IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

CIVIL CASE NO 141 OF 2021

MULT- LION SECURITY LIMITED…………………………….………………PLAINTIFF

VERSUS

KNIGHT SUPPORT (T) LIMITED…………………………..………………..DEFENDANT

RULING

31st March 2022 & 8th March 2022

E.E. KAKOLAKI J.
Both parties in this suit are security companies. The defendant had sub-

contracted the plaintiff to perform her works of provision of security services

for a considerable time in some of its sites. It appears that on 19th March,

2018 the defendant terminated the plaintiff’s contract in one of her sites by

issuing her a Notice of termination of contract. Upon such notice issued, the

plaintiff notified the defendant of the outstanding due payment worth

Tsh.408,099,101/- for the service rendered. On attempt to solve the matter

amicably, parties sought intervention of the District Commissioners office

whereby ended up signing the deed of settlement on 27/04/2018 where the

defendant agreed to settle the claimed amount by paying the plaintiff not

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less than 50 million per month. Following that agreement, the defendant

paid some amount and remained with an outstanding amount of

Tsh.156,5999,101/- which was to be paid from 2019. However, the

defendant defaulted payment of the same despite several reminders. It is

from that background the plaintiff decided to pursue his right against the

defendant in this court requesting the following;

(i) Payment of sum of Tsh.156,599,101 being the principal amount,

(ii) Interest on principal amount at the rate of 25% per annum from
defaulting time
(iii) Interest on the decretal amount at the courts rate from the date of
judgment till when the decree is fully satisfied.
(iv) Costs of and incidental to the suit
(v) Any other orders this honourable Court may deem fit to grant.
Responding to the plaintiff’s claims the defendant filed his Written Statement

of Defence and raised two preliminary objections to the effect that:

(i) the plaint is incompetent as it is instituted in a court with no

competent jurisdiction to try the matter.
(ii) The plaint is defective for non- disclosure of the person who
draws the plaint.

On 31st March 2022, when the Preliminary Objection was called for hearing,

the defendant who had raised it without any notice defaulted appearance,

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the fact which moved the plaintiff’s advocate Mr. Herry Kimaro to pray for

dismissal of the said preliminary objection, the prayer which was granted by

the Court for want of prosecution. Nevertheless, despite of dismissal of the

preliminary objection, the court invited Mr. Kimaro to address it on

competence of the court to entertain this suit. The issue to be addressed on

therefore was whether this court is clothed with jurisdiction to entertain the

matter before it.

Responding to the court’s invitation Mr Kimaro was quick to submit that, the

court has jurisdiction to entertain this suit despite of its less pecuniary value

of Tsh.156,5999,101/- as the dispute between parties has a commercial

nature. He went on to argue that, the dispute is on breach of contract of

service between the security companies as reflected in paragraph 4 and 5 of

the plaint and that paragraph 11 of plaint states clearly that this court has

jurisdiction to entertain the matter. To reinforce his stance Mr. Kimaro relied

on the provision of Order IV Rule 1 (4) of the Civil Procedure Code, [Cap. 33

R.E 2019] which provides that, it is not mandatory for commercial case to

be instituted at the commercial court division. He also cited to the Court the

case of Marwa Masanga Patrick and Another vs Stanbic Bank (T)

Ltd, Civil Case No 6 of 2019 (HC) page 5, where by this court when

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 confronted with similar situation dismissed the objection. On the strength of

the above submission, he requested the court to find that it has jurisdiction

to entertain the matter.

I have cautiously considered Mr. Kimaro’s submissions which are based on

the assertion that, despite of less pecuniary value of the subject matter still

this court is clothed with jurisdiction to entertain the matter as the same has

commercial nature hence a commercial case. As to what amount to

commercial case, the same was defined in the case of Zanzibar Insurance

Cooperation Limited Vs. Rudolf Temba, Commercial Appeal No 1 of

2006, (HC-unreported) to mean:

The liability of a commercial or business organization or its

officials arising out of its commercial or business activities.

