20100607 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 114 OF 2008 ) (Originating from the decision of the RMS court at Kisutu in Civil Case No. 134 of 2002) PETER K. MCHOWERA ..-.-................ APPELLANT .- .,, I VERSUS ! TANZANIA REVENUE AUTHORITY ...... RESPONDENT Date of last Order : 21/5/2010 . ! Date of Judgment : 7/6/2010 JUDGMENT -I Shangwa, J. In this case, the Appellant was aggrieved by the Ruling of Fimbo, RM delivered on· 21/5/2008 in Civil Case No. 134 2 of 2002. He has appealed to this court against that Ruling. His appeal is based on the following ground:- " That the trial Resident Magistrate erred in law in dismissing the suit. After making a finding that the court had no jurisdiction to determine the suit, the trial magistrate ought to have struck out the suit for want of jurisdiction. " On 29/10/2010, I ordered that the Appeal should be argued by way of written submissions. Whereas counsel for the Appellant filed his written submissions, counsel for the Respondent did not file any reply. Learned counsel for the Appellant Mr. Semgalawe contended that under 0. VII r. ii ( c) of the Civil Procedure Code, where the suit is barred by any law, the plaint ha~ to 3 be rejected or struck off. He submitted that since the plaint was barred by the laws governing customs matters, it would have been proper for the trial court to reject it and strike out the matter instead of dismissing

it. Personally, I agree with the submission made by counsel for the Appellant that after finding that the case was improperly before the court on grounds of lack of jurisdiction to try it as it involved customs matters, the proper action to take was to reject the plaint and strike out the suit but not to dismiss it. For this reason, I hereby allow this appeal but each party should bear its ovvn costs. It is so ordered.

JUDGE 7/6/2010 4 Delivered in open court this 7 th day of June, 2010 in the presence of Mr. Semgalawe, Advocate and -in the absence of the Respondent.

JUDGE 7/6/2010