IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)
AT DAR ES SALAAM
COMMERCIAL CASE NO. 133 OF 2015 LUCAS PIUS MALLYA TRADING AS
BARA KA STORE PLAINTIFF
VERSUS
ENOS K. MATONGO 1 sTDEFENDANT
VINCENT MUNGO 2ND DEFENDANT
RULING:
MRUMA, J.
This suit has a chequered history. The Plaintiff Lucas Malya t/a Baraka Store instituted a suit claiming from the Defendants Enos K. Matongo and Vincent Mungo payment of Tshs
39,000,000.00
being the value of the goods allegedly supplied to them. The Plaintiff is also claiming general damages of ,Tshs20,000,000.00
interests and costs.At first the Defenants did not enter appearance and a default judgment was entered against them. They were aggrieved and
Thereafter both defendants filed their respective written statement of defence each vehemently denying the Plaintiff's claims. At this stage non of the defendant objected the jurisdiction of this court to try the matter.
The matter proceeded up till when it came up for hearing on 19.4.2018 when this court suo moto asked counsle to address it on whether or not it has jurisdiction to try the matter in view of the provision of Rule 5 (2) of the High Court (Commercial Division) Procedure Rules, 2012. The said sub rule provides:-
( 1) "The court shall have and exercise original jurisdiction in Commercial Case in which the value of the claim shall be at least one hundred million shillings in case of
proceedings for recovery of possession of immovable property and at least seventy million shillings in
proceedings where subject matter is capable of being estimated at a money value".
The value of the subject matter in this case is Tshs 39,000,000.00.
In his address to this court on that point counsel Flavia Nestory for the Plaintiff contended that this court has jurisdiction to hear the
matter because the Magistrates Court's Act from which subordinate courts derive their jurisdiction has a lacuna. The learned counsel said that Section 40 (3) (b) of the Magistrates Court's Act sets the pecuniary jurisdiction of the District courts in proceedings where the subject matter is capable of being estimated at a money value to
not more than T.shs 30,000,000.00. According to the learned counsel, the law is silent as regards to any commercial claim over Tshs 30,000,000.00 but which doesnot hit the minimum of Tshs 70,000,000.00 required by Rule 5 (2) of the High Court (Commercial Division) Procedure Rules, for it to qualify to be institued in this court.
The learned counsel contended that because Section 36 (1) of the Interpretation of Laws Act provides clearly that subsidiary legislation shall not be inconsistent with the provisions of any Act of the Parliament or the provisions of the written law under which they are made, in the present case the provisions of the provisions of the Magistrates Court's Courts Act should prevail. She said that the amendment regarding jurisdiction of the court (High Court Commercial Division) should have been done through an Act of the Parliament and not through the Rules as it was done by GN No. 250 of 2012. He referred this court to its own decision in the case of Charles Sugwa Vs. Daniel Lucas {Mwarija, J as he then was) (Commercial Case No
10
of2015), where this court held that it
has jurisdiction to hear a suit for claim of Tshs 38,000,000
Responding to the plaintiff's counsel's submissions Mr. Mackanja Manono, counsel for the Defendant was of the view that this court does not have jurisdiction to try this case. He said that this court derives its jurisdiction under Article 108 of the Constitution and Section 2 (3) of the Judicature and Application of Laws Act (Cap 352 of the Laws), and cited the case of our Lady of Usambara Sisters (2006) TLR page 70 - where it was held that
High Court derives its jurisdiction from other laws. He said that the High Court (Commercial Division) has her specific rules which governs its proceedings. He said that Order IV Rule 4 of the Civil Procedure Code allows a party to institute a case in any registry of the High Court, therefore it is optional to file a Commercial case in this court. He said that the plaintiff had an option to file his suit in the High Court (main registry) and not in the specialized division of the High Court.
It is not disputed that proceedigns in Commercial Division of the High Court are governed by the High Court ( Commercial Division) Procedure Rules of 2012. The pecuniary jurisdiction of this court is provided under Rule 5 (2) of the Rules. Under that Rule for the subject matter which is capable of being estimated at a money value this court has jurisdiction to hear and determine it if its value is not bellow Tshs 70,000,000/=.
It has been submitted for the Plaintiff that Rule 5 (2) of the High Court (Commercial Division) Procedure Rules is inconstistent with Section 40 (3) of the Magistrates Courts Act and that the amendment ought to have been effected through an Act of the Parliament and not subsidiary legislation as it was done through the High Court (Commercial Division Procedure Rules, citing the case of Charles Sugwa Vs. Daniel Lucas (Supra).
