20190530 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR-ES-SALAAM CIVIL CASE NO. 155 OF 2017 TACAS LIMITED .....•.........•...........•......... ·.•...•..•....•... 1 ST PLAINTIFF - · ND CLARA ZAKARIA MAMBYA ........................................ 2 PLAINTIFF ANSLEME BIJWIGI .................................................. 3RD PLAINTIFF VERSUS COMMERCIAL BANK Of AFRICA (TANZANIA) Ltd ....... DEFENDANT RULING MASABO, J. This is ruling on a preliminary objection over the pecuniary jurisdiction of this court to try the instant suit. The Plaintiffs TACAS Limited, Clara Zakaria Mambya and Ansleme Bijwigi have instituted a suit in this court. Their claim against the Defendant has been described as follows: 1. A sum of the sum of USD 50,000 being value of two trucks which were rendered non roadworthy by a fatal accident. 2. USD 144,000 as average monthly income from July 2013 to July 2017 from the two trucks 3. USD 2, 949.15 being premium deducted but not remitted to the insurer Less the sum of USD 121,090 (being the outstanding loan) 1 When responding these claims, the Defendant raised six (6) Preliminary points of law for determination, namely: 1. That this court lacks jurisdiction to entertain the matter; 2. That the plaintiff is bad in law for misjoinder; 3. That the plaintiff is incurably defective for not disclosing cause f action against the defendant on the part pf the 2nd and 3rd Plaintiff; 4. That the verification clause is defective for contravening Order VI R. 15; 5. That the plaint is defective for contravening Order VI R. 14 of the CPC; 6. That the suit is bad in law it is not supported by board resolution authorizing the Plaintiff or his Advocate or any other representative to institute the matter before this court. When the matter appeared before my learned sister Munis J, on 29th November 2018, the Defendant abandoned the 2nd to the 6th objection and remained with only one objection on the pecuniary jurisdiction of this court. The prayer for withdrawal of the five objection points was granted and the parties were subsequently ordered to address the court on the effect of the amendment made to Section 13 of the Civil Procedure Code (Cap 33 2002 RE) by Section 9 of The Written Laws (Miscellaneous Amendment) (No.2) Act, 2016. The objection was argued orally before me on 6th May 2019. The Plaintiff was represented by Mr. Robert Mkoba, learned counsel whereas the Defendant were represented by Advocate Dickson Majaliwa. 2 Mr. Majaliwa argued that the proviso introduced by section 9 of Act No. 2 of 2016 does not change the position that suits be filled in courts of lowest grade. He argued that the general jurisdiction referred to in the amendment is premised under Article 108(2) of the Constitution of the United Republic of Tanzania, 1977 which subjects the jurisdiction of this court to other laws. In support of his submission he cited the decision of the Court of Appeal in Tanzania Breweries Limited v. Anthony Nyingi Civil Appeal No. 119 of 2014 and argued that, as per the decision of the court in this case, the jurisdiction of this court as provided for by the Article 108(2) has to be interpreted subject to other legislation including the Civil Procedure Code, [Cap 33 R.E 2002], The Magistrates Courts Act [Cap 11 R.E 2002], and the Judicature and Application of Laws Act [Cap 358 RE 2002]. He argued further that since section 40 of the Magistrate Court Act as amended by the Written Laws Misc Amendment Act, No. 3 of 2016 requires that matters with pecuniary value not exceeding Tshs 200 million be filed in the courts subordinate to the High Court, Article 108 cannot be relied upon to vest the court with the requisite pecuniary jurisdiction to determine the suits with pecuniary value below Tshs 200 million. He concluded that since the total claim raised by the Plaintiff is USD 75, 404 (equivalent to Tshs 167,396,880/= at the date of filing) which is below the pecuniary threshold provided for under the S. 40 of the Magistrate Courts Act the matter should be struck out. Mr. Mkoba's responded with a two-limb submission. On the first limb, he argued that the suit is maintainable and that the submission by Mr. Majaliwa that the total suit claim is USD 75,404 is a misconception because 3 in the prayers, the plaintiff prays for payment of USD 3000 per month from the date of judgement to the date of total settlement. On the second limb he argued that the amendment to section 13 of CPC is very clear and that by virtue of this provision the High Court is not ousted of its general jurisdiction. In support, he argued that the purpose of the amendment was to ensure that the litigants who approach the High Court are not denied justice. He further argued that the position in Anthony Nyingi is no longer relevant as it was decided prior to the amendment. In his rejoinder, Mr Majaliwa argued that there is no misconception in his part because the payer for USD 3000 is in terms of general damages to be awarded at the discretion of the court. He argued that, the position of the law is that general damage cannot be the basis for determining pecuniary jurisdiction of the court as jurisdiction is statutory not anticipatory. On the effect of the amendment to the position in Anthony Nyingi he reasoned that the case is still relevant as it provides guidance for the interpretation of Article 108 (2). Having considered the argument from both parties, I am of the following view. First, as rightly submitted by both parties, this court has an inherent jurisdiction over all civil and criminal matters. Article 108 (2) from which this court derives its jurisdiction states that: (2) Where this Constitution or any other law does not expressly provide that any specified matter shall first be heard