20150828 TZHC Dar es Salaam

IN J'HE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 89 OF. 2012 LAMECK JOSEPH COWITI ............................ PLAINTIFF VERSUS TANZANIA REVENUE AUTHORITY ............ DEFENDANT RULING MURUKE,J. Lameck Joseph Cowiti instituted this libel and defamation suit against the defendant for general and exemplary damages quantified at TZS 500,000,000.00 as well as for loss of income to the tune of TZS 50,000,000.00. He has specifically prayed as follows: (a) General damages of more than Tshs 500, 000,000 (five hundred million) only for defamation to be assessed by this honorable court. ·,.,. ~:'.; (b) Exemplary or aggravated damages to be assessed by this honorable court. :·· ' (c) A permanent injunction to forever restrain the defendant never to run the said offending publication concerning the plaintiff (d) Costs of this suit. (e) Interest on a, b, c and d above. (f) Any other relief(s) that this honorable court may be pleased to grant. In response, by way of written statement of defense, the Tanzania Revenue Authority raised a point of preliminary objection as hereunder: "!gat the High Court of Tanzania has no original jurisdiction to try the present suit." ~ 1 t· p, . /°',~/ _r(:'_:>r ,/4) I ...Mr. Simbakalia advocate appeared for the plaintiff while the respondent had services of Mr. Kisongo advocate. Mr. Kisongo submitted that under section 13 of the Civil Procedure Code, Cap. 33 R.E. 2002 (the Code), every suit has to be instituted in the court of the lowest grade competent to try it. He maintained that although this court has unlimited civil jurisdiction, that jurisdiction is qualified by the provisions of section 40(2) of the Magistrates' Courts Act, Cap. 11 R.E 2002 as amended by Act no. 25 of 2002. The counsel contended that section 40(2) vests on the District Courts and Resident Magistrates' Courts civil jurisdiction over all matters whose value of the subject matter does not ~ exceed TZS 100,000,000.00. Mr. Kisongo was of the view that since general and exemplary damages are awardable at the court's discretion, they can't be quantified and in any case can not affect jurisdiction of the court. On the subject, he has referred this court to the decisions of the court in MIS TANZANIA-CHINA FRIENDSHIP TEXTILE CO. LTD v. OURLADY OF USAMBARA SISTERS [2006] TLR 70; and JOHN MALLY A v. MIS ZANTEL (T) LTD AND KNIGHT SUPPORT, High Court, Civil Case no. 62 of 2007 (Dar es Salaam Registry, unreported). Citing the case of EMMANUEL MAGEME v. TANZANIA DISTILLERIES LTD & 2 OTHERS, High Court, Civil Case no. 4 of 2009 (Mwanza Registry, unreported), the respondent's counsel emphasized that it is the specific damage which should be used as determinant factor of jurisdiction. To the respondent counsel, specific claim for loss of income does not exceed TZS 100,000,000.00; therefore this court has no original pecuniary jurisdiction to try the suit. The counsel referred this court to the case of JOHN MOME MORRO v. GRATIAN MBELWA & OTHERS, High Court, Civil Case no. 80 of 2011 (Dar es Salaam Registry, unreported) on the position, and asked this court to strike out the plaintiff's case with costs. Mr. Simbakalia first attacked the preliminary objection for not being specific. He contended that the same was couched in such a way that one would not know whether it is about pecuniary jurisdiction or the court itself. The 2 .i . ..counsel added that as there is another tribunal taking care of the defendant's matters, the defendant ought to be more specific. He cited the case of FRANCIS ANDREW v. KAMYN INDUSTRIES TANZANIA LTD [1986] TLR 31 at 34 to cement his argument. On the merits or otherwise of the objection raised, Mr. Simbakalia submitted that it is the usual practice of this court that all defamation cases, irrespective of the pecuniary jurisdiction of the court, are handled by the High Court. His argument was that the tort of defamation, apart from the monetary awards, comes with other prohibitive sanctions which are best handled by a court with unlimited jurisdiction like the High Court. The counsel has referred this court to a chain of cases in which no specific damages or amounts were claimed but this court awarded damages. Plantiff counsel reffered following cases to support his argument: RUGARABAMU ARCHARD MWOMBEKI v. CHARLES KIZIGHA & 3 OTHERS [1984] TLR 350 at 351; I.S. MSANGI v. JUMUIY A YA WAFANYAKAZI & ANOTHER [1992] TLR 259; and K. HASSAN v. KITHUKU & CHALi [1985] TLR 212. The learned counsel for the plaintiff has requested the court to dismiss the defendant's objection with costs and allow the plaintiff to amend his pleading. Mr. Kisongo submitted in rejoinder that the defendant's preliminary objection is according to law very specific as the suit had to be filed in a court having competent original jurisdiction to try it. He observed that the referred case of FRANCIS ANDREW never discussed the nature and ,/ contents of the defendant's objection and it is, for that matter, irrelevant. In relation to the preliminary objection Mr. Kisongo submitted that in all cases cited by the plaintiff's counsel, original jurisdiction of the court was not an issue nor was it raised before the court. He submitted further that it is established by the highest court of this land that it is the specific damage and not general damage that determines jurisdiction of the court. The counsel was emphatic that since decision of the Court of Appeal in OURLADY OF USAMBARA case (suppra ), this court has been striking out all cases with specific claims not exceeding TZS 100,000,000.00. Mr. Kisongo gave an example of the recent defamation case of JOHN MOME MORRO (suppra) 3 ) ' .. . . J' ._,.that was struck out for want of original pecuniary jurisdiction. He has therefore prayed for the plaintiff's prayer for amendment to be rejected and the preliminary objection be upheld. As correctly submitted by the respondent's counsel, OURLADY OF USAMBARA case (suppra ). established a principle to be followed with regard to determination of pecuniary jurisdiction of this court. In the said case, the court of appeal held at page 76: "In our view, it is the substantive claim and not the general damages which determines the pecuniary jurisdiction of the court." In the instant case, the substantive or specific claim is pleaded in paragraph 13 of the plaint that reads: "The plaintiff shall prove that since the said publication and continuous appearance on the said website he is being shunned by the members of the business profession, can no longer practice his trade and has lost income of more than Tshs 50,000,000 (fifty million) only." It is therefore the amount of TZS 50,000,000.00 that is to determine pecuniary jurisdiction of the court in this suit. A sum of TZS 500,000,000.00 erroneously quantified as general damages is not, in line with OURLADY OF USAMBARA case (suppra)., affect the pecuniary jurisdiction of this court. General damages are awarded at the discretion of the court and have not can be quantified. ,- The amount of TZS 50,000,000.00 is within the pecuniary jurisdiction of the District Court or the Court of Resident Magistrate pursuant to the provisions of section 40(2)(b) of the Magistrates' Courts Act, Cap. 11 R.E 2002 as amended by Act no. 25 of 2002. The section limits pecuniary jurisdiction of the District Court and Resident Magistrate's Court, in proceedings where the subject matter is capable of being estimated at a money value, to proceedings in which the value of the subject matter does not exceed TZS 100,000,000.00. I am not persuaded by the plaintiff's counsel's submission that in practice, all defamation matters should be instituted in the High Court. Doing that will be total disregard of the express provisions as to pecuniary 4 V "jurisdiction of this court and the courts below .It will render sections to the said provisions meaningless. The authorities cited by Mr. Simbakalia do not come to the plaintiff's rescue. As it was rightly observed by Mr. Kisongo, in those cases, the question of original pecuniary jurisdiction of the court wasn't brought to the court's attention and it was never considered. The cases were determined on merits. This court is bound by the decision in OURLADY OF USAMBARA case (suppra). In JOHN MOME MORRO (suppra). referred above, this court observed as follows when striking out the defamation suit for want of original pecuniary jurisdiction: "A closer look at the plaint particularly paragraph 6 clearly shows that no substantive claim has been pleaded. The amount indicated in the said paragraph is general damages. As earlier pointed out since general damages though quantified as in this case can not form the basis of determining the pecuniary jurisdiction of the court in a case, I find the preliminary objection raised