20070731 TZHC Dar es Salaam 1

I 1•• '--.'-- ·IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NQ. 44 OF 2007 I KIBO HOTEL KILIMANJARO .... J. ................. PLAINTIFF VERSUS. ,. PRESIDENTIAL PARASTATAL s·EcTOR REFORM COMMISSION .. 1ST DEFENDANT 1. . • • · . . • • • . . IMPALA HOTEL LIMITED ............ ·:.~ ............ 2ND DEFENDANT --------------------------- (--------------- :1 I . RU L.I N 'G 1 i Date of Hearing - 30/7/2007 Date of Ruling - 31/7/2007 MASSATI, J: MS MAIRA & CO. ADVOCATES, have filed a suit in this I court on behalf of the Plaintiff, who seeks for the following 11 orders: - 1· I' 11 (1) Declaration that the sJttlement Deed between the I ' I; 1st Defendant and the i2nd Defendant is unlawful, :1 n1:1-ll and void ab initio. 1' ) 1· !1 (2) Declaration that the Plaintiff is the rightful owner of I the Assets of Moshi Hotel. 11 (3) Costs of the suit. 2 .f (4) Any other or further orders or relief that this Honourable Court may deem fit and just to grant. The Defendants instructed Mr. Fungamtama and Ms. Professional Centre, learned Counsel to draw their Written Statements of Defence. In each of the separate statements of defence, the Defendants have raised preliminary objections against the suit, on which I am now going to decide. For the 1st Defendant, it was contended that:- (i) The Honourable Court lacks the requisite ·Jurisdfction to entertain and determine the suit since it is a matter conc~rning land. (ii) The plaint

is bad in law as it offends the mandatory provisions of 0. VI rule 14 of the Civil·Procedure Code, read together with s. 53 (2) of the Interpretation of Laws Act . .. For the Second Defendant, it was contended that: - (a) The Plaintiffs suit being a dispute over the ownership of right to land owned by Moshi Hotel .. - . .... -. .3 ·- : , .. , r,, <-, i '; _,, . ·. , :-.· ..: . .' ' : , . t .. • i Limited, _hence a land [matter, ,, this Honourable 1 Court lacks jurisdiction to, entertain this suit. 1 , !! I~ (b) The plaint does not contain a s·tatement of the value 11 of the subject matters, thus it offends -the . I - I mandatory _provisions of ©. VII rule 1 (1) of the Civil Procedure Code. I j (c) The Plaintiffs suit is res jbdicata. 1, i I However, at the hearing of the objedtions, Mr. Kamara, learned r Counselwho appeared for the 2nd )Defendant, abandoned the 1 I • third objection (c) and argued the rest. . - - - It .! Mr. Fungamtama, learned Counsel, submitted that since there is a claim for a declaratiotb that the Plaintiff is the · ! rightful owner of Moshi Hotel, and ~o long as the Plaintiff relies I on the Sale of Assets Agreement, Fd the Purchased Right of Occupancy CT No. 056021/52, and since this is a matter ! touching on land, in terms -of s. 3 !( 1) of the Land Disputes Act read together with s. 53 (2) of th~ Interpretation of Laws Act, ' division of the High

Court and s. 167 (i) of the Land Act, th~s L has no jurisdiction to adjudicate ob. the matter. 11 11 1· - On the second preliminary bbjection, Mr. Fungamtama, I, su°J?mitted that, although the plaiiµ.t was signed by the Plaintiff, Ii I I 4 since the law requires also the advocate to sign, and since in this case Mr. Maira did not sign in the body of the plaint, the plaint violated 0. VI rule 14 of the Civil Procedure Code. It ought therefore to be struck out with costs. On the other hand, Mr. Kamara, learned Counsel for the Second Defendant, concurred with the submission of his colleague on the first objection but added weight to it by referring to the court, the decision of this court in Commercial Case No. 5/2005 of ANSELIMO· MINJA VS SUPA FOOD CORPORATION LTD (unreported). On the second objection, the learned Counsel submitted that by- not putting in the plaint,. a statement of the value of the subject matter, the plaint violated the provisions ~f 0. VII rule (1) (i) of the Civil Procedure Code, 1966 which is couched in mandatory terms. The learned Counsel referred to the case of ASSANAND & SONS (U) LIMITED VS E.A. RECORDERS LTD [1959] EA 360 for inspiration. Interpreting a similar provision of the Ugandan Civil Procedure Code, the defunct East African Court of Appeal held that the provision was mandatory. So, with this, Mr. Kamara prayed for the dismissal or striking out of

