20110819 TZHC Tanga

IN THE HIGH·COURT [OF TANZANIA ATTANGA CIVIL CASE.N0.23 OF 1988 I 1.HAKIMU RAMADHANI 2.ISSA MCHANJA 3.AMIRI SENGODA .... 1 . . . . . . . . . . . . . . . . . . . . . PLAINTIFFS 4.ADINANI SABUNI VERSUS · CONSOLIDATED HOLDING} . CORPORATION . .............: .... ~ ...... DEFENDANT Date of last order: 13.5.2011 · Date of Ruling: 19.8.2011 RULING Teemba, J; Following the Ruling delivered..'on 27.11.2009 by this court, th~ plaintiffs were allowed to file an amended Plaint in which they impleaded the consolidated Ho'lding Corporation as a defendant This defendant was served and through the services of Mr. Fungamtama, learned advocate filed the Written Statement of Defence ,, to the amended Plaint and raised three preliminary objections on points of law to the effect that:- I i. The plaint does not disclose facts constituting a cause of action against the Defendant,. and when it arose as required by Order VII Rule l(e) of the Civiil Procedure Code [Cap.33 Revised Edition 2002]; ii. The _suit is not maintainable in the High_ Court since it falls within the competency of a lower court/Tribunal pecuniary. In addition the plaint does not contain. facts showing that the court has jurisdiction as required by order VII Rule l(f) of the Civil Procedure Code [Cap. 33 Revised Edition 2002]; iii. The Amended Plaint is not properly before the .Honourable Cqurt for having been filed after expiration of a statutory time limited·•to • effect court's order to amend the pl 9 int. Learned counsel of the parties prayed and, were allowed to · argue "these preliminary objections on point of law by way of written submission. Happily, -~ : they respectively, adhered to the scheduling orders. Advancing the first preliminary·objection, . Mr. Fungamtama . submitted that the amended plaint which was filed on the 8th day of February, 2010 is deficient since it does not contain facts which · shows the nexus upon which the defendant has been impleaded as mandatorily required by Order VII Rule l(e) of the Civil Procedure Code [Cap.33 R.E. 2002]. He added that this provision provides that all that the plaintiff is required to do is to plead facts which would entitle him to get a. decree against the defendant. The learned counsel concluded that the plaintiffs have failed to show facts constituting a cause of action against the defendant, and when it arose. . . :::· ... ,:.· __ . As to the lack of pec96.i~h, jurisdiction, Mr. Fungamtama contended that the amended plaint has contravened the provisions of order VII Rule l[f] of the 2 ~~~:~ '.c.,_4··1·.,:; ~·; ·:~ :-'.:.. ·.: fJ.:;n,.y :' ·1:-..,,-,' ~•'•·. ·::· ' . ·• Civil Procedure. Code [Cap.33 R.E. 2002] in that it has not come out-quite clea~ly to set out. facts showing that the court has jurisdiction. He .added that vide paragraph 16 of the amended plaint the plaintiffs reply on geographical location where the cause of a5=tion arose as a factor which gives this court jurisdiction to determine this suit. The learned counsel submitted that this is quite unsatisfactory. To support his point Mr. Fungarntama referred this court to the . . case of Assanand and Sons [Uganda] Limited Versus East African Records Ltd [1959] E.A. 360 where the Court of Appeal for Eastern African held inter alia, that: "Para [f] of order VIL Rule 1(1) places upon the plaintiff the obligation of pleading "the facts showing that the court has Jurisdiction'' and a merely asser.tion by the plaintiff that the court has jurisdiction is not enough. The facts showing the court.has Juii~diction m,ust be stated 111 the pleading." The learned counsel further submitted that the plaintiff's failure to comply with _para (i) of Rule 1 of Order VII which requires that a statement of the value of the subject matter of the suit for purposes of jurisdiction and court fees so far as the case admits, should be contained in the plaint. He added that the substantive amounts .being claimed fall within _the pecuniary jurisdiction of the subordinate courts and he cited section 13 of the Civil Procedure Code [Cap.33 R.E. 2002] to stress his point. The learned counsel concluded that as the cited 3 provisions are in mandatory terms, the remedy available is to strike out this suit with costs for want of requisite pecuniary jurisdiction. As to the preliminary objection that the amended plaint is not properly before the court, the learned counsel submitted that Order VI Rule 18 of the· Civil Procedure Code [Cap 33 R.E. 2002] imposes a period of 14 