19980811 TZHC Dar es Salaam

IN-THE HIGH COURT OF TANZANIA AT_,.l)A_R_ ES SAT,.~A!1 CIVIL CASE NO. 292 OF 1998 TRANSCARGO LTD . . . . . . . . . . . . . . . . . . . . . . . . . . PLA.INTIFF

VERSUS T. G .. HOT..LEVAS . . . . . . . . . . . . . . . . . . . . . . . . . . lST DEFENDANT 0 MS M. G. HOLLEVAS . . . . . . . . . . . . . . • . . . . . . 2ND DEFEND.ANT _g_J} L I N G KAT.,EGEYl\,._ ,J. Mr. Muccadarn has filed a. chamber summons supported by an affidavit in which he prays for leave to amend the written statement of defence. This was after his oral submission regarding the same, and also an intimation of a preliminary objection regarding the jurisdiction of thJ.s C~urt, to which Mr. Kesaria for the Plaintiff prayed to have the application formally made in writing and so are the preliminary objections. He also prayed for leave to have submissions made in writing to which Mr. Muccadam raised no objection. Both Counsel agreed on the following schedule - Mr. Muccadam was to file his chamber summons and submissions by 26\11\97; due to health problems which would have taken him outside the country, Mr. Kesaria, applied to be allowed to file counter-affidavit and reply by 9\3\98, while Mr. Muccada,n was to file a reply if any hy 20\3\98. All steps were complied with sav~ the latter and in the circumstances it should be taken that there is no ~eply. To start with, Mr. Kesaria's objection to the application tci amend the written statement of defence has no base on which to stand. Under O.VI, R 17 CPC the "court may at any stage of the proceedings allow either party to

alter or amend his pleadings in such manner and on such terms as may be just ... for the purpose of determining the real questions in controversy betweeh parties". l H~ving looked at the proposed amended written statement of defence which was filed along with the chamber summons I am satisfied that it f-':!lls under O.Vl, R. 17 CPC and the said prayer to amend the written statement of defence is gianted accordingly. That disposed we now turn to the preliminary objection posed by Mr. Muccadam in the following words, "Sj nee they (defendants) both rer.:;ide in Holland ,rncl and the alleged theft was reported in Zamh:i.a, this court has no jurisdiction to try the su.i.t". Mr. Kesaria on the other hand submits that the plaint clearly shows that the court has jurisdiction, and that what the court has to do when confronted with such issue is just to look at lhe pleadings - to use his own words, "should look only to the four corners of the plaint", citing (CA) Civil Ap~al No. 3 of 1979 Akber Merali Alibhai vs Ms Union Magazine (1972). Stressing his argument Mr. Resaria submitted that, when the cause of action arose the lst defendant resided and worlrnd for gain .i.11 Dar es Salaam and thnt her subsequent immigration is irrelevant; that the 2nd Defendant comes in due to the mortgaged property which is in Dar es Salaam and that the contract of carriage of goods was made at Dsm. He drew the court's attention to sections 7, 13, 14, 15, 17, and 18 (a) CPC concluding that the court has jut isd:i.ctio11 1i . Having carefully considered the facts, the arguments and lhe law I have but to dismiss the preliminary objection. S. 18 of otir 2 . ' •. '.· .·./ , XI ,.if' / ,/ J Civil Procedure Co~e provides where suits are to be instituted. I The said section states:- I 11 8.

18. Subject to the limitations aforesaid, every suit shall he instituted in a court with.fn the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of suit, actually and vol11ntarjly resides, or carries 011 business, or personally works for gain, provided that in such case either the leave of the court is given or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or • 11 (c) the cause of action, wholly or in part, arJ.ses . On the set of facts before us the only relevant part is S. 18(c}. Commenting on a similar provision in the Indian Code, MULLA ON THE CODE OF CIVIL PROCEDURE, VOL. 1, extensively summarises various decisions which have defined what a "cause of action 11 is as ~llows:- "A suit is rtlways based on a cause of action. There can be no suit without a cause of action and such cause of action having accrued to the plaintiff. "A cause of action" means every fact, which, if traversed, it would be necessary for the pl.aintiff to prove in order to to support his right to a judgment of the Court (w). In other

