Mahesh Kumar Raojibhai Patel versus Karim Shamshuddin Suleman; Commercial Case No 80 of 2015: High Court of Tanzania (Commercial Division) at Dar es Salaam.
- Civil Procedure
- Plaint – whether failure to specify the amount claimed in the jurisdiction clause is fatal.
- Preliminary objection – Advocate raises one more point of preliminary objection without prior notice- whether proper.
- Preliminary objection – whether a preliminary objection can be pre-empted.
- Preliminary objection – advocate travels through the contents of a joint venture agreement attached – whether proper in arguing a preliminary objection.
- Reliefs – whether courts in Tanzania can award reliefs in USD.
- Legal Method
- Stare Decisis- Whether the High Court of Tanzania is bound by its own decisions.
Held:-
(i) A preliminary objection must be raised in time and on reasonable notice.
(ii) Reasonable notice on a preliminary objection must be given to the other parties. The logic behind this position hardly needs to be overemphasized. With the notice given within reasonable time, the other parties would not be taken by surprise. In that situation the parties would be in a position to respond in advance to the issues raised in the preliminary objection. It is to be emphasized that in fairness to the parties and in the interest of justice, counsel intending to raise preliminary objection are enjoined as far as possible to serve the notice of preliminary objection within reasonable time. (Cited Majembe Auction Mart v. Charles kaberuka Civil Appeal No 110 of 2005 (CA) Unreported).
(iii) A preliminary objection that requires factual proof to prove it is not a preliminary objection.
(iv) A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. (Cited Mukisa Biscuit Manufacturing Co Ltd v. West End Distributors Ltd (1969) 1 EA 696).
(v) The High court of Tanzania is not bound by its own decisions. However, as a matter of prudence, in case a judge of the High Court wishes to depart from previous decisions of the High court, he must give reasons for taking that course.
(vi) It is not a matter of judicial courtesy but a matter of duty to act judicially which requires a judge not lightly to dissent from the considered opinions of his brethren. (Cited Ally Linus & 11 Others v. Tanzania Harbours Authority & Another (1998) TLR 5 (CA).
(vii) Courts in this jurisdiction (Tanzania) can give judgements in currencies other than the national currency; that is Tanzania Shillings. (Note that in this case, the court held that the decision in Berril and Co Ltd v. Lakhani and Others (1970) HCD No 264 in which it was held that Courts in Tanzania can give judgment only in Tanzania shillings was no longer a good law).
(viii) The jurisdiction can be of three types, territorial jurisdiction, subject matter jurisdiction and pecuniary jurisdiction. A plaintiff is supposed to specify all the three types of jurisdiction in the plaint. He must specify how the territorial jurisdiction of the court was being invoked and whether the court has jurisdiction over the subject matter and if the suit fell within the pecuniary jurisdiction of the court (Quoted Mogha’s Law of Pleadings in India (18th Edition) by S.N. Dhingra at p. 271).
(ix) Failure to particularise in a specific paragraph that the court has jurisdiction is not an incurable ailment.
(x) A party is not allowed to pre-empt a preliminary objection either by raising another preliminary objection or by trying to rectify the error complained of.