20160627 TZHC Arusha

r IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA CIVIL CASE NO. 10 OF 2016 EMANUEL SOLOMON KIVUYO ..... ......... ~ ....................... PLAINTIFF VERSUS THE EDITOR NIPASHE NEWSPAPER.......................... DEFENDANT Date of last order: 13/06/2016 Date of Ruling: 27/06/2016 RULING MASSENGI, l Plaintiff one Emanuel Solomon Kivuyo is suing defendant the Editor Nipashe Newspaper praying for the following reliefs. a) Payment of general damages to be assessed by this Honourable Court b) Payment of Tanzania Shillings 50,000,000/= anticipated income as pleaded in paragraph 8 of the Plaint. c) Interest at current Commercial Bank rate per annum on prayers embodied in (b) herein above from the date f filling this suit till the date of judgment. d) Interest on decretal amount at 12% Court rate from date of Judgment till payment in full 1 . e) Any other relief or reliefs as this Honourable Court may deem fit and grant In this written statement of defence the defendant raised 5 points of preliminary objections namely: i) The suit is time barred. ii) The suit does not disclose cause of action against defendant. iii) That the suit is bad in law as it offends Order VI Rule 14 and Order VII Rule I of the Civil Procedure Code Cap 33, R.E. 2002. iv) That the Court has no jurisdiction v) That the suit is bad in law for non joinder of parties Plaintiff is unrepresented while defendant is under the service of Mr. Mbuga and Mr. Matondo learned advocates. It was agreed the objection be disposed off by way of written submissions and both parties did file their respective submissions as scheduled. I will first deal with the issue of jurisdiction as it goes to the root of the case in such a way that if at all this Court has no jurisdiction to determine this suit, then the Court is barred to entertain the suit before it and this objection alone is enough to dispose the suit if at all it will be proved that this Court does not have jurisdiction. Defendant arguing on this issue in his written submission said the plaintiff is claiming damages to the tune of 50,000,000/= for anticipated income. The amount claimed is within the pecuniary jurisdiction of the lower Court and not the High Court. He cited Section 13 of the Civil 2 Procedure Code, Cap 33 which requires suits to be instituted in the Court of lowest grade competent to try it. Plaintiff in his reply submission have argued that the 50,000,000/= is only mere anticipated loss of income which is not foundation of his claim. His claim is general damages to be assessed by the Court. He further argued that the High Court by virtue of Section 95 of the Civil Procedure Code has powers to entertain his claim and that the defendant has not satisfactorily explain reason why he should not file his plaint at the High Court. In rejoinder submission, the defendant insisted the plaintiff's claim is under the jurisdiction of the Resident and District Magistrates Court and not the High Court. After careful gone through the above submissions I totally agree with the respondent that plaintiff's claim is to the tune of 50,000,000/= as general damages. Though general damages are not qualified as they are awarded upon the discretion of the Court and ought to be filed in the Court of the lowest Court, yet the claim of 50,000,000/= is within the pecuniary jurisdiction of the District or Resident Magistrates Courts. For this reason I find the 1st objection to have merits as this Court does not have jurisdiction as Section 13 of Civil Procedure Code requires suits to be instituted in the Court of lowest grade. For that reason this suit is hereby struck out. No orders as to costs. SGD: F.H. MASSENGI JUDGE 27/06/2016 3 . Delivered in Court in presence of both parties this 2ih June, 2016. SGD: F.H. MASSENGI JUDGE 27/06/2016 I hereby certify this to be a true copy of the original. &- ~ DEPUTY REGISTRAR Js ARUSHA 4 I