celestine mathew dominic ta celesine fish supplies vs commercial bank of africa 2018 tzhccomd 70 6 june 2018

' ' IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT MWANZA Commercial Case No. 03 of 2018 CELESTINE MATHEW DOMINIC T / A CELESTINE FISH SUPPLIES } PLAINTIFF Versus COMMERCIAL BANK OF AFRICA} (TANZANIA) LTD. . DEFENDANT RULING 05th June, 2018 A. R. MRUMA, J. The plaintiff Commercial Bank of Africa (T) Ltd. instituted summary suit against the Defendant Celestine Mathew Dominic t/a Celestine Fish Supplies claiming for payment of T.shs. 48,201,793.85 being the outstanding amount on account of a facility agreement as of November, 28, 2017. The plaintiff is also claiming for costs and interest. In the alternative, the plaintiff is praying for appointment of Mr. Gasper Nyika as a receiver Manager with powers to sale the mortgaged property with Certificate of Title No. 37491 Plot No. 396 Block "A" Mkolani Mwanza. The Defendant's Application for leave to appear and defend the suit was struck out for wrong citation. Following the striking out of the Defendant's Application for leave to appear and defend the suit, counsel for plaintiff prayed for a summary judgment against the defendant in terms of Order XXXV Rule 2 (2) (a) of the Civil Procedure Code, referring this court to its own ruling in the case of Bank of Baroda {T} Ltd. Vs. Masemamo Investment Ltd - Commercial Case No. 2 of 2017. Before entering summary judgment I went through the plaint and realized that the amount claimed in the suit was T.shs. 48,201,793.00. I entertained doubt as to whether in view of the provision of Rule 5 (2) of the High Court (Commercial Division) Procedure Rules, 2012 this court has jurisdiction to entertain a case whose value is below T.shs. 70,000,000.00. Accordingly I invited counsel for the plaintiff to address me on the pecuniary jurisdiction of this court and whether in view of clear provisions of Rule 5 (2) of the High Court (Commercial Division) Procedure Rules, 2012 hereinafter to be referred as the Rules read together with Section 7 (1) and Order IV Rule 1 (4) of the Civil Procedure Code hereinafter to be referred as the Code and Section 40 (3) of the Magistrates Courts Act hereinafter to be referred as the MCA. 2 Addressing me on these points, Mr. Jonathan Wangubo, counsel for the plaintiff conceded that his client's claim of T.shs. 48,201,793.85 is far below the pecuniary jurisdiction of this court as provided for under Rule 5 (2) of the Rules. He however quickly argued that Rule 5 (2) of the Rule contravenes the provision of Article 108 of the Constitution of the United Republic of Tanzania, and section 40 (3) (b) of the MCA. The learned counsel contended that principally jurisdiction is conferred upon any court by a statute, that is to say an Act of Parliament therefore the Chief Justice misdirected himself in conferring jurisdiction to the Commercial Division of the High Court by using a subsidiary legislation (e.i GN 250 of 2012). He said that Section 4 of the Judicature and Application of Laws Act; under which GN No. 250 of 2012 was made gives the Chief Justice powers to make rules of procedure and therefore he was ought to make rules of procedure and not to confer Jurisdiction on this Division of the High Court. Regarding Section 40 (3) (b) of the MCA the learned counsel submitted that it limits Jurisdiction of the District Court to try Commercial Case in case the value of the subject matter does not exceed T.shs. 30,000,000.00 thus, Rule 2 (2) of the Rules which is a subsidiary legislation is inconsistence with Section 40 (3) (b) of the MCA which is an Act of the Parliament. The learned counsel submitted that Section 36 (1) of the Judicature and Application of Laws Act outlaws any subsidiary law which is inconsistence with 3 the Act of Parliament or the law under which it was made. Citing Commercial Case No. 10 of 2015 between Charles Sugwa Versus Daniel Lucas, the learned counsel stressed that Rule 5 (2) of the Rules is inconsistent with the provisions of Section 40 (3) (b) of the MCA, therefore it is void to the extent of such inconsistent and Section 40 (3) (b) the MCA should prevail. Let me start by saying that the question of Jurisdiction of any court is basic. As it was held by the Court of Appeal in Civil Application No. 3 of 2004 between Julius Rukambura Versus Issack Ntwa Mwakajila and Another, Jurisdiction issue goes to the very root of the authority of the court to adjudicate upon cases of different nature. The question is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their Jurisdiction at the commence of the trial. In the case at hand, it was before entering a summary