robert d reuben vs tanzania investment bank as appointed liquiadator of th bank 2005 tzhc 285 25 february 2005

IN THE HIGH COURT OF TANZANIA AT TANGA CIVIL CASE NO.5 OF 2003 ROBERT D. R E U B E N .....................................PLAINTIFF Versus THE TANZANIA INVESTMENT BANK AS APPOINTED DEFENDANT LIQUIADATOR OF T.H. BANK RULING M.S. SHANGALI, J: In the Civil Case No.5 of 2003, the plaintiff Robert D. Reuben sued the Defendant, The Tanzania Investment Bank as an appointed liquidator of the Tanzania Housing Bank (THB) for defamatory publications. Briefly, stated, in 1978 the plaintiff who was working with Amboni Limited at Tanga advanced a loan from the defunct Tanzania Housing Bank. The loan was to be recovered by way of deductions of the plaintiffs salaries through his employer. According to the plaintiff claims, after the deductions and when there was no outstanding loan or debt the defendant went aheard and published through various local news papers especially Majira News paper and others, that the plaintiff was a "hardcore debtor'', 'Mdaiwa sugu' of the Tanzania Housing Bank and that he was still jndebted with the loan advanced to him. I The plaintiff decided to sue the defendant for defamation in civil case no.5 of 2003 claiming for general damages to the tune of Tshs.100,000,000/= as a reparation on solatium to the plaintiffs injured reputation, mental anguish and inconvenience suffered. Before the hearing of the said Civil suit Mr. Akarb, the learned counsel for the first defendant raised two preliminary objections. Mr. Sangawe, the learned counsel for the plaintiff contested the preliminary objections. The second defendant M/S M.I.C. Msolopa Investment Company Ltd , being an agent of the 1st defendant appointed to collect debts for the defunct Tanzania Housing Bank did not participate actively in the preliminary objections. . The application by the learned counsels to lirgue the preliminary objections by way of written submissions was duly granted and the court scheduled thereto observed. The first preliminary objections as submitted by the counsel for the first defendant avers that this court is not vested with territorial jurisdiction to try the suit; and the second one is that the suit is not instituted in the appropriate court. Submitting on the first preliminary objections, Mr. Akaro argues that the amended plaint discloses two causes of action, namely cause of action relating to the alleged defamatory publications by the defendant whereby the plaintiff was labled a "hard core debtor" and cause of action relating to the alleged intended wrongful attachment and sale of the plaintiffs house and farm situated at Hai District, Kilimanjaro Region. The counsel submitted that from the first cause of action the plaintiff is seeking the court to find in his favour that there was defamatory publications and therefore grant him damages against the defendants jointly and severally. On the second cause of action, the counsel submitted, the plaintiff is asking the court to declare that he is not indebted to the defunct Tanzania Housing Bank and therefore the intended attachment and sale of’his house by the defendant is unlawful and illegal. Mr. Akaro, learned counsel submitted that the jurisdiction in matters pertaining to immovable property is governed by section 14 of the Civil Procedure Code, 1966. That section requires suit relating to immovable property to be instituted in courts within the local limits of whosfe jurisdiction the property is situate. The counsel submitted that in view of that law the suit should have, subjed: to other jurisdictional limitations, been instituted in the High Court Registry at Moshi in accordance with the High Court Registries'/Rules, 1984 -GN No.23 of 1985 read together with the High Court Registries (Amendment of the Schedule) Notice, 2000 - GN No.162 of 2002. Alternatively, the counsel submitted, the plaintiff could have instituted the suit in the main High Court Registry at Dar Es Salaam in accordance with the provision of Rule 7 (1) of the High Court Registries; Rules, 1984. In support of his submissions, the counsel cited the decision in the case of AHMED ISMAIL VS JUMA RAJABU (1985) TLR 204. Regarding to the cause of action relating to the aspect of defamation the counsel submitted that the High Court at Tanga lacks jurisdiction because the plaintiff pleadings do not state anywhere as to where specifically did he or any other person became aware of the alleged defamatory publications. The learned counsel submitted that there is no dispute that both defendants are corporations which ordinantly carry on their business in Dar Es Salaam. Therefore jurisdiction will be determined by the provision of section 18 ( c) of the Civil Procedure Code 1966 which provide that every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or part, arise. He avers that the Explanation No.2 under the said Section 18 provide that a corporation shall be deemed to carry on business at its sole or principal office in Tanganyika, or, in respect of any cause of action arising at any'place, where it has also'a subordinate office, at such place.'