20140527 TZHC Arusha1

IN THE HIGH COURT OF TANZANIA AT ARUSHA LAND CASE NO 22 OF 2011 , VICTOR ISHENGOMA ............................... ■ a•.•···~···· PLAINTIFF VERSUS CAROL ISHENGOMA .......................................... DEFENDANT Date of last order: 17/02/2014 Date of Ruling: 27/05/2014 RULING. MWAIMU, J. The plaintiff Victor Ishengoma sued the respondent Car9I Ishengoma for trespass to land identified as Plot No. 348 Block F Njiro ' area within the Arusha City, registered under Certificate of Title No.· 7613. In response to the plaint, the defendant's written statement of defence contained a preliminary objection that the application (sic) has been filed in a court with no competent jurisdiction to adjudicate the matter. The preliminary objection has b·een dealt with by way of WJitten .~ . submissions. ,,,. -~r. Lundu for the defendant contended that according to the ; . . ~prpV1;ions of. section 37 (a) of the Land Disputes Courts Act Cap 216 1 . . ,. :::~-"~-,;_;,~ji;;;:~ ..:~~~"'~:;.jd::~~-:;'.:f~-/•. -:::.~~~,:";:-h~t;_;..~,;;,.,2,~:.:D~.:. ,:~~~-f~..1i.~1,,~:;,;~:;:.::J-~,;.i;;,."£6:L,;,rfd,i!.~."_;..:~2~.i:,;_{~;;i,;~:fl!~~f r R.E. 2002, the High Court Land Division is empowered to hear and determine proceedings for the recovery of possession of immovable property with value exceeding fifty million shillings~ He argued that the plaintiff impleaded under paragraph 18 of the plaint that the suit property is currently valued at and in excess of Tzs 70,000,000/= being the plaintiff's real estate investment to date withheld __ by the defendant thereby causing him damages. Mr. Lundu submitted further that according to paragraph 21 of the plaint the plaintiff pleaded that the suit property is well within the jurisdiction of the court. His concern then is that the plaintiff has not shown how he came to find out that the value of the suit property is and in excess of Tzs 70,000,000/=, to the contrary, Mr. Lunau contended that the ·defendant, before filing his amended written statement of defence claiming against the plaintiff that the suit property belongs to him, he prompted a valuation report to be made thereof. The report showed that the actual value of the suit property is Tzs 23,323,000/=. In his reply the plaintiff argued that the preliminary objection lacks merit and that it is a misconception of the law. He firstly, pointed out that the preliminary objection raised is not a point of law because it requires evidence 'to dispose. Also that it has not met the test envisaged in the case of Mukisa Biscuits Manufacturer Ltd versus West End Ltd. [1969] EA 697. He added that the defendant 2 .., .• relied on his assertion on a document which has not been tendered and admitted in evidence. Secondly, the plaintiff urged that on paragraph 33 of defendant's counterclaim the· defendant averred that the court has jurisdiction he cannot now be heard to go against his statement as he is bound by his pleading. Thirdly, that the value of the subject matter is a question of evidence. From the very outset I find the preliminary objection without merits. Order VII Rule 1 provides for particulars supposed. to be contained in a plaint .among them are: (f) the facts showing that the court has jurisdiction; (i) a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits. With·those·two ingredients of a plaint the only duty by the plaintiff is to give facts that the Court has jurisdiction and to state the value of the subject matter. The plaintiff has pleaded in paragraph 3 and 18 of his plaint that the value of the suit property is•-Tzs. 70,000,000/=. Whatever challenges that value is a subject of proof. As correctly argued by Mr. Mtengesewa learned counsel for the plaintiff, the preliminary objection is without substance because whether the value -~ _ of the suit premises is Tzs. 70,000,000/= or less as purported to be by the learned counsel for the defendant is a question of evidence. ,. ' r: In Assanand and Sons {Uganda} Ltd versus East Africa Records Ltd (1959) EA 360 (supra) the Court addressing the provisions of Order VII Rule 1 (f) held: " ... Para (f) of the Order VII Rule 1 places the plaintiff the obligation of pleading the fact showing the court has jurisdictior, · and mere assertion by the plaintiff that the court has jurisdi'ction is not enough, the facts showing the court has jurisdiction must be stated in the pleadings". I think the pleading in paragraph 3 and 18 of the plaint are sufficient to establish the pecuniary jurisdiction of the Court. The plaintiff complied with the provisions of Order VII Rule 1 (f) and (i) of the Civil_., Procedure Code. Pleading for the jurisdiction of the Court cannot be derived from the written statement of defence or a counter claim but from the plaint. Any factual information impleaded therein is a subject of proof in evidence. For the fore reasons the prelill}inary objection is dismissed with costs. The suit should be set for the first pre trial conference. It is so ordered. SGD: M.P.M. Mwaimu JUDGE 27/05/2014 4 ./ .- . . . . . :..:. _•':-~--~~·~-----~K-<;'.· _, -.;:;,_' ·-,-.•~:'.,:; .. .-· •· <. ·c; ,,.: ·· '•.-> a:..•-~·-•;_ .-'·.,t,···.< •a·-;:~_;·>/, •..:· .,°:t~~~.:.,,?,-i.:. ~ • . . I hereby certify this to be a trl:,Je copy of the original. .~., , ,. . /, , '. ..d •.: ~" ~\ I • . , .;; . . . i - '·H•'· .. ,:; ~~ , ~~-_., ,.;• ' ,, "t l "' ·..,,r ' . '<' ~:\~ ARUSHA ~-~~-9 (7 I r,,H )l/ :, 5