20040805 TZHC Arusha

. . ..,,,...,,..,,;w= _w...,.-.a-, MAAJAR, RWECHUNGUM, NGUWMA., · & MAKANI · t , AOVOCATES, . 17 SEP 2004 RE· r.: Pl D CIVIL CASE NO. 52 OF 1999 RENADA MINERALS CORPORATION.,. ... PLAINTIFF -· Versus- RUTAKANGWA, J. '. •• ' • • - •• ~ . ~-4 T},lls'.'sUit was duly th . . . filed on 30 December 1999. By then the· Plaintiff was ... ,, sUing oriiy"the then National Bank o(Comni~rce (1997) Ltd. The Plaintiff, Which ''·,\ isJ5/JrnJted:Tia'8'ili~ company duly" i~~;rporated under our Companies Ordinance c§if° 212,;;. W~~ claiming-'{ro'm e_hi then sole Defendant TShs.78, 552,~86/= being ')i?a;'m~nt-'~f ~pecial dam~ii°g~s~~, among a nunib~f. Of other reliefs. On 1ih June I.... '. ;-:;'/;".. ·<_ ,. . " " . ?,QP91 the Plain:f{ff,~filed an ·amended Plaint. The amended plai_nt did not affect thl/substa'nci :9£:'fhe.: -~eliefs ~~~fog sought, but the Defen~ant _was th~ National 1 Ba'nk of Commerce· (1997) Ltd:~ Uhuru Branch, Arusha. · Furtherrflore, with the ·. leave of this Court, on :24~~:•,Abgust 2000 the Pla.intiff filed another Amended Plaint. The. ~nly amen,dmeAt'ik;;tn~ pleading was the change of Deferidarit or its . name rather .. This ti;,:\~ it was ~-d,i;.theNationalBank of Commerce (1997) Ltd . . Yet, on 14th July 2003°>,Mr. Oj~;~";"i~~,~ned counsel for the Plaintiff obtained leave of the,, Court to fii'e lnother- amended. Plaint This time he -\IY~S to implead . Consolidated Holdin~\2brporation. This particular amended plaint --~as filed on . . . . ... ., .··\t~.·~· . . . .. . ... _ -· :..- 3 The objection on jurisdiction is predicated upon section 13 of the Civil Procedure Code, 1966 (or the C.P.C. hereafter) read together with Section 40 (2) (b) of the Magistrates' Courts Act, 1984 (or the MCA 1984 hereafter) as amended by Act No.25 of 2002. It is common knowledge that Act No.25 of 2002 became . ~effective ·off 14Jl2/Z0U2. -Equally Tiffconte-stecfls the --fafrtRafthe· effect 6f the amendment to S.40 (2) (b) of the MCA 1984 was, only to enhance the pecuniary jurisdiction of the District Courts (and Resident Magistrates'· Courts). in the ,-·-----1 exercise of their original civil jurisdiction in matters where the subject m·atter'is _.,.J capable of being estirna.ted at a. moriey value from the then ceiling of Tshs. 10,000,000/= up to Tshs. 100,000,000/=.There is equally no dispute here on the fact .that a lower court cannot entertain a suit above the pecuniary limits of its jurisdiction. Both counsel for the defendants have. been quick at pointing out that "one of the fundamental principles of dvil procedure is jurisdiction of the courts". I entirely agree with them and Mr. Ojare has no qualms about it. In a commendable spirit, counsel for the first defendant went further and provided . . . the precise definition of jurisdiction in civil litigations. It was extra.cted from the . · treatise of MULLA on the Indian Code of Civil Procedure, -1908, 16th editton, Vol ..l · at page 369. The industrious author defines jurisdiction as: ' . ........... the extent ofthe authority ofa court to administer .· justice not only with reference to the subject matter ofthe suit but also the local andpea;niary limits ofitsjurisdictiiJrf'. To bolster his/her stance, the same learned counsel has invited _me to take cognizance of the .elaboration provided by the same learned author (Mulla) in hi? same book. Mulla further says: . "Thu~ a presidency small cause court On our case the subordinate courts} has no jurisdiction to try suits in 4 -' which the amount or value orthe subject matter exceeds the prescribed monetary value/ this issaid to be the jurisdiction ora court as regards its pecuniaryjurisdiction// (ibid) (the underlined words should be ascribed the learned counsel)·. _ . Of course the importance of the above underlined words by counsel for the purpose of this ruling cann_ot be ig_':!9..