Chang Metal vs NCL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA CIVIL CASE NO. 6676 OF 2024 CHANG METAL INTERNATIONAL MINING RESOURCE COMPANY LIMITED............................................PLAINTIFF VERSUS NCL INTERNATIONAL LIMITED.................... DEFENDANT RULING 5th and 20th September, 2024 BANZL J,: Before this court, the plaintiff sued the defendant for recovery of two excavator machines with registration numbers T861 EAW and T858 EAW valued at USD 322,000 which she leased to the defendant on a twelve (12) months7 hire-purchase agreement but the defendant is alleged to have failed to honour the agreement in question by failing to pay instalments as scheduled in the agreement. Upon being served with the plaint, the defendant, through Haki Attorneys Advocates filed preliminary objection on point of law to the effect that: That, this suit is incompetent and bad in law for being filed in the Court that is not clothed with jurisdiction to hear and determine the matter. Page 1 of 5 At the hearing, the plaintiff enjoyed the legal services of Mr. Peter Matete, learned counsel whereas, the defendant was represented by Mr. Zedy Ally, the learned counsel. Mr. Ally contended that, pursuant to section 18 of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC), the suit is filed at the place where the cause of action arises. However, according to the pleadings, the plaintiff attached the contract that was prepared at Dar es Salaam and the machines subject matter of the contract were supposed to work at Kahama. In that regard, the court which has jurisdiction is either the High Court at Dar es Salaam or Shinyanga. Hence, the matter was filed in a court which lacks jurisdiction. He supported his point with the case of Charles Alfred Marwa vs The Sky Horse Company Limited and Others (Civil Case No. 9 of 2022) [2023] TZHC 22581. He therefore prayed for this court to dismiss the suit with costs for want of jurisdiction. In reply, Mr. Matete argued that, according to their contract, annexure CM01, both parties agreed the equipment to work at Kahama, however, they are not at Kahama but at Biharamulo which is within the jurisdiction of this court. Furthermore, Mr. Matete contended that, the cited case of Charles Alfred Marwa vs The Sky Horse Company Limited and Others (supra) is distinguishable because in that case, the contract was about the machines Page 2 of 5 which were not supplied to the plaintiff while in this case, the machines were already handed over to the defendant. According to him, section 18 of the CPC is inapplicable, rather, the applicable section is 14 (f) of the same Code. Besides, he argued that, they secured a temporary injunction over those machines which connotes that, the machines are within jurisdiction of this court. In rejoinder, Mr. Ally argued that, although the fact about the machines to be at Biharamulo is pleaded in the plaint, it is a mere statement which is not enough for this court to rely on. It was also his view that, section 14 (f) of CPC is not applicable in this case. Having perused the pleadings and considered the arguments for and against the preliminary objection, the main issue for determination is whether this court has jurisdiction to try this suit. It is settled law that, jurisdiction of courts is a creature of statutes. This was stated in numerous cases including the case of Abdallah Ally Selemani t/a Ottawa Enterprises (1987) vs Tabata Petrol Station Co. Ltd & Another [2019] 1 TLR 1 [CA]. Jurisdiction of courts in civil and land suits is governed under the provisions of sections 13 to 18 of the CPC. In our case, the plaintiff claims that, her suit was instituted before this court pursuant to section 14 (f) of the CPC as the machines subject matter of the Page 3 of 5 case are situated at Biharamulo which is within the jurisdiction of this court. For ease of reference, I find it prudent to reproduce section 14 (f) of the CPC as hereunder: "14. Subject to the pecuniary or other limitations prescribed by any law, suits- (f) for the recovery of movable property actually under distrait or attachment, shall be instituted in the court within the local limits of whose jurisdiction the property is situate:" According to the provisions of the law quoted above, in claims for movable property, the suit is instituted within the local limits where the property is situated. In this case, there is no dispute that, the agreement was signed at Dar es Salaam and it was agreed that, the machines were to work at Kahama. However, according to paragraph 14 of the plaint, the machines in question are situated at Biharamulo district which is within the local limits of the jurisdiction of this court. On that basis, the plaintiff successfully applied for temporary injunction against the defendant from using those machines until this suit is finally determined. Under the prevailing circumstances, the provisions of section 18 of the CPC are not applicable as machines subject matter of the suit are movable property and they had already been moved Page 4 of 5 from Kahama to Biharamulo. Thus, I am constrained to agree with Mr. Matete that, this suit falls within the ambit of section 14 (f) of the CPC and hence, this court has jurisdiction to entertain the same. For those reasons, the preliminary objection is hereby overruled for being unmerited. Each party shall bear its own costs. It is so ordered. I. K. BANZI JUDGE 20/09/2024 Delivered this 20th day of September, 2024 in the presence of Mr. Peter Matete, learned counsel for the plaintiff, Mr. Zeddy Ally, learned counsel for the defendant and Ms. Mwashabani Bundala, RMA. I. K. BANZI JUDGE 20/09/2024 Page 5 of 5