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IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA MBEYA SUB- REGISTRY AT MBEYA PC CIVIL APPEAL NO. 9403 OF 2023 (From Civil Appeal No. 21 of 2023 Rungwe District Court at Tukuyu Originating from Civil Case No. 99 of 2022 Rungwe Primary Court Tukuyu urban Center) KAMPUNI YA KUZA AFRICA.…………………………... APPELLANT VERSUS JOSIA KATENDE…………………………….……….…RESPONDENT JUDGMENT Date: 26 July 2024 & 30 August 2024 SINDA, J.: The respondent in this appeal at Rungwe Primary Court (the Trial Court) filed Civil Case No. 99 of 2022 claiming a total sum of TZS 19,950,944/= from the appellant. The respondent claimed that, the appellant was his business partner. The two parties entered into contract that the respondent will sell avocadoes to the appellant and will be paid after three weeks. The respondent was entitled to be paid a total amount of TZS 23,934,664/= up to June 2022. On 6 July 2022, the appellant paid the 1 respondent TZS 3,983,700/= and TZS 19,950,944/= remained un paid. At the end of hearing the Trial Court ordered the appellant to pay a total sum of TZS 19,950,664/= to the respondent. Aggrieved with the decision of the Trial Court, the appellant filed a memorandum of appeal at Rungwe District Court at Tukuyu (the first Appellate Court). At the end of the hearing, the first Appellate Court found that the Trial Court has jurisdiction to entertained the matter and that the decision of the Trial Court was proper. Still aggrieved with the decision of the first Appellate Court, the appellant appealed before this court on the following grounds: 1. That, the honorable magistrate erred in law and fact by the failure to properly analyses and re-evaluate the evidence in the court records. 2. That, the honorable magistrate erred in law and fact by the failure to see that the Trial Court had no jurisdiction to entertain the matter. 3. That, the magistrate erred in law and fact by misdirected and wrongly apprehended documentary evidence and failed to appreciate that the balance of evidence was in favor of the appellant. 2 At the hearing of the appeal, the appellant was represented by Kelvin Kuboja Gamba, learned counsel while the respondent appeared in personal. The appeal was argued by way of written submission. Submitting on the first ground of appeal the appellant argued that the first Appellate Court had a duty to re-evaluate and re-analyze testimonies and evidence tendered and relied upon at the Trial Court and come up with its own decision. Mr. Gamba, argued that during hearing at the Trial Court the respondent claimed a total amount of 19,450,944/= and the same was backed up by a deed of settlement (SMK1) concerning the payment done by the appellant to respondent. That, the same exhibit SMK1 does not disclose the actual amount which the respondent is claiming from the appellant. Mr. Gamba submitted that during the hearing at the Trial Court the appellant established that the respondent does not claim anything form the appellant, rather than it was the respondent who was in debt as per the testimonies and exhibits which were tendered by the appellant. He referred to the case of Joseph Athanazi vs Makene Musimu PC Civil Appeal No. 4 of 2023 at page 8 where the court cited the case of Leonard Mwanashoka vs. R, Criminal Appeal No. 226 of 2014 and the case of 3 Seif Shaban vs. Republic, Criminal Appeal No.7 of 2022, HC at Mwanza to support his argument. On the second ground of appeal, Mr. Gamba submitted that it is a position of the law that before any hearing the court must first ascertain if it has the jurisdiction to adjudicate the matter before it. He added that section 2 of the Magistrate Court Act, Cap 11, R.E 2019 (the MCA) stipulates the meaning of a commercial transaction to mean “…commercial case means a civil case which involving a matter considered to be of commercial significance including but not limited to contractual relationship of business or commercial organization with other bodies or persons outside it…”. Mr. Gamba referred to the Form No. 2 used by the respondent to open his claim at the Trial Court which show that the respondent claim against the appellant was purely a commercial transaction as stipulated in the pleadings at the second paragraph that “…wadaiwa wana uhusiano wa kibiashara, mdai anamuuzia mdaiwa maparachichi kwa makubaliano ya kuwa anampelekea maparachichi…”. That, the same appeared at the first page of the typed judgment of the Trial Court. As such, the relationship between appellant and respondent were commercial relationship so the matter was ought to be entertained by the High Court. He referred to the 4 case of National Bank of Commerce Limited vs. Maisha Mussa Uledi (Life Business Center) Civil Appeal 501 of 2022 CAT at Mtwara. On the third ground of appeal, Mr. Gamba submitted that during hearing the respondent failed to bring forward the exhibits and evidence which show how the outstanding amount was being calculated while the appellant brought nine exhibits which was received by the court and marked SMKUI to SMKU9. In reply, the respondent submitted that the Trial Court evaluated properly the evidence of both parties and found that the respondent proved his case to the required standard. That, the court relied on the exhibits of both parties and that is why the first Appellate Court upheld the decision of the Trial Court. That, Exhibit SMKU4 which was tendered by the appellant shows the number of kilograms supplied by the respondent to the appellant, price for each kilogram together with grade of the avocado which were not disputed by the appellant. On the issue of jurisdiction, the respondent submitted that the jurisdiction of primary court is rooted under section 18 of the MCA. He further argued that there is no distinction of normal civil case and commercial case. He referred to the case Jeremia Kabaititi vs. Josephat Mathia (PC) Civil Appeal No. 1/2023 HC at Kigoma. 