RULING Masoud Mgassa Vs Jibo Luduka Another

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CIVIL CASE NO. 3191 OF 2024 MASOUD HAMIS MGASSA (In his Capacity As Administrator of the Estate of the Late Mzee Shabani Ibrahim) …………………… PLAINTIFF VERSUS JIBO SEBASTIAN LUDUKA ……………………………………..……....…. 1st DEFENDANT ROCK CITY TAKERS LTD ……………..………………………….……….. 2nd DEFENDANT RULING 2nd & 30th August, 2024. CHUMA, J. In this ruling, I am called upon to decide on a preliminary objection taken by the 2nd respondent which challenges the plaintiff’s decision to institute the instant proceedings to the effect that the suit that is pending in this Court is incompetent on the ground that: - 1. That the court lacks jurisdiction to entertain the matter. 2. That the plaint is vague as the plaintiff does not state his claim clearly 3. That the plaint has improper verification. The raised objection was disposed of via written submissions. The 1st defendant failed to make an appearance in court and the matter proceeded exparte against him. These submissions were duly filed and, credit to the parties, the submissions were concise and admirably focused. In his submission 1 in respect of ground one, Mr. Abdallah Kessy, learned counsel for the 2nd defendant’s contention is that it is a duty of every court before venturing into a determination of any matter placed before it to satisfy itself as to whether it is vested with the requisite jurisdiction to do so. He argued that the failure of the plaintiff to disclose or state the specific claims that show the jurisdiction of the court renders this court incompetent. To justify his submission, he cited the case of Tanzania China Friendship Textile Co. Limited Vs. Our Lady of the Usambara Sisters [2006] TLR 70, held that: - “Substantive claim is the one that determines the jurisdiction of the court and not general damage” Concerning the second ground the 2nd respondent’s counsel contended that the plaintiff failed to state any claim of the properties but rather there is the claim of damages crafted as a general damage, he contended further by citing Order VII Rule 2 of the Civil Procedure Code, Cap 33 R.E 2019 (hereinunder CPC), that plaintiff was supposed to be precise on the amount claimed but failed to do so. He also argued that the plaintiff under paragraph 13 of the plaint claims for mense profit while there is no dispute concerning immovable properties, to buttress his contention Mr. Kessy cited the decision in Eligius Kazimbaya Vs. Pilli Prisca Mutani @ Pilli & Another, civil appeal no. 163 of 2019, the court of appeal held: - 2 “The term mense profit relates to the damages or compensation recoverable from a person who has been in wrongful possession of immovable property” Submitting in respect of the third and last ground, the 2nd respondent’s counsel argued that the pleading was not signed by the plaintiff’s advocate which is contrary to Order VI Rule 14 of the CPC, which requires every pleading to be signed and the same time plaintiff has failed to state the date on the verification clause contrary to Order VI Rule 15(3) of the CPC, to fortify his contention, Mr. Kessy referred to the decision of Lisa E. Peter Vs. Al- Hushoom Investment, Civil Application No. 147 of 2016. The learned counsel for the 2nd respondent winded up with the emphasis that abidance to the rules is not a matter of luxury or a technicality but rather intended to smoothen the administration of justice, he cited the case of Remmy Gerald Sipuka Vs. R, Criminal Appeal No. 67 of 2019, which held that: - “We refrain from taking the course suggested by Mr. Nkolo to relax the rules as that will amount to opening Pandora’s box that will allow litigants to bring to court whatever they find in whatever manner” He urged the court to sustain the preliminary objections and plaint be struck out with costs. 3 In his rebuttal submission, Mr. Masoud Mgassa, the plaintiff himself. Unyieldingly, took a swipe at the 2nd respondent’s contention that the plaint suffers from any defect, submitting with respect to the first limb of preliminary objection the plaintiff argued that this court clothed with requisite jurisdiction to entertain the matter pleaded in the plaint as it has general and unlimited jurisdiction. He further argued that the value of the subject matter and damage suffered were well-pleaded/explained under paragraphs 9 and 12 of the plaint, claims to the tune of TZS. 823,500,000/= (Eight Hundred Twenty-Three Million Five Hundred Thousand). He contended that the position which was established by the Usambara Sisters’s case (supra) is outdated as taken by