- The counsel went on and argued that since there is no evidence that any of the defendants has an office in Tanga, then the suit should have been instituted in the High Court at Dar Es Salaam District Registry or in the main High Court Registry at Dar Es Salaam. Submitting in regard to the second preliminary objection, Mr. Akaro, argued that the principal amount claimed by the plaintiff is Tshsl00,000,000/= as general damages for defamation. Nevertheless, section 13 of the Civil Procedure Code, 1966 . . Mandatorily-requires‘every suit to be instituted in the court of the lowest grade competent to try it. The counsel submitted that section 40 (2) (b) of the Magistrate Court Act, 1984 as amended by the Written Law's (Miscellaneous Amendments No.3) Act 2002 confers original jurisdiction to District Courts in proceedings of civil nature the subject matter of which does not exceed Tshs. 100,000,000/= where capable of monetary estimation. Therefore, the High Court has no jurisdiction to try the suit as it is not a court of the lowest grade competent to try it. The counsel cited the case of FRANCIS ANDREW VS. KAMYN INDUSTRIES (T) LTD (1986) TLR 31. Mr. Akaro requested the court to uphold his preliminary objections and struck out the suit with costs. On the other side, Mr. Sangawe, the learned counsel for the plaintiff vehemently argued against the objections. On the first preliminary objection he submitted that initially the plaintiff sued the defendant for defamation following the publications through the News papers that he was a 'Mdaiwa sugu' (hard core debtor). Therefore the state of indebtness and the alleged defamation words are inseparable issues in the instant suit. The counsel emphasized that the relief sought in respect of the defamation are greatly dependant upon the state of indebtedness of the plaintiff.* 1 * - i » i Mr. Sangawe submitted that the plaintiff decided to amend his plaint and seek for a relief of declaratory order that he is not indebted to the defunct Tanzania Housing Bank and therefore the attachment and sale of his house is unlawful and illegal. The learned counsel submitted that, such a relief was correctly sought and filed in the Tanga Registry because of the following circumstances; one, that in furtherance of publications of the alleged defamatory wbrds, the defendants went ahead to attach rand sale the plaintiffs house and shamba at Hai District on the same account of indebtedness; Two, that when the defendants decided to attach and sale'the plaintiffs properties on the account of indebtedness, the . . plaintiff had already filed'the defamation suit, which in its essence he was challenging the state of indebtedness. It was thq counsels submission that such circumstances prompted the plaintiff to apply for leave to amend the former plaint of defamation to incorporate the cause of action in respect of the legality for indebtedness .and attachment and sale of the plaintiffs • properties on the same account of indebtedness which is the basis for the alleged defamation. The counsel reinterated that basing on such circumstances it was prudent and incumbent upon the plaintiff to have allthose causes of action being examined and determined by the same court under the same territorial jurisdiction to avoid multiplicity of suits. Mr. Sangawe, the counsel for plaintiff had no quarrel with the legal positions stipulated under s.14 of the Civil Procedure Code nor the High Court Registry Rules, 1984. However, he insisted that the present matter is so distinct in the sense that all the mentioned cause of action are greatly and substantially dependant on each other and wholly on the state of indebtedness of the plaintiff. On the case of Ahmed Ismail (supra) cited by Mr. Akaro in which the court insisted that suits should be filed in the proper Registry, Mr. Sangawe submitted that in that case the court decided to proceed with the case after satisfying itself that the error perpetrated did not i occasioned any miscarriage of justice. Furthermore, the counsel for the plaintiff conceded with submissions that normally the suit is lodged where the cause of action arose or where the defendant resides and or carries business. 5However, he argues that since the publication of the alleged 'defamatory'words was circulated all over the country, the plaintiff ;was at liberty to lodge the suit in Tanga Registry. On the second ground of preliminary objection, that the suit is. not in the appropriate court, Mr. Sangawe, again conceded that the law i.e. The magistrate Court Act, 1984 as amended confers original jurisdiction to the District court in proceedings of Civil nature the subject matter of which does not exceed Tshs.l00,000,000/= where it is capable of monetary estimation and also agreed that s .l!3 of the Civil Procedure Code, 1966 directs that every suit must be instituted in the court of the lowest grade competent to try. Nonetheless, the counsel submitted that his court has original jurisdiction to try the case because the section talk of the subject matter which does not exceed Tshs. 100,000,000/= while the suit at hand-is claiming exactly the ceiling amount of Tshs.100,000,000/= . the counsel distinguished the case of Andrew (supra) by saying that in that case the amount claimed by the plaintiff was below the jurisdiction of the court which was trying the case, while the amount in the instant case is at the ceiling amount provided by the statute. Finally, the counsel requested the court to dismiss the preliminary objections with costs and order the case to proceed on its merits. In his rejoinder Mr. Akaro, learned counsel for the 1st defendant reiterated his initial