Court name
High Court of Tanzania

Francis Andrew vs Kamyn Industries (T) Ltd () [1986] TZHC 6 (10 April 1986);

Law report citations
1986 TLR 31 (TZHC)
Media neutral citation
[1986] TZHC 6
Coram
Bahati, J.

Bahati, J.: Mr. Uzanda learned counsel, for the defendant raised the point of jurisdiction on the part of this court arguing that since the amount claimed is below Shs.20,000/= this court had no jurisdiction to entertain the suit.  Mr. Uzanda pointed out that the value of the plaintiff's claim was shown in paragraph 5 of the plaint which was Shs.14,549/=, but at the prayer to the plaint the plaintiff had tucked in Shs.8713/86 being interest from July, 1975 to January, 1981.  This is interest of 7 years prior to the filing of the suit.  Mr. Uzanda submitted further that the law relating to interest prior to the filing of the suit was clear namely that interest prior to the filing of the suit is a matter of substantive law and not procedural law and therefore such interest must be pleaded in the body of the plaint.  It cannot be tucked in the prayer like interest after filing the suit.  Mr. Uzanda referred the court to Mulla - Code of Civil Procedure - 12th Edition page 145 and also the AIR commentaries 6th edition volume 1 pg 6121.  Mr. Uzanda submitted that the plaintiff had not pleaded the sum of 8713.86 in the plaint nor was it known on what basis he was claiming it.  Interest prior to filing of the suit, Mr. Uzanda submitted, could come under three headings namely - by agreement, by mercantile practice, or by statute.  But in the plaint this was not shown, he said.  He submitted
1986 TLR 33
BAHATI J
A further that even if the case were to be heard on its merits it would be impossible for the court to award such interest because having not been pleaded, it could be argued.  Mr. Uzanda concluded that the plaintiff had asked the court to adjudicate on Shs.14,549/= which is far below the pecuniary jurisdiction of the court; and as such the suit should be dismissed with costs.  B
With regard to the counter claim, Mr. Uzanda argued that it had been filed nearly 2 years ago and no defence to it had been made by the plaintiff nor was there any application for filing any defence.  He prayed that judgment be entered for the defendant as prayed in the counterclaim.  C
In reply to this argument Mr. El-Maamry, learned counsel for the plaintiff asked for an adjournment to prepare his reply and his prayer was granted.  When the matter came up for hearing about a month later, Mr. El Maamry submitted that the relief paragraph was part of the plaint and that although there was no paragraph claiming interests, interest was  D properly claimed in the relief.  In the alternative, Mr. El-Maamry applied orally to amend the plaint to incorporate a paragraph on the interest before filing the suit.
With regard to the defence to the counterclaim, Mr. El-Maamry conceded that he had not yet filed one nor asked for extension of time to do so.  But he applied for leave to file it now because it was ready. E
Mr. Uzanda, replying to Mr. El-Maamry's arguments said that his main argument which was that the interest prior to the filing of the suit is a matter of substantive law and must be specifically pleaded because there are several grounds on  F which it can be claimed.  He said that this argument had not been answered by his learned friend.  He went on to elaborate that the interest might be a subject of an agreement or based on mercantile usage or based on a statute.  In   G each case the basis of the interest had to be specifically pleaded.  Mr. Uzanda cited yet another authority on this point namely Yusuf Abdallah v French Somaliland Shipping Co. [1959] E.A.25 at 28
With regard to the argument of Mr. El-Maamry that the relief is part of the pleading, Mr. uzanda submitted that the relief is based on the pleading and it is not part of the pleading.  Mr. Uzanda referred the court to Mulla on Code of Civil  H Procedure, 12th Edition pg. 96 where it is stated that a relief not based on the pleading should not be granted.  With regard to the application by Mr. El-Maamry to amend the plaint, Mr. Uzanda submitted that as the issue of jurisdiction  I had been raised it had to be decided first.  If the Court

A finds that it has no jurisdiction then it cannot have power to do
anything else except to dismiss the suit.  Finally with regard to the application by Mr. El-Maamry for leave to file a defence to the counter claim, Mr. Uzanda submitted that no reasonable ground had been given why even an application for time to file the defence was not made almost two years since the counterclaim was filed.  He therefore prayed the suit  B to be dismissed with costs and the Counterclaim to be either allowed with costs or the defendant be allowed to prove it ex-parte by affidavit.
The 1st issue involved here is one of jurisdiction.  The Plaintiff claims that the court has jurisdiction whereas the defendant   C claims otherwise.  Having gone through Mulla on the Code of Civil Procedure, 12th Edition on page 145, I have come to agree with Mr. Uzanda that interest prior to the filing of the suit is a matter of substantive law and it must be specifically pleaded.  In this case the interest from July, 1975 to January, 1981 has not been pleaded anywhere but, in the words of  D Mr. Uzanda, it has been tucked in the prayer for relief.  I agree with Mr. Uzanda that as it is necessary to plead on what basis the interest sought is being claimed; and there are three heads on which such interest may be based, namely  E mercantile practice, statute, or implied agreement or contract, the interest shown in the relief cannot be allowed to stand so as to swell the amount claimed from 14,549/= to over 20,000/=.  The only relief which can be claimed is what has  F  been pleaded in the plaint.  It follows therefore that the amount claimed in this case is only Shs. 14,549/= which is below the jurisdiction of this Court.  In terms of Section 13 of the Civil Procedure Code this court has no jurisdiction to try the suit.
Mr. El-Maamry applied orally to be allowed to amend the suit.  I do not think that such leave can be granted here   G because the plaintiff was aware of the defect in the plaint through the written statement of defence but he chose to do nothing.  It would not be just to the defendant to grant such leave.
Finally with regard to the counter claim, there cannot be any question of filing a defence to it at this late hour as the plaintiff did not do so for almost two years nor did he apply for extension of time to file any defence.  The defendant is  H granted leave to prove the counterclaim ex-parte by the affidavit as prayed.  The plaintiff's suit is therefore dismissed with costs.
I Appeal dismissed.

A