days, from the date of the court's order granting ·1eave to amend, within- which the plaint should be-· amended where specific time has not been set by the court. He added ~hat, in the instant case, the order to amend the plaint was given on 2ih day of November, 2009 without setting time limit to effect that order. He fur:ther stated that the plaintiffs filed the amended plaint on 8th day of February, 2010 which is 73 days after expiry of the prescribed 14 days period notwithstanding the . . express prohibition to do so unless r the time is extended . by the court. He referred this court to .the case ofNangera Village Council vs Lagwen Irafay and· 19 others, Civil Appeal no.7 of 1993 [unreported] where the Court of App~al of Tanzania laid down a principle of general application, at page 4 of the reasons for the judgment, in the following terms:- ''Secon[l and equally important where any law provides that a matter can be done with the leave of court then leave has to be specifically applied for and has to be expressly given. Leave cannot be given by implication. ✓- He concluded that the amended plaint is not properly before the court and it should be struck out with costs. 4 ;, ):<~'/ . ,-- ' '.. ~ . ; ; ~~:~ }~~~,~ . ... I ,, . I ' In. reply, Mr. Kiozya learned counsel submitted· that the d~fendant's . ·/ r preliminary objections on point of law are misconceived and untenable, hence devoid of merits. As regards the first preliminary objection on point of law, Mr. Kiozya submitted that the former plaint and the amende.d plaint are self explanatory as . . . to the contents of the cause of action. He added that the defendant is a necessary part,· to proceedings on point of law that the defendant is the successor of ex-PSRC. liabilities. Mr. Kiozya state.d that the allegation that TRC- . . Tanzania Railway Co-operation came to an end on 21 st April, 2006 does not shift .. I the liabilities on the part of the present defenda_nt. He furtt1er added that the liabilities of TRC under official receivership- of PSRC passed directly to tile present defen,dant. He concluded by urging this court to take judicial notice that the board of directors admits to be official receiver of ex-PSRC as per advertisement which was published in the Daily News Paper dat~d 16/12/2010 at page 10. He therefore, submitted that the cause of action against the defendant is not only I technical but also constructive. Mr. Kiozya cited Article 107(1) and (2) (e) of the Constitution of the United Republic of Tanzania 1977 [as amended from time to time] to the effect that this court should look into merits of the case and not on mere legal technicalities. As for the jurisdiction of this court, Mr. Kiozya submitted that such preliminary objection was over taken by event as the matter has already been entertained and the present exercise is for the impl~ading the necessary party. 5 r-'I · ·_t,11 · :.::~<~ In reply to the preliminary objection on point Cf law that the amended plaint was filed out of time, Mr. Kiozya contended that in terms of order VI rule· 18 of Civil Procedure Cod.e [Cap.33 R.E. 2002], the plaintiffs correctly submitted their pleadings as specified in the court order. He contendeq that the plaintiffs can not be left unheard merely on reasons thatthey did not file the amended . . plaint as per stated provision of the law. The learned counsel concluded that the case is now twenty five years old and this court, canhot allow justice to be ~ " 0. defeated by mere legal technicalities. At last, he .,urged this court to overrule the raised preliminary objections and dismiss them accordingly. In rejoinder, Mr. Fugna_Q1tama insisted that the plaintiffs have not succeeded in the amended plaint ,to establish the essential bundle of facts ne_cessary for them to rr:iaintain the s-L1it aga_inst the defendant. He referre9 this court to the case of John Byombalirwa vs Agency Maritime International [Tanzania] Limited [1993] T.L.R.1, and stated that .the court of. . Appeal of Tanzania insisted on page 4 that .the term cause of action was defined "as essential facts which it is necessary for the plaintiff to provE; before he can succeed the suit". On the issue that the amended plaint was filed after the 14 days period . [ prescribed under Order VI Rule 18 of the Civil Procedure Code, [Cap 33 RE. 2002], the learned counsel submitted that it was incumbent for the plaintiff to seek an extension of time. He concluded that matters .dealt with by the limitation periods