KENNEDY HOUSE LIMITED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL CASE NO. 14 OF 2022 KENNEDY HOUSE LIMITED Trading as KENNEDY HOUSE INTERNATIONAL SCHOOL............... PLAINTIFF VERSUS EDWARD JOHN MROSSO ©EDWARD MROSSO..................... 1st DEFENDANT LILIAN BISAMA MROSSO @ LILIAN BISAMA......................... 2nd DEFENDANT RULING 20/08/2024 & 30/08/2024 MWENDA, J.: This ruling is in respect of the preliminary points of objection raised by the counsel for the respondents to wit: 1. In terms of provision of order VII Rule 1(a), (b), (c), (F), (h), (i), and 11 (a), (b) and Order VIII Rule 9 (2) of the Civil Procedure Code [Cap 33 R.E 2019], the counter claim is bad in law for being incurable defective. 2. The court has no jurisdiction over the counter claim. At the hearing of the raised points of objection, which was done orally, the plaintiff was represented by Mr. ROBERT MGOHA GEORGE, learned Page 1 of 10 counsel whilst Mr. GEORGE STEPHENE NJOOKA, learned counsel stood for the defendants. When he was invited to address the court in support of the raised preliminary points of objection, Mr. MGOHA dealt with them in sequence but with minor adjustments as he abandoned order VII RULE 1(a) (b) and (h) of the Civil Procedure Code, Cap 33 R.E 2019 and Rule 11 (a) and (b) thereby retaining Order VII RULE 1 (f) and (i) in connection to order VII rule 9 (2) of the same. Regarding the 1st point of objection, Mr. MGOHA submitted that the counter claim is bad in law for being incurably defective. According to him, the same contains 13 paragraphs in contravention of Order VII Rule 9(2) of CPC. The learned counsel stressed that the said Order specifies the particulars which should be covered /contained in the counter claim to the main suit. He mentioned them to be the jurisdiction of the court and the value of the subject matter. The learned counsel went on in that in the so-called counterclaim, the defendants stated that the court has jurisdiction on the ground that the plaintiff's office and place of abode are at Usariver area in Arumeru District without indicating the value of the subject matter, which, according to him is wrong. In that regard, he believed the defendants want the court Page 2 of 10 to assume Jurisdiction. In support to this point, the learned counsel cited the following authorities, to wit: MWANANCHI COMMUNICATIONS LIMITED & TWO OTHERS V. JOSHUA K. KAJULA AND TWO OTHERS, CIVIL APPEAL NO. 126/01 OF 2016 at page 18 and FEREJI SAID FEREJI V. JALUMA GENERAL SUPPLIES LIMITED, AND ANOTHER, U\ND CASE NO. 86 OF 2020, PAGE 7. Others are MAGWEIGA CHACHA MAGERE V. MARTHA MANUMBU AND 7 OTHERS, HC U\ND CASE NO. 09 OF 2O2O.With these authorities, the learned counsel pointed out that the courts' emphasis was that it is not the general damages which give jurisdiction to the court, but the substantive claim which states the value of the subject matter. Having submitted as such, he prayed the 1st point of objection to be sustained. Regarding the 2nd point of objection, Mr. MGOHA submitted that based on what is aired in respect of the 1st point of objection, this court has no jurisdiction to hear and determine the defendants' main suit's counter claim. According to him, the defendant's case ought to be filed before the lower courts such as the Resident Magistrates Court and/or the District Court. The reason for such opinion is that S. 13 of Civil Procedure Code directs every suit to be instituted before the lowest court competent to try the matter. In support to this proposition, He cited MANJIT SINGH Page 3 of 10 SANDHU AND 2 OTHERS V. ROBIRI R, ROBIRI, CIVIL APPEAL NO. 121 OF 2014 at Page 3,5 6 and 8. He then concluded with a prayer to have these preliminary points of objection sustained and dismiss the defendants' counter claim. In opposing the raised point of objection, Mr. Njowoka stated that the counter claim did not contravene Order VII Rule 1(f) and (i) and Order VIII Rule 9(2) of the Civil Procedure Code. His reasoning was that the said Rule is all about facts showing that the court has jurisdiction. He also added in that from page 5 to page 8 of the Written Statement of Defence of the defendants' counter claim, the defendants claim against the plaintiff in the main suit is covered under para 19 of page 5 which is all about declaratory orders for the release of the academic results, school leaving certificate and continuous reports of the defendants' children. It was his further submission that Order VII Rule (1) (i) of the Civil Procedure Code is all about the statement of the value of the subject matter and, according to him, the defendants in the main suit are not claiming any value since their claim is for release of the papers mentioned above. Further to that, the learned counsel believed that since the words used are "so far as the case admits"tt\&\, there is no violation of the Rules Page 4 of 10 as there is no amount claimed. He was of the further opinion that, since the defendants don't claim any specific amount in the main suit, then this court has jurisdiction to determine the matter. Further to that, although he subscribed to the principles in the cases cited by the learned counsel for the plaintiff, Mr. Njowoka believed the circumstances in the said cases are distinguishes as they have nothing to do with declaratory orders. In further submission, he averred that the jurisdiction of the court is provided for under Section 7(1) and (2) of the Civil Procedure Code which includes all suits of civil nature and, he added, the same section prohibits the Preliminary Objection on the ground that there is a mere declaratory order sought. He impressed that since the counter claim is all about the declaratory orders, then this court has jurisdiction as they have complied with Order VII Rule 1(f) and (i), to us the (f) of the Civil Procedure Code. In replying on the 2nd point of objection, Mr. Njowoka stated that this court has inherent powers under S. 95 of the Civil Procedure Code. Based on that provision, he opined that there was no need to