new position in recent decisions, he cited the decision of Peter Joseph Kilibika & Another Vs. Patrick Aloyse Mlingi, Civil Appeal No. 37 of 2009 and General Manager African Barrick Gold Mine Ltd Vs. Chacha Kiguha & 5 Others, Civil Appeal No. 99 of 2019, which states as follows: - “We wish to state also that, following the amendment of S. 13 of the CPC by Act No. 4 of 2016, even where a suit which would ordinarily be instituted in a Resident Magistrate’s Court or District Court is erroneously entertained by the High Court, the error would not vitiate the proceedings” 4 The plaintiff held the view that the two cited cases above give this court jurisdiction to entertain this matter. Regarding the second limb of the objection, the plaintiff held the view that the claim was pleaded in the plaint as per paragraphs 4, 9, and 12, that despite 2nd respondent’s counsel disputed the plaint but failed to state the offended provisions of the law, he cited the case of Mukisa Biscuits Manufacturing Co. Vs. West End Distributors Limited [1969] EA 696, which held that: - “A preliminary objection should be on a point of law and not one that has to be ascertained by facts. He should have as a matter of professional honesty pointed it out so that we could have commented on it” In alternative, the plaintiff urges the court to invoke section 97 and Order VI Rule 7 of the CPC, to give him the room for an amendment. Submitting in respect of the third limb of the preliminary objection while conceding that the verification clause is lacking, he was adamant that such omission is curable under the oxygen principle since the court’s power to facilitate the just, expeditious, proportionate, and affordable resolution of civil dispute as per section 3A of the CPC and Section 2 of the Judicature and Application of Laws Act, Cap 358 R.E 2019, which provides for unlimited power of the High Court over all civil matters. He submitted that the preliminary objection is misconceived and he urged the Court to overrule it with costs. 5 There was no rejoinder filed by the 2nd respondent's counsel. From the parties’ rival submissions for and against, the question for the Court’s determination is whether the plaint suffers from the cited defect and, if so, whether such omission is fatal. As I tackle this question, I will embark on the disposal journey by addressing the first ground of objection which questions the jurisdiction of this court, it was the 2nd defendant’s contention that the plaint has not specified what is the specific damages claimed which shows the jurisdiction of the court is fatal, while the plaintiff argues that this court being the high court has general and unlimited jurisdiction to entertain each matter and that what he claimed is well stipulated under paragraph 9 and 12 of the plaint which based on seizure and value of the properties. It was the plaintiff's contention that the case of Usambara Sisters (supra) is outdated. As rightly alluded to by the 2nd respondent, it is a trite law that the one which determines the jurisdiction of the court is the substantive claim (specific claim) and not general damages as it was held in the case of Our Lady of Usambara Sisters (supra). I have gone through the plaint and observed that what the plaintiff pleaded was general damages for loss of properties that disappeared after being seized and swept away, and at the same time his first 6 prayer was all about general damages to the tune of TZS. 823,500,000/-, there is nowhere the plaintiff claimed for specific damages. It is in the jurisprudence of this land that it is not general damages that determine the pecuniary jurisdiction of the court since the same lies within the discretion of the court. The omission of the plaintiff for not claiming specific damages has gone to the root and is intolerable as essential requirements under the law had been omitted or ignored. That would amount to a non-compliance and the consequences would undoubtedly be dire. Given the foregoing, I find the objection plausible and well resonating, it is simply that the court has not been properly moved and the incompetent suit is liable to striking out. This point in itself suffices to dispose of this matter without venturing to the rest of the points of objections. Consequently, I sustain it accordingly, on this ground alone I strike out the suit with costs. It is so ordered. DATED at MWANZA this 30th day of August 2024. W.M. CHUMA JUDGE 7 Ruling delivered virtually in attendance of the plaintiff in person and Mr. Kessy Learned advocate for the second defendant this 30th day of August 2024. W.M. CHUMA JUDGE 8