the suit with costs. On the other hand, Mr. Maira, learned Counsel for the Plaintiff, expressed his opinion as follows: - ' ; ... , ;•. .• ,'," , , • > C ·, , . .. , i. • .I, .,• , •, ._•,. .. , , '. 5 . h . . d' . f h H-. hie . . . .h d' F irst, t e JUns 1ct1on o t e 1g i ourt, notw1t stan 1ng the formation in various di~isions, is /unlimited. For this, he I referred to Article 107 A of the constitution of the United Republic of Tanzania, and s. 2 (2) / of the Judicature an:d . Application of Laws Act. He also refe~red to a decision of this I court in Commercial Case No. 4,3/2006 WORLD WIDE I TRADING CO. LTD VS PSRC AND BUNDA OIL CO. LTD i (unreported) in which he had also iaised a similar objection I I but was dismissed. Although, argued the learned Counsel, the decision was not binding on me, it lhould be followed, if just ' for the sake of consistency. I I Secondly, what is also in issue 1s the legality and propriety of arbitration proceeding:b, in which this court is vested with jurisdiction. On the rest of the objections Mr. Maira submitted that the plaint was clearly compliant Jith the provisions of 0. VI I rule 14 and O. VII rule 1 ( 1) of the 8ivil Procedure Code. I , I In the alternative, the learnea. Counsel suggested to the I court that, should it find that thi~ is not the proper forum, it I could direct transfer of the suit to the proper forum. As for the defects

in the plaint, if any, the /court should be pleased to order an amendment. I • • ·.,.,.... • 6 ( It is with those arguments that Mr. Maira prayed for the dismissal of the preliminary objections with costs. The gist of the rebuttal submissions by the learned Counsel for the defence, was that, it was not true that the jurisdiction of the High Court was unlimited, but rather subject to other written laws. They submitted that this was the proper interpretation of Article 108 (1) of the Constitution and s. 2 (3) of the Judicature and Application of Laws Act. And such written laws include s. 167 (1) (b) of the Land Act. Another example was the amendment to the Magistrates Courts Act. They said that in WORLDWIDE case, the claim was for declaration against the second tender,. and not declaration on land ownership. So the facts in the two cases were different. On the suggestion that this court could order amendments to the plaint the learned Counsel relied on the decision in another case of this court in DAVID MGWASA VS SUPA FOOD Commercial Case No. 6/2005 (unreported) and submitted that no amendment - . could be allowed once a preliminary objection was raised. So the learned Counsel reiterated that prayer the suit be struck out or dismissed as the court may be pleased, with costs. 1 7 I think, the objection on the question of the jurisdiction of the High Court is on firm groun~s. The