Apart from that, Rule 2 of the High Court Registries Rules, GN. No. 162 of

2002, defines commercial cases to mean;

A civil case involving a matter considered to be of commercial

significance, including but limited to:

(a) the formation of a business or commercial organisation

(b) the governance of a business or commercial organisation;
(c) the contractual relationship of a business or commercial
organisation with other bodies or persons outside it;

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(d) the liability of a commercial or business organisation or its
official arising out of its commercial or business activities;
(e) the liabilities of a commercial or business person arising out of
that person’s commercial or business activities;
(f) the restructuring or payment of commercial debts by or to
business or commercial organisation or person
(g) the winding up or bankruptcy of a commercial or business
organisation or person
(h) the enforcement of commercial arbitration award;
(i) the enforcement of award of a regional court or tribunal of
competent jurisdiction made in accordance with a treaty or
mutual assistance arrangements to which the United Republic
is a signatory and which forms part of the law of the United
Republic;
(j) Admiralty proceedings;
(k) Arbitration proceedings

In the light of the above authorities; it can be safely concluded that, for the

matter to be treated as a commercial one must be a civil case, which involve

commercial or business activities connected to buying and selling of goods

or services. Additionally, the transaction involved must be of considerable

commercial significance. The importance of having the transaction of

considerable commercial significance is not far-fetched as our daily lives are

surrounded by small transaction of commercial nature such as oral contracts

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of transportation of goods from one place to another and supply of services

such as food, water and security. To entertain every selling and buying

transactions of goods or services as commercial cases without considering

nature of claims involved in each case, in my view is tantamount to opening

a pandora box whereby small transaction cases which would be treated as

normal civil cases for arising from less valued and simple contracts to flood

in the High Court, which court is meant to deal with complicated matters.

Apart from that, it will be going against the essence of section 13 of the Civil

Procedure Code Cap 19 R.E 2019. Which provides that:

Every suit shall be instituted in the court of the lowest grade

competent to try it and, for the purposes of this section, a court
of a resident magistrate and a district court shall be deemed
to be courts of the same grade: Provided that, the provisions
of this section shall not be construed to oust the general
jurisdiction of the High Court.
The object and purpose of the above section is not to oust the unlimited

jurisdiction of this court, but rather to prevent overcrowding of cases in the

Court of higher grade in a situation where the suit may be filed in a court of

lower grade and pave a way for the cases with huge amount to be

entertained by experienced Courts. Similar stance was once held by this

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court in the case of Peter Keasi Vs. The Editor, Mawio Newspaper and

Another, Civil case No. 145 of 2014 (HC-unreported), this court had an

opportunity to observe the object and purpose of the said section 13 of the

CPC which observation I subscribe to when stated:

’’The object and purpose of the said provision is I think three

fold. First, it is aimed at preventing overcrowding in the court
of higher grade where a suit may be filed in a court of lower
grade. Second, to avoid multifariousness of litigation and
third, to ensure that the case involving huge amount must be
heard by a more experienced court.’’

As alluded to above, not every transaction or contract dispute shall constitute

a commercial case, the regard being paid to the nature and extent of

transaction as each case has to be determined basing on its own fact as

deposed in the plaint.

In the present case, having considered the cause of action and the reliefs

sought as deposed by the plaintiff in paragraphs 3,4,5,6 and 7 of the plaint,

I am of the profound view that, the facts therein do not fall under the ambit

of the matter of commercial significance but rather one which would be

treated under normal civil case. I so hold as the plaintiff does not claim any

breach of contract/services agreement between her and the defendant,

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rather an outstanding due payment worth Tsh.156,599,101/- for the services

rendered. Looking at the nature of plaintiff’s claims, it is apparent to me that,

the same is worth consideration and determination by the District Court as

per the dictates of the provisions of section 40 (2) (b) of the Magistrates

Courts Act, [Cap. 11 R.E 2019], for being less than Tshs.200 million, which

is outside the jurisdiction of this Court to try. I therefore hold that; the suit

is incompetent before this court for want of pecuniary jurisdiction as it ought

to have been entertained by the District Court or Resident Magistrates Court.

I would have struck out this plaint but for the interest of justice I refrain

from so doing but rather invoke the provisions of section 21(1)(a) and (2) of

CPC, and proceed to order for transfer of this case to the Resident

Magistrates Court for Dar es salaam at Kisutu, to be tried there. I direct that

parties should not pay any filing fees to the already filed pleadings.

No order as to costs.

It is so ordered.

DATED at Dar es salaam this 08th day of April, 2022.

E. E. KAKOLAKI
JUDGE

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 08/04/2022.
The Judgment has been delivered at Dar es Salaam today on 08th day
of April, 2022 in the presence of Mr. Heri Kimaro, learned advocate for the
Plaintiffs and Ms. Asha Livanga, Court clerk and in the absence of the
Defendant.
Right of Appeal explained.

E. E. KAKOLAKI
JUDGE
08/04/2022