Zebadia Ruling

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT-LAND DIVISION MUSOMA SUB REGISTRY AT MUSOMA ORIGINAL JURISDICTION LAND CASE NO> 27 OF 2022 1. ZEBADIA WANCHARA CHACH/T^K 2. RHOBISAMWEL KEGOYE \ 3. MNIKO SAMWEL KEGOYE ' 4. MARWA NGARIBA MNIKO 5. HEZRON MAKARANGA SANDO 6. GIRI M BE MACHUGU NYAMARUGU 7. GETRUDA RAPHAEL NGARARE 8. MWITA CH AC HA ROSWE 9. CHARLES MAGORI ANTHONY V 10. MANKO GHAT! MWITA 11. GEORGE MWITA NYAMAHOYI ......... PLAINTIFFS 12. MARIA MUNGE MARWA 13. MARIA MUSA IBRAHIM f 14. FRANCIS PIUS MKAMI I 15. BHOKE MWITA CHACHA 16. MATINDE MASEKE MWERA 17. JAMES MARWA MAHANDO 18. JOSEPHAT MWITA TUGARA 19. NEEMA RHOBI PETER 2Q. GRACE ROBIN MOTENGI 1 21. DANIEL RYOBA NYAMTARA / 22. WIN FRIDA ZAKARIA MAKURJ-^^ Versus NORTH MARA GOLD MINE LIMITED.................. DEFENDANT RULING 11.07.2024 & 31.07.2024 Mtulya, J.: Mr. Waziri Mchome, learned counsel for North Mara Gold Mine Limited (the defendant) and Dr. Chacha Murungu, learned counsel for the plaintiffs, have appeared in this court on 11th July 2024 and started swapping horns and holding each other by the throats on whether this court can depart from its own previous i decision in John Nyaitara Steven v. North Mara Gold Mine Limited, Land Case No, 20 of 2022. The decision in John Nyaitara Steven v. North Mara Gold Mine Limited (supra) was issued on 28th March 2024, and at page 12 of the decision, this court had resolved that; the plaint suffers two (2) faults, namely: species of currency and facts showing that the court has jurisdiction to entertain the suit. This court in the indicated precedent, had thought that: It is unfortunate that, even if it is agreed that the whole plaint be read together as a whole, it may invite further questions and interpretations as to whether it is a normal civil case, tort, or land dispute. It is very risk for this court to assume jurisdiction and proceed to resolve the dispute with uncertainty. Even if it decides to do so, the second limb of complaint on want of specific currencies cited in the eleventh paragraph would not let it to proceed safely. The complained jurisdictional clause in the precedent of John Nyaitara Steven v. North Mara Gold Mine Limited (supra) was displayed in the eleventh paragraph of the Amended Plaint and was drafted in the following words: The plaintiff is a resident of Komarera Village Nyamwaga Ward in Tarime District and the defendant carries out its business of mining activities at Nyamongo within Tarime District, within the 2 jurisdiction of this court and collectively the estimated value of the plaintiffs exceeding 400,000,000/= and the cause of action having taken place in Komarera Village in Nyamwaga Ward in Tarirne District as above, hence this court has jurisdiction to hear the suit. In the instant case, the disputed jurisdictional clause was placed at the twelfth paragraph of the Amended Plaint and shows the following texts: The plaintiffs are residents of Komarera Village Nyamwaga Ward in Tarirne District and the defendant carries out its business of mining activities at Nyamongo within Tarirne District, within the jurisdiction of this court and collectively the estimated value of the plaintiffs exceeding 400,000,000/= and the cause of action having taken place in Komarera Village in Nyamwaga Ward in Tarirne District as above, hence this court hasjurisdiction to hear the suit. According to Mr. Mchome, the drafters of the eleventh paragraph in the case of John Nyaitara Steven v. North Mara Gold Mine Limited (supra) are the ones and same persons who prepared the twelfth paragraph in the instant case. In his opinion,: the present plaint is required to suffer the same consequences as it was decided in John Nyaitara Steven v. North Mara Gold Mine Limited (supra). However, the thinking was protested by Dr. Murungu, who contended that this court was unaware of a bundle of issues when resolving the precedent in John Nyaitara Steven v. North Mara Gold Mine Limited (supra). According to him, when the issues are 3 displayed for glance before this court in the present case, the court may see it right to depart from its own previous decision. In order to