Judg

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 15832 OF 2024 REF. NO. 202407041000015832 (Arising from ruling and drawn order of the District Court of Kinondoni at Kinondoni, Hon. J.A Kaluyenda, PRM in Civil Case No. 114 of 2023. BETWEEN IMANI OFORO MANGOWI............................................................ APPELLANT VERSUS VODACOM TANZANIA LIMITED……………………………………. RESPONDENT JUDGMENT: 27th Aug & 23rd Oct. 2024 KIREKIANO, J.; This appeal arises from the ruling and Drawn order of the District Court of Kinondoni at Kinondoni before Hon. J. Kaluyenda in Civil Case No. 6879 of 2024. Briefly, the appellant filed a suit against the respondent in the District Court of Kinondoni, claiming the following orders: - 1. The declaration order that the defendant deceitfully and with malicious intent mispresented to the plaintiff the true intention of the use of the recorded video, 1|Page 2. The declaration that unjustly enriched itself at the expense of the plaintiff, through the use of the plaintiff image and likeness for commercial gains without consent, 3. The declaration that by unilaterally hanging the use of the recorded video, the defendant breached the oral contract entered with the plaintiff. 4. An order for the payment of special damage of TZS 1,200,000.00/= and the interest thereon at the court rate of 12 % from the date of publication of the video advert. 5. An order of general damages at the discretion of the court but based on the inconveniences pleaded. 6. Interest at the court rate of 12% on the decretal sum from then date of judgment to the date of satisfaction, 7. Costs of this Suit, 8. Any other reliefs and orders that this Honourable court will deem fit and just to grant. After the plaintiff had closed their case before the opening of the defence case, the counsel for the plaintiff Mr. Idris Juma raised objection on one point of law to wit: - “The trial court had no jurisdiction to entertain the matter.” Both counsels for the parties argued on the preliminary objection that was raised. The defendant’s Counsel relied on Section 18(a) and (b) of the Civil Procedure Code Cap 33, which states that the plaintiff has to 2|Page file the case where the defendant resides or where the cause of action arose. According to him, the matter arose in Moshi, and the plaintiff stated that the defendant had a subordinate office in Moshi; therefore, the District Court of Kinondoni had no jurisdiction. On the party of the plaintiff's counsel, Mr. John Seka, he based his submission under Section 17 of the CPC explanation II, which provides two options: the place of business or any branch. Therefore, his view was that it is not mandatory to institute the suit in the principal office. The trial Magistrate, joined hands with the Counsel for the defendant and went on the reasoning that, upon hearing the plaintiff’s case, the plaintiff emphasized that he received the direction from Vodacom regional manager at Moshi and that he claims the costs to travel from Moshi to Dar es Salaam. She went on, upholding the objection ordered the matter to be handled by Moshi court. Dissatisfied with this decision, the appellant preferred this appeal with five grounds thus; 1. That having regard to the true import of Section 17 of the Civil Procedure Code with respect to available options availed to the Plaintiff; the trial court erred in law and in fact when it held that it had no territorial jurisdiction to entertain the suit. 3|Page 2. That the trial court erred in law and in fact in construing Section 18 of the Civil Procedure Code in isolation and disregarding the law that at its application is dependent on other provisions including Section 17 of the of the Civil Procedure Code. 3. That the trial court erred in fact by agreeing to the Respondents Counsel submissions from the Bar that the Respondent has an established office in Moshi without there being evidence to that effect in the Plaint. 4. That having regard to the provisions of Section 19 of the of the Civil Procedure Code; the trial court erred in law and in fact by entertaining the preliminary objection that was not raised at the earliest opportunity and was belatedly raised after closure of Plaintiff’s case. 5. The trial court erred in fact and in law in condemning the Plaintiff to costs in the circumstances of this case. This appeal was heard by way of written submission, Mr. John Seka, Learned Advocate, represented the appellant while the respondent had the service of Mr. Gaspar Nyika, Learned Advocate. The appellant dropped the last ground of appeal. Submitting on the first ground of appeal, Mr. Seka argued that the trial Court had territorial jurisdiction to entertain the matter and his argument at the lower court was not considered in its right context. He 4|Page