20170515 TZHC Dar es Salaam

saa:- IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 136 OF 2015 DAHUA INTERNATIONAL INVESTIMENT & COOPERATION LTD .................................................. PLAINTIFF VERSUS - ECOBANK TANZANIA LTD·........ ;...-..-.;.-;..-.;.~~~ ..............-.•.•.-DEFE-NDANT- - - RULING MKASIMONGWA, J. DAHUA INTERNATIONAL INVESTMENT AND COOPERATION LIMITED (Plaintiff) sues ECOBANK TANZANIA LIMITED (Defendant) claiming Jor a declaration ' that the Defendant has breached the Loan Facility Agreement; payment of general damages in the sum of Tshs. 300,000,000/= and perpetual injunction restraining the Defendant from continual harassment of the plaintiff and costs. The claim is disputed by the Defendant who filed a Written Statement of Defence in which again he raised a preliminary objection that the suit is incompetent for violating the provisions of Section 13 of the Civil Procedure Code [Cap. 33 R. E 2002]. He prays the court therefore that the suit be struck out with costs. This is a ruling in respect of the Preliminary Objection. When the preliminary objection came up for hearing before me there appeared Mr. Florence Tesha and Miss Caroline Kivuyo, the respective learned advocates for the plaintiff and defendant. In her submission in support of the Preliminary Objection, Miss Kivuyo contended that this suit is not maintainable as it violates the provisions of 1 i • Section 13 of the Civil Procedure Code. The Section requires- that any suit be instituted in the court of lowest grade competent to try it. In this suit, the claim is for payment of _ _ _ _ _ general damages to the tune of Tshs. 300,000,000/=. It is a cardinal principle that - -g~ne;ai d~mag~s do not form ·a· hasis fotaetermining-the-jurisdiction oft_h~ court._ l"he learned counsel referred the court to the decision of the Court of Appeal of Tanzania in the Case of TANZANIA-CHINA FRIENDSHIP TEXTILE CO. LTD V/S OUR LADY OF USAMBARA SISTERS, CIVIL APPEAL NO 84 OF 2002 where the Court held that it is the substantive claim and not general damages that determines the jurisdiction of the court. Miss Kivuyo submitted therefore that as the suit at hand does not have any prayer other than for general damages and since general damages do not determine the jurisdiction of the court for they are awardable at the discretion of the court, this suit ought to have been filed in the subordinate court competent to try it. The suit contravenes the provisions of the Section 13 of the Civil Procedure Code. As such the same should be dismissed with costs. On the other hand Mr. Tesha strongly objected the Preliminary Objection raised on the interpretation and the gist of Section 13 of the Civil Procedure Code [Cap. 33 R.E 200]. He submitted that the Section entails to give powers to subordinate courts to deal with matters they have discretion to determine. The Section is amended by the Written Laws (Miscellaneous Amendment) Act No. 4 of 2016 where a proviso been added. The proviso reads that:- " ... provided that the provision shall not be construed to oust the general jurisdiction of the High Court" Mr. Tesha contended the general jurisdiction of the High Court is provided into, among others, Article 108 (1) and (2) of the Constitution of the United Republic of Tanzania. Going by the Article the High Court has unlimited jurisdiction. This suit therefore falls squarely within the jurisdiction of this Court. He added that the submissions made by his learned sister could be of value prior to the amendment of the Civil Procedure Code shown above. Mr. Tesha submitted further that Section 40 (1) (a) of the Magistrates Courts Act [Cap. 11 R.E 2002] as amended by Act No. 3 of 2016 provides for the 2 pecuniary jurisdiction of District Courts and Courts of Resident Magistrates being Tshs. 200,000,000/= for movable properties and Tshs. 300,000,000/= for immovable - - - - . properties. - - ---. -- - - -- -- -- - - - - -- - - -- - It was submitted also by the learned advo~~te that the essence of amending Section 13 of the Civil Procedure Code was to cure such anomaly created by the Court of Appeal of Tanzania as well as this Court in such cases. There are some conflicting decisions. He stressed that the jurisdiction of the Court is provided by the statute or the case law. Following the amendment of the statute all principles laid down by the court are distinguished. In view of the above submissions Mr. Tesha prays the court that it overrules the objection with costs. In a rejoinder submission Miss Kivuyo reiterated her submissions in chief that the suit is incompetent as the same ought to have