEGOGE JUDGE 18