~~9- _9t 9_!1,_Qf_~_guaL?l9P.if.i_~g!JC~,=apart.Jrom,. -- - th·; fa-ct -t~~t I -~·~--·:;~ -f:~--~;:;~:~eni:-with. ~-he ob-servations of MLJLLA, is th~ naked fact that this elaboration was _given by the author while· commenting· on section 15 .of the Indian Code. In essence, the said S.15 is identical with secticiri -··--.._ j \ 13 of our C.P.C. S_ection 13 of the C.P.C. provides as follows:- "Every SUit shall be instituted in the court orthe lowest grade competent to try it For the purposes orthis section/ a court ora resident magistrate and a district court shall be deemed to be courts orthe same grade/~ ,. . . This is the section which has acted as a springboard, so to say, for the objection which is under scrutiny in this _ruling. As a_lready shown above, the pecuniary jurisdiction of both. district and resident magistrates' cour+..s in litigations like the one between the plaintiff and the defendants has been raised to TShs. 100,000,0_001=. As ·counsel for the · defendants, relying on M!.JLLA, have categorically submitted, these courts, which . . are subordinate to this court, have no jurisdiction to try suits of this nature · · in w~ich the amount or value of the subject matter exceeds TShs·. 100,000,000/=. I am in full agreement with them as is Mr. Ojare. BUT, is it also true that this court lacks the jurisdiction to try suits of this nature in which, I,... • • • , • - • . • • • . the _amount or value of the subject matter is TShs. 100,000,000/= or .below? The elaboration by MULLA.is silent on this. Both counsel for the Defendants are emphatically of the view that it lacks such jurisdiction. In providing this 5 affirmative ·answer the ·learned counsel have conveniently ignored the relevant and convincing commen~ary by MULLA ( Supra) and sought reliance -on· three decisions of this court (Commercial Division) to that effect. These decisions were given :r::- (a) THE JUBILEE INSURANCE COMPANY OF TANZANIA LIMITED vs. - ·- .I) bl b--+AN~N{Ac:l:IM-FfEB ~elVIt-eA5E~Nq:·~rffDF20{jJ~---·---. - ·. ,_ :'. :· . (b) AKIBk COMMERCIAL BANK vs. THE NElWORK OF TECHNICAL . PUBLICATIONS IN AFRICA & 4 OTHERS - CIVIL CASE NO. 18 OF 2003; and (c) THE COURTYARD .DAR ES SALAAM vs. THE MANAGING DIRECTOR TANZJI.NIA POSTAL BANk :_ CIVIL CASE NO. 35 OF · .2003. Jin all these cases_ the Commercial Division of this court ruled that this court iacks · .•jurisdiction to _try suits of this nature whose .value is below TShs. 100,ooo;0O0/=. _.on the basis of S.13 .of the C.P.C. 1966. I am also aware that the same Division in other cases ruled differently on the same issue. I have availed myself a lot of time to peruse dispassionately the rulings in the above cited three cases. My first impression is that the -learned judges in these cases might have found themselves bound to rule as they did because of the unequivocal nature of Order IV, Rule! of the C.P.C., 1966 as amended by -.. . . \ G.N. No. 140.of 1999 by 9dding a new sub-rule 3 thereto. The said sub.:.rule 3 j · reads thus:- 'Wo suit shall be instituted in the Commercial Division of the High Court concerning a commercial matter which is pending before another court or tribunal ofcompetent jurisdiction or which falls within the competency ofa loWercourt'~ (Emphasis is mine) Tt,e underlined words speak for themselves. To an objective mirid they need no elaboration at all. 6 . While going through those rulings, I have found out one discomforting . . omission .. The court did not address its mind to the objects of both Act No.25 of 2002 and S.13 of the C.P.C. 1966. Thirdly, the learned judges, were not referred _to earlier -decisions of th_is court on the issue, save only the case of FRANCIS ANDREW vs. KAMYNINDUSTRIES (T) LIMITED [1986] TLR 31. . - What_ were the objects and reasons behind the amendment to S.40 (2) of the MCA 1984? These are tci be found explicitl'{ stated in the BiU to the Act. The amendment was "intended to enhance the jurisdiction of District Courts· in relati.on to immovable properties and other civil proceedings". The mere enhancem_ent of the jurisdiction of the District Courts, to me, did not automatically go to oust the jurisdiction which this court has always had over these_ proceedings. It needed clear and unambiguous language in the statute to restrict the unlimited jurisdiction of this court as is clearly envisaged by Artide . . 