been filed in the lower court. The suit was filed on 20/8/2015 and according to the learned counsel for the plaintiff the amendments to the Civil Procedure Code and the Magistrates Courts Act were effected in 2016 when the case had been already filed in court. The said amendments have no the retrospective effect. Even if they had such effect the same could not amend/rectify the error. She added that there are no issues of general jurisdiction of the High Court and its establishment under Article 108 (1) and (2) of the Constitution of the United Republic of Tanzania. In any case powers of the High court are limited to any other law which, in this case are the Magistrates Courts Act and the Civil Procedure Code. The Code provides mandatorily that suits must be filed in the court of the lowest grade competent to adjudicate on it. Miss Kivuyo prayed the court that in deciding the issue it should not rely upon the allegation from the Bar that amendment to the Civil Procedure Code was effected to cure anomaly by the Court of Appeal of Tanzania and the High court. She reiterates her prayer to have this matter dismissed with costs. I have carefully considered the arguments and submissions by the counsels for both parties. It is clear to me that the preliminary objection raised by the defendant hinges on the interpretation of Section 13 of the Civil Procedure Code. Prior the 3 amendment to the section effected by the Written Laws (Miscellaneous Amendment) Act No. 4 of 2016, the section read:- "Every suit shall be instituted in the court of the lowest grade competent to try it and for the purposes of this section a Court of Resident Magistrate and District court shall be deemed to be courts of the same grade" The Section was amended as aforesaid by adding at the end of it the following proviso:- "Provided that the provisions of this Section shall not be construed to oust the general jurisdiction of the High Court" The High Court of Tanzania _is established under Article 108 (1) of the Constitution of the United Republic of Tanzania. Apart from establishing the High Court Article 108 of. the Constitution of the United Republic of Tanzania and Section 2 (1) of the Judicature and Application of Laws Act [Cap. 453 R.E 2002] specify the jurisdiction of the High court. Going by Article 108 of the Constitution of the United Republic of Tanzania, the jurisdiction of the High court is also subject to some other laws. In our case, there is also Section 13 of the Civil Procedure Code [Cap.33 R.E. 2002] quoted above. Generally the section provides for the court in which suits may be instituted. It does nothing limiting the jurisdiction of the court. Under this section the court may have jurisdiction to entertain and determine a suit however where several courts of different grades have a concurrent jurisdiction over a certain matter such matter, in terms Section 13 of the Civil Procedure Code must be instituted in the court of lowest grade competent to adjudicate on it. In this case, the plaintiff's claim against the defendant is for declaration that the defendant has breached the Loan Facility Agreement, order for payment of general damages in the tune of Tshs. 300,000,000/= for harassment, breach of contract and defamation. The plaintiff also seeks for a perpetual injunction order restraining the defendant from continual harassment of the plaintiffs and costs. It is my opinion that, the declaratory and injunction orders sought could be litigated before a subordinate court. Similarly since general damages are awarded at the discretion of the court and 4 I ( ' ' ( normally claims of general damages are ·not quantified, though_ wh_ere _it is erroneously qualified, that does not affect the jurisdiction of the court (see M/S TANZANIA- CHINA FRIENDSHIP TEXTILE CO. LTD VS. OUR LADY OF USAMBARA SISTERS case), the subordina·te courts too·have-jur-isdiction.to..eo.tE:!_rtain and determine---this suit. --- -- ---------- --- ---- ---- As the claims in this suit fall again within the jurisdiction of subordinate courts to adjudicate on, in terms of Section 13 of the Civil Procedure Code, this suit ought to have been instituted in the court of the lowest grade to try it. In that premises this suit is struck out and it is directed, if the plaintiff is so wishing, that the same be instituted the Magistrates court having the geographical jurisdiction to entertain it. I have considered the above findings and the directions given and think that it will be proper at this stage to order each party bears his/her own costs. Dated at Dar es Salaam this 15th of May, 2017. E~ JUDGE 15/5/2017 5