20161208 TZHC Iringa

IN THE HIGH COURT OF TANZANIA AT IRINGA CIVIL CASE NO. 03 OF 2013 I RI NGA MUNICIPAL COUNCIL ....... II •••••••• PLAINTIFF VERSUS 1. ERASTO SAMWEL SANGA T/ A CALIFONIA INVESTMENT .......... DEFENDANTS 2. AYUBU A. KINGSHUSHA RULING srH 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 ! ' 11 ' ·, ' ' .i ' ; 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 d,amages; I 1 ( c) costs of the case. f ' In their Joint Written Statement of Defence, the defendants had since raised two points of Preliminary Objection,~ that:- (a) The Court has no 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. 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 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 Prelfminary 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 Mon~o 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 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 1 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. ·, I Mr. Jali Mango argued further that, examini~g 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, ~e~ding the said 3 I provisions between lines, this Court has no pecuniary jurisdiction to 1 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 i Section 13 of the Criminal Procedure Code, [Cap. 33 R.E.2002] and\_ cases of Attorney General V Lohay Akanay & another, 1995 TLRt_: 80 at page 96 G-H and Omary V the Inspector General of Police/= ' ' and others,· 2010 Vol.1 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 an~ a~gued 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 11 th 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 -· I 29 th 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 thati was since terminated even before the month of Septer;nber 2011. Mr.!. Jali Mango insisted that, the ~uit has no merit and should be stuck;_ out with costs. Having digested the submissions of Mr. Jali Mango and: perusing the pleadings herein, I a_m settled in my mi~d that, Mr. Jalif_ 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' whether 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 preliminary objection, whether the plaint has. disclosed course of 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 wil.l determine the; matter without the required I jurisdiction the entire proceedings will be declared, '~null and void ab 5 ., in1tio'~ As clear and eloquently submitted by Mr. Jali Mango, 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 highlighted and cited hereto. For the above reasons I am constrained to conclude that, - belated as it might be, upoh determining that, this Court has no jurisdiction, I would not proceed on, _to deliberate on the merit of the ✓ .. ...:.i--:: •• , ~i case. Regrettably, as this might be perhaps a reminder to all of us. serva~ts 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 alwa:ys in issue and it is the 6 ' {. primary duty of every player to satisfy himself thatl the court in I I which the matter is filed, is vested wit~ the requisite ju.risdiction. I In the result, I am of the settled mind that, the first point of Preliminary Objection raised by Mr. J~li Mango, the l~arned Counsel for the defendants is laudable. The luit is incompet~nt before this Court. I accordingly proceed to strik~ out the Plaint ~ith costs. The . . I t plaintiff is at liberty to file a fresh suit in a competent court with the necessaryjurisdiction, subject to the 1lw of limitation. I It is so ordered. DATED at IRINGA this 08 th day of De ,ember 2016. . i I R. ·K. Sfreji JUDG·E 08/12/2616 . I 7 . I ' Mill'