iringa municipal council vs erasto samwel sanga ta califonia investment another 2016 tzhc 2038 8 august 2016

IN THE HIGH COURT OF TANZANIA AT IRINGA CIVIL CASE NO. 03 OF 2013 IRINGA MUNICIPAL COUNCIL..................PLAINTIFF VERSUS 1. ERASTO SAMWEL SANGA T/A CALIFONIA INVESTMENT .......... DEFENDANTS j> 2. AYUBU A. KINGSHUSHA RULING 8th AUGUST, 2016 R. K. SAMEJI, J. In this case, the plaintiff, the Iringa Municipal Council, had filed this case against the defendants seeking a decree and orders on the following reliefs:- (a) payment of Tshs. 33,133,220/= as a claim for arrears of parking fees as agreed under the contract; (b) payment of Tshs. 15,000,000/= as general damages; i 1 (c) costs of the case. In their Joint Written Statement of Defence, the defendants had since raised two points of Preliminary Objection, that:- (a) The Court has no pecuniary ju risd ictio n to entertain this su it (b) The P la in tiff has no cause o f action against the defendants. The plaintiff is under services of Ms. Queen Mtove, the learned solicitor, while the defendants are under services of Mr. Jali Mongo the learned Counsel. On 8th December 2016, when the matter was called for hearing of the points of preliminary objection, the Counsel for the plaintiff was absent, but the Counsel for the defendants, Mr. Jali Mongo was present. Mr. Jali Mongo prayed the Court to be allowed to submit on the preliminary objection, as according to him all of the Preliminary 2 Objection raised are on points of law and that the absence of the Counsel for the plaintiff, is an indication that, has conceded with the same. The Court granted the payer of Mr. Jali Mongo forthwith and allowed him to submit on the said points of the law. While submitting on the 1st point of the preliminary objection, Mr. Jali stated that, the plaintiffs main claim according to the plaint is a recovery of Tshs. 33,133,220/= for the breach of contract executed between the parties on 22nd July 2011. It is trite law that, the court's pecuniary jurisdiction is determined through the substantive claim of the plaintiff and not otherwise. Jali cited the case of Tanzania China Friendship Textile Co. Ltd V Our Lady of Usambala \ Sisters (2006) TLR 70 at page 71 held 2C, to support his position. Mr. Jali Mongo argued further that, examining the Plaintiff's Plaint specifically paragraphs 4 and 13, it is clear that, her substantive claim is Tshs. 33,133,220/= and referred to Section 40(2) (b) of the Magistrate Courts Act, [Cap. 11 2002], which sets out the original jurisdiction of the District Court. That, reading the said provisions between lines, this Court has no pecuniary jurisdiction to entertain the matter. That, the only court, which is vested with that jurisdiction in respect of this case, is the District Court. He also cited Section 13 of the Criminal Procedure Code, [Cap. 33 R.E.2002] and cases of Attorney General V Lohay Akanay & another, 1995 TLR 80 at page 96 G-H and Omary V the Inspector General of Police and others, 2010 V ol.l EALR at page 318, to substantiate his position. He finally prayed the Court to strike out the plaint with costs. On the issue of failure for the Plaintiff to disclose the cause of action, Mr. Jail started by defining the cause of action and argued that, in order to determine whether the plaintiff has disclosed the cause of action, we look into the plaint and entire pleadings. The plaintiff is claiming that, the defendants have breached the contract from 11th November 2011 - April 2012. However, on those dates, the plaintiff had already terminated the contract with the defendants. This can be evidenced from the defendants Written Statement of Defence, where it is indicated that, the contract was terminated on 4 29th August 2011 via a letter with Ref. No. IMC/L. 13/9/72. Therefore, the plaintiff cannot have a cause of action on the said contract that was since terminated even before the month of September 2011. Mr. Jali Mongo insisted that, the suit has no merit and should be stuck out with costs. Having digested the submissions of Mr. Jali Mongo and perusing the pleadings herein, I am settled in my mind that, Mr. Jali had raised a point of law on the first point of preliminary objection, which is worth to be considered by this Court, to w it "w hether the court has pecuniary ju risd ictio n to entertain the su it' I will therefore concentrate my mind on this issue, as it is my respectful opinion that, the second point of preliminary objection, whether the p la in t has disclosed course o f action against the defendants, depends mainly on the facts to be adduced by both parties. The issue of jurisdiction is fundamental and a root of the case. If the court will determine the matter without the required jurisdiction the entire proceedings will be declared, "n u ll and void ab initio". As clear and eloquently submitted by Mr. Jali Mongo, Section! 40(2) (b) of the Magistrate Court Act, (supra) sets out the original r jurisdiction of the District Court. The said provisions are clear, unambiguous and mandatory. Paragraphs 4 and 13 of the Plaintiff's; Plaint contain claims of Tshs. 33,133,220/=. From this amount, which: is substantive claim of the Plaintiff against the defendants, it is; obvious and clear that, this Court has no pecuniary jurisdiction to : i entertain this matter. I do therefore join hands with Mr. Jali Mongo! and associate myself to all the authorities he had since highlighted and cited hereto. For the above reasons I am constrained to conclude that, belated as it might be, upon determining that, this Court has no jurisdiction, I would not proceed on, to deliberate on the merit of the case. Regrettably, as this might be perhaps a reminder to all of us servants of the law to always be on the look out on the issue of jurisdiction, on deciding to institute a suit or once a suit is filed for, as I had remarked earlier on, jurisdiction is always in issue and it is the 6 primary duty of every player to satisfy himself that, the court in which the matter is filed, is vested with the requisite jurisdiction. In the result, I am of the settled mind that, the first point of Preliminary Objection raised by Mr. Jali Mongo, the learned Counsel for the defendants is laudable. The suit is incompetent before this Court. I accordingly proceed to strike out the Plaint with costs. The plaintiff is at liberty to file a fresh suit in a competent court with the necessary jurisdiction, subject to the law of limitation. It is so ordered. DATED at IRINGA this 08th day of December 2016. R. K. Sameji JUDGE 08/12/2016 Ruling delivered in Court Chambers in the presence of Mr. Jali Mongo the learned Counsel for the Defendants. A right of Appeal explained. R. K. Sameji JUDGE 08/ 12/2016 8