20140916 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM LAND CASE NO; 9 OF 2011 1. SALEHE SADIIG SAMBULA ................................... : 1ST PLAINTIFF 2. OMARY ISSA ULIWAUGONA .................................. 2No PLAINTIFF 3. MOHAMED KING'ENGE'NA .......... :......................... 3RD PLAINTIFF . · · · TH 4. KENAN VICTOR HAULE ...................................·....... .4 PLAINTIFF Versus; 1. SEMI SARANI ..................................................... 1ST DEFENDANT .·. ·. ND 2. IZENGO,SAHANI ,,,.' ................................................. 2 DEFENDANT 3. LOZALIA JUJI. ......................... :........................... 3RD DEFENDANT 4. SANDU SHAGEMBE ............................................ .4TH DEFENDANT 5. LUCAS SHAGEMBE ............................................... STH DEFENDANT RULING 14/11/2013 & 16/09/2014 The niain issue for determination before me in this ruling is whether or not this court is seized of the requisite pecuniary jurisdiction to try the suit filed by the ,' four plaintiffs, SALEHE. SADIKI SAMBULA, OMARY ISSA ULIWAUGONA, MOHAMED KING'ENGE'NA and KENAN VICTOR HAULE. The suit .. is against the five defendants, SEMI SAHANI, IZENGO SARANI, LOZALIA JUJI, _ SANDU SHAGEM;BE and LUCAS SHAGEMBE. The issue follows a preliminary PaM1of6 ~ t objection (PO) raised by the defendants and based on a single poin.~ that this court has no pecuniary jurisdiction to try the matter (suit). In the· main suit the plaintiffs claim for compensation of paddy plantation destroyed by the defendants' cattle at the tune of Tanzanian shillings (Tshs.) 90, ' ' 000', 000/= (Ninety Million only), general damages worth Tshs. 50, 000, 000/= (Fifty Million only), costs of the suit and any other relief the court shall deem fit to grant. The defendants d~nied the claim and accordingly filed their joint Written Statement of Defence along with the notice of PO. The parties argued the PO by way o~ written submissions, whereby the defendants were represented by Mr. Jamhuri (of Jamhuri and ·co. Advocates) while the plaintiffs were adv9cated for by Mr. Kusarika (from GF Law Chambers, Advocates). In _supporting the PO the learned counsel for the defendants argued that, the law applicable in this matter is the Land Disputes Courts Act, Cap. 216, R. E. 2002 which under s. 37 (b) provides that the High Court (Land Division) shall exercise original jurisdiction in proceedings where the subject matter is capable of being estimated at a money value in which . the value of the subject matter ' . exceeds Forty Million shillings. However, he argued that, according to the valuation report annexed to th~ plaint (as annexture 2) the value of the allegedly destroyed crops is only Tshs. 17, 953, 341/=. He added that, the law is to the effect that it is the substantive claim and not the general damages which determines the pecuniary jurisdiction of a court He cited th~ Court ~f Appeal of Tanzania (CAT) decision in the case of Tanzania China Friendship Textile Co. Ltd v. Our Lady of UsambaraSjsters [2006] TLR. 70 to·fortify the contention. The learned counsel· further submitted ,'t"~,that, for purposes of establishing . . . . .,··. ; ,.. ,· -· . .. . '"' .. what ,". , l 1s the substantive claim·, it is proper to l~ok at the documents supporting the . Page 2 of 6 .. _. J plaintiffs claim which is the valuation report in this case (showing that the subject matter is worth onty Tshs. 17, 953, 341/=). This principle, he argued, was adopted by this court. (Kileo, . J as she then was) in the case of William Mosha v. Michael . Kamilius Mtui t/a Paro Investiment [1991] Company, High Court Land Case No. 120 of 2004, atDar es salaam (unreported). The counsel for the defendants thus argued that the fit court to determine this ' . case was the District Land and Housing Tribunal (DLHT) which is vested with pecuniary ju~isdiction to entertain pro.ce¢dings related to"subject matters the value ,, -. ·;.-_ of which does not exceed Forty Million shillings, vide S. 33 (1) of Cap. 216. He also argued that according to s. 13 of the Civil Procedure Code, Cap. 33 R. E. I' i' ' 1:" 2002, every suit shall be instituted in the court of the lowest grade competent to try it. He contended further that Cap. 33 applies to land matters like the one under discussion by virtue of s. 51 (1) of Cap. 216. He thus prayed for this court to strike .•·' . \• out the plairif. In his replying submissions, the learned counsel for the plaintiffs submitted that, what the learned counsel for the defendant raised is not worth a PO in law because it steeps into the, evidence in looking into the annexture to the plaint (the valuation report). A PO must in law base on a pure point.of law according to the facts pleaded or that arise as clear implication from pleadings. He cited the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd (1969) E. A. 696 to support his argument. He added that, the said annexture may or may not be tendered in evidence later; hence it cannot be based in determining the pecuniary jurisdicti,:m of this court. He also _submitted that, as long as the claimed amount acco~ding· to the plaint is compensation at the tune of Tshs. Ninety Million, .' then this court has pecuniary jurisdiction to try the case as that amount exceeds the said Tshs. Forty Million. The counsel also submitted that, it is a matter of evidence Page 3 of 6 for the plaintiffs to prove the compensation claimed, and it is thus premature to discuss the evidence at this stage. 