persuade this court in favor of departure, Dr. Murungu had produced a total of four (4) reasons, namely: first, in the present case there is ruling which had recognized this is a land dispute of compensation species; second, this court will be functus officio in resolving the same dispute as tort or normal civil suit; third. Order VI Rule 3 of the Civil Procedure Code [Cap. 33 R.E. 2019] (the Civil Code) and section 4 of the Interpretation of Laws Act [Cap. 1 R.E. 2019] (the Interpretation Act) provide for concise statement of facts in figures and symbols; and finally, Sarkar's Commentaries in the Law of Civil Procedure, 11th Edition, 2007, at page 1029 and precedent of this court in Maheshkumar Raojibhai Patel v. Karim Shamshuddin Suleman, Commercial Case No. 80 of 2015 show that pleadings must be read as a whole to ascertain its true import. In protesting the reasons in favor of departure registered by Dr. Murungu in the instant case, Mr. Mchome submitted that the decision in John Nyaitara Steven v, North Mara Gold Mine Limited (supra) is the most recent decision resolved in 2024, and that from the reading of the Court of Appeal's decision in Arcopar (O.M) SA v. Harbert Marwa arid Family Investment Co, Ltd & Three Others, Civil Application No. 94 of 2013, it prevails over the previous decision 4 in Maheshkumar Raojibhai Patel v. Karim Shamshuddin Suleman, (supra) decided in 2016, According to him, at page 5 of the Ruling in John Nyaitara Steven v. North Mara Gold Mine Limited (supra), this court had cited prominent scholars in Tanzania and a bunch of authorities on the subject from other jurisdictions and finally was persuaded to struck out the complained plaint for want of species of currency and proper jurisdiction clause. In the opinion of Mr. Mchome, the two (2) indicated issues of currency and jurisdiction clause have never been resolved in the instant case to subject the court into functus officio and that the figures and symbols in the jurisdiction clause, viz 400,000,000/= do not state anything related to species of monies or value of the claimed sum. According to Mr. Mchome, even if the symbols and figure are stated to be Tanzanian Shillings 400,000,000/=, still the figures and symbols may invite two (2) further questions: first, whether the amount is special or general damages; and second whether it is for single plaintiff or all plaintiffs in the case. Finally, Mr. Mchome submitted: that the practice of this court in Maheshkumar Raojibhai Patel v. Karim Shamshuddin Suleman, (supra) was rendered down in 2016 and between 2016 and 2024 several other decisions on the subject have declined the practice in favor of the jurisdictional clause which displays this court has jurisdiction to entertain suits. In substantiating his submission, Mr. 5 Mchome had cited precedents of this court in Sued Hamis Chem Chem & Another v. First National Bank (T) Ltd, Land Case No. 94 of 2017 and Christopher Derek Kadio v. Heaven Origenes Mtui & Eight Other, Land Case No. 81 of 2017. I have scanned the twelfth clause in the Amended Plaint filed by the plaintiffs on 13th February 2024 in this court. The clause is similar to the eleventh clause in the Amende Plaint in the case of John Nyaitara Steven filed against North Mara Gold Mine Limited. The eleventh clause was found to be in contravention of Order VII Rule 1 (f) and (i) of the Civil Code for want of value of the subject matter and facts showing that the court has jurisdiction to entertain the suit. The same issue was brought in the instant case, and it was fortunate that both learned counsels have read the materials produced in the decision of this court in John Nyaitara Steven v. North Marai Gold Mine Limited (supra). Similarly, the dual learned persons, are well conversant with the holding and reasons of the holding in the precedent. The purpose of enactment of Order VI and VII of the Civil Code, apart from other issues, is to have certain disputes in terms of value, subject matter and jurisdiction of courts. As indicated in the decision of John Nyaitara Steven v. North Mara Gold Mine Limited (supra), it is very risk for this court to assume jurisdiction and proceed to resolve disputes with uncertainty. 