zuhura fredrick kalo vs athuman rubindo administrator of estate of late hussein kihema and 4 others 2023 tzhc 16890 25 april 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF KIGOMA AT KIGOMA LAND CASE NO.OS OF 2022 ZUHURA FREDRICK KALO PLAINTIFF VERSUS ATHUMAN RUBINDO (Administrator of estate of late Hussein Kihema) 1st DEFENDANT KAMWANYA LUVUMA ••••••••••••••••••••••••••••••••••••••••••••••••••••••••2"d DEFENDANT MBEZI AUCTION MART & COMPANY LIMITED 3rd DEFENDANT ' K IG O M A / U JIJI MUNICIPAL 4th DEFENDANT A TT O R N EY G EN ERA L 5th D EFEND A N T D ate of Last O rder: 21.04.2023 D ate of R uling: 25.04.2023 R U L ING M A G O IG A , J . This ruling arises from a very interesting legal issue for consideration as to whether the High Court has pecuniary jurisdiction to entertain a suit whose substantive claim is Tshs.15 million in the light of section 13 of the Civil Procedure Code, [Cap 33 R.E.2019] as amended by the Written Law (Miscellaneous Amendment) (No.2) Act No 4 of 2016. To understand the gist of this point, the facts, albeit, in brief of this suit, are imperative. The plaintiff instituted the instant landed suit jointly and severally against the defendants for several orders not subject of this ruling. The suit went on all stages in accordance with the procedures and was set on for hearing inter parties on 19.04.2021. On that day, the court suo moto guided by the provisions of Order I Rule 10 (2) of the Civil Procedure Code, [Cap 33 R.E. 2019] invited the learned advocates for parties (Mr. Daniel Runyemela and Mr. Sadick Aliki) to address the court whether by the plaint and its prayers discloses any cause of action against the 4th and 5t~ 1 d efe n d a n ts n e c e s s ita tin g to b e jo ined in th is s u it. B o th le a rn e d a d v o c a te s w e re a t o n e th a t th e 4 th and 5th defendants were wrongly joined in this suit and prayed that their names be struck out. In the circumstances, this court proceeded to struck out the names of the 4th and st h defendants. Consequently, the suit went on for hearing and the plaintiff and her supportive witnesses testified and eventually closed her case. The matter was adjourned to the next day for defence hearing. When the suit was called on for defence hearing, Mr. Aliki, learned advocate for the 1st and 3rd defendant when invited to bring forth the 1st defence witness, informed the th court that he has a legal concern which is that by striking out the names of the 4 and 5th defendants, automatically this court lacks pecuniary jurisdiction to try this landed suit because the estimated value of the disputed plot is Tshs.15,000,000/=, an amount which is within the pecuniary jurisdiction of the District Land and Housing Tribunal. Guided by the provisions of section 13 of the Civil Procedure Code, the learned advocate submitted that under the circumstances, this court be pleased to strike out this suit and direct the plaintiff to institute a fresh suit in the competent court as provided for under section 33(2) of the Land Disputes Courts Act, [Cap 216 R.E 2019]. According to Mr. Aliki, much as the pecuniary jurisdiction of the District Land and Housing Tribunal is 300 million, then, a matter with the claim ofTshs.15 million cannot be instituted in the High Court, which is not the Court of the lowest grade for purposes . of dealing with the landed suit. When probed by the Court as to the import of the amendment made in section 13 of the CPC, Mr. Aliki was quick to point out that, the proviso in section 13 of the CPC, in ~ 2 h is s tro n g v ie w , d o n o t c o n fe r a n y ju ris d ic tio n to th e H ig h C ou rt to a m a tt e r th a t h a s lo w p e c u n ia ry ju ris d ict io n tha t c an be d e te rm in e d b y th e lo we r co u rt o r T ribu na l. It w a s h is fu rt h er s u b m is s io n th a t, w he re th e re is s p e c ifi c p ro v is io n s p ro v id ing fo r ju ris d ic tio n o f th e co u rt a s in th e in stan t s u it, th e p ro v is o c anno t c o me in to a pp lica tion . A cc o rd in g to M r. Alik i, th e p ro v is o w a s m e a n t to c o n fe r th e H ig h C ou rt w ith g e ne ra l ju ris d ic tio n a n d n o t s p e c ifi c ju ris d ict io n , in s iste d M r . A li k i. O n th e fo re g o ing , M r. A lik i in v ite d th is c o u rt to s trike o u t th is s u it a n d g iv e p ro p e r d ire c tiv e s w ith n o o rd e r a s to c o s ts . O n th e o th e r h an d , M r . D a n ie l R u men ye ra , le a rn e d a d v o c a te fo r th e p la in tiff h a d