cited Section 17 of the Civil Procedure Code to fortify his stance. He submitted that as per Section 17 of the CPC, the plaintiff has an option to elect within which Court a party can file a suit if there is evidence that the defendant carries on business within the local limits of another jurisdiction from where the cause of action arose. He argued further that if the trial Court had considered the true import of Section 17, then she would have realised that the suit was correctly filed as it was expressly pleaded under para 24 of the plaint that the defendant's principal office is in Dar es Salaam. He submitted that the defendant, in his WSD, acknowledged the territorial jurisdiction and did not dispute it. Regarding the 2nd ground, Mr. Seka submitted that Section 18 of the CPC is applicable subject to the limitations imposed by earlier provisions including Section 17 of the CPC. He argued that Section 18 is not an independent Section but a dependent Section. He elaborated on Section 18 with its explanations provided therein. He further submitted that it was wrong for the trial Court to state that it has no territorial jurisdiction considering the requirement of Section 17 of the CPC, as the appellant had an option as to which Court to institute his claims. 5|Page Mr Seka further argued that the complaint in the plaint was about the wrongful use of his image and likeness on various social media platforms. He argued that it was not clear in the plaint that the publications and uploads were done at Moshi, so he opted to sue the defendant (respondent) in its principal office in Dar es Salaam. It was his submission that since the pleadings are silent on this, it was wrong for the trial Court to rely on unpleaded facts to justify the dismissal of the suit. On the third ground, Mr. Seka submitted that the plaintiff, in his pleading, did not say that the respondent has an office in Moshi. Therefore, it was wrong for the trial Court to rely on submissions from the bar and from the evidence during the hearing. He submitted that as per paragraph 4 of the plaint, there was no talk on the existence of an office in Moshi to justify the position taken by the trial Court. Therefore, the findings by the trial court did not emanate from the pleadings but from the statements of the respondent’s counsel. He submitted that the bar's submissions are not evidence, so it was wrong for the trial Court to rely on them to sustain the preliminary objection raised. Submitting on the fourth ground of appeal, Mr. Seka faults the respondent by contravening Section 19 of the CPC, which requires the 6|Page preliminary objection to be raised at the earliest opportunity. He submitted that the preliminary objection was not raised not only after the settlement of issues but also after the closure of the plaintiff’s case. He argued that the respondent had expressly acknowledged the jurisdiction of the Court as he examined the appellant during the hearing. He prayed the Court to fault the trial Court's position and allow this ground of appeal. Replying on the 1st and 2nd grounds of appeal, Mr. Nyika, for the respondent, responded on the first ground of appeal that the submissions by the counsel for the respondent based on Section 17 of the CPC that the appellant had the option to select as to which court he can file a suit is a misconception. He elaborated that Section 17 means the place where the wrong is done to the person is the place where the cause of action arises within Section 18 of the CPC. Mr. Nyika referred to the case of Abdallah Ally Selemani t/a Ottawa Enterprises (1987) vs Tabata Petrol Station Co. Ltd & Another, Civil Appeal No. 89 of 2017, CAT at pg. 17, that it is the cause of action that determines the jurisdiction of the Court. It was his submission that the cause of action, as per paragraphs 3-8 of the plaint, arose in Moshi, and the alleged deceit was committed by the respondent’s 7|Page officers stationed in Moshi, Kilimanjaro. It was his view that the trial Court was right to find that the appellant had to file the suit at Moshi, Kilimanjaro. He referred to the case of Nakawesi Rahma vs Pride Microfinance Limited, Civil Suit No. 0072 of 2021, HC of Uganda, at pg. 5, where the Court interpreted the provision of Section 5 of Ugandan Civil Procedure, which is part material to Section 18 of the CPC. Mr. Nyika further requested that this Honourable Court revisit the pleadings to determine the matters relied on by the respondent on the place where the cause of action arose. Submitting on the third and fourth ground of appeal, Mr. Nyika replied that the question of jurisdiction can be raised at any stage of the suit therefore if the question of jurisdiction depends upon the fact, a party may lead evidence in support of the