subira hussein others vs doto yusufu mzuzu 2016 tzhc 2044 22 april 2016

IN THE HIGH COURT OF TANZANIA AT TABORA CIVIL CASE No. 1 OF 2016 SUBIRA HUSSEIN AND 32 OTHERS PLAINTIFFS VERSUS DOTO YUSUFU @ M Z U Z U ................... DEFENDANT RULING 21 & 22/04/2016. Utamwa, J This is a ruling on an issue raised by the court siiomotu. When the case came before me I sniffed that the plaint does not comply with the mandatory requirement o f Order VII rule 1 (f) and (i) o f the Civil Procedure Code, Cap. 33 R. E. 2002. The provisions provide that the plaint shall contain some particulars including the facts showing that the court has jurisdiction [rule 1 (f)]and a statement o f the value o f the subject matter o f the suit for the purposes o f jurisdiction and o f court fees, so far as the case admits [rule 1 (i)]. When I invited the parties to address me on the legal effect o f the omission Mr. Mussa Kassim learned counsel for the plaint contended Page 1 of 8 that the plaintiff indeed complied with those mandatory provisions o f the law vide paragraphs 3-5 o f the plaint. He added that they also meet the requirements o f s. 14 (a)-(d) o f Cap. 33 and the plaintiffs paid the filing fees (Tshs. 930, 000/=) according to the value o f the subject matter shown under paragraph 5 o f the plaint, i. e. Tshs360,000,00,0/=. Th;e three paragraphs are couched thus, and I quote them for a readymade reference; “3. That, the plaintiffs jointly claims against the Defendant is for a permanent injunction restraining him from interfering with their residential plots at Malabi area in Tabora Municipality. 4. That, on divers days between September, 2015 and December, 2015, the Defendant trespassed on the plaintiffs plots purporting to make allocations and re-allocation o f such plots to other people by sales of their plots apart from the plaintiffs. 5. '['hat, the duty o f surveying and allocating plots o f land in the area mentioned herein above is the lawful duty o f the Tabora Municipal Council, who has already surveyed a total of 646 plots in the Malabi area and valued at Tshs.360,000,000/=.” Mr. Musyani learned counsel for the defendant countered Mr. M ussa’s argument on the ground that the plaint offended the provisions o f the Page 2 of 8 law cited above since paragraph 5 o f the plaint refers to the value of the location (Malabi area in Tabora Municipality) surveyed and not of the subject matter o f this suit. The plaintiffs could have shown the statement that this court has jurisdiction at the end o f the plaint, but they did not do so. It is also not the duty o f the court to bother reading the whole plaint and determine whether it has jurisdiction or not, but it is the duty o f the plaintiff to state so. The plaint thus, he argued offended the provisions of the law cited above, w'hich said provisions are mandator}' since they employ the term “shall” which implies an obligation. • *- When examined bv the court for clarification o f his arguments Mn. Mussa learned counsel for the plaintiffs submitted that he could not know from the plaint as to how many plots his clients own at the Malabi area mentioned under paragraph 5 of the plaint. He also said that he cannot know from the plaint as to whether his clients own/occupy all the plots at the whole Malabi area. He also said that he cannot be sure from the plaint if all the 646 plots at Malabi area worth 360, 000, 0 0 0 /- are i the disputed plots in the suit at hand. In a second thought Mr. Mussa i learned counsel argued that the uncertainties emanating from the plaint can be rectified by amending the plaint and provide further and bette(r particulars under Order 6 rule 17 of Cap. 33. He thus prayed for the leave to amend the plaint accordingly. Mr. Musyani learned counsel for the defendants also clarified that the plaintiffs do not own all the 646 plots at Malabi area. Some o f the Page 3 of 8 plots are undisputedly owned by the defendant and some are owned bv other persons w'ho are not parties to this suit. He added that according to the annextures to the plaint more than 1000 inhabitants occupy the Malabi area which is constituted by the said 646 plots. Mr. Musyaniaso objected the prayer for amending the plaint since it was not brought earlier. I have considered the arguments by the parties, the record and the law. There are two issues to be decided here; 1. Whether or notthe plaint indeed offended the tw o provisions o f the law. 2. In case the answer is the first issue is in the affirmative then what is the legal effect o f the violation o f the law ? Regarding the first issue I am o f the view that by reading the whole o f the plaint between lines one cannot firmly argue that the plaint complied with the provisions o f the law’ cited above. Paragraphs 3-5 o f the plaint on which the learned counsel for the plaintiffs relied upon do not meet the requirement o f law' for the following reasons; Paragraph 3 and 4 mention nothing on jurisdiction though they impliedly show that the disputed land is within the geographical jurisdiction o f this court (Tabora Municipality). They do not however, mention anything about the pecuniar)'jurisdiction o f this court. Page 4 of 8 As to paragraph 5 o f the plaint I am o f the