Judgment pursuant to the provisions of Rule 2 (2) (a) of Order XXXV of the Code that I entertained doubt on the jurisdiction of the court. The said law says: "In any case in which tile plaint and summons are in such forms respectively, tile Defendant shall not appear or defend the suit unless he obtains leave from the judge ..... and in default in his obtaining such leave or of his appearance and defence in pursuance thereof, the 4 allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled (a) Where the suit is a suit referred to in paragraph (a) (b) or (d) of rule 1. .... and no other relief in respect of such mortgage and no other relief is claimed to a decree for any sum not exceeding the sum mentioned in the summons together with interest. .... " As stated hereinbefore, the amount mentioned in the summons is T.shs. 48,201,793.85 which is far below the minimum pecuniary jurisdiction of the court of T.shs. 70,000,000.000 as provided Under Rule 5 (2) of the Rules. It is this amount which raised my eye brows and invited the learned counsel to address the court whether it has jurisdiction to pass decree for T.shs. 48,201,793.85. The learned counsel has submitted that in view of the fact that Rule 5 (2) of the Rules contravenes Article 108 of the constitution, and that it is inconsistent with section 40 (3) (b) of the MCA, then this court has jurisdiction to entertain this case. Pecuniary jurisdiction is the power of the court to entertain a claim basing on its monetary claim. Black's Law Dictionary 5 by Bryan A. Garner sth Edition page 1167 defines the term pecuniary to means "money" As correctly submitted by Mr. Jonathan Wangabo, the High Court of Tanzania draws its powers from Article 108 of the constitution. The said Article 108 of the constitution provides: 'There shall be a High court of the United Republic (to be referred to in short as "the High Court"), the jurisdiction of which shall be as specified in the constitution or in any other law" (2) Where this constitution or any other law does not expressly provide that any specified matter shall first be heard by a court specified for that purpose, then the High Court shall have jurisdiction to hear every matter of such type. Similarly, the High court shall have jurisdiction to deal with any matter which, according to legal traditions obtaining in Tanzania " In the case of Packaging and Stationers Manufacturing Limited vs. Dr Steven Mworia and Another (Commercial Case No. 52 of 2010, when dealing with the same situation,! held that: 6 ''In the light of Article 108 (2) of the constitution of the United Republic of Tanzania/ and Section 2 (1) of the Judicature and Application of Laws Act the High Court has original jurisdiction over all matters that are outside the jurisdiction of Courts subordinate to it" Article 108 of the constitution subjects the jurisdiction of the High Court to the constitution itself and other laws, sub- article (2)of the article articulates that the general jurisdiction of the High Court is involved where there is no court specified for the matter in question. Mr. Jonathan Wangabo, admits that Rule 5 (2) of the Rules specified the minimum limit of T.shs. 70,000,000 for the High Court (Commercial Division), he however asks this court t disregard the provision of that rule for following reasons:- (i) First that Rule 5 (2) of the Rules contravenes the requirements/provisions of Articles 108 of the constitution. (ii) Second, that Rule 5 (2) is inconsistent with section 40 (3) (b) of the MCA and had an unintended consequence of conflicting with Section 40 (3) (b) of the MCA. (iii) Thirdly that, where a provision of a subsidiary legislation comes into conflict with the parent Act or any Act f the parliament, the parent Act or that parliamentary Act must 7 prevail by virtue of Section 36 (1) of the Interpretation of Laws Act and; (iv) Fourthly that, The Chief Justice misdirected himself because Section 4 of the Judicature and Application of Laws Act does not give powers to him to confer jurisdiction in any court but to make rules of procedure by promulgating Rule 5 (2) of the Rules, the Chief Justice was conferring jurisdiction to the Commercial Division of the High court. Now starting with the alleged unconstitutionality of Rule 5 (2) of the rules, with due respect to the learned counsel, I beg to differ, Reading Article 108 of the Constitution between the lines, it is clear that the High Court of Tanzania derives its jurisdiction from two sources of law. The first source is the Constitution itself and the second source is "any other law". Under Sub-Article (2) if Article 108, it is stated that where the Constitution or "any other law" does not expressly provide that any specified matter shall first be heard by a court specified for that purpose, then the High Court will have jurisdiction to hear any matter according to traditions obtaining in Tanzania. From the above extract of the constitution, the law (constitution) anticipates establishment of courts specified for specified matters. 