5 The respondent was also of the view that the case of the National Bank of commerce (supra) is distinguishable because it originated at the resident magistrate court and not at the primary court. He submitted that section 40 (3) of MCA is on jurisdiction of district court in commercial cases and has nothing to do with the jurisdiction of the primary court. On last ground of appeal, he submitted that the respondent proved his case on the balance required by using both oral and documentary evidence. The appellant alleged that they had already paid the debt, then the burden shift to the appellant. He referred to rule 2 (3) of the Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulations. He further argued that if the appellant had paid the debt, they must prove on that. However, the appellant failed to produce evidence to prove that they already paid the debt. Therefore, the respondent case was proved to the required standard. In rejoinder, the appellant submitted that according to section 40 (3) of MCA the lowest court to entertain a commercial case is the District court. He referred to the case of Waziri Hassani vs. Arafa Bakari (DC) Civil Appeal No. 12 of 2017 HC of at Tanga. He further reiterated his submission in chief for the remaining grounds. 6 I have gone through the records of the Trial Court and the first Appellate Court, the grounds of appeal and submission made by the parties. I find the whole appeal can be disposed under one issue of whether the Trial Court has jurisdiction to entertain this matter. It is trite law that the jurisdiction of the court is the creature of statute. The court cannot assume the jurisdiction not conferred by the law. In the case of Yohana Balole vs. Anna Benjamin Malongo, Civil Appeal No.18 of 2020, the CAT deliberated the concept of jurisdiction where it stated that: “It is common ground that jurisdiction of courts is a creature of statute and is conferred and prescribed by the law and not otherwise. The term "Jurisdiction" is defined in Halsbury's Laws of England, Vol. 10, paragraph 314to mean: -"...the authority which a court has to decide matters that are litigated before it or to take cognizance of matters prescribed in a formal way for Its decision. The limits of this authority are imposed by the statute; charter or commission under which the court is constituted, and may be extended or restrained by similar means. A limitation may be either as to the kind and nature of the claim or as to the area which jurisdiction extended or it may partake of both these characteristics. "[Emphasis added]. See also the case of Aloisi Hamsini Mchuwau & Another vs. Ahamadi Hassani Liyamata Criminal Appeal 583 of 2019 CAT. 7 There was no dispute that this case is a commercial case as shown in Form No. 2 which initiated this case at the Trial Court which stated that the appellant and respondent have a business relationship. The parties agreed that the respondent to sell avocadoes to the appellant and the appellant was to pay the respondent after three weeks. Now coming to issue of whether the Trial Court has jurisdiction to entertain this matter, the appellant complained that the Trial Court entertained this matter without having jurisdiction. In the submission in chief, the appellant was of the view that this case being a commercial case was supposed to be instituted at the High Court. However, during rejoinder the appellant changed position by stating that this case being a commercial case was supposed to be filed at the district court and that was the court with competent jurisdiction to try it. The respondent on his side he was of the view that the primary court has jurisdiction to entertain the mater as there was no distinction between normal cases and commercial cases. First of all, it should be noted that the high court commercial division has no exclusive mandatory jurisdiction to hear and determine commercial dispute as stated by appellant on his submission in chief. This is clearly 8 stipulated under Order IV rule (1) 4 of the CPC (supra) which provides that: "It shall not be mandatory for a commercial case to be instituted in the Commercial Division of the High court." In that respect, a litigant has an option of instituting a commercial case either in the ordinary court as the respondent did or in the High Court, or Commercial Division of the High Court. However, section 13 of CPC (supra) states that “Every suit shall be instituted in the court of the lowest grade competent to try ….” As stipulated on the above authority, jurisdiction of court is created by status, the original jurisdiction of primary court was provided under section 18 of the MCA and commercial cases are not among the cases listed to be tried by the primary court under this section. The original jurisdiction in relation to commercial cases was provided under section 40 (3) of the MCA. It provides that: “Notwithstanding subsection (2), the jurisdiction of the District Court shall, in relation to commercial cases, be limited- 9 (a) in proceedings for the recovery of possession of immovable property, to proceedings in which the value of the property does not exceed one hundred million shillings; and (b) in the proceedings where the subject matter is capable of being estimated at money value, to proceedings in which the value of the subject matter does not exceed seventy million shillings.” In this case the respondent claimed not to be paid a total sum of TZS 19,950,944/= as reflected in their pleading of the Trial Court. I am aware of the high court decision which states that since there was no provision of law which prohibit primary court to try commercial case, then they are triable at primary court and filed as normal civil cases. However, it is my opinion that since the matter of jurisdiction of court are created by status and the provision of section 18 of the MCA is silent on commercial cases to be among the case to be tried by the primary court. I find that this case being a commercial case, primary court has no jurisdiction to try it. Apart from that section 40 (3) of MCA (supra) vested district court with jurisdiction to try commercial cases which do not exceed seventy million apart from immovable property, in that regard it is my opinion that in any commercial cases apart from immovable property in which the value of the subject matter does not exceed seventy million shillings the court with 10 jurisdiction to try it is the district court which is the court of the lowest grade competent to try it. Therefore, the Trial Court tried this case without jurisdiction. Since, the Trial Court tried this case without jurisdiction, I nullify both proceedings, judgment and orders of both the Trial court and the first Appellate Court and advice the respondent to institute his case to the court with competent jurisdiction to try if he still wishes to do so. No orders as to costs. Right to appeal is explained. DATED at MBEYA on this 30 day of August 2024. A. A. SINDA JUDGE 11