to be very much valid and portrays a correct position of the law ... " As in this case, the preliminary objection in JOHN MOME MORRO (suppra) case was 'This court has no original jurisdiction to try this case'. Therefore, in my considered opinion, the preliminary objection raised has substance and it is hereby upheld. This suit is struck out with costs. Z.G.MURUKE JUDGE Ruling delivered in the presence of.................... for the plantiff and ................... For the defendant. Z.G.MURUKE JUDGE 5 ( .) J conducted on 13/3/2012 morning showed that the station stock was composed of 900 litres of petrol, 400 litres of diesel and 5,000 litres of Kerosene. On his part DW.1 said the stock taking conducted on 13/3/2012 showed that the plaintiff's stock left was comprised of 5,000 litres of kerosene, 600 litres of diesel, 900 litres of petrol and total of 380 litres of lubricants all valued at about Tshs.14, 000,000/= and all belonging to the plaintiff. In the first place it is plain and clear to me that the defendant did not adduce evidence to prove that they really conducted any stock taking on 13/3/2012. However, she nearly and convincingly gave evidence which establishes that her readings on the stock left behind by the Plaintiff are on the high side to those given by the Plaintiff through PW .3.Therefore, as long as the defendant owned the value of that stock, the value which is based on nearly shared readings given by PW.3 and DW.1 above, I am of settled mind that none of them suffered more adverse value than that established by the Defendant. This settles the fourth issue. The sixth issue is whether the plaintiff was generating revenue of the minimum of Tshs. 280,000/= per day. It was PW.l's evidence above that the untimely termination of the MLA (Exh.Pl) apart from offending Clause 16.1 of the MLA (Exh.Pl) which required the defendant to serve prior Notice to the plaintiff also caused her to suffer a loss of Tshs. 280,000/ per day. That was because from ordinary fuel purchases they made as per the MLA (Exh.Pl) her transactions earned her about Tshs.380, 000,000/= per month. I must honestly state here that these claims were left hanging. When moved by the defence to calculate the figure contained in Exh.P3 PW.1 could not make it. He only managed to establish Tshs. 98,000,000/= through Exh.P3and not Tshs.380, Page 14 of 18 I" \.l-.., 000,000/=. He could not even link her figure with Tshs.201, 000,000/= which is the value of transactions established by DW.1 as per Exh.D1. On his part DW.1 gave an account on how the plaintiff breached the MLA (Exh.Pl) that required her to sell the minimum requirement of the defendant's petroleum products stipulated at Part 12 of the 1st Schedule to the MLA (Exh.Pl), that is 89,000 litres of diesel, 110,000 litres of petrol, .10,000 litres of Kerosene and 1,000 litres of lubricants on monthly basis. But instead they established her monthly sales for November and December 2011, and January and February 2012 were quite far below the agreed minimum volumes as per the MLA (Exh.P.1). DW.1 through Exh.D.1 proved that between 14th November, 2011 and 29/2/2012 (Exh.D1) the total purchases made by the Plaintiff amounted to Tshs. 280,000,000/= only and hence failed to keep sufficient stock on site as per clause 6.6 of the MLA (Exh.Pl) and had failed to cumulatively purchase the minimum agreed volumes of petroleum products for the period of three consecutive months as stipulated in clause 5 and 16:1:9 of the MLA (Exh.Pl). In view of the foregoing, I am therefore unable in the present case, to hold that the plaintiff was generating revenue of the minimum of Tshs. 280,000/= per day without there been solid evidence to prove so. As clearly done by the defendant, it was expected that the plaintiff also could have adduced evidence proving how he came up with her claimed daily loss. The claim that his other receipts were left behind in the Station cannot be a shield and substitute of the strict requirement of law that required her to prove her case as even after she decided not to invoke section 68(e) of the Evidence Act, Cap.6 R.E.2002 she could still have, in my respectful opinion, retrieved the substantial evidence, from her past compiled and transmitted record under Clause 10.1.3 of the MLA (Exh.Pl) which provides: Page 15 of 18 ( • I J "10.1.3 ..... the Licensee shall provide to Engen by fax or electronic