ndoro kili meru mountain lodge and campsite ltd vs twiga bancorp ltd and another 2020 tzhclandd 64 23 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 138 OF 2017 NDORO KILI MERU MOUNTAIN LODGE & CAMPSITE LTD........ PLAINTIFF VERSUS TWIGA BANCORP LIMITED 1st DEFENDANT THOMAS BARNABA MM BAN DO 2nd DEFENDANT RULING S.M. MAGHIMBL 3: On the 02/05/2017, the plaintiff herein sued the thfeirdefendants jointly and severally for judgment and decree that: i. A declaration that the purported sale of the plaintiff's property held under C.T No. 16529 is illegal, null and void ab initio. ii. A declaration that the process of transfer currently undertaken by the 1st defendant is null and void ab initio iii. An order for costs of this suit. iv. General Damages; and v. Any other relief that this Honourablecourt may deem fit to grant. On the 25/11/2019 when the matter came for first pre-trail conference, I noted that the transaction which is the center of the dispute as well as the disputed property were done and allocated in Arusha region respectively. Owing to that, I have directed the parties to address the court on the issue^ of geographical jurisdiction of the court to determine this suit. Only the plaintiff filed their submissions hence this ruling. The plaintiff's submissions were drawn and filed by Mr. Nzaro Kachenje, learned advocate. In his submissions, Mr. Kachenje cited the provisions of Section 18(a) of the Civil Procedure Code, Cap. 33 R.E 2002 ("The CPC") which provides: "'Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits o f whosejurisdiction; (a) the defendant, or each o f the defendants where there are more than one, at the time o f the commencement o f the suit, actually and voluntarily resides, or carries on business, or personally works for gain; " He then submitted that despite the fact that in the present case the subject matter of the dispute situates at Farm No. 1012 Makumira Village, Usa River, Arumeru District and all the transactions between the plaintiff and the defendant were done at Arusha, the law does not preclude suits to be instituted in the place where the defendant carries on business or resides. He argued that the first defendant's office headquarters are in Dar-es- salaam by virtue of principal place of business. That by virtue of the cited provision of law, it is apparent that suits may either follow the defendant or cause of action and since the defendant has a place of business ay Dar-es- salaa, this court has jurisdiction. He supported his submissions by citing the case of Exim Bank Tanzania Vs. M & Five B Hotel and Tour Limited& Another, Case No. 109/2016 where it was held that the High Court Registries are for convenience purposes given the fact that the High Court is one, the convenience has to be on the part of the defendant. He concluded that this court has jurisdiction to entertain the suit. I have considered the submissions of the plaintiff. It must be made clear on the onset that in the current case, there are more than one defendant and according to para 3 of the plaint, the 2nd defendant works for gain in Mwanza, we therefore have two defendants with different places of residence/office/work for gain. Therefore if the plaintiff would have wished to sue on the convenience of the defendants as he argued, then the applicable Section would have been Section 18(b), but since the leave was not asked for, the applicable Section in this case is Section 18 (c) which provides that: "18. Subject to the limitations aforesaid, every suit shaii be instituted in a court within the iocai limits o f whosejurisdiction (c)the cause o f action, whoiiy or in part, arises." This would have also been supported by the explanation two of the Section which elaborates; Explanation II: A corporation shall be deemed to carry on business at its sole or principal office in Tanganyika, or, in respect o f any cause o f action arising at any place where it has also a subordinate office, at such place. From the plaint as well as Mr. Kachenje's submissions, all the transactions between the plaintiff and the defendants were done at Arusha where the 1st defendant has its subordinate office. This, coupled with the fact that the 2nd defendant is a resident of Mwanza, makes it even more important that the suit should have at least been filed where the cause of action arose. As per the court records, the plaintiff did file a Land Case No. 30/2015 between the same parties, same cause of action and same subject matter, only that this suit was filed in the proper jurisdiction, Arusha Registry of the High Court. The suit was struck out on the 02/05/2017 after the expiry of the speed truck. Therefore coming to file the same suit in this court is nothing but forum shopping on the part of the plaintiff while he is aware and had once properly sued in the right registry. That said, by letting this suit be filed here would be defeating the very purpose of geographical jurisdiction and allowing the plaintiff to scramble on forum shopping to the detriment of the defendants. As I have said earlier, the defendants didn't make any submissions while the 1st defendant has a counterclaim against the plaintiff. The same principle shall apply to the said counterclaim as it is also filed in the wrong registry. On those findings, I find this suit and the counterclaim to have been wrongly filed in this court, the proper place would have been in Arusha where the cause of action arose, the transactions were executed and much more so, where the subject matter of the suit is situated. In conclusion, both the main suit and the counterclaim are hereby struck out. Each party shall bear their own costs. Suit Struck Out. S.M MAGHIMBI JUDGE.