KUMOGOLA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF SUMBAWANGA ATSUMBAWANGA CIVIL APPEAL NO.04 OF 2023 (Originating from Civil Case No.4 of 2021 -Resident Magistrate Court of Sumbawanga, at Sumbawanga) JUMA KUMOGOLA.......................... APPELLANT VERSUS CRDB BANK PLC.......... ................ RESPONDENT Date of Last Order: 30/04/2024 Date of Judgement: 17/07/2024 JUDGEMENT NANG E LA, J.: This is appeal arising from the decision of the Resident Magistrates7 Court of Sumbawanga in Civil Case No. 2021. Before the trial court, the appellant (as Plaintiff) claimed for TZS 500,000,000/= as general damages for breach of contract against the respondent (as defendant). Following a successful preliminary objection, the: appellant's case was dismissed for, inter alia, want of jurisdiction. The reasons given were that the reliefs sought were of a general nature and not of a substantive claim. Aggrieved by the decision of the trial court, the' appellant has lodged this appeal and raised the following six grounds: Page 1 of 11 1. That, the trial court erred in law and fact for holding that the Court has no jurisdiction to determine the matter since the plaint contains only general damages of TZS 500,000,000/=. 2. That, the trial court erred in law and fact by acknowledging that it is a specific damage that determine the pecuniary jurisdiction of the court and not general damages, however, went on dismissing the case. 3. That, the trial Magistrate erred in law and in fact by being guided by his own speculative view and considering two points of preliminary objection while the respondent raised only one point of preliminary objection in her notice of preliminary objection. 4. That, the trial court erred in law and fact by misdirecting himself by dismissing the case without considering the available proper remedy as well as the same was not heard on merit. 5. That, the trial court erred in law and in fact by considering that no specific damages fwere specified, it is assumed that the special damages, is equal to zero and, hence, the matter was supposed to be instituted in the primary court. Page 2 of 11 6. That, the trial court erred in law and fact for being guided by his speculative views and holding that any dispute which concern land as a subject matter the Land Act has established a forurh to deal with such dispute in exclusion of other ordinary courts, he arrived at that decision without taking into consideration the prayers made in the plaint of which none of the appellants prayers were made about the said land. Initially, the hearing of this case was before his Lordship A. Mruma, 1, who ordered the parties to h$ve it disposed of by way of written submissions. However, his Lordship i Mruma got transferred to another duty station and, for that matter, he could not compose a judgement regarding this appeal. In this appeal, the appellant enjoyed the legal services of Mr. Sigano M. Anthony, learned advocate from a law firm which brands itself as Arrow & Co. Advocates while Mr. Baraka Hitlan Mbwiio, Advocate from BAISTAR Advocates, appeared for the respondent. In support of the first and second grounds of appeal which were consolidated; the appellant's counsel submitted that the trial court erred to hold that the suit was improperly before the court. He argued that the Plaint had only claimed for general Page 3 of 11 damages and, relying on section 13 of the Civil Procedure Code, Cap.33 R.E. 2019 and section 40(2) of the Magistrates" Court Act, Cap. 11 R.E. 2019 argued that had the trial court appreciated these provisions he would have come up with a different conclusion. To bolster his submission reliance was placed on the case of Mwananchi Communication Limited and 2 Others vs. Joshua K. Kajula & ZOthers, Civil Appeal No. 126/01 of 2016 (unreported). It was the appellant's counsel's submission that, since the Plaint did not contain specific damages, the trial court had jurisdiction to try the same. The appellant's counsel did not address the third ground, As regards the fourth ground, he submitted that even if the trial court had no jurisdiction, the court erred to dismiss the case instead of striking it out. ReHance was made on the case of Ngoni-Matengo Cooperative Union vs. Aiimohamed Osman [1956]IE.A. 577 (cited also in the case of Scova Engineering S.p.A &Another vs. Mtibwa Sugar Estates Limited & 30thers, Civil Appeal No, 133 of 2017 (unreported). As regards the fifth and the sixth grounds, the appellant's counsel argued that it was wrong for the trial court to have Page 4 of 11 assumed that the non-specification of damages meant that special damages were equal zero. He argued that the court ought to have considered section 40(2) of the Magistrates' Court Act, Cap.ll R.E.ll and section 13 of the CPC, before making such assumptions. He contended that the claims before the trial court were for compensation for breach of the contract and for that matter what the Appellant was claiming was not ownership of land. He contended that, as a settled principle that in ascertaining whether a court is clothed with jurisdiction or not the facts constituting the cause of action and the reliefs sought should be looked at. To support his submission, he relied on the case of Exim Bank (T) Ltd vs. Agro Implex (T) & Others, Land Appeal No.29 of 2008 (unreported). He thus urged this court to allow the appeal with costs. In response, the respondent's counsel responded to the first, second, fourth and fifth ground together arguing that the trial court was right in its decision. He relied on section 18(l)(a) of the MCA, Cap.ll R.E. 2019 arguing that the Primary Court was the rightful court which ought to have heard the matter as Page 5 of 11 no specific damage were claimed in the Plaint. He relied on the case of Tanzania China Friendship Textile Co. Ltd vs. Our Lady of Usambara Sisters [2006] T.L.R 70. The learned counsel for the respondent argued further that considering what sections 13 of the CPC and 40(2)(b) of the MCA provide/every suit ought to be instituted in the lowest court competent to try the matter. He contended that the case of Mwananchi Communication (supra) is distinguishable since the lowest court was the District Court or the RM's Court given that the cause of