mail, on a monthly basis before the last working day of the month at 12h00 or more frequently as Engen may decide, information regarding the daily receipt, sales and physical stock dip data for all products from the previous month .... "[Emphasis supplied] Having carefully and deeply examined the evidence as a whole, as aforesaid, I hold that the plaintiff failed prove her claim. The sixth issue is settled accordingly. In view of the above discussion, it is evident that whereas the defendant is to blame for not complying with the mandatory terms of the MLA (Exh.Pl) as regards to the issuance of agreement termination Notice and conducting stock taking at the time of handing over the business premises, the plaintiff must be equally blamed for breaching the minimum petroleum products monthly quantities that she was supposed to purchase from the defendant pursuant to Clause 5 and item 12 of the 1st Schedule to the MLA (Exh. Pl). Very unfortunate as it happened, no recourse was made to clauses 5.1 and 22 of the MLA (Exh. Pl) by revisiting the minimum monthly quantities or settling the business transactions dispute amicably. Therefore, each part breached the contract to the extent explained herein above. This disposes the first issue. From the foregoing, the claims by the plaintiff for special damages of Tshs.123, 250,000/=, expectation damages of Tshs.102, 480,000/= and interests at commercial rate of 30% and court rate of 7% have no basis and are hereby dismissed. His claim of Tshs.300, 000,000/= for general/aggravated damages is equally not justified. However, since from the evidence it is amply established that the plaintiff deserved to be paid Tshs.14, 000,000/= for the petroleum products stock left behind at the business premises I enter judgment in her favour. The same shall be paid with interests at commercial and court Page 16 of 18 ._ ,, , t WI " rates as showed above. DW.1 on his part did not prove how the setoff of the outstanding amount of Tshs.5, 000,000/= done. Instead, he just mentioned it and left it unproved. As for the Counter-Claim, it is evident to me that the defendant did not issue the mandatory notice and did not also lead evidence to prove that at the time of taking over of the business premises the same were dilapidated and she spent Tshs.6, 635,000/= in its repair. She did not further lead evidence to prove that she incurred business premises closing costs of Tshs. 5,000,000/=. Therefore, I am unable to enter judgment in favour of those claims which are pleaded in paragraphs 27 and 29. If it is true that the Plaintiff damaged the business premises it was upon the Defendant to tell the Court why she did not appropriately invoke Clause 18.1.1 of the MLA (Exh.Pl) to recover the value of the damages suffered. As it stands now her claims were thus not substantiated. As regards the claims on loss of business it is apparent that since the defendant is the one who deliberatively failed to issue the mandatory notice to terminate the MLA (Exh.Pl) and also failed to take remedial measures under clauses 5 and 22 her claims for Tshs.295,200,000/=for loss of business lacks the requisite justification. In any case, once it has been established that she took over the business premises without issuing that prior notice and without conducting the requisite stock taking the only conclusion I can make is that she forfeited her rights over the loss of business she claims. And since until the day he gave his testimony DW.1 said the only outstanding claim the Defendant has against the Plaintiff is Tshs. 5,000,000/= only it is indicative to me that the Defendant had not experienced further loss of business during the MLA's probation period of six months. Therefore I dismiss the claims pleaded in Paragraph 28 of the Counter-Claim. Page 17 of 18 In the upshot and to the extent explained above, the Defendant should pay the Plaintiff's Tshs.14, 000,000/= only with interests, being the value of the Plaintiff's petroleum products taken over by him. The remaining prayers by the Plaintiff and prayers in the Defendant's Counter-Claim are hereby dismissed. Each party shall bear her costs. \.. Judgment delivered this 28th day of August, 2015 in the ence of Mf1r· Kweyamba Kweka, Principal Officer of the Plaintiff who is also holding brief of Mr.Sinare, Advocate for the Defendant. Right of appeal explained. E.M. Feleshi JUDGE 28.8.2015 Page 18 of 18