20061113 TZHC Dar es Salaam 1

" ~· ltf."' .Ji 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM 1 CIVIL CASE ·: NO. 185 OF 2004 , • I ~ IDDA PASTORY KATO • • • • • • • • ■ • • • PLAINTIFF VERSUS 1. THE MANAGING DIRECTOR OMEGA FISH COMPANY LTD 2. THE REGIONAL POLICE COMMANDER FOR MWANZA DEFENDANTS 3. THE ATTORNEY GENERAL Date of last order - 8/9/2006 Date of Ruling - 13/11/2006 RULING Shangwa, J. On 14th March, 2005, the 1st defendant who is the MANAGING DIRECTOR OMEGA FISH COMPANY LTD presented his Written Statement of Defence in which he raised three grounds of ·p~eliminary objection against Civil Case No. 185 of 2004 which was filed in this court by the 1'' 2 plaintiff IDDA PASTORY KATO. These grounds of objection are as follows:- 1. That the Sl{i.(/ihas been filed in the wrong High Court Registry as the alleged cause of action arose in Mwanza where also the 1st defendant has a place of residence. 2. That the suit contravenes the provisions of Section 6 (3) and (4) ·rl\f) i of the Government Proceedings Act No. 16 of 1967 as amended by the Government proceedings {Amendment) Act No. 30 of 1994. 3. That the plaint discloses no cause of action against the 1st defendant 3 On 28th April, 2005, the Attorney General who is the Necessary Party also filed a preliminary objection against the suit in which he raised thre~:•_grounds namely: :·>r-.f;· •..., · · . ; 1. That the purported suit is premature and offends Section 6 (2) of the Government Proceedings Acl 1967 as amended 2. That the plaint does not disclose a cause of action against the .,: .. ( : I.• . ~..i :•\:••,JI . _,;. ~ defendants. 3. That the suit is misconceived and bad in law to wit Malicious Prosecution cannot be done by an institution against the plaintiff. In his written submissions, the 1st defendant ., ·..! abandoned grounds 2 and·.3/bf his preliminary objection and •. \) 4 argued ground I only. In my opinion, ground 1 of the 1st defendant's preliminary objection is sufficient to dispose of this suit. For this reason, I will not consider the points of preliminary objection raised by. the Attorney General who is ... i:, . •:•: . \ , the Necessary Party. .._, ~ ...t i In so far as ground No. 1 of the 1st defendant's preliminary objection against the suit is concerned, I agree with learned counsel for the 1st defendant M/S Galeba Rwehumbiza and Kabakama, Advocates that this suit has been filed in a wrong High Court Registry for one reason that the cause of action arose \ in Mwanza where the i st · ·' defendant resides. Section 18 (a) and (c) of the Civil Procedure Code, 1966 which was cited and relied on by learned counsel for the 1st defendant in arguing this point of preliminary objection provides inter-alia as follows and I quote: : '_!' :' I, ,ffl' :·:~~~ ' i 5 ' .5.o 18 . . . every suit shall be instituted . in a court within the local limits of whose Jurisdiction - (a} the defendant or each of the .• ' ( "'"'. defendants where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain. (b) (c) The cause of action wholly or in part arises. 6 In this case, the 1st, 2nd and 3rd defendants carry on business at Mwanza and the cause of action arose in Mwanza where the plaintiff alleges that she was arrested by the police at Mwanza Central Police Station at the instance of the 1st defendant and detained there on allegation that ,·. she conspired with 3 others and stole his twenty million shillings. That being the position, this suit was supposed to be instituted in the High Court Registry at Mwanza just in accordance with the provisions of Section 18 (a) and (c) of the Civil Procedure Code, 1966. As this suit was instituted in a wrong Registry of the High Court of Tanzania at Dar es ·rw··· Salaam, I hereby strike it out with costs. - ~ A. Shangwa JUDGE 13/11/2006 ~ :;. . . r~.F. ,, ;·: ; Delivered in open court this 13th day of November, 2006. ~ ~..:rr., A. Shangwa _J.UDGE---- 13/11/2006 ·. I