8 Commercial Division of the High Court of Tanzania is a specialized court established Under Rule 5 A of the High Court Registries (1984) Rules as amended by GN 141 of 1999 which was later repeated and replaced by GN 96 of 2005 which states that:- "There shall be a Commercial Division of the High court within the Registry at Dar es Salaam and at any other Registry or sub-registry as may be determined by the Chief Justice in which proceedings concerning Commercial Case may be instituted " GN 96 of 2005 has been repeated and replaced by GN 250 of 2012. Thus, the establishment of Commercial Division of the High Court was in consonant with the provisions of Article 108 of the Constitution of the United Republic of Tanzania. Regarding the alleged inconsistent of Rule 5 (2) of the Rule with Section 40 (3) of the MCA, on my part I find no inconsistency at all. As I recently held in Commercial Case No. 133 of 2015 between Lucas Pius Mal/ya T/a Baraka Store vs. Enos K. Matongo and Another, these are two different pieces of laws each with its own purpose. The Magistrates Court Act (Capll RE 2002) is the law which caters for 9 jurisdiction, powers and functions of the Magistrates courts and other related matters, while the High Court (Commercial Division) Rules are rules of procedure governing proceedings in this specialized division of the High Court. Therefore it is my considered view that there is no conflict between the two laws. This finding answers the third issue raised by Mr. Jonathan which was to the effect that where a provision in a subsidiary law is in conflict with a provision in an Act of the Parliament, the provision in the Act of the Parliament prevails. While while I do agree that in view of the provision of Section 36 (1) of the Judicature and Application of Laws Act, that is the correct position of the law, but as there is no conflict between Rule 5 (2) of the Rules and Section 40 (3) (b) of the MCA, that principle does not apply here. The last argument of the learned counsel is that the Chief Justice misdirected himself in promulgating rule 5 (2) of the Rules which confers jurisdiction on the Commercial Division of the High Court instead promulgating rules of procedure. First of all it should be noted that the Commercial Division of the High Court is just a division of the High Court within the Registry of the High Court of Tanzania at Dar-es-Salaam, unlike the Labour and Land Divisions of the High Court which were established by Acts of the 10 Parliament, Originally it is Rule 5 A of the High court Registry Rules (1984) as amended by GN 141 of 1999 which gave birth to the Commercial Division of the High Court of Tanzania. It should be pointed out here that this court has no exclusive jurisdiction to hear and determine commercial disputes. Order IV Rule 1 (4) of the Civil Procedure Code provides that:- "It shall not be mandatory for a Commercial Case to be instituted in the Commercial Division of the High Court": Thus, a potential commercial Litigant has the option of filing the case either in the ordinary registry of the High Court or in this division. Counsel for the Plaintiff has submitted that he opted to file his case in this division because he wanted it to be disposed of quickly, much as I can appreciate his acknowledgment to quick dispose of matters which comes before the court, but it is not every commercial dispute which can be instituted in this court. If we go by the counsel's argument it means that even a litigant who has claim or dispute reserved for primary court who wants his case to be disposed of quickly may opt to institute it in the High Court Commercial Division. 11 Section 7 (1) of the Civil Procedure Code exempt courts from trying suits of which their cognizance is either expressly or impliedly barred. Rule 5 (2) of the Rules bars High Court (Commercial Division) from trying any matter whose value of the subject matter is below T.shs. 70,000,000.00. Thus, this being a court of law, and not a court of sympathy I have no option but to order that Commercial Case No 3 of 2018 be strike out for want of jurisdiction. I will make no order as to the costs. The plaintiff is at liberty to re-institute this case in the ordinary registry of the High Court of course subject to law of limitation etc. Judge 6/6/2018 12