20170321 TZHC Mwanza

, \- IN THE HIGH COURT OF TANZANIA AT MWANZA HC. CIVIL APPEAL NO. 15 OF 2015 .i {Arising RM Civil no. 45 of 2014 Mwanza RM's Court} VICTORIA PERCH LIMITED .................... APPELLANT VERSUS. DEBORA BEN MWAKABONA (As administratrix of the state of Ezekia Mwakabona) ... RESPONDENT JUDGMENT 16/2/2017 & 21/03/2017 GWAE, J, In the Resident Magistrates' Court of Mwanza at Mwanza (trial court), the appellant filed a suit claiming Tshs. 54, 145,000/ = alleged being an outstanding loan advance and interests thereto against one Ezekia Mwakabona now deceased person. One Debora Ben Mwakabona stood as administratrix/respondent, she raised a preliminary objection that the trial court had no jurisdiction to entertain the suit, the preliminary objection was argued by way of written submission, in its ruling, the trial court relying on section 40 (3) (b) of the Magistrate Courts Act, Cap 11 R. E aS amended by Act No. 4 of 2004_ ~ 1 '' 'j upheld the respondent's in limine and the appellant's suit was accordingly struck put with costs. Now, this appeal containing three grounds of appeal, to wit: 1. That the honorable Resident Magistrate erred in law and fact in holding that the appellant's claim was a commercial i l di.spute irrespective the value claimed being far below the 1 commercial jurisdiction of the High Court Commercial \ Division. 2. That the honorable Resident Magistrate erred in law and fact in failing to appreciate that the claimed amount of Tshs. 54, 145, 000/= was below the pecuniary jurisdiction of the High Court Commercial Division and beyond the pecuniary jurisdiction of the Resident Magistrates Court in Commercial matters, the said claim therefore fell squarely under section 40 (2) of the Magistrate Court Act as amended by Act No. 25 of 2002 and therefore the said Commercial Dispute. 3. That the honorable Resident Magistrate erred in law and fact in failing to take into consideration the conseqllential effect~ 2 i ' i ; of the decision which not only causes hardship and absurdity to the appellant but amount to denial of access to justice The respondent did n0t turn up not only for hearing but also during pendency of this appeal in the court despite the appellant's efforts through publication in Mwananchi News Paper dated 27 th November 2016 to have his appearance entered. Following the respondent's non-appearance this appeal was eventually heard ex-parte. Before me, the appellant was repres~nted by _Mr. Angelo, the learned counsel and principal officer, in brief Mr. Angel argued that the trial court · had jurisdiction to entertain the suit since the amount claimed was Tshs. 54,145,000/= while the suit was filed in 2014 and since by virtue of GN.250 OF 2012, minimum pecuniary Jurisdiction of High Court (Commercial Division) is Tshs. 70,000,000/ whereas the Resident Magistrates Court has maximum pecuniary jurisdiction over commercial disputes of Tshs. 30,000,000/ =·. Mr. Angelo further submitted that as Tshs. 54, 145,000, 000/=was above Tshs .. 30,000,000/= and below Tshs. 70,000,000/=amount entertainable by the Resident Magistrates' court and High Court Commercial Division · respectively, according to him, it was therefor~ just and fair the trial court~ ! 3 I to invoke provisions of section 40 (2) (b) of MCA to avoid hardship, absurdity, inconvenience and injustice. In the stance of his submission, the appellant's counsel referred this court to a judicial jurisprudence in Stanbic Bank Ltd V Forwarders Ltd Commercial Appeal No. 2 of 2007 ·and he finally sought for the trial court ruling and extract order delivered on 17.3.2015 by the trial court to be set aside trial denovo be ordered. I should now determine merits or otherwise of this appeal, I am however alive that question of jurisd1ction is not merely one of form, it is fundamental one. Any trial conducted by a court with no jurisdiction to try the same will subsequently be declared a nullity on appeal or revision by a higher court (see Tanzania -China Friendship Textile Ltd v Our Lady Usambara Sisters (2006) TLR 70). With this legal sense the trial cour:t ought to have exercised due diligence in dealing with the jurisdictional issue raised by the respondent as is rightly did. In Tanzania harbours Authority v. Liner Agencies Co. Lt (2004) TLR 127, this Court (Ihema, J) at Dar Salaam emphasized a need-to observe pecuniary jurisdiction of a court in a filing of a suit on the_ matter.~ 4 According to the G. N. 250 OF 2012 under Rule 5 (The High Court J Commercial Division Rules, 2012), the Commercial Court has both original .... ),.' 1 \...:......,..,, and appellate jurisdiction of at least 100,000/ =. and 70,000,000/= · where in a claim of recovery of immovable property and in a subject matter l I I estimated in money value respectively. 1 ·j Considering the pecuniary jurisdiction of Commercial Court in 2014 1 i pursuant to GN No. 250 of 2012 and the appellant's claim of Tshs. 54, 145,000 / = here the Commercial Court could have no jurisdiction to entertain the matter as the amount claimed is below Tshs. 70, 000, 000/= required by the law, thus the appellant could remain in limbo, hardship, dilemma and ·above all it amounts to denial of access to justice as precisely submitted by the learned counsel for the appellant. I have also traversed to other statutes governing civil ligations and observed that the law is very clear that institution of a commercial dispute to Commercial Court (High Court Commercial Division) is not mandatory . but an option to a litigant, for clarity, Order IV rule 1 ( 4) of the Civil Procedure Code, Cap 33, R. E, 2002 (as amended), iS herein under quoted; "It shall not be mandatory for commercial case to be · instituted in the Commercial .Division of the High Court"~; 5 The wordings of the provision of the law cited above is very clear what is not mandatory for a party to file his commercial dispute in Commercial Court. However, to my considered opinion, when a litigant prefers institution of a suit to the Commercial Court he or she should be guided by . pecuniary jurisdiction of the Commercial Court as provided for under Rule 5 of GN No. 250 of 2012. i Certainly, the learned trial magistrate did direct his mind to section 6 of the ~ Civil Procedure Code, Cap 33, R. E, and 2002 which for the sake of better 1 understanding the same is herein below reproduced. "6 ( 1) Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction". To my firm view the trial court did not take into account of G. N No. 250 of 2012 and Order iv Rule 1 ( 4) of Civil Procedure Code (supra), if he properly directed h.is minds he could not arrive at that absurd and unjust decision which left the appellant in dilemma as to a right court forum of pursuing~ his right. · 6 --,,,-·- ■ ,,_-ea In final results, this appeal is not without merit, the same is allowed, the trial court ruling and extract order are set aside; the matter should be (() heard and determined on merit. The respondent shall bear costs of this appeal .. j I .I It is so ordere i J . ', . Ju rge 21/03/2017 Any other remedy to an aggrieved party (respondent is available) mm M. R. Gwae, Judge 21/03/2017 7