question of jurisdiction before the preliminary issue as to the jurisdiction of the Court is decided. It was his submission that the question of territorial jurisdiction was raised following the evidence of PW1, one Imani Oforo, who testified that the respondent had an office in Moshi. Therefore, it was his view that the submission from the bar depended on the circumstances of the case. He lastly prayed the Court to disallow ground no. 3 & 4 for devoid 8|Page of merit. In his brief rejoinder, Mr. Seka reiterated his submission in chief and added that the appellant’s pleadings do not indicate the location of uploading the video as the trial magistrate was satisfied that the respondent uploaded the videos in Moshi, ruling out that the case should have been filed there. He maintained that the trial Court had jurisdiction to address the suit based on Sections 17 & 18 of the CPC. He rejoined that, as for the appellant, it was hard for him to establish where the cause of action complaint occurred, so he chose to file a case at the District Court of Kinondoni, where the principal office is located. He rejoins that the respondent's act of waiting until the appellant had finalized his evidence in chief to raise the issue of jurisdiction was an abuse of process and a breach of the settled principle of law that the Pos should not be raised based on facts to be ascertained. He referred to the case of Soitsambu Village Council vs Tanzania Breweries Limited & Another, Civil Appeal No. 105 of 2011 (2012) TZCA, where the Court of Appeal adopted the position in the case of Mukisa Biscuit at pg. 7. He rejoined that the applicable Section for purposes of jurisdiction of 9|Page the trial Court is Section 17 of the CPC and that the place to sue is an option to the plaintiff either where the respondent carries on business or where the alleged wrong occurred. He believed that Section 18 applies to other suits (other than wrongs to a person). He disputed the fact that the cause of action arose in Moshi, as this required evidence to prove the same. He distinguished the cases of Abdallah Ally Selemani and Nakawesi Rahma, cited by the respondent, to be inapplicable in their case as the cause of action was pleaded in their case, which is different from the case at hand. He finally prayed the Court to revisit the evidence on the record and come up with its own conclusion. On my part, I have considered the parties' submission; I will start with the 1st and 2nd grounds of appeal on the issue of territorial jurisdiction and the prevailing Section. It is a trite law that the jurisdiction of the Court is the creature of the statute. Neither the Court nor the parties can assume jurisdiction not conferred by the statute. In the case of Yohana Balole vs Anna Benjamin Malongo, Civil Appeal No.18 of 2020 CAT (Tanzlii), whereby the Court of Appeal stated that: - 10 | P a g e “It is common ground that jurisdiction of courts is a creature of statute and is conferred and prescribed by the law and not otherwise. As submitted by the appellant, the trial court considered only Section 18 of the CPC and left behind Section 17, which is mostly prevailing in the circumstances at hand. I wish to reproduce Sections 17 and 18 of the CPC as follows. Section 17: Where a suit is for compensation for wrong done to the person or to movable property if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts. Section 18: Subject to the limitations aforesaid, 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) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and 11 | P a g e voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or part, arises. Looking at the record at the trial Court, the trial magistrate sustained the objection based on Section 18 of the CPC, stating that as the cause of action arose in Moshi, the defendant had an office there. Thus, it was wrong for the plaintiff (the appellant herein) to file the case before the District Court of Kinondoni. Sections 17 and 18 of the CPC deal with where to institute a case. As cited by the Counsel for the appellant on the options provided under Section 17, since there is no dispute about the respondent's permanent residence in Dar es Salaam, this cannot bar the District Court of Kinondoni from having territorial jurisdiction over the matter. The cited case of Abdallah Ally Selemani t/a Ottawa Enterprises is different from this as, in this case; the pleadings were not sure where the cause of action arose due to the nature of the claims, while in the cited cases, the area of the cause of action was known and pleaded. The appellant complaint in this grounds is merited. 