words, it is a bundl.e of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must inci~de some act done by the defendant since in the absence of such I an act no cause of action can possibly accrue (x). It • is not limited to the actual infrinaement of the riaht sued on but includes all the materiil facts on whicf it is founded (y). It does not comprise Avidence necessary to prove such facts, but every fact necessary for the 3 plr.:1intiff to prove to enable him to obtnin a deGrP.P- (z). Everytl1ing which if not proved would give the defendant a right to an immediate judgement must be part of the cause of action (a). Tt js, in other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit (b). But it· has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It is a media upon which the plai.nti.ff asks the court to arrive at a conclusion in his favour (c)". (Alphabets refer to the ~- Author's footnotes). As to how a cause of action js to he determined we hAve the East Afr ·i c;rn Co11rt. of Appeal case on the matter - -1B rn j Sh,n- i. ff & Sons vs Chotai Fancy Stores (1960) E.A. 374, at page 375 where it was held,. "The question whether.a plr:lint discloses a

cause of action must be determi.ned upon a perusal of the plaint aJ.one, together with anything attached so as to . form part of .it and 1Jpon the assumption thr1t trny express or implied allegations of fact in it are true". Also, in the Akber case cited by Mr. Kesaria, where the judge had ''went on to analyse allegations apd counter allegations in the plaint, the annexures and defence'' in order to determine whether the pl.aint was maintenable in co11rt or not, among others, the court held, (Mustafa JA) • • • • the trial judge erred in so doing. He had only 11 to look at the allegations in the plaint and if they disc loi=H-Hl r.1. en.list~ of iH.:t ion then he could not reject :i t .......... , ........ i ••••••••••••••••••••••••••• ; ••• • 0 0 0 0 0 0 0 • • • 0 • ♦ ♦ • ,i O O • • • 0 0 0 0 0 0 0 • ♦ 0 0 0 0 0 0 0 0 ' " 0 0 4 0 I O O O O O 0 The judge took into account extraneous and irrelevant material and decided issues of fact in coming to the conclusion that the plaint was not maintainable at law". 4 t L The same learned author already referred to above, Mulla, in the same book at page 207 goes on to state, "In a suit. for damages for breach of contract t.he cause of action consists of the making oft.he contract, and of its breach, so that the suit may be filled either at the place where the contract was m~de or at the place where it should have been performed and

the breach occured . . . . . . . . . . . . . . . . . . . . . . . . . . . ; . . . . . . . . . . . • • • • • • .. • • • • • • • • .. ·. . . . . ' .................. t .................. . The mr1king of contract is part of the cause of a<":tion. A suit on contract., t lrnref ore,• can he f i .led at U.1fl p.l ace whnre it was macle 11 • The above position seems to be the same here in Tanzania for the provision of the Indian Code dealt with is in pari materia with ours. Let us now turn to the case which is before us. The Plaint shows that the contract between the Plaintiff and 1st Defendant took place in Dsrn - as per Ann. B to the plaint, and, in para. 12 it puts it in a nutshell, "Because t.he said contract of b;:dlment and\o:r was made at Dsm and\or the said defendant resides and carries on business in Tan~anyika and\or the property of the second defendant on which mortgage was created is situated at Dar es Salaam, this Hon. Court has j11ri::.<li.c:tion to try this suit". With the above it stands out cJ.ear.J.y that this court has jur isd icti on as the cause of net ion - tha.t is Urn makj ng of Contract - arose in Dar es Salaam, Tanzania as per annexture B to the plaint. 5 For reasons explained the prayer by Mr. Muccadam for leave to ,3me11d the written statement of defence -i.s granted while his prelimin~ry object.ion reg;::irding the jux:isdiction of this court is dismi:;sed. ( r.,. B. Ka legeya) .JUDGE: neliverP.d on f/11.... ~ - 1 /7CJf L--.. f{J_ or€.-J-.--.c...e_ '\ ~ • k.1..t~ fJ P~ii v er AT DAR ES SALAAM ( L. B. Ka.legRya) ;JlJDQf£ 6