by a court specified for that purpose, then the High Court shall have 4 jurisdiction to hear every matter of such type. Similarly, the High Court shall have jurisdiction to deal with any matter which, according to legal traditions obtaining in Tanzania, is ordinarily dealt with by a High Court provided that; the provisions of this sub article shall apply without prejudice to the jurisdiction of the Court of Appeal of Tanzania as provided for in this Constitution or in any other law. (Emphasis supplied) However, and as rightly argued by Mr. Majaliwa, in determining the pecuniary jurisdiction of this court, Article 108 (2) should not be read in isolation. It has to be read together/interpreted subject to other legislation including the Judicature and Application of Laws Act, the Civil Procedure Code, and the Magistrates Courts Act. Sections 2 and 3 of the Judicature and Application of Laws Act Chapter 358 R. E. 2002: provide that: 2.-(1) Save as provided hereinafter or in any other written law, expressed, the High Court shall have full iurisdiction in civil and criminal matters; (2) For the avoidance of doubt it is hereby declared that the jurisdiction of the High Court shall extend to the territorial waters. (3) Subject to the provisions of this Act the iurisdiction of the High Court shall be exercised in conformity with the written laws which are in force in Tanzania on the date on which this Act comes into operation ...... " 5 Section 13 of the Civil Procedure Act which is at the center of this ruling states that:- "Every suit shall be instituted in the court of the lowest grade competent to try it and, for the purpose of this section a court of resident magistrate and a district court shall be deemed to be courts of the same grade. Provided that the provisions of this section shall not be construed to oust the general iurisdiction of the High Court" It therefore goes without say that in in the instant case, the provision of Article 108 (2) must be read together or interpreted subject to the provisions above and section 40 of the Magistrate's Courts Act. This was the Court's holding in Anthony Nyingi's case. In this case the court held that: "It is therefore clear from these provisions of JALO and the Constitution that the jurisdiction of the High Court is subject to the provisions of other written laws. So, it was wrong for the learned trial judge to have decided the question ofJurisdiction by looking at Article 108 6 (2) of the Constitution alone. In other word~ Article 108 (2) of the Constitution should not have been read in isolation, without discussing whether or not such other written laws to the contrary exist" Mr. Mkoba while distinguishing the case of Anthony Nyingi from the instant application has impressed me that the insertion of a proviso to section 13 of the Civil Procedure Code has vitiated this position and that litigants are now free to refer any matter to the High Court notwithstanding the pecuniary value of the subject matter. However, it is my view that prior to accepting this line of thinking one has to consider the mischief behind the pecuniary limits. On this, I have found the reasoning of my learned brother Ndyasobera J very illuminating. In Peter Keasi Versus the Editor, Mawio Newspaper & Jabir Idrissa, Civil Case No. 145 Of 2014, HC DSM ( unreported) he reasoned that: "The object and purpose of the said provision is I think three-fold. First, it is aimed at preventing overcrowding in the court of higher grade where a suit mav be filed in a court of lower grade. Second, to avoid multifariousness of litigation and third, to ensure that case involving huge amount must be heard by a more experienced court. " 7 In view of this, I have found it difficult to comprehend what would be the situation if, as argued by Mr. Mkoba, all suits regardless of the pecuniary value will come to the High Court. If the argument raised by Mr. Mkoba is correct the provision of section 40 of the Magistrate Courts Act would mostly likely be rendered nugatory. It could be recalled that, the pecuniary jurisdiction of the subordinate court was scaled through an amendment effected to Magistrate Courts Act by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016 which was adopted almost the same time with Act No. 2 of the 2016. If the argument by the counsel is correct, what would have been the essence of scaling the pecuniary jurisdiction of the subordinate courts? Regarding the modality for determining pecuniary jurisdiction, I agree with the submission made by Mr. Majaliwa that, it is the position of law that "It is the substantive claim and not the general damages which determine the pecuniary jurisdiction of the court." Anthony Nyingi (supra). In the instant case, paragraph 16 of the of the plaint states that, the total claim against the Defendant is USO 75,404.00. There is no doubt that this is below the pecuniary bar of subordinate courts. From the foregoing and for the reasons advanced in Peter Keasi Versus the Editor, Mawio Newspaper & Jabir Idrissa (supra), I am of the strong view that this suit ought to have been instituted in the subordinate court competent to try it. Pursuant to the guidance provided by the Court of Appeal in Qamara Kwaslema Gwareh V Anwary Hassan and 2 Others, Civil Appeal No. 92 of 2015 (unreported), I order that the plaint 8 be returned to the Plaintiff so that it can be filed at the District Court for Ilala pursuant to Order VII Rule 10 (1) and (2) of the Civil Procedure Code DAR ES SALAAM this 30th day of May 2019. I f. _.,\ ; : ~' \" ~~ :.:_~__ J.L. MASABO ',. .'t_~ JUDGE Ruling delivered this 30th day of May 2019 in the presence of Advocate Robert Mkoba for the Plaintiff and Advocate Doreen Chiwanga for the ---- Defendant. J.L. MASABO JUDGE 9