shall be determined according to the true construction of the words 6 used by the legislature and the doctrine of equity; justice and good consciences cannot be applied so as to override and abrogate the express provisions of limitation. In respect of the pecuniary jurisdiction· of the court, Mr. Fungamtama submitted that it is a trite principle of law that parties cannot by- agreement or otherwise confer jurisdiction upon acourt: He cited the cases of Aflarakha Vs .. Agakhan [1969] E.A. 613 at page 617; Royal Bank of Scotland Ltd VS Citrusdal Investments Ltd - [1971] 1 W.L.R., 1469 at page 1472 and C Fargubarson Vs Morgan [1894] Q.B.552 to insist his point. He added that / ~ -· it is settled in Tanzania that a point of law such as. the issue of jurisdiction can be i. raised at any time even on appe'al. He contended that the learned counsel for the plaintiffs should not be heard to say that the objection relating to court's lack of jurisdiction has been overtaken. by events _as_ the case has already· been entertained and partly heard. Mr. Fungamtama urged th_is court to sustain the preliminary objections on point of law. Let me admit that the learned counsel ,have greatly assisted the court through· their constructive submissions as summarized above. I appreciate for their valuable efforts. Parties and their learned advocates will agree with me that the issue of jurisdiction is fundamental root of the matter. I will therefore start to consider the preliminary objection in relation to jurisdiction. 7 It is common ground that Article 108 of the Constitution· of the United Republic of Tanzania, 1977 [as amended from time . to. time] the High Court has . unlimited powers to entertain cases .. However, Article 108(2) [supra] read together with section 13 of the Civil Procedure Gode 1966 [Cap.33 R.E. 2002] qtiali.fies such jurisdiction. The Article reads: "108(2) - Iwapo Katiba hii au sheria nyingine yoyote haikutamka wazi kwamba shauri la. aina iliyotajw? mahu.'iusi !itasikilizwa- · kwanza katika Mahakama ya ngazi !'liyotajwa mahsusi kwa ajili hiyo/ basi ,,. Mahakama Kuu itakuwa na mamlaka ya kusikiliza kila shauri la · a_ina hiyo..... "[emph~sis added]. Again; it is a mandatory condition under section 13 of the Civil Procedure Code [CPC] that every suit shall be instituted in the court of the -lowest grade competent to try it. It was argued by Mr. Fungamtama that the amended plaint does not state facts showing that this court has jur,isdiction to try the case. In principle I agree with the learned cpunsel. Order VII rule l(f) of the CPC provides: "(1) The plaint shall contain the following particulars - (f) the facts showing that the court h as Jurisdiction;" 1 Mr. Fungamtama cited to this court the case of Assanand and sons [Uganda] Limited vs East African Records Limited (1959] E.A.360 where the same issue was discussed. It was held inter alia that: 8 "Para (f) of Order VII rule 1(1) places upon the plaintiff the obligation of pleading" the facts showing that the court has Jurisdiction// and mere assertion by the plaintiff that the court has Jurisdiction is not enough. The facts showing that the court has Jurisdiction must be stated in the pleading. // The amended plaint does not c_ontairi this. mandatory, requirement. This omission is fatal. Section 53(2) of the Interpretation of Laws Act, Cap.1 of the laws which came into force on 1st September 2004 vide Proclamation ." number 312 of 2004 says: "(2) where in any written law the wore/ ·"shalr is used in conferring a function such word shall be interpreted to mean that the function so ·conferred must be performed. // I therefore agree with the learned counsel for the defendant that the plaint is defective for lack of a paragraph pleading the facts showing tl1at this court has jurisdiction. Having determined this preliminary objectio,n against the plaintiff, I am of settled opinion that even if the other remaining tv,10 points of preliminary objection are dismissed, the position/status of the suit will not change. Therefore, I will not proceed to consider them. I am aware that this suit has been pending in court for many years and there were several amendments of the pleadings and change of advocates. Since the issue of jurisdiction is serious, I have no option here but to strike out the suit with leave to refile it. Each party to bear own costs. 9 ~j!{t{v,;~{r · R.A. TEEMBA, J. 19/8/20'11 Court:- The Ruling is delivered in the presence of all plaintiffs. Mr. Kiozya for the