gf trucks co ltd vs metro steel mills ltd 2011 tzhccomd 2083 28 april 2011

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE No 22 OF 2010 GF TRUCKS & COMPANY LTD.............................................. PLAINTIFF Versus METRO STEEL MILLS LIMITED............................................. DEFENDANT RULING Mruma J. The plaintiff's claim against the defendant is for payment of USD 576, 101.00 or its equivalent in Tanzania shillings being compensation for 9 Motor Vehicles completely burnt down and destroyed as a result of fire explosion erupted in defendant's premises and spread into the plaintiff car yard which is adjacent to the defendant's factory. The plaintiff is also claiming for payment of Shillings 33, 308, 419. 32 being costs for repair of twenty seven (27) Motor Vehicles partially damaged by the said fire. Furthermore the plaintiff is claiming for payment of general damages for loss of profit, commercial interests on the amount claimed and costs. Upon being served the defendants have together with their amended written statement of defence raised a preliminary point of objection contending that:- "This matter being not a commercial dispute n nature, the honourable Commercial Court lacks the pre requisite jurisdiction to entertain the same" It is submitted for the defendants that this dispute is not arising out of commercial or business activities but it is a tortuous act therefore this court lacks jurisdiction to entertain it. 1 For the plaintiff it has been submitted that the list enumerated in the definition of a commercial case in the GN 141 of 1999 is not exhaustive, but there are other areas that a presiding Judge has discretion to decide whether or not a particular case fall under the definition of a commercial case. To support this position, counsel for the plaintiff cited the decision of this court in the case of Quality Business Consultants (T) Ltd Vs Tanzania Revenue Authority Commercial Case No 136 of 2001 Nsekela J, as he then was (unreported). A commercial case is defined under the High Court Registries (Amendment) Rules GN 141 as amended by GN 96 of 2005 as follows:- "Commercial case means a civil case involving a matter considered to be of commercial significance, including but not limited to: (i)the formation of a business or commercial organization; (ii) the governance of a business or commercial organization; (Hi) the contractual relationship of a business or commercial organization with other bodies or persons outside it; (iv) the liability of a commercial or business organization or official arising out of its commercial or business activities; (v) the liabilities of a commercial or business person arising out of that person commercial or business activities; (vi) the restructuring or payment of commercial debts by or to business or commercial organization or person; (vii) the enforcement of commercial arbitration award; (viii) the enforcement of awards of a regional court or tribunal of competent jurisdiction made in; (ix) accordance with a Treaty or Mutual Assistance arrangement to which the United Republic is a signatory and which forms part of the law of the United Republic; 2 (x) admiralty proceedings; and (xi)arbitration proceedings. The phrase "including but not limited to" embodied in the definition of the term commercial case implies that the item enumerated in GN 141 of 1999 are not the only items which constitute a commercial case. In the case of Quality Business Consultants (supra), this court observed that a presiding judge has discretion to decide whether or not a particular case falls under the definition and he can apparently add other matters. However, the court cautioned that this discretion must be exercised judicially. The court went on to observe that because the Commercial Division of the High Court does not have exclusive jurisdiction to hear and determine commercial cases this division must exercise utmost care in enlarging the categories of commercial cases. I fully subscribe myself to these observations. It is clear from the pleadings, particularly paragraph 2 of the plaint that the plaintiff's claim is based on fire incident which allegedly engulfed its motor vehicles in its yard and caused huge damages from which it now seeks compensation. The only relationship between the parties as pleaded is that of being neighbours. In order for a case to be able to fall under the categories of a commercial case in terms of GN 141 of 1999 (as amended) and/or within the ambit of the phrase "including but not limited to" or categorized as such, the cause of action thereof must arise out of commercial or business activities or arising in the cause of business or commercial relationship of the plaintiff and that other person. The cause of action in the present case is a fire which allegedly escaped the defendant's factory and spread into the plaintiff's car yard and caused the said damages. This, in my view is not an act arising out of the plaintiff's or the defendant's commercial or business activities. It does not either arise from their business or commercial relationship therefore it cannot be judicially categorized as a commercial or business activity of either party. There is nothing commercial in a fire accident. 3 As correctly submitted for the defendant if anything, the whole tragedy is tortuous. The mere fact that parties involved are commercial or business organizations does not for itself make the suit a commercial case. In summary, I uphold the preliminary objection raised and order that Commercial case No 22 of 2010 be struck out of this division. The defendants will have their costs. Order accordingly, Judge. 28/4/2011 28/4/2011 Coram: Hon. A.R.Mruma, Judge. For the Plaintiff- Mr. Balomi for Mr. Kaluwa for Plaintiff. For the Defendant - Mr. Balomi for Mr. Msechu for Defendant. Judge. 28/4/2011 1002 - words. 4