Court name
High Court of Tanzania

Chibinza Kulwa vs Amosi Kibushi & Others () [1990] TZHC 5 (01 June 1990);

Law report citations
1990 TLR 36 (TZHC)
Media neutral citation
[1990] TZHC 5

Chipeta, J.: In March 1990, the plaintiff, Chibinza Kulwa, filed a suit in Shinyanga Resident Magistrate's Court B against the six defendants claiming damages for defamation. The amount claimed was shs. 200,000.
From the contents of the plaint, there can be no doubt, that the Shinyanga Resident Magistrate's Court had both territorial and pecuniary jurisdiction in the matter. C
A problem arose when the defendants filed their written statement of defence and counterclaim. The counterclaim was for the sum of shs. 317,000/= or 28 cows. The subject matter of the counterclaim was property in a D deceased's estate which is a subject of dispute between the parties.
When the counterclaim was filed, the trial court ordered that the suit be transferred to this Court on the ground that the sum claimed in the counterclaim was in excess of the pecuniary jurisdiction of that court.
It is certainly true that by the provision of Order 8, Rule 9 of the Civil Procedure Code, a defendant may in the E written statement of defence state particulars of the claim made or relief or remedy sought so long as the cause of action accrued to the defendant before the presentation of his written statement of defence.
However, in such a case, the court is at liberty to order the counterclaim to be struck out or that it should be F disposed of by a separate suit or that it should be tried separately. This the court will do if it should be of the opinion that the subject matter of the counterclaim ought to be so dealt with for any reason (see order 8, Rule 12 C.P.C.). One instance in which the court can exercise this discretion is where it is of the view that the counterclaim G would prejudice, embarrass or delay the fair trial of the suit.
In the present case I note that the nature of the alleged defamation is a statement to the effect that the plaintiff is a witch, and murderer. The allegedly defamatory statements were made in March, 1990. The cause of action in the H counterclaim, however is said to have arisen as far back as January, 1987, and the nature of the claim is the property of a deceased's estate.
In my view the counterclaim would clearly prejudice and embarrass the plaintiff and would undoubtedly delay the I fair trial of the suit if dealt with in a single case.
1990 TLR 38
A For these reasons, and in the exercise of the revisional powers of this court, it is hereby ordered that the counterclaim be struck out and the plaintiff's suit be tried by Shinyanga Residents Magistrate's Court. The counterclaim shall be filed as a separate suit in a court of competent jurisdiction.
B Order accordingly.
1990 TLR 38
C
________________