With due respect to the learned counsel for the Plaintiff, I do not agree. In my considered view these are two distinct laws each for its own purpose. The Magistrates Courts Act is an Act to provide for jurisdiction, powers and functions of the Magistrates courts and
other related matters (See the Preamble to Magistrates Courts Act Cap 33 R.E. 2002] while the High Court (Commercial Division) Procedure Rules, 2012 are rules specifically promulgated to govern proceedings in the Commercial Division of the High.
I am alive of the existence of two schools of thought regarding pecuniary jurisdiction of this court where the value of the subject matter of the dispute can be estimated in a monetary value and is above Tshs 30,000,000.00 but below Tshs 70,000,000.00. One school of thought is of the view that because under the Magistrates Courts Act subordinate courts do not have jurisdiction to try a Commercial Case, the value of the subject matter of which is above Tshs 30,000,000.00 then th is court can try that matter. I do not
belong to that school of thought which holds the view that there is a lacuna in the law because any claim the value of which is above T.shs 30,000,000.00 (which is beyond the jurisdiction of District Courts) but below T.shs 70,000,000.00 (which is the minimum pecuniary jurisdiction of this court) is not covered by any law [See the cited case of Charles Sugwa [supra])
The second school of thought is of the view that Commercial Division of the High Court being specialized court has special rules which goven its proceedings and under those rules any claim which the value of the subject matter can be estimated in a money value which is below T.shs 70,000,000.00 is not triable by this court. I belong to this school of thought and I hold the view that this court does not have jurisdiction to try any suit in which the value of the
subject matter is below T.shs 70,000,000.00. I will demonstrate hereunder.
Commercial Division of the High Court of Tanzania is a specialized court with jurisdiction to deal with civil cases of commercial significance.
It
should be noted that under the provision of sub-rule ( 4) of Rule 1 of Order IV of the Civil Procedure Code it is not mandatory for a Commercial Case to be instituted m the Commercial Division o the High Court. In other words it is optional to institute a commercial case in the Commercial Division of the High Court. Commercial case can be instituted in any registry of the High court perhaps with exclusion of Labour and Land Division of the High Court.Section 7 of the Civil Procedure Code cloths the entire High Court with jurisdiction to try all suits of a civil nature. The law provides:-
"The Courts shall (suject to the provisions herein
contained have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either
expressly or impliedly berred"
The term cognizance is defined by Bryan A. Garner Black's Law dictionary page 253 to mean the right and power to try and determine cases or jurisdiction. Therefore courts in this country have jurisdiction to try all suits of a civil nature save for suits whose jurisdiction is either expressly or impliedly barred. Commercial cases are suits of civil nature and in terms of Rule 5(2) of the High Court (Commercial Division) Procedure Rules, 2012, this court is
barred from hearing and determining commercial case whose value is below T.shs 70,000,000.00. The court has concurrent jurisdiction with other registries of the High Court to hear and etermine matters of commercial significance but only those cases whose value in case of immovable property exceeds T.shs 100,000,000.00 and in case of movable property exceeds Tshs 70,000,000.00 can be filed in this court. Thus, because adjudicating a matter whose value is below Tshs 70,000,000 is specifically barried by the provisions of Rule 5
(2) of the High Court (Commercial Division) Procedure Rules, 2012, I find that this court does not have pecuniary jurisdiction to hear this case. The plaintiff ought to have instituted this case in other registries of the High Court as it is not true that because District court's jurisdiction is caped at Tshs 30,000,000.00 and this court's jurisdiction starts at Tshs 70,000,000.00 then persons with commercial claims exceedings Tshs 30,000,000.00 but below Tshs 70,000,000.00 are left in cold and without any forum as counsel for the plaintiff would love this court to believe.
Since commercial case is a suit of civil nature, and the High court
has jurisdcition to try any suit of civil nature except suits of which
their cognizance is expressly or impliedly barred, and because commercial cases the value of which is below Tshs 70,000,000.00 are expressly barred by Rule 5 (2) of the High Court (Commercial Division) Procedure Rules from being institued in the High Court Commercial Division, I would order that Commercial case No. 133 be struck out from the registry of this court. The Plaintiff ought to have filed it in the ordinary registry of this court. That right still
exists, of course subject to the law of Limitation. As the point was raised by the court suo moto, I make no orders as to the costs.
~M/ A. R. Mruma,
Judge
