dar es salaam yatch club another vs dominic karigwa sigwa 2001 tzhc 45 10 november 2001

IN THE HIGrJ COJ"lT OF T^TSANIA « ’i AT PAH IDS SALAAM MISC.CIVIL CAUoSJTC. 139 0? 2001 *• i D4S SS S A.LAAM YATCH CLU3 , . . . . . . ./. ...1ST APPLICANT 'H 3CT0R ROBINSON ...................... 2ND APFLIC INT V .2 R C TJ ,S DOMINIC TCASIGVIA K ’ J A X G W ^ ..... ■.......RESPONDENT . .* ■i R U L I N G ?; : ' to appeal Before^mo is an. application for* Leaveyto the Court of Appeal filed by learned -ir. Kajithia? advocate for the ^pr.licr.rto, The on has been filed under Section x j of the Appellate Jurisdiction Act, 1979 *nd or Rules ^3(a) and ^4 of the Tanzania Court of Appeal Rules, 1979* A brief background to the application is as follows; the applic ants who are Dar es salaam Yatch Club and Hector Robl...^2 n were sued by the respondent in the court of Resident Maoist---: > * •/ * at Kisutu* DoTiinic Kasigwa Kari^wa ‘who is the respondent wat» the plaintiff. He was clai^in^. damages from the applicants for being a source for refusal to ronew his contract. His contract «*as t©mir*ated instead of Weing renewed because of a cheque which ho issued. He employed on a contract of two ' r«. years by the applicants. Tho t refusal *’to / ronaw the contract was occ»»osioa9d by remarks Tiado following the issuance of the cheque by the respondent, 1 A preliminary objection raised by the advocate for tbo j: applicant that; (a) the court no jurisdiction to entertain : tho case because t'io amount: w^icb .v;^s being claimed was beyond the pecuniary jurisdiction of tie court.' (b)the plaint was defective bocauso essentia 1 facta were,not pleaded. (c)tho verification -* - clause was bad in lav; therefore the plaint had to be rejected# Tie tra tG re joe tod ait the points raised- in the preliminary objection* On the pecuniary jurisdiction, the trial magistrate observed that the plaintiff was clai.rtin,^ a total of* T.Bhe. 9,684,000/= which foil withifi tho jurisdiction of the court* The trial naftietrato said there wore no essential particulars missing* Regarding the verification clause, the trial magistrate said the mistake was trivial and could be rectified by tho a^endrcent of tho plaint* She dismissed the preliminary objection* The counsel for tho applicant was aggrieved and he filed an appeal this court. The appeal was heard by X a g a n d a , HIM (iCxte reeled Jurisdiction), She found that the appeal had no merit and she dismissed the appeal. The advocat-3 was aggrieved and he w^tifcs to go to the Court of Appeal, hcnce the application before tnc now* Mr. Majithia submitted that the important issues of law involved which require coiiGidar^tiou by the Court of Appeal arc that of the failure to enter a judgement on the undefended counter claim and the improper ruli’ng on the pecuniary jurisdiction and the verification clauso. The bearing of i* re. application proceeded by wr itten submissions* In thi3 a p p 1 " * -tt-’o the respondent is represented by I/earned Mr. Rwebutaza, advooa^c- Doth advocates a.re thankee- for their submissions* I find the submissions very useful in deter lining the issues raised in this application. Ha v i n g gone through the plaint which was filed by the plaintiff/rospci:c. s ifc, and the ruling of tho trial court as well as tho jud^etnent of thir. court, X *iiuct a&ree with the learned advocate for the respondont that tnis application has no merit at all as there is no quostico of law involved requiring de tormina tion by tho Court of' /.px-ep*-l* Paragraphs 13 l4(l) of the plaint are very clear on the amount which the plaintiff cays is claiming from tbs avjcl icant/def on d a n t * The amount claimed is T.Shs. 9,684,000/=. This amount falls within tho pecuniary limit of the court as given in Act No* 27/91* Re^ardin the verification clause, in terr.s of Order VI rule 15 it is properly verified. The vex*ific-ation required in ploiditi/~;s, should not be confused with the verification which is required in affidavits under Order xix of the Civil Procedure ,Code, 1966 which requires th ■> sourcc of inf nrr.i tion based on belief and On tbG p<*rt"‘.cuInrs which the advocate cl-Timr. is hissing wb*=.t 1 sho'*ld sny is f n t , it ic the plaintiff hhisolf who tenoes his c^eo. On tho point misac! T.»y the advocate Tor the sipplic-^.nt thnt t'vis court should ii^vo entered judgement on the uadefeodod counter c I^ir.; f wlnt t-n.s bofore the court wore points of pre Ii^.iin^.ry objoctio • nnz shs could not hnve jumped on ni0*-'tto3n& wb-ich u^jr& n&t iosue «.t tho time tho tri^l •c < n^giatr^te do^lt with tho pro/.itnin^ry objection- From the nbOYB exposition, it is obvious thnt tbo advocate for tho applicant hns no points of 1r\v to bo placed before tho Court of Appeal for considerntion. The application is dismissed with costs* / A /f n. p. raiv-jso JO Xrlv 10/11/2001