20161208 TZHC Iringa1

IN THE HIGH COURT OF TANZANIA AT IRINGA CIVIL CASE NO. 03 OF 2013 I RI NGA MUNICIPAL COUNCIL ................. PLAINTIFF .. VERSUS ····"· . 1. ERASTO SAMWEL SANGA T/ A . .\ ., ;,_ CALIFON IA INVESTMENT .......... DEFENDANTS 2. AYUBU A. KINGSHUSHA RULING s·rH AUGUST . I 2016 R~ K. SAMEJL). 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; . (o) payment of Tshs. 15,000,000/= as general damages; 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 n6 pecuniary Jurisdiction to entertain this suit (b) The Plaintiff has no cause· of 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 Mango the learned Counsel .. I On 8th December 2016, when the matter was called fo~ hearing of the points of preliminary objection, the Counsel for the plaintiff was absent, but the Counsel for the defendants, Mr. Jali Mango was present. Mr. Jali Mango prayed the Court to be allowed to submit on the preliminary objection, as according to him all of the Prelim.inary 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, th:e ·plaintiff's main claim according to the plaint is a recovery of Tshs., 33,133,220/= for the breach of contract executed between the parties on 22 nd 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 Tex.tile Co. Ltd V Our Lady of Usambala. ,. ·:·'-..? :·:.:; Sisters (2006) TLR70 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 · .:'.i.: 3 : l . . I provisions between· lines, this Court has no pecuniary jurisdiction to 1 - entertain the matter. That, the only court, which is vested with thad- jurisdiction in respect of this case, -is the District Court. He also citedi : . . ! Section 13 of the Criminal Procedure Code, [Cap. 33 R.E.2002] andl- ·. cases of Attorney General V Lohay Aka nay & another, 1995 TLR;~-·. · 'rcc_- 80 at page 96 G-H and Omary V the Inspector General of Police/ and others, 2010 \/ol.1 EAL~. 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 a •~~• ; /' ;i > •! :"'" ,.: • action, Mr. Jail started by defining the cause of action and argued that, in- order to determine whether the plaintiff has disclosed the 1 i cause of action, we look into the plaint and entire pleadings. The / 1 -' ' . , i <'_ .. ' . ' ; ' 1: plaintiff is claiming that, the defendants have breached the contract from 11 th November 2011 - April 2012. However, on those dates, the plaintiff had already terminated the contract with the defendants. This ca.n 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 Jetter with Ref. No. IMC/L.13/9/72. ~herefore, the plaintiff cannot . .have . . .· a cause of action on the said contract that . . ' was since terminated even before the month of September 2011. Mr .. . . • . t Jali Mango insisted that, the suit has n() merit and should be stuck out with costs. Having digested. the submissions of Mr,; Jali Mong~ anq perusing the pleadings h~reiri, I am settled in my. mind. that, Mr. Jali • '.• • ' , • I • had raised a point of law on the first point of. prelim,inary objection, which is· worth to be considered by this Court, to wit 'i,yhether the court has-pecuniary Jurisdiction to entertain the suit~ I will- therefore concentrate my mind on this issue, as it is my respectful opinion that, the second point of prel'iminary objection, ·whether the plaint has disclosed course of action against the defendant~ depends mainly on the facts to be adduced by both parties. The issue of jurisdiction . ' is fundamental 9nd a root of the case . , ' If the court will determine the matter without· the required jurisdiction the entire proceedings will be . declared, "null and ~ . . void ab ~ 5 initio/~ As clear and eloquently submitted by Mr. Jali Mongo, Section · 40(2) (b) of the Magistrate Court Act,· (supra) sets out the original 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_ ·. ' '' . entertain this matter; I do therefore join hands with Mr. Jali Mango and associate myself to all the authorities he. had since highlightecl · and cited hereto. For the above reasons I arn. constrained to conclude thc1t, :; : 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 iss:ue 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 .-t_he settled . . . mind that, the first point of . ' Preliminary Objection raised by M~. Jali Mango, the learned Counsel for the defendants is laudable. The suit is incompetent before this Court. I accordingly. proc.e.ed to strike . out the Plaint with costs. The . plaintiff is at liberty to file a fresh suit in,.a competent eourt with the necessary jurisdiction, SLJ.bject to the law of limitati~n. It is so ordered. DATED at IRINGA this 08 th day of December 2016. · R. K. Sameji JUDGE 08/12/2016 7 Ruling delivered in Co,urt Chambers in the presence of Mr. Jali:_.... i ·Mango the learned Counsel for the Defendants. 1- 1 - A right of Appeal explained. R. K. Sameji JUDGE 08/12/2016 . 8 J,•".