108 (2) of the Constitution of the .!Jntte.cLRepublic of Tanzania of 1977. What is the scope and object of S.13 of the· C.P.C. 1966? It is common knowledge that until 1966 when w~ enacted our own Civil Procedure Code, Civil .. proceedings . of this nature in this country . were being governed by the Indian Code of Civil Procedure of 1908. It is equally common knowledge that our C.P.C. .1966, with the· exception of the amendments made to the· Indian Code beginn!ng fro~ 1976, is a replica of this latter Code. I~nterpreting the . numerous provisions of the CPC 1966 . the courts (of all grades) in Tanzania, have __ - . ~ always sought ......,.. guidance and reliance. on the interpretation given "--. . . by Indian. and - English Superior Courts and cornmentari~de by eminent lawyers and jurists . - . .author has been MULLA. - O.!J_ identical provlsioris in the Indian Code. One such prominent commentator or . His treatise on the Indian Code of Civil Procedure of . . . 1908, which needs no introduction, is being cited as authority on various issues 7. ,. almost daily in our courts in Civil litigations. Even in these proceedings, as is . already. evident, the learned counsel for the Defendants have relied on it, very conveniently, to reinforce their arguments. MULLA, therefore, has this to say on the scope of and policy behind sectiorr~s ;fth-e Inc:Hari-Code;.., . . . . .. .... ---- ·-·-······-..,-..- ______..,.... -------, -- . . "The object of the section in requiring a suitor to bring his suit/n the court ofthe lowest grade competent.to try it is - that courts ofhigher grades shall not be over crowded with . suits, . This Section is a rule oFprocedure, notoriufisdiction, and whllst it lays dowiJ that a suit shall be instituted in the court of the lowest grad~ it does not oust thefurisdicrion oi the _courts ofhigher grades they possess under the Acts constituting them'~-(emphasis supplied): see Vol. I, 15th edition at pg. 221. In further elaboration, the learned author explicitly says:- ' . ...... .ifa suit which under this section ought to have been instituted in a Munsif's coutt is brought in the court ofa Subordinate Judge and the Subordinate Judg~ instead of returning the plaint under Order~ rule j O tries it and passes a decree againstthe Defendant; notwithstanding an objection taken by the Defendant; the decree is not a nu/Ii[½ as far as the .Subordinate Judge hasjurisdiction .. to try the suit. it is a case ofirregular!{½ ilotaffecting _. the jurisdiction ofthe court within the meaning ofS. 90" atp. 224. (Section 90 is identical to S.73 of the C.P.C. 1966). In_ thi~ .same spirit this court similarly interpreted S.13 in cases prior to FRANCI_S ANDREW vs. KAMY_N INpUSTRIES (T) LIMITED, and/()r the three . . Commercial Division cases. mentioned above. Only two .examples will suffice . .. here. · In N·. J. AMIN LTD. vrs.__ V. B. PATEL & CO. LTD. (1969) HCD n.17, the defendant had raised a preliminary objection to the effect that the case was not justiciable in. the High Court. This followed the admitted· set-off which reduced 8 th~ claim to TShs. 19,280/= (the amount bel0w the then TShs. 20,000/=) which . then became within the pecuniary jt,1risdiction of the District Court. In no uncertain terms, Biron 1 J. held:- " The mere fact that the sum now claimed is within the jurisdiction of the lower _court does not automatically oust the jurisdictiofJ._p[__ ___ .. _ . ---~ .th"ii'cciiirF~~ .. ,:--·-·· --.- -- .. - ~ ·.·.·.