q u ite d ia m e tric a l d iffe re n t v ie w reg a rd to th e ju risd ic tio n of th e H ig h C o u rt a s p ro v id e d fo r u nde r the p ro v is io n s o f s e c tio n 1 3 o f th e C P C a s a m e n d ed . G u id ed b y s e ct io n 2 of J u d ic a t u re a n d A p p lic a tio n o f La w s Act, [C ap 3 58 R .E 2 0 1 9 ] it w a s th e s u b m is s io n o f M r . R u n y em e ra th a t , the H ig h C ou rt h a v e fu ll ju ris d ict io n in c iv il a n d c rim ina l m a tt e rs . A c c o rd in g to M r . R u m e n y e ra , u nd e r th e M a g istra te s ' C o u rts A ct , [C a p 11 R .E .2 0 1 9 ] lim ita tio n o f ju ris d ic tio n is lim ite d to th e c ou rt Re s ide n t M a g istra te s ' C o u rt a n d D is tric t C ou rt , a s w e ll a s P rim a ry C o u rt . Th e le a rn e d a d v o c a te in s is ted tha t, u nd e r s e ct io n 7 o f [C a p 3 58 R .E. 20 1 9 ] g iv e s ju d ge s th e p o w e rs e v e n o f the m a g is tra te s . O n th e fo reg o in g , it w a s fu rt h e r s u b m is s io n o f M r . R um e n ye ra th a t, s e c tio n 33 o f [C a p 2 1 6 R.E .2 0 1 9 ] li m its th e ju ris d ict io n o f th e D is tric t L a n d a n d H o u s ing T rib una l b u t n o t th e H ig h C o u rt w h ic h h a s u n lim ite d ju ris d ictio n a n d th a t n o p ro v is io n o f the la w th a t lim its th e ju ris d ict io n o f th e H ig h C o u rt w he n d ea ling w ith a n y c a s e n o tw it h sta n d in g t h e a m o u n t in v o lv e d . A c c o rd in g to M r. R u m e n ye ra , s e c tio n 1 3 w a s a m en d e d b y W ritte n La w s (M is c e llane o u s A m e n d m e n t (N o .2 ) Act , N o . 4 o f 2 0 1 6 b y a d d ing th e p ro v is o , n o w c o n fe rrin g th e H ig h ~ 3 C ou rt un li m ite d ju ris d ict io n o n a ll m a tt e rs a s o p p o s e d to o the r c o u rt s . F u rt h e r a rgu m e n ts b y M r . R u n y eme ra w e re tha t, th e s e ctio n s c ite d b y M r . Alik i w e re e n a ct ed b e fo re th e in cl u s io n o f the p ro v is o a n d th e a m en d m e n t w a s in te n d e d to s tre n g th e n the ju ris d ict io n o f the H ig h C ou rt d e s p ite th e a m o un t in v o lv e d . O th e r a rg u m e n ts w e re th a t, g o ing ba ck to D L H T w il l in v o lv e c o sts and tim e to a c a s e w h ic h is in d e fe n c e a n d n o ne o f th e p a rt ie s w ill b e p reju d ice d . Ta k ing th e c ou rs e s u g ge s ted by M r. A li ki w ill a m o u n t to ju stic e d e la y e d is ju s tic e d e n ied . O n th e fo re g o ing , M r. R um e ny e ra hu m b ly in v ite d th is c ou rt to fi n d a nd h o ld tha t the H ig h C o u rt h a s g e n e ra l ju ris d ic tio n c o n fe rre d b y th e la w a n d p ro c e e d to he a r d e fen ce c a se a s n o p reju d ic e w ill b e o cc a s io n e d to th e p a rt ie s . T h e 2 nd defendant being a layman had nothing to submit on this legal point. In rejoinder, Mr. Aliki argued in rebuttal that the sections cited under JALA are general sections as such not applicable. Mr. Aliki reiterated that section 13 limits specific jurisdiction of the High Court but is open only to general jurisdiction which do not apply to the situation we have here. As to the issue of costs and time, it was his brief reply that justice hurried is justice buried, and urged this court not to burry justice at the expense of time and costs because time and costs have never conferred jurisdiction to any court. On the foregoing, the learned advocate for the 1st and 3rd defendants reiterated his earlier prayers. However, none of the advocates cited any authority by the High Court or Court of Appeal on the interpretation of the proviso to the provisions of section 13 of the CPC. The said section was amended to read for easy of reference as follows: 4 "Section 13. Every suit shall be instituted in the court of the lowest grade to try it and, for the purposes of this sect ion, a court of resident m agistrate court and a district court shall be deem ed to be court s of the sam e grade. Provided that, the provisions of this sect ion shall not be construed to oust the general jurisdict ion of the High Court ." The task of this court now is to determine the point raised and argued. Before going into the merits or otherwise of the point, I truly commend the learned advocates for parties for their brilliant arguments and thought provocation concern. Having carefully followed the serious rivaling arguments by learned advocates for parties in this landed dispute, in my own considered opinion the issues