file another suit while there is a suit of the same nature, in the same court and, by the same persons as the defendants' counter claim aligns with the claim of school fees which is claimed in the main suit. Having submitted as such, Page 5 of 10 the learned counsel for the defendants prayed for the raised preliminary points of objection to be overruled with costs. In a brief rejoinder, Mr. MGOHA had the following to say. First, that there is nowhere in the defendant's Written Statement of Defence in which it is provided that the defendants have made out facts to constitute that they have made out any declaratory order mentioned. Two, that the claim for certificates is misconceived. Three, that Mr. NJOWOKA's argument that the cited authorities are distinguishable is misleading since in the counter claim, there is nowhere it is stated that the court has jurisdiction. And fourth, that Section 7(2) of Civil Procedure Code is not applicable and Order VII rule 1 (f) of the CPC was not complied with by the defendants. According to him, S. 95 of Civil Procedure Code is not applicable because the provisions under order VII rule 1(f) of CPC must be complied with and, he added, there is no authority cited by the learned counsel. To conclude, He maintained his prayer to have the Preliminary Objections sustained and, the defendants' counter claim be dismissed. Having gone through the rival arguments from the learned counsels for the parties, this court will now determine the merit of the raised preliminary point of objection. Page 6 of 10 From the pleadings it is evident that following receipt of the plaint in which the plaintiff claims, among other things, for payment of USD 47,041.03 being the outstanding amount for unpaid school fees, meals and lunch for the defendant's three children, the defendant responded by filing the written statement of defence and a counter claim. In the counter claim, the defendants claimed for immediate release of the academic results, school leaving certificate, an apology and continuous report of the defendants' three children. The defendant's counter claimed was challenged by Written Statement of defence accompanied with the notice of preliminary objection as indicated above. The said notice challenges the jurisdiction of this court to hear and determine the counter claim. At the outset, it is apposite to point out that jurisdiction is the bedrock in which the court's authority and competence to entertain and decide the matter rests. This proposition was adumbrated in SALIM KABORA V. TANESCO LTD & TWO OTHERS, CIVIL APPEAL NO. 55 OF 2014, CAT(Unreported). In that case, while citing the case of TRA VS. TANGO TRANSPORT COMPANY LTD, CIVIL APPEAL NO. 84 OF 2009(Unreported), the court had this to say and I quote: "Jurisdiction is defined in Halsbury's Laws of England, vol. 10 para 314 to mean: Page 7 of 10 "The authority which the court has to decide matters that are litigated before it or to take cognizance of matters prescribed in a form/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 claim, or as to the area which jurisdiction extended, or it may partake of both characteristics" [emphasis added] This court is mindful that a counter claim is a cross suit whose features are like those in the plaint, thus, the issue of jurisdiction of the court must feature. On his part, and in support of the preliminary point of objection, Mr. MGOHA asserted that due to the defendant's failure to state the value of subject matter, then the counter claim is incurably defective and as such this court lacks jurisdiction to hear and determine it. I have considered the reasoning by the learned counsel for the plaintiff but to my view, jurisdiction of the court is not only derived from the value of the subject matter. This is because other determinant factors such as the nature of the claim may derive jurisdiction of the court, prayers for declaratory orders being one of them. This court is aware of Order VII Page 8 of 10 Rule 1 (f) and (i) in connection with Rule 9 (1) of the CPC, and believes those other factors which derive jurisdiction of the court, apart from the subject matter, are covered under Order VII Rule 1 (f) which provides that: "1. The plaint shall contain the following particulars- (f) the facts showing that the court has jurisdiction. (i)N/A" From the foregoing, since the defendant's claim in counter claim is for immediate release of the academic results, school leaving certificate, and continuous report of the defendants' children, which cannot be computed on monetary form, and due to the fact that the same is predicated from the plaintiff's claim, with the same parties and arising from the similar claim of repayment of school fees, then the same (counter claim) is properly filed before this court. Regarding the 2nd point of preliminary objection, Mr. MGOHA submitted that this court has no jurisdiction to determine the counter claim as the same ought to be filed at the lowest court as per Section 13 of the CPC. Although I subscribe to that legal position as envisaged under Section 13 of CPC that every suit shall be instituted in the court of the lowest grade Page 9 of 10 competent to try it such as a court of a resident magistrate and a district court, since the counter-claim is aligned with the claim of the defendant in counter claim who is also a plaintiff in the main suit, filing another suit before the lower courts would be unnecessary multiplicity of suits which will do no good to the parties other than wastage of time and resources. After all, the hearing and determining the counter claim by this court will occasion no injustice to the plaintiff. That said, the 2nd point of objection is found unmerited and is hereby overruled. Considering the foregoing, the appellant's preliminary objection against the counter claim is hereby overruled and no order as to costs. In the circumstances, the hearing of the main suit shall proceed as scheduled. It is so ordered. DATED at ARUSHA this 30th day of August 2024. JUDGE 30/08/2024 Page 10 of 10