20180304 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA. CIVIL CASE NO.13 OF 2005 VACULUG GROUP OF COMPANIES LTD ARUSHA ................ PLAII\ITIFF I SURESH RAJIYAGURU ................................................ 1sr DEFENDANT ND I YQQ~~t:1-~~J!Y_~QlJR_ll_ .................................._. ............. 2 ___ _DEFENDANT RULINC SHEIKH,.J. The plafntiff vaculug Group of companies Ltb, Arusha has jointly sued.· the defendants suresh Rajiyaguru and Yogesh Rajiyaguru for repayment of the principal, amount shs. 91.207, 820/75 being the sum aved to the plaintiff by the defendants for loss allegedly caused by lthe two ·defendants in the course of their empIovn1ent 1witJ1. the ' plaintiff. In prayer (b} of the plaint the plaintiff isl clait11ing the sun1 of shs. 108,234,040/69 being interest at th e rate of 1 I 21 % per annum for tt·1e period from · 04/05f2000 to 29/12/2005, the date of filing the suit. The defendants have taken o~jection to ~hi suit on I the following grounds:- (1)That the plaintiff has no cause of action against the i I defendants; : I <2)That this Honourable court has no jurisdiction to i I ententain this suit; and <3)The suit is hopelessly time-bared I I on jurisdiction Mr. Makubi learned counsel for the I defendants submitted that the princip~I I of shs. 91,207,870.75 claimed by the plaintiff is bJ1ow the .: I pecuniary jurisdiction of this count, that the plaintiff had wrongly added the amount claimed as inter,estt accrued I due prior to institution of the suit on the prinoipa 1 sum, 1 and that what determines in which court to sue is the principal amount excluding accrued interest. Learned counsel asserted that this court lacks jurisdrction to entertain this matter, that suit ,is incompetent under section 13 of the Civil Procedure Code 1966 forbejing based 2 on the principal sum which is below the pecuniary jurisdiction, and ought to have been filed in the District/Magistrates· courts. In response Mr. Chadha learned counsel for the plaintiff submitted that the plai~tiff's claim is! for the I I principal amount of shs. 91,207,820.75 and interest in the I I I sum of shs. 168,234,040, that the total claim exceeds shs. I I ' 1 so,000,000I = and that this is the court of competent I : jurisdiction to try and hear this suit! section 13 of the Civil Procedure Code, 1966 provides: f "Every suit shall be instituted in the court of the lowen grade competetent to i try it:- I . I Indeed as pointed out on behalf I of the defJndants it ! ' : I ' is the principal amount which is the determining factor in I II dividing in which court to sue. 1 While interest on the I . principal amount accrued and due !prior to the institution I I of a suit is a matter of substantive law and : must be I ' specifically pleaded in the plaint, it tannot be added to the 3 principal sum claimed when valuing a suit for pulposes of determining the pecuniary jurisd,ction and t ! e court where jurisdiction lies. In the instant case the plaintiff had in my view, by adduing the interest prior to the s~it to the I I principal amount claimed, errone0usly over ;valued the suit. However section 13 of the CiJil Procedu~e bode is a rule of procedure, not of jurisdicJion, and whillt it lays down that a suit shall be instituted in the count if lowest I I grade, it does not oust the jurisdiction of the daunts of high grades, in particular this cou~t which has lnlimited jurisdiction (see Mulla on Code of Civil Procedure - 13 th Edition page 221 and the JudicaJU e and App Ii I ation of Laws Ordinance cap 453 of the La s - section 2C~l. In the ! case of Jaffer v, Jaffer (1996) T.L.R. at page 6 it :was held "the court of the higher grade iis not bound to take advantage of this section and mav, if it prefers, rietain the suit. 4 Accordingly I cannot agree with the contention that this court has no jurisdiction to tJy this suit bJcause its I ' value is within the pecuniary jurisdiction of a district or Resident Magistrate's court I only ~eans that t~e District /Resident Magistrate's courts lack thi pecuniary jurisdiction to try proceedings whose valued exceed shill ings one 1 hundred million. I am inclined howJver to agree With Mulla that as a matter of procedure the presiding judge ought not to entertain the suit, (see Mulla supra at paJe 222J. 1 am inclined to has view and would !eturn the plaint to the I I I plaintiff to be presented to the Districtj/Resident Magistrate's court. As regards the contention that the suit is hopelessly time-barred because it is founded on tort and breach of duly I cannot agree with learned counsel. Upot careful consideration of the plaint I am slisfied that t e suit is l I not founded on tort. It is clearly ba~ed on the contracts of 1 employment and the claim is for t t loss a11eged ly caused 5 by the defendants in the course of carrying out their I I duties and in breach of their duties as Man ger and 4 assistant Manager of the plaintiff's.I Arusha Bra~ch. ThiS suit having been filed within six years of thJ alleged breach of duties cannot, in my vie\/V, be said to ' le ! out of time under the Law of Limitation Act. on the cause of action, Mr. Makubi has claimed that as ' the suit is based on inter-branch :account reconciliation i which was done between the plaintiff and ius Arusha 1 Branch no suit can be against the defendants wio signed the said account reconciliation merely as officers of the Arusha Branch. On the other hand it has been crntented on behalf of the plaintiff that it is the defendants who did the wrongful acts which occasion~d the loss indurred by the plaintiff. upon careful consideration of the respective . ,, i argument I am of the view that this ground Of rbjection raises contestations issues of fact 111/hich needk proof one i 6 ' I I ' \ ... way or another and cannot be dispbsed , of by w~y I of an j ' objection on points of law. i i i For the above reasons all the 9lrounds of pr~liminary I' I I I objection are overruled. In view qf the positio~ I have i! I taken on the point of jurisdiction. Iorder that t~e plaint rij i, ! . be returned to the plaintiff to be pre sented to th¢ District : 1 . I I I I court under Order Vii Rule 10(1) df the Civil Pr;ocedure 11 : Code. li 1 I make no order as to costs. I II I Sdg: R. Sheikh :1 JUDGE I 12/01/2009 Date:- 9/3/2009 I Coram:- F.S.K. Mutungi, Dr. Plaintiff:- absent i 1 For the Plaintiff:- Mr. Chadha Advocate j Defendant:- absent B/C:- Prisi la I 7 I Mr. chadha:- Your honour I could hold brief of the defenda~ts since I know them court:- Ruling read this 9/3/2009 In court in the presence of counsel Chadha for the plaintiff also holding brief of the defendant.I I . I ! I 8