for determination are two; one is, whether the High Court is ousted with jurisdiction to entertain a civil suit whose pecuniary amount is below the limit of the Resident Magistrates' Court and District Court, (and specifically for this landed suit ,the District Land and Housing Tribunal for Kigoma) which courts are of the same grade. Two, what is the import of the amendment of section 13 of the CPC as done by Act, No.4 o f 20 16 . These issues can be determined jointly that, what was the import of the amendment that was enhanced in section 13 of the CPC and what it intended to cure in the CPC. However, it should be noted that; first, it is trite law in our jurisdiction that, once an issue of jurisdiction is raised it is fundamental for its determination because it affects proceedings and the resultant decision. Two, the jurisdiction of the High Court is constitutionally provided for under article 108 (1). The said article for easy of reference provides as follows: ~ 5 "A rt icl e 1 0 8 (1 ) Th e re sh a ll b e a H ig h C ou rt o f th e U n ite d Re pub lic (to b e re ferre d in sh o rt a s ("th e H igh C ou rt ") th e ju risd ict io n o f w h ich sh a ll b e a s sp e ci fi e d in th is C on stitu tio n o r in a n y o th e r la w ." (2 ) if th is con stitu tio n o r a n y la w d o e s n o t e x p re ssly p ro v id e th a t a n y sp e ci fi e d m a tte r sh a ll fi rst b e h ea rd b y a co u rt sp e ci fi e d fo r th a t p u rp o se , th e n th e H ig h C o u rt sh a ll h a v e ju risd ictio n to h ea r e v e ry m a tter o f su ch ty p e . S im ila rly , th e H ig h C ou rt sh a ll h a v e ju risd ictio n to d e a l w ith a n y m a tt e r w h ic h a cco rd in g to le g a l tra d itio n s ob ta in ing in T a n za n ia , is o rd in a ril y d e a lt w ith th e H ig h C o u rt; sa v e th a t, th e p ro v isio n s o f th is sub a rt icl e sh a ll a p p ly w ith o u t p reju dice o f th e C o u rt o f A pp ea l o f T a n za n ia as p rov id e d fo r in th is co n stitu tio n o r a n y o th er la w . (E m ph a sis m in e ). Now back to the issue, it goes without saying that, from the above article of the constitution, no doubt, the jurisdiction of the High Court is expressly derived from the constitution itself and any written law. For this case, the amendment of section 13 of the CPC done by Act, No. 4 of 2016, no doubt, is the 'any written law.' Nevertheless, the phrase 'general jurisdiction' is not defined in the Civil Procedure Code. However, Black's Law Dictionary defined the phrase 'general jurisdiction' to mean (1) a court's authority to hear a wide range of cases, civil or criminal that arise within its geographical area; (2) a court's authority to all claims against a defendant, at the place of the defendant's domicile or place of service, without any showing that a connection exits between the claims with the forum state. From the above stance, in my further research, I found that the Written Law (Miscelleneous Amendment) (No.2) Act, No. 4 of 2016 was aimed to enhance the 4 6 ju ris d ict io n o f th e H ig h C o u rt o n a ll m a tte rs b e it c iv il o r c rim ina l. In o th e r w o rd s , I c an c e rt a in ly s a y n o w , tha t, the w o rd ing o f th e p ro v is o w a s in tende d to p ro te c t th e g e n e ra l p o w e rs o f the H ig h C o u rt to e n te rt a in a n y m a tte r re ga r d le ss o f th e ju ris d ic tio n un d e r w h ic h s u c h m a tt e r fa ll s . I d e riv e s u c h s ta tem e n t fr om th e o bje c t o f th e a m end m en t fro m th e p a rli a m e n t H an s a rd . T h e p a rli a m e n ta ry H an s a rd w he n th e b ill w a s ta b le d h a d th is to s a y to th is am e nd m e n t: "Sehemu ya IV imapendekeza kufanya marekebisho kwenye sheria ya Mwenendo was Mashauri ya Madai, Sura ya 33, ambapo kifungu cha 13 kinarekebishwa kwa lengo la kutambua mamlaka ya Mahakama Kuu na kuhakikisha kuwa mamlaka za Mahakama Kuu haziingiliwi kwa namna yeyote kwa mujibu wa kifungu hiki." (Emphasis mine). Literally translation is that: "Part VI proposes amendment to the Civil Procedure Code, Cap 33 whereby section 13 is proposed to be amended so that the thrust of the provisions of that section should not be interpreted to oust the jurisdiction of the High Court given under that section." {Emphasis mine) Guided by the above object of amending the provisions of section 13 of the CPC, is my strong considered opinion that, by that proviso, now, the High Court has unlimited jurisdiction starting from zero to the sky