Tata African Holdings vs Hasham Dewji

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 000016399 OF 2024 CASE REFERENCE NO. 202407101000016399 TATA AFRICAN HOLDINGS .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS HASHAM DEWJI & SONS LIMITED .............................. RESPONDENT / DEFENDANT RULING Plaintiff's claims against defendant are for payment of Specific damages to the tune of TZS 414,845,505.83, which is the outstanding balance of the motor vehicle purchase price for eight (8) units of vehicles supplied to Defendant by Plaintiff on diverse dates. The plaintiff also claims general damages to be assessed by the court, as well as payment of the court interest and cost s of the suit. The defendant has raised a preliminary point on one point; thus, this court does not have jurisdiction to try this suit. The objection was heard through written submissions. The plaintiff had service of Mt Antipas Lakam, while the defendant had service of Mr Robert Oteyo. In his submission, Oteyo argued that this case is commercial because its cause of action emanates from the contract for the supply of motor vehicles, eight (8) units signed between the parties. The outstanding claim is valued at TZS 414,845,505.83. According to him, the value of the subject matter above 100 million is expressly barred by Rule 5 (2) of the High Court of Tanzania (Commercial Division) Procedure Rules 2012; thus, this case should not have been instituted in this registry. In support of his argument, he cited decision in Finca Tanzania Limited vs. Mazenge Investment (Civil Appeal No. 278 of 2020) |2023] TZCA 17653 (26 September 2023) Page 7-8 which provide the meaning of commercial cases and rule Rules 5 (2) of the said High Court of Tanzania (Commercial Division) Procedure Rules 2012: thus; “The Court shall have and exercise original jurisdiction in a commercial case in which the value of the claim shall be at least one hundred million shillings in the case of proceedings for the recovery of possession of immovable property and at least seventy million shillings in proceedings where the subject matter is capable of being estimated at a money value” Page. 1 He also cited he decision in Lucas Pius Mallya Trading as Baraka store vs Enos K. Matongo & Another (Commercial case 133 of 2015) (2018| TZHC COMD 59(30 May 2018) that “The Court shall subject to the provisions herein contained have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred. As such, during the submission, Mr Oteyo raised another point. There is a defect in the verification clause of the Plaint contrary to Order VI Rule 15(2) of the Civil Procedure Code [CAP. 33 R.E. 2019], which has verified paragraph 10 (VIII), which does not exist in his plaint. He argued that the Plaintiff's Plaint is incomplete and should be struck out with costs. On his part, the plaintiff's counsel submitted that given Order IV Rule 4 (4) of the Civil Procedure Code, Cap 33 [R.E. 2019], the same makes it clear that filing a commercial case in the Commercial Division of the High Court is not mandatory. Thus, the Plaintiff was within her rights to institute this matter in this registry, and this Court has the necessary jurisdiction to hear the case. According to him, the cited case of Finca Tanzania Ltd v Mzenge Investment is irrelevant here. Instead, it clarifies that lower courts can try commercial cases below TZS 70 million, not that the Commercial Division of the High Court must exclusively hear commercial disputes. This authority does not support the Defendant’s argument. He cited Lucas Pius Mallya Trading as Baraka Store vs Enock. Matongo & Another (Commercial Case 133 of 2015) [2018] TZHC D 59 (30 May 2018),in which it was held that the Commercial Division is merely an optional forum for commercial cases and that the General Division retains concurrent jurisdiction (see page 6 of the decision). He prayed that the defendant's preliminary objections be overruled with costs. Concerning the issue of verification clause Order as required under order VI Rule 15 (1)–3) of the Civil Procedure Code cap 33 RE 2019, he argued that the fact that the verification erroneously refers to a non-existent sub- paragraph is merely a clerical oversight that does not affect the substance or validity of the plaint. In support of his position, he cited Mulla’s Code of Civil Procedure, 16th Edition, pages 353 and 854, The object of this rule is to fix the responsibility for an allegation made in the plaint on the person who verifies. A pleading not verified in the manner required by this rule may be verified at a later stage of the suit even after the expiry of the limitation period. The omission to verify a pleading is a mere irregularity within the meaning of section 99 of the Code, which could be cured at any stage." He argued that this procedural irregularity can be rectified under section 95 of the Civil Procedure Code, including ordering amendment and correction