'He also . ,- argued that, the legal principle in . Tanzania China Friendship TextHe. . Co. .IAd ~-. case (supra) supports the plaintiffs' , •·: p contention that the subject matter of Tshs. Ninety Millions and not the one shown into the annexture to the plaint (the valuation report), can be used to determine the pecuniary . jurisdiction in this case. He distinguished the William. Mosha case - ,,, (supra) on the ground that it is ~ot c~ear in that case, what were the contents of the plaint. He thus urged thjs court to ove~le the PO with costs. 1<:·. Having considere~ the argu~erits by the parties,, I now examine the main .' issue in this matter as posed at the opening of this ruling. I am of the view that the parties do···not dispute on_ the stance of the law that it is the substantive claim and not the gerieral damages which . is considered in determining ·the pecuniary jurisdiction of the court as per· the CAT . ' decision in the_ Tanzania China . . . - Friendship Textile Co. . ..... . ,' .. .- (supr_a)._They Ltd case - . are also at o.n,_e that, according to . Cap. 216, this court is vested with pecuniary jurisdiction on matter~. 'of this nature the value of which excee,ds Tshs. Forty Million, otherwise a ~atter must be filed , . . , before the DLHT. The dispute between . the parties is thus reduced ' 'to the way of J'. determi_ning the substantive claim in determining the pecuniary juris~iction. While the defendants believe tliat the same is established by looking into the. annexture to the plaint, the plaintiffs argue that the _same is established by loo.king ·into the pleadings and not into the anextures ~which are only intended evidence~ In my settled view, the mea~~ for detennining which is a sub~tantive clai~ ' . in a suit is similar to the means· for determining whether or not a suit discloses a cause of action. The law says, in determining a cause of actiop one looks into the ' I plaint, see the case . of John By~mba'rilwa v. Agency·: . lVlaritime International (T) Ltd [1983f TLR. 1 (by the CAT). The rationale for this Page 4 of 6 ..... -r, \, view is based 9n the fact that it is the plaint, and not any other document, that discloses the'· necessary particulars related to a suit. Parti,culars related to a suit are, as enlisted under Order VII rule 1 of Cap. 33 aq.<l, include the following; the facts .. constituting the cause of action and when it arose, the facts showing that the court has jurisdiction, the relief which the plaintiff claims and a statement of the value of the ·subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits. It must however be noted that, in practice plaints may be are supported by annextures where necessary. In the matter under' discussion, and as hinted earlier the plaintiffs have two major claims'; One, compensation at the tune of Tshs. Ninety Million and two, general damiges at the tune of Tshs. 50 Million. The compensation of Tshs. Ninety Million is, accor~.Hng to the plaint the monetary value of the paddy, that would oe obtained by the plaintiffs upon harvesting and selling the same in case they were not destroyed (see especially paragraph 9 of the plaint). The valuation report (annexture 2 to the plaint) only shows the production costs of the destroyed pad to be the said T~~s. 17, 953, 341/= (see the last page of annexture 2). According to the plaint therefore, the annexture was only supporting the main claim of compensation. For this reason, and for purposes of determining the pecuniary jurisdiction of this court, I take the claim of Tshs. Ninety Million ( shown in the body of the plaint) as the substantive claim and not the said Tshs . .17, 953, 341/ (as shown in annexture 2). In my further view, to approve the defendants' argument wiH amount to going into evidence in a search of the substantive claim in the suit. This is not the course the court is expected to follow in considering a PO as per the Mukisa Biscuits Manufacturing Co. Ltd case cited by the plaintiffs above. Page 5 of 6 \ I '. ., I ~ill also not rely on the William Mosha case (supra) because, it 1s apparent that the facts in that case were different from the facts in the matter under discussion. In that former case, it is -indicative (from page 1 of the copy of the ruling) that the plaint had not disclosed the value of the subject matter, which is not the case here. It is for those reasons that the Judge in that case resorted to take a look into the annextures. That case did not however, hold that in determining the pecuniary jurisdiction ofa court one has to look into annextures to the plaint. Even if that was the decision in that case, I would not follow it because, it was decided by a Judge of this court (as she then._ . was) with whom I enjoy concurrent ' jurisdiction. That decision, for the reasons I have shown herein above· is not binding to me as per the common law doctrine of stare decisis, which also applies in our jurisdiction. Having held that the substantive claim in the matter under discussion is Tshs. Ninety Million according to the plaint, I also underscore the obvious that this amount exceeds the amount of Tshs. Forty Million, hence this cour:t, and not the DLHT, has pecuniary jurisdiction to try the suit. I thus answer the main issue posed herein above positively and I consequently overrule the ·Ro. I will not however, condemn the defendants to pay costs for this PO as proposed by the plaintiffs' counsel since it is not apparent from the circumstances of this case that the PO was so unreasonable to the extent of condemning the defendants with costs. · Instead I direct that costs shall be in the course. Ordered accordingly.·,.· ''/ JHKUTAMWA JUDGE 16/9/2014. Page 6 of 6 ',( .