irrespective of the amount claimed in all cases in our jurisdiction. In other words, the High Court has jurisdiction to try all cases of civil and criminal nature irrespective of the amount claimed starting from zero and the limit is the sky, save that the court in its discretion may direct a particular case to be heard by a subordinate court. Further, the amendment of section 13 of the CPC, thus, in my opinion, was aimed at enhancing the jurisdiction of the High Court and not to ~ 7 li m it it . S e e , th e C rim in a l P ro c e d u re Act , [C a p 2 0 R.E .2 02 2 ] in w h ic h in the F irst S c hed u le to th e A ct , p ro v id e s fo r C o u rt (in a dd itio n to th e H igh C o u rt ) b y w h ic h the o ffe n c e is tria b le , s h o w s s ub o rd in a t e c ou rt , m ea n ing th e H ig h C o u rt ha s ju ris d ictio n to try a ll c rim ina l c a s e s a lo ng s id e w ith s ubo rd in a te c ou rt s s a v e w h e re is e x p re ss ly p roh ib ite d . T h e refo re , from fo re go in g , t h e a rg u m e n ts by M r . Alik i, lea rn e d ad v o c a te fo r ist and 3rd defendants that the High Court has no jurisdiction to entertain this suit on simple reason that the jurisdiction of the High Court is barred, with respect, is erroneous, misconceived and do not go with the object of amending the provisions of section 13 of the CPC. The general jurisdiction of the High Court is enhanced and indeed, the said section provides for courts in which suit may be instituted and not it shall be instituted connoting that even the use of the words shall is not meant to be mandatory, and therefore, where the suit was properly instituted in the High Court and it has gone to the extent of defence, I agree with Mr. Rumenyera that it is not good for the interest of justice to strike out suit on failure to file it in the lowest Tribunal. That will amount to justice delayed, hence, justice denied. Much as all parties will be heard, I see nothing in the circumstances of this suit, to agree with Mr. Aliki that justice hurried and is justice buried. Before, I wind up, I would like to point out that, in the course of my research, I found that, there are plethora of decisions by my learned brothers and sisters judges in the High Court on this point, even after the amendment of section 13 of the CPC which struck out cases. These are: Richard K.N.Rweyongeza Vs. Jitesh Jayantilal Ladwa, Misc. Civil Application No. 101 of 2020 HC DSM (Unreported), Jonathan Omary Kivugo vs. Pro Share Capital Limited, Ch,il Case No. 10 of 8 • 20 22, H C M beya (Unreported), Ivanna Felix T eri Vs. B arcl ays B ank T anzania Li m ited and another, C iv il C ase N o 24 of 20 19 , H C A rusha {Unrepo rt ed), N assor M o hamed M taw azi V s. T anzania R em ix C entre Ltd, C iv il C ase N o . 111 of 20 19 H C DSM {U n repo rted ), M ill eneum Logistics V s. A fricarries Li m ited, C ivil C ase N o . 4 2 of 202 2 HC D SM {un repo rt ed ) just but few to mention. I understand the principle of maintaining certainty and brotherhood judges' decisions which should not be departed from unless there are compelling reasons to do so. In this case, I have good reasons do depart from my learned sisters' and brothers' judges on the reasons stated above. Further that, the circumstances of this case are different because the case is at its stage of defence hearing. There is element of costs and delay which was not existing on the forementioned cases. The least to say is that, much this court has jurisdiction, I find no reasons to transfer this case to the lower court{rribunal as prayed because that will be against the spirit of the amendment and intention of the parliament in amending the said section. Even if the case was at its elementary stages, I would go for transfer of the same to the lower court than striking the suit. I have as well come across the decision of the Court of Appeal in the case of Mwananchi Communication Limited and 2 Others Vs. Joshua K. Kajula and 2 Others, Civil Appeal No. 126/01 of 2016 DSM CAT {unreported) decided in October, 2020 after the amendment but where no direction or discussion was made on the amendment of section 13 of the CPC, hence, distinguishable. 9 F ro m the fo reg o in g r ea s o n s , I h e re b y fi nd th a t , th is c o u rt is cl o th e d w it h th e ju ris d ic tio n to try th is s u it to it s fi n a lity . T he co n c e rn ra is e d is , w it h r e s p e ct to M r . A lik i, o v e r r u le d . O r d e r a c c o rd in g ly . ___..w~!W,111+-. -.r~ ,-.., 10