of error to remove the non-existent paragraph. In his rejoinder, he maintained that a careful reading of Order IV Rule 4(4) of the Civil Procedure Code (CAP. 33 R.E. 2019) and Rule 5(2) of the High Court (Commercial Division) Procedure Rules, 2012, is to the effect that the Commercial Court is vested with exclusive Jurisdiction over commercial cases. Page. 2 On the issue of verification, he argued that Mr Lakam, for the plaintiff, conceded that the plaintiff had a defect in the verification clause. Thus, it means that the same is incompetent. Citing the decision in the case of Mondorosi Village Council & Others vs. Tanzania Breweries Limited & 4 Others, Civil Appeal no. 66 of 2017 (2018) TZCA 303 (14 December 2018) on page 14 & 15 that the overriding objective principle cannot be applied blindly against the mandatory provisions of the procedural law which go to the very foundation of the case" On my part, I will start with the issue of verification of the plaint. Under the order VI, there is a requirement to verify the pleading, particularly on the plaint. Order VI Rule 15 (2) of the Civil Procedure Code [CAP. 33. The defendant's argument is centred on the fact that verification of the plaint was bad since it referenced the non- existing paragraph. I have revisited Order VI Rule 15 (2) of the Civil Procedure Code [CAP. 33, the same provides; The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verified upon information received and believed to be true. The main purpose of verifying a pleading is to confirm the authenticity of the plaintiff's claims of the allegations made in the pleading. The verification at issue reads; I Rosemary Kimaro a Principal Officer of the Plaintiff herein above DO HEREBY VERIFY and STATE that what is stated in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 (i),(ii),(iii),(iv),(v),(vi)(vii) (viii) above are true to the best of my own knowledge. The defendant's grievance, according to the verification by the plaintiff the same made reference to a non-existing paragraph that is paragraph (viii) Much as I agree that paragraph 10(viii) does not exist in the plaint, I hasten to agree with the counsel for the plaintiff that this was an oversight and no big deal about it, as the same can be cured. This court took the same view in Leonce Lulu v Kwersmul Village Council & 2 others (Land Case No. 8 of 2023) [2023] TZHC 21719 (2 October 2023) citing Jamal S. Mkumba & Others vs The Attorney General (Civil Application No. 24 of 2019) [2023] TZCA 21 (15 February 2023 that: A defective verification clause can even be amended to insert a proper verification clause, allowing parties to be heard on merits for the purposes of "substantive justice" As indicated, since the purpose of verification is to verify the authenticity of the facts pleaded, which was done in all paragraphs, considering the nature of the defect, that is, mentioning one extra paragraph not in the plaint, I see no basis to accede to the defendant's argument that the whole plaint is incompetent. Instead, this can be cured under the "slip of the pen rule, " which allows this court to correct minor or obvious errors in the pleading, such as typographical errors that do not change the document's intended meaning. My view is fortified by the position taken by CAT in Chang Qing International Investment Limited V. TOL Gas Limited, Civil Application No. 292 of 2016, CAT at page 6, where the court held; Page. 3 Under the circumstances and on the balance of convenience, I find and order that the error committed should be overlooked for and allow the matter to proceed on merit. The respondent's name should, however read TOL GASES LIMITED as appearing in the Affidavit in Reply With that note, the mentioned paragraph can be ignored, objection overruled On the issue of jurisdiction, I have considered the contending positions of the parties and whether this court lacks jurisdiction. In resolving this point guided by the view taken by the CAT in National Bank of Commerce Ltd vs National Chicks Corporation Ltd & Others (Civil Appeal 129 of 2015) [2019] TZCA 345 (23 September 2019) at page 31 thus; In the event a case not of the division's specialisation is instituted in any of the divisions, the parties should not be thrown out as was the case herein in the pretext of lack of jurisdiction. Instead, the parties should either be advised to withdraw and file the same in another court competent to try it; otherwise, such a case should be heard to its conclusion. I have taken the same position in this case, unless the plaintiff was to withdraw the plaint to file in the other registry, this court can not strike out the plaint in want of defendant’s argument that this court lacks jurisdiction in the upshot, the objection raised is devoid of merit, and the same is overruled. Cost shall be in the due. RULING Dated at DAR ES SALAAM ZONE this 25th of March 2025. Hon. ARNOLD KIREKIANO JUDGE OF THE HIGH COURT Page. 4