action was of tortious nature which the Primary Court had no jurisdiction to try. Concerning the fourth and sixth grounds of appeal, it was the respondent's counsel submission that the matter was of land nature given that the alleged breach was for a sale of landed property, and it was only the Land courts that are allowed to deal with such cases. He relied on section 4 (1) and (2) the Courts (Land Disputes Settlements) Act, Cap.216 R.E.2019 as well as Regulation 13 (1) (b) (c) of the Land (Mortgage Financing) Regulations 2009, G.N. No,355 of 2009. Reliance was also made to the case of Shukum Rashid Ngwelenje vs. Riki Abdallah and Hemed Hewel t/a Africa Trophy Hunting Page 6 of 11 Ltd, Civil Appeal No. 262 of 2021 (HC) (DSM). The respondent's counsel urged thus court to dismiss the appeal with costs. The appellant made a rejoinder submission. In principle he reiterated the main submission. He relied further on section 73(1) of the Law of Contract Act, Cap.345 R.E.2019 and sections 3 and 7 of the CPC, Cap.33 R.E. 2019 as well as the case of Mkaramani AMCOS vs. Said Abdallah and 3Others, DC. Civil Appeal No.13 of 2019 which considered section 18 (l)(a) (iii) of the MCA, Cap.ll R.E. 2019. He urged this court to grant the appellant's prayers. The main issue to respond to is whether this appeal is merited or not. To start with, it is worth noting, as the Court of Appeal did in the case of Richard Julius Rukambura vs. Isaack Ntwa Mwakajila & Another (Civil Appeal No. 2 of 1998) [2004] TZCA 67 (19 January 2004) held that: "The question of jurisdiction is paramount in any court proceedings. It is so fundamental that in any trial even if it is not raised by the parties at the initial stages, it can be raised and entertained at any Other stage of the proceedings in order to ensure that the court is properly vested with jurisdiction to adjudicate the matter before it." Page 7 of 11 It is also a trite law that what really determines the pecuniary jurisdiction of the court is the specific damages claimed and not genera! damages. The reason for that is a simple one; general damages are awarded at the discretion of the court. See the decision of this court in the case of Kabyesiza Mwebesa vs Khalif Mashid and Another (HC Civil Appeal 26 of 2020) [2020] TZHC 4706 (10 December 2020). In the case of Mwananchi Communication vs Joshua.K. Kajula & 2 Others, (supra) where it was held that: "it is the substantive claim which determines Jurisdiction and not general damages as expounded herein above in our holding in Tanzania- China Friendship Textiles Co. Ltd case (supra)" In the present appeal, there is no dispute that the appellant's claim before the trial court was a claim not for specific but general damages. Since it was a claim for general damages, and no specific damages claimed, the trial court rightful held that specific damages were equal to zero and the court which should have entertained the suit, as rightly held by the trial court, was the primary court and the RM's Court. That should be the case, considering what section 18 (l)(a) (lii) of the MCA, Cap. 11 R.E 2019 provides and based on Page 8 of 11 the principle that cases must be instituted before the lowest court competent to try it. See section 13 of the Civii Procedure Code [Cap 33 R.E 2019] and the case of Kabyesiza Mwebesa (supra). But that being the case, was it appropriate to have the matter dismissed or was the trial court supposed to have struck it out? In his submission, the learned counsel for the appellant had argued that since the case was not heard on merit, the appropriate route was to have it struck out. I think that was a correct approach based on what the Court of appeal stated in the cases of Ngoni-Matengo (supra) and Scova Engineering S.P.A & Another Cooperative Union (Supra). On that ground, then the trial court erred in its dismissal order and instead, it ought to have struck out the suit. The trial court did not consider the merits of the case, but it rather ended the matter based on the preliminary objections raised by the respondent. As regards whether the case was a land matter or not, I do agree with the learned counsel for the appellant that the finding that the matter was a land case for which only the land Page 9 of 11 court would have the right to exercise jurisdiction thereon was ah erroneous view. In my view, the case of National Bank of Commerce Limited vs. National Chicks Corporation Limited and Others, Civil Appeal No. 129 of 2015 (CAT) (unreported), is an apt case to refer to for guidance. In that case, the Court of Appeal held that: "It must be understood that any litigation whose cause of action accrues from a mortgage transaction... regardless of its aftermath to the landed property/real property is not necessarily a land matter that falls within the jurisdiction of the Land Division." As the Plaint which constituted the Civil Case No.4 of 2021, which was dismissed reveals, the appellant (as plaintiff) claimed against the respondent (defendant) for general damages arising out of breach of contract. Even if the contract alleged to have been breached had been one involving landed properties which the plaintiff had purchased, that was not a reason sufficient to label the matter a land case. From the above and considering the case of National Bank of Commerce (supra), I will agree that it was erroneous to rule that the case was a land matter. But be that as it may, the bottom-line would remain that the appropriate court seized Page 10 of 11 with jurisdiction was not the RM's Court but, as already stated, was the Primary Court. It follows, therefore that, the order for dismissal was erroneously made and I hereby, in terms of section 44 (l)(b) of the Magistrates' Court Act, Cap. 11 R.E. 2019, invoke the revisionary powers of this court in quash and set aside the dismissal order and substitute it with an order of striking out the suit. In the circumstance and to the extent explained here above, the current appeal partly succeeds and partly fails. Although both parties herein have prayed for costs, in the circumstances of this case, I make no orders as to costs. It is so ordered. DATED AT SUMBAWANGA ON THIS 17th DAY OF JULY 2024 DEO JOHN NANGELA JUDGE, Right of Appeal Explained. Page 11 of 11