20141212 TZHC Dar es Salaam

... 1. 01· '"" ii . L, IN THE HIGH COURT OF TANZANI~ J AT DAR ES SALAAM CIVIL CASE NO~ 96 OF 2007···· PAULINA KIHAMPA ................................. PLAINTIFF V STANDARD CHARTERED BANK .TANZANIA LIMITED ............................. DEFENDANT ·~.~.---.. .; Date of last Order 23/10/2014 Date of..Ruling 12 / 12/2014 ( RULING A.Shangwa, J . The plaintiffs suit was presented for filing a long. time ago on 17th August, 2007. The suit is . based on malicious prosecution. Earlier before the suit was re- assigned to me sometimes. in June, 2013, the Judge who was handling it was Madame Chingwile. Earlier before Chingwile,J the Judge· who was handling it was Madame 2 Aboud,J. On 14th February, 2014, the speed track of the suit was amended to speed track I because by then the speed track which had earlier been fixed expired. i.e speed track 3. Hearing of the plaintiffs suit started on 14th February, 2014. The agreed issues for determination by the Court were recorded as follows:- ]. Whether the plaintiff was maliciously prosecuted by the defend ant. 2. Whether the plaintiff has suffered any damages as a result of malicious prosecution. 3 3. To what reliefs are the parties entitled thereto. After recording those issues, P.Wl gave her testimony and her case was closed on the same date and defence hearing was fixed on 8/4/2014. However, on the said date, counsel for the defendant raised a notice of preliminary objection on two grounds namely:- ]. That the Court has no jurisdiction to entertain the matter. 2. In the alternative that the cause of action is founded on labour relations and that the refore the proper f arum is 4 " the Commission for Mediation and Arbitration (CMA) and the Labour Court as the case may be. In my view, the alternative point of objection was raised without reasonable ground as the suit between the parties is not founded on labour relations but as already stated it is founded on malicious prosecution which is a tort. I am of the view also that the first ground of objection was belatedly raised. I am quite aware that a point of jurisdiction to entertain the suit can be raised at any stage in the proceedings even at the stage of appeal. However, whenever counsel for the defendant thinks that the Court has no 5 jurisdiction to entertain the suit, he should raise such point earlier before holding the first pre- trial conference. In this case, the first pre-trial conference was held on 27/10/2009 before Aboud, J and the Court was informed by counsel for the defendant Mr. Tanzan that there were no points of preliminary objection pending. Therefore, the defendant is in law estopped from raising any preliminary objection at this stage. At any rate, I am of the view that this Court has jurisdiction to hear suits such as the plaintiff's suit which is founded on the tort of malicious prosecution following the defendant's act of initiating proceedings in the RM's Court at Kisutu in Criminal Case NO 801 of 2004 against 6 her alleging that she had defrauded the Bank which had employed her namely the Standard chartered Bank an offence which the Republic failed to prove and entered a Nolle Prosequi which resulted into her discharge on 10 th August, 2006. I hold the refore that the first ground of objection was simply raised to retard justice and .~till~ t;-~"·ith costs. Defence on 19/1/2015. 1/J:a~\ ,~\\\ ~ L ~ --. v~ ' \.~;: . !)} s;~~;, ·-.-~-< -~- y /'3/1 12/12/2014 De ~ ~ i - ' open Court in the presence of Mr. Kusalika for plaintiff and in the absence of the defendant's Counsel. ~ Shangwa, JUDGE 12/12/2014