view that the value of Tshs. 360,000,000/- refers only to the surveyed 646 plots in the Malabi area. Moreover, by a close reading o f the paragraph it is conspicuous that the value was not mentioned to show that this couit has the requisite pecuniary jurisdiction to entertain the suit, but it was mentioned only by the way to support a statement that the duty o f surveying land at the area is legally imposed to the Tabora Municipal Council which has already surveyed the said 646 plots at the area worth that amount. Moreover, as admittedly stated by Mr. M ussa learned counsel, it is not stated in the plaint as to whether or not the whole o f the Malabi area that is constituted by the 646 plots (according to paragraph 5 o f the plaint) is in dispute under this suit. For the ambiguous averments in the plaint it cannot be said that the plaint in the case at hand contains the facts showing that the court has pecuniarvjurisdiction and a statement of the value o f the subject matter o f the suit for the purposes o f jurisdiction and o f court fees. If in fact the plaintiffs paid filing fees basing on the value shown under paragraph 5 o f the plaint, thatis not evidence that the plaint has disclosed the value of the subject matter at issue in the case at hand. It might have thus been paid erroneously, hence not a legal excuse for justify ing the violation of the law\ Page 5 of 8 For these reasons I agree with Mr. Musyani leaned counsel that the plaint violated the provisions o f the law cited above. The first issue is thus answered affirmatively. This takes me to the second issue. With regard to the second issue the learned counsel for the defendant argues that the omission was fatal thought he did not come clearly as which order should be issued by the court. On his part, the learned counsel for the plaintiffs argued (alternatively in my view) that in case the court finds that the plaint offended the provisions o f law, then it may order for amendment so that further and better particulars can be provided for. This prayer w'as objected by the learned counsel for the defendant. In my view, the law is clear that the value o f a subject matter o f the suit is very material in determining the jurisdiction o f the trial court. Again, where the plaint does not show the value o f the subject matter o f the suit it denies the trial court the opportunity to determine whether or not it has the requisite jurisdiction to try the suit. The court in fact determines whether it has the jurisdiction to try the suit by looking at the plaint, see the decision o f this court in George David Cordon v. Reliance Insurance Company (T) Limited, High Court (Commercial Division) Commercial Case No. 102 of 2005, at Dar es salaam(unreported). On the other hand, the law is to the effect that the issue o f jurisdiction is a very fundamental matter and a trial court must determine Page 6 of 8 whether or not it has jurisdiction to try a suit immediately upon the suit is filed in court and before making any substantial orders, see the Court of Appeal o f Tanzania (CAT) decisioninRichard Julius Rukambura v. IssackNtwaMwakajila and another, CAT Civil Application No. 3 of 2004, at Mwanza (unreported)following its previous decision inFanuelMantiriNg’unda v. Herman MantiriNg’unda and 20 others, CA T Civil Appeal No. 8 of 1995 (unreported). ; It follows thus that, failure by the plaintiff to disclose in the plaint the value of the subject matter o f the suit is a fatal irregularity-'. This was also the stance underscored by this court in the case o f Hertz i International Ltd and another v. Leisule Tours and Holiday Ltd and ! 3 others, High Court, Commercial Case No. 74 of 2008, at Dar es salaam (unreported). The irregularity is fatally incurable since it denies the trial court the room to make the self-assessment o f its pecuniary jurisdiction. This omission thus renders the suit incompetent. i The sub-issue which arises here is whether or not the fatal irregularity can be made good by amendment of the plaint as prayed b^ the learned counsel for the plaintiffs. In my view the answer is in thje negative since an incompetent plaint is not capable o f being amended. Again, a trial court which is left in a pond o f dilemma to decide whether or not it has jurisdiction cannot order any amendment. This follows the fact that an order for amendment implies that the court has assured itself o f the requisite jurisdiction over other matter before it. But in the case at Page 7 of 8 hand the court is not so assured for the irregularity committed in the plaint. For the above reasons I am o f the view that the ultimate remedy for an incompetent suit is to strike it out. 1 thus strike the plaint out. Each party shall bear his own costs since the point that has disposed o f the suit has been raised by the court suomotu. It is so ordered. JF1K. UTAM W A JUDGE 22/04/2016. 22/04/2016 CORAM; Hon. Utamwa, J. For Plaintiff: Mr. Mussa Kassim, Advocate. For Defendant; Mr.Musyani, Advocate. BC; Mr. Omari Mkongo, RMA. Court; Ruling delivered in the presence o f Mr. Mussa, advocate for the plaintiffs and Mr. Musyani, advocated for the defendant this 22nd day of April, 2016 in court. JHK. UTAMWA JUDGE 22/04/2016 Page 8 of 8