submissions and insited on his two grounds of preliminary o b j e c t i o n s . ; • i ' From the submissions of the counsels for both parties there is no dispute that the roots of the suit is the loan agreement between the parties whereby the plaintiff was advanced a loan from defunct Tanzania Housing Bank. Upon alleged failure to pay, the defendant made the alleged defamatory publications against the plaintiff depicting him as a "hard core debtor" or "mdaiwa sugu". It was at •that stage when plaintiff moved and filed his case but-later the defendant went ahead, albeit the suit pending in court, intending to attach and sale the plaintiffs house and shamba situated in Hai District, Kilimanjaro Region in order to recover the alleged - outstanding debt from the plaintiff. ‘ The plaintiff quickly moved to secure the situation and applied for leave to amend his plaint and consequently amended his plaint and include a request to the coutot to declare that he is not indebted to the defendant and thus the intended attachment and sale of!his properties is unlawful and illegal. I agree with the submission made by Mr. Sangawe, learned counsel for the plaintiff that the state of indebtedness which led to the intended attachment and sale of the plaintiff's property and the alleged defamatory words are inseparable issues which in the circumstance must be resolved together. In my view, the alleged unlawful attachment and sale of the plaintiffs property is not a new, separate or remote cause of action which require to be instituted separately in the High Court Registry at Moshi. It is an action out of sequence of events following the allegation of indebtedness and defamation. In other words the case is a defamatory suit coupled with several prayers and reliefs emanating from the same transaction. Such prayers and reliefs born out of sequence of events and cropped from the same suit are inseparable, and any attempt to separate them may cause a multiplicity of suits in different courts and jurisdiction which will undoubtedly lead to the abuse of the court process. Having said that,’the question is whether such a defamatory suit with its chain of prayers and reliefs was correctly filed in this court. The answer is in the negative for the reason that section 18 (c) of the Civil Procedure Code, 1966 provide that every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action wholly or in part arise. Explanation No.2 under the said provision provide that a corporation shall be deemed to carry on busjness at its sole.br principal office in Tanganyika, or, in respect of any;cause of action;arising at any place where it has also a subordinate office at such place. Since the place of cause of action is in Dar Es Salaam where the publications took place and later : distributed; and sinre the defendants principal place of business is in Dar Es Salaam the-suit should have been instituted in Dar Es Salaam according to law. i On the second ground of preliminary objection, I am not ‘ persuaded by the counsel for the plaintiff that the amount of Tshs.100,000,000/= claimed in the suit is not below the pecuniary jurisdiction of the High Court because it is at the ceiling of the pecuniary jurisdiction of the District court. Instead, I join hands with Mr. Akaro's submissions regarding to the law applicable and the authority cited. The law provide that the pecuniary jurisdiction of a District Court is limited to a sum not exceeding Tshs. 100,000,000/= which simply means that Tshs. 100,000,000/= is below the jurisdiction of the High Court and therefore such suit should be filed in the District Court. It necessarily follows that the pecuniary jurisdiction of the High Court in Civil matters pertaining to movable property begins with any amount exceeding Tshs. 100,000,000/=. The ceiling amount of the lower court pecuniary jurisdiction is not the beginning of the High Court's pecuniary jurisdiction; for the beginning of the High Court pecuniary jurisdiction is any amount exceeding that ceiling (Tshs. 100,000,000/=) even by one cent. The suit ought to have been filed in the proper court with jurisdiction, which is the District Court. Before Pcome to the end I would wish to add here, purposely that s. 13 of the Civil Procedure Code 1966 also provide that the High Court has unlimited pecuniary civil jurisdiction. To my understanding it means that while the lower courts have limitations, the High Court have no limitations. In other words, there is no ceiling regarding to the pecuniary jurisdiction of the High Court. However, unlimited jurisdiction vested to the High Court does not mean to include the Limited jurisdiction5vested to the Lower courts! Otherwise, the High Court will be having concurrent pecuniary jurisdiction with the1 .lower courts within their respective pecuniary Jurisdiction limitations.' • . In the final event and for reasons I have attempted to advance based on the facts and law coupled with the remarkable submissions by the learned counsels, I am convinced that this court is not vested with territorial jurisdiction nor proper pecuniary jurisdiction to try the suit. The two preliminary objections are hereby upheld and the suit is struck out with costs. ; It is so ordered. M I JUDGE 25/ 2/2005 Ruling delivered todate 25/2/2005 in the presence of Mr. Sangawe, counsel for the plaintiff and Mr. Akaro, counsel for the Defendant JUDGE ; 25/ 2/2005