12 | P a g e On the third ground of appeal, Mr. Seka faults the trial Court based on the submissions from the bar while establishing where the cause of action arose in dealing with the preliminary objection based on territorial jurisdiction. It is a settled principle of law that a preliminary objection, being a defence in nature, is raised on the assumption that all facts pleaded by the other party are correct. The objection must be a pure point of law capable of disposing of the matter. The objection should be implied from the pleadings and cannot be raised where facts are to be ascertained by evidence. This is the position in the cited case of Mukisa Biscuit Manufacturing Company Limited Vs. West End Distributors Limited, [1969] EA 696, Sir Charles Newbold P. had this to say at page 701: - “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is the exercise of judicial discretion.” The objection was raised after the closure of the plaintiff’s case. It is not disputed by the counsel for the respondent that the submissions were based more on the facts adduced by the plaintiff other than the pleadings 13 | P a g e before the Court. The counsel for the respondent is quoted by this Court saying that: “The question of territorial jurisdiction was raised and determined following evidence of the PW1, one Imani Oforo, who testified that the Respondent has an office in Moshi, Kilimanjaro, and have been working with the branch manager of the Respondent’s subordinate office in Moshi, Kilimanjaro.” Also, the trial Magistrate, in his reasoning based on the evidence adduced by the plaintiff as he said: - “In several times while we proceed with the hearing of the plaintiff case the Plaintiff emphasized that he received works direction from the Vodacom region manager at Moshi and also, he claims he get trouble and costs to travel from Moshi to Dar es Salaam to for the hearing of this case.” Based on this, it is enough to say that the preliminary objection was determined based on the facts not pleaded contravening the spirit of preliminary objection. Regarding the fourth ground of appeal, the trial court erred in law and, in fact, by entertaining the preliminary objection that was not raised at the earliest opportunity and was belatedly raised after the closure of the Plaintiff’s case. The Counsel for the appellant faults the respondent 14 | P a g e that he contravened Section 19 of the CPC, which requires the preliminary objection to be raised at the earliest opportunity. For easy reference, Section 19 of the CPC provides that: - “19. No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.” It is well settled that points of law, especially on jurisdiction, may be raised at any time. This position has been sufficiently pronounced in various cases including Michael Leseni Kweka v. John Eliafe, Civil Appeal No. 51 of 1997 [2022] TZCA (Tanzlii) were the Court of Appeal said: - “We think, though, matters of jurisdiction, as distinct from objection to the place of suing, may be raised at any stage as they go to the root of the trial.” I agree with the respondent's submission that the preliminary objection can be raised anytime. Therefore, the counsel for the appellant's argument that it contravened the provisions of Section 19 of the CPC is not applicable here. This ground fails. I have also noted that after the learned trial magistrate had declined 15 | P a g e to assume jurisdiction, she dismissed the suit. With respect to the learned resident magistrate, she strayed into error by dismissing the suit. It is settled that an order of dismissal connotes that a matter has been heard and disposed of on its merits—see Ngoni-Matengo Cooperative Union Ltd. v. Alimohamed Osman [1959] 1 EA 577. But also Scova Engineering S.P.A & Another vs Mtibwa Estates Ltd & Others (Civil Appeal No. 133 of 2017) [2021] TZCA 74 (12 March 2021). The proper order ought to be the return of the plaint to be presented and tried before the court of competent jurisdiction. With regards to the prayer by Mr Seka that the case be remitted to the trial Court for continuation before a different Magistrate. There is no aspect of the procedure contravened; the proceedings are not vitiated allowing this appeal means the continuation of the trial, in this the case should proceed before the same magistrate unless for reasons to be recorded in event of transfer or retirement or otherwise it is impracticable for her to continue with hearing. In the end this appeal is allowed on the 1st, 2nd and 3rd grounds. The trial Court's decision dismissing the suit is set aside. The case should proceed to be determined on merit. In the circumstance of this appeal each part shall bear its own costs. 16 | P a g e A. J. KIREKIANO JUDGE 23.10.2024. COURT: Judgment was delivered in the chamber in the presence of Mr. John, Seka, the appellant and the respondent, Miss Eunice Mtiro. A. J. KIREKIANO JUDGE 17 | P a g e 23.10.2024 18 | P a g e