6 I am aware during the submission in favor of the departure, four (4) reasons were produced and argued. For purposes of clarity and appreciation of the reasons, I will briefly display the arguments behind the reasons. According to Dr. Murungu, Order VI Rule 3 of the Civil Code and section 4 of the Interpretation Act provide for concise statement of facts in figures and symbols. I have perused the indicated rule of the Civil Code and section 4 of the Interpretation Act and did not learn anything related to symbols /-. The cited rule just provides that every pleading shall contain statement in a concise form of the material facts on which the party pleading relies for his claim or defence, whereas the section provides that words include figures and symbols. The indicated rule and section cannot be used to interpret symbols /= to be specific currency of any species. Similarly, the indicated symbols do not provide any concise statement of material facts which a party can rely on his pleadings for a claim or defence. I am conversant that the writings of Sarkar in the book titled Sarkar's Commentaries in the Law of Civil Procedure, was Cited by Dr, Murungu, and specifically the 11th Edition of 2007, at page 1029. The book has notes, practices and comments of India in 2007, whereas the precedent John Nyaitara Steven v. North Mara Gold Mine Limited (supra) was persuaded by the specific comments of 2008 and 2019 in the writings of Sarkar's Law of Civil Procedure, 7 11th Ed., and Mogha's Law of Pleadings in India with Precedents, 18th Ed., respectively. If it is correct that the law is not static, then the current trend is in favor of the detailed jurisdictional clause which shows that the court has jurisdiction to entertain suits. Similarly, the precedent Maheshkumar Raojtbhai Patel v. Karim Shamshuddin Suleman (supra) was resolved by this court in 2016, without any further support to date from this court or Court of Appeal. Since then, several decisions on the subject were resolved by this court, but no any decided in favor of the position that a judge or magistrate has to take his time off-schedule in search of jurisdiction of the court at each paragraph of plaints. Much as I may appreciate the position that pleadings must be read as a whole to ascertain its true import, but I am not inclined to that position. The position does not only increase schedules of learned magistrates and judges, but also it is not inviting practice. In any case, the instant case has a bunch of faults, which cannot be rescued by reading the Amended Plaint as a whole. I understand Dr. Murungu, in the instant dispute, has contended that this court as already resolved on species of dispute and had ruled this is a land dispute of compensation type and that it would be functus officio for the same court to decide on a kind of dispute. Dr. Murungu may be correct. However, this court cannot be detained in a contest which is academic in nature. I have already 8 indicated in this ruling that the instant case has several faults that even if it is specified its category, it cannot be rescued to remain on record. The liabilities on species of currency and jurisdictional clause are quietly enough to display incompetence of this suit. In the upshot, I think, the defendant's learned counsel has produced decent complaints which have persuaded this court to strike out the plaint, as I hereby do so. I award no costs in the present contest as the defendant's learned counsel was praying for right record, whereas the plaintiff's learned counsel was praying for this court to peruse and appreciate new discoveries for departure of its own previous decision in John Nyaitara Steven v. North Mara Gold Mine Limited (supra). It is so ordered. Z^i£jh^ of appeal explained. A ~ F.H. Mtqlya Judge 31.07.2024 mg was delivered in Chambers under the Seal of this court in the presence of the second, third, seventh and thirteenth plaintiffs and their learned counsels, Dr. Chacha Murungu and in the presence of Mr. Waziri Mchome, learned counsel for the defendant. IhTotjO lOll ■ F.H. Mtu Judge 31.07.2024