concept that this I court has unlimited jurisdiction i.n all civil and criminal matters is long gone with the wind with the recent decision of I the Court of Appeal of Tanzania, in TANZANIA - CHINA FRIENDSHIP TEXTILE CO. LTD VS. OUR LADY OF THE USAMBARA SISTERS in Civil Appeal No. 84 of 2002 (unreported). After considering the provisions of Article 108 I (1) of the Constitution of the United: Republic of Tanzania, s. 2 (1) of the Judicature and Application of Laws Act, 56 & 13 of ' the Civil Procedure Code Act 1966 and s. 40 of the Magistrates Courts Act; the Court of Appeal concluded on p. 16 of the j judgment:.:. "It is clear to us that under: this Article (i.e. 108 (1) of jurisdiction of the High Court is also subject to some other I laws:" I With the ·above decision in mind, I first go to s. 7 of the Civil 1 Procedure Code Act. It provides: - , I I "7 (1) The courts shall (subject to the provisions herein contained, have jurisdiction to try all suits of a I civil nature excepting suits of which their ' J. 8 cogn12ance is either expressly or impliedly . barred." There is no dispute that, at least in part, the Plaintiffs· claim here is for a declaration that: - "... the Plaintiff is rightful owner of the Assets of Mos hi Hotels. JJ It is also noted that the Plaintiff relies on the Sale of Assets Agreement, Annexure KHK 1 in which reference is made to a Purchased Right of

Occupancy as that comprising in Title No. 056021/52. On all the above, I understand that Mr. Maira had no dispute in terms of s. 3 (1) of the Land Disputes Act (Cap 216). All that the learned Counsel was emphatic on, was that this court also had concurrent jurisdiction with other divisions of the High Court, in all the matters; As demonstrated above, on the authority of the TANZANIA - CHINA FRIENDSHIP case (op cit) and s. 7 (1) of the Civil Procedure· Code Act, Mr. Maira's argument is clearly untenable. Even in a case where a statute had robbed the courts of their jurisdiction and transferred them to tribunals, the Court of Appeal of Tanzania, in- ATTORNEY GENERAL VS LOHAY AKONAY' AND JOSEPH LOHAY [1995] TLR. 80, at p. 96 had this to say: - ,\ -r I - ....' 9 "Clearly this section is unconst~tutional only to the extent ) I . that it purports to exclude access to the courts. The I offending parts may, however, be severe so that the remainder .... This would leaJe the door open for an I aggrieved party to seek remedy in the courts, although ' such courts would not norriially entertain a matter for which a special foruJ has been established, unless the aggrieved party c~n satisfy the court that I no appropriate remedy is available in the special forum." In the present case, s. 167 (1) of the Land Act and s. 3 (1) of I the land Dispute Act, vests exclusive jurisdiction on

land disputes. in'the land courts set up ynder these statutes. Even iftherefor~, I were to uphold Mr. Maira's submission that this division ha:d concurrent jurisdictiod, I would still be restrained not to entertain it in the first in ktance because, not only a • I .• special fotum (which by law Mr. Maira's own admission, are divisions of this same court) havk already been set up, but I also the :Plaintiff has not, either in his pleadings or in his submission in court satisfied the court that no appropriate remedy is available in the land coJrts. Besides by the wording of s. · 7 6f the Civil Procedure cJde, the cognizance of land I disputes by this division of the High Court is expressly barred bys. 167 (1) of the Land Act. ... As I held in DAVID MGWASSA VS SUPA FOOD . . ( CORPORATION LIMITED, Commercial Case No. 6 of 2005, and ANSELIMO MINJA VS SUPA FOOD CORPORATION LIMITED (Commercial Case No. 5 of 2005, since the Land Division of the High Court, has exclusive jurisdiction in land disputes; and since the present dispute involves a matter touching on land ownership, and therefore by definition, a land dispute, this court has no jurisdiction to determine the matter, whatever commercial significance it might have. The issue in the DUNIA WORLDWIDE case was not land ownership but the legality of the second tender. It is therefore distinguishable from the present one. From the above

analysis, it means that the first preliminary objection is upheld: I will proceed to find that this court has no jurisdiction to try the suit. In view of my holding above, there is no need for me to decide on the other points of preliminary objections raised by the Defendants. In consequence, the suit is not properly before this court. It is accordingly struck out with costs. It is so ordered. 'I ·- .. ._;: /-~. '- : '._ ,.: :,:· jf._',: " f l· 11 SGD S.A•. MASS.&TI

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