·--·. - ---,- ----------- . --·--c·-:--:-::-·~=-~----:. :. : .. ·:. . . In. the case of JAFFER v. JAFFE_R (1996) TLR 111, Mapigano; J. was equally explicit. He thus observed:- . . .. ''Of course S. 13 is only a rule ofprocedure and not.ofjurisdiction/, .anct there/_ore,, the court of the higher grade is not bound to take ' -. advantage ofit and ma~ ifit prefer~ retain the suir~ _Justice Sheikh was of the same stance in M. H. MURADAL VS . . CONSOLIDATED HOLDING CORPORATION & N. H. C. Civil- Case No.2 of 2002 (ARUS~A). I have had the advantage of reading the decision of this court in . FRANCIS vs. KAMYN INDUSTRIES LTD. The court ruled that it had ·no _juri~diction qnly because the amount claimed was below TShs. 20,000/=. It referred. neither to the case of AMIN v. PATl:L (Supra) nor to any of the authoritative commentators on the section as MULLA, among others. In my ... honest view, ,the court only took "advantage" of S.13 to get rid of the suit: Incidentally, even Mr. Ojare appears to share the stance of counsel for the defendants. He parts company with them only when they appear to "miserably" . . . . . : miss "the fine legal -point that pecuniary jurisdiction of a civil court is determined at the time of institution of the suit; an~ hot subsequently", which to him. is "the very clear if!1pOrt of section 13 of the C.P.C. 1966". In view of my clear elaboration above, he is equally wrong on the true import of S.13 of the CPC 1966. 9 Of .course this suit, as already indicated earlier on, was first duly •instituted in 1999. By then this court was the only court vested with the pecuniary jurisdiction to try it. So at that time S.13 of the CPC 1966, had not been • i violated. The cq'..:ation changed in 2002 with the passing of Act No.25 of 2002 enhancing the pecuniary jurisdiction of the district courts. _As_ I hav_~_,a_ln~ady..c·c·· maae· 1t dear, this enha.nceme~t h~d ~b "int~htiO~- ~f--~~stirig the j~ri~dictio~- bf this court. : It was done with the sole purpose of avoiding over-crowding this , court with suits of this nature which had resulted from the fall in value of. our -_ Shilling and the increased peoples' awareness_ of their rights arid duties -in our _open society ahd the courts being easily accessible. Furthermore, -- the . subordinate courts are now being staffed or manned by more learned · magistrates. It is my_ holding, therefore, that S. 13 of the C.P.C. 1966 _does not.-- oust the jurisdiction of this court in respect of suits of this nature which by their monetary value ought to be commenced in the district or even primary· courts. 'If by sheer inadvertence or for the sake of convenience a plaintiff institutes a suit of this nature which by virtue of S.13 of the C.P.C. 1966 as_ a matter of procedure and policy ought to have been instituted in one of the two subordinate courts, this court, has the option- of either returning the plaint to the plaintiff under Order VII, rule 10 of the CPC 1966 or trying_ and determining the same. I will not, however, pursue any of these two options here. As already made abundantly clear, at the time instituting this suit in 1999, the plaintiff had not violated the provisions ofS.13 of the C.P.C. 1966. Had it not been for the changes introduced by Act No. 25 of 2002, this court could have remained as the only "court of the lowest grade competent to _try itfl. Following_ the enhancement of the pecun-iary jurisdiction iri 2002 of lower courts, the District Court has become the court of the lowest grade competent to· try it Remaining faithful to the object of S.13 of the CPC 1966 and the policy behind ... _-the amendment to.s. 40 (2) of the MCA 1984,J shall not retain this suit in this; court for trial.: Under the;powers conferred upon this court by S.21 (1} (a) of the I ' . C.P.C. 1966, I hereby transfer this suit for trial to the Arusha District Court. The 1 suit shali proceed from the point or stage it had reached in this court. 1 -,'-,---cc--.···----·------·----·-·---. -- :··-·. ..... - .·. - . - -- - -- : Alfsaicra·ric:fdone~-Tove·~~-~!e-the·· pre!imiriary objection raised by counsel . .for both Defendants on the issue of jurisdiction. I will order each party to bear its own costs as far as the preliminary objection proceedings are concerned for ' ' ' : ·-) reasons which are ·quite obvious. It is so Ordered. ' <";_~- E.M.K.~ JUDGE 12/07/2004 Date: 5/8/2004 · Coram: A.H. Msumi, Ag~ DR. For Plaintiff: Mr. Ojare/Mr. D'Souza Advocate For 1 st Defendant] - Absent. For 2 nd Defendant] -Absent. COURT: Ruling is hereby delivered. R ling read outtoday on 05/08/2004 in - the presence of Mr. D'Souza for Mr. j r ;/ . · · AG. DISTRICT REGISTRAR ARUSHA 05/08/2004 EMKR/jn.