IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

fCORAM: RAMAPHANL J.A., MSOFFE, J.A., And KA3I, J.A.^

CIVIL APPEAL NO. 84 OF 2002

M/S TANZANIA - CHINA FRIENDSHIP

TEXTILE CO. LTD................................................................ APPELLANT
VERSUS
OUR LADY OF THE USAMBARA SISTERS..... .................RESPONDENT

(Appeal from the decision of the High Court

of Tanzania - Commercial Division
at Dar es Salaam)

(Kaleqeya, J.)

dated the 30th day of July, 2002

in
Commercial Case No. 69 of 2002

JUDGMENT OF THE COURT

KAJL J.A.:

In this appeal, the appellant, M/S Tanzania - China Friendship

Textile Co. Ltd., is appealing against the decision of the High Court

Commercial Division (Kalegeya, J.) in Commercial Case No. 69 of

2002.

Briefly, the facts giving rise to the case as accepted by the trial

court are as follows:

 The respondents, Our Lady of the Usambara Sisters, is a

religious society based at Kwamndolwa, Korogwe District in Tanga

Region.

On or around 3rd August, 1998, the respondents made a special

order of vitenge fabrics at the appellant's Textile Mills for celebrating

thejr 40 years anniversary which was about to take place at the end

of October, 1998. The said special order of fabrics consisted of

exclusive and special design meant for the 40 years anniversary of

the respondents to generate income for financing the said

celebrations, and off-setting other expenses. The respondents paid

Shs. 8,136,720/= for the fabrics plus tax.

But before the celebrations took place, and without the

knowledge and consent of the respondents, the appellant sold the

said special vitenge fabrics to other customers at a lower price

compared to the price the respondents would have to sell in order to

realize sufficient money to meet the costs of the said celebration.

The respondents complained that the appellant's act of selling and or

releasing the said special order vitenge fabrics to other customers

who flooded the market by selling the vitenge at a price which was

lower than that of the respondents, occasioned loss to them in terms

of the costs they had incurred as well as loss of expected profit. It

also caused them to suffer great inconvenience in the preparation of

the celebration, as well as embarrassments and hatred among the

society in which the respondents were living.

Consequently the respondents sued the appellant for the following

reliefs: -

(a) Shs. 8,136,720/= being costs incurred

for the production of the vitenge fabrics
and tax paid,

(b) Shs. 15,000,000/= being general

damages suffered by the respondents
for the inconvenience caused in the
preparation of their celebrations,
 (c) Interest on Shs. 8,136,720/= at the
Court rate from the date of judgment till
final payment,

(d) Costs of the suit,

(e) Any other relief the Court could deem fit

and just to grant.

The appellant denied all the claims. But at the end of the day

the respondents were awarded Shs. 8,136,720/= which they had

paid for the production of the vitenge plus tax, Shs. 7,500,000/=

being general damages, interest at 7% per annum on the decretal

sum from the date of judgment till final payment. They were also

awarded costs of the case.

The appellant was dissatisfied with the decision; hence this

appeal.

The appellant, through its ^dvocate Mr. Magafu, preferred four

grounds of appeal, namely:-

 1. That the honourable judge erred in law
and in fact for failure to observe that the
High Court had no jurisdiction to entertain
the suit presented before it,

2. That the honourable judge erred in law

and in fact in awarding the respondent a
total of Shs. 8,136,720/= allegedly being
costs incurred for production of the said
vitenge fabrics and tax paid,

3. That the honourable judge erred in law

and in fact in awarding the respondent a
total sum of Shs. 7,500,000/= allegedly
being general damages,

4. That the honourable judge erred in law

and in fact in holding that the appellant
breached the terms of the special order.

At the hearing, Messrs. Magafu and P.L. Chabruma, learned

counsel, represented the appellant and the respondents respectively.

 Arguing the first ground of appeal, Mr. Magafu contended that,

at that time the pecuniary jurisdiction of the High Court was limited

to amounts exceeding Shs. 10,000,000/= as provided for under

Section 40 (2) (b) of the Magistrates Courts Act No. 2 of 1984 and

Section 6 of the Civil Procedure Code, 1966 and that the High Court

in its original jurisdiction had no powers to adjudicate upon claims

whose amount did not exceed Shs, 10,000,000/=. The learned

counsel pointed out that, in the instant case the main amount

claimed was Shs. 8,136,720/=, and that the amount for general

damages was irrelevant because, in his view, the amount for general

damages which is granted on the discretion of the court, is not

required to be quantified in the plaint, and that, where erroneously

quantified, it does not alter or affect the jurisdiction of the Court. In

the instant case, since the substantive amount was below Shs.

10,000,000/= the trial court had no pecuniary jurisdiction to

adjudicate upon the matter, submitted the learned counsel.

Arguing the second ground of appeal, Mr. Magafu contended

that, the learned trial judge erred in awarding the respondents Shs.
 7

8,136,720/= and at the same time retaining the vitenge fabrics. The

learned counsel pointed out that, by being awarded Shs. 8,136,720/=

which was alleged to have been paid by the respondents for

production of the vitenge plus VAT, and also retaining the vitenge in

issue, the respondents were more or less paid twice, that is, the

money and the vitenge which, in his view, is unjust.

Arguing the third ground of appeal Mr. Magafu argued that, the

respondents did not prove sufficiently that they suffered

embarrassment and inconvenience through the alleged breach of

contract. The learned counsel further pointed out that, even if they

could have proved the same sufficiently, yet they should not have

been awarded Shs. 7,500,000/= which, in his view, is on the high

side. The learned counsel further pointed out that, the learned trial

judge, by basing the assessment of damages on waiving the interest,

acted on a wrong principle necessitating this Court to interfere with

the assessment. The learned counsel cited the decision of this Court

in Cooper Motor Corporation Ltd. v. MOSHI/ARUSHA

Occupational Health Services (1990) TLR 96.

Arguing the fourth ground of appeal the learned counsel contended

that, there was no breach of the terms of the special order in that

the respondents collected what they had paid for, that is 8 bales and

that since they had not paid for the reject grade C, the appellant was

free to sell them (grade C) to whoever was ready and willing to buy

them.

On his part, Mr. Chabruma, learned counsel for the

respondents, conceded that the substantive amount was below Shs.

10,000,000/=, that is, Shs. 8,136,720/=. But he was quick to point

out that, since the claim of Shs. 15,000,000/= for payment of general

damages was quantified, it had to be added to the main amount

thereby making a total claim of Shs. 23,136,720/=, which at that

time, was within the pecuniary jurisdiction of the High Court.

The learned counsel denied the respondents to have been

awarded twice. The learned counsel contended that, the

respondents did not sell and could not have sold the vitenge for the

reasons stated earlier, and that, those vitenge were still lying idle in
their store and the respondents were ready to return them to the

appellant if ordered by the court. The learned counsel emphasized

that, now the respondents' interest is no longer in the vitenge but in

the money which they had paid for the same.

On whether there was enough evidence that the respondent

suffered embarrassment and inconvenience, the learned counsel

contended that, the same was substantially proved by Sister Mary

Amedeus (PW2) in her testimony.

On whether the learned trial judge was right in taking into

account that the respondents had not claimed for interest in

assessing general damages, the learned counsel contended that,

there was nothing wrong with the learned trial judge in taking into

consideration that fact, especially that the act of awarding general

damages is entirely in the discretion of the court. The learned

counsel denied the amount of Shs. 7,500,000/= to be on the high

side, taking into consideration the embarrassment and inconvenience

 10

suffered by the respondents who had ordered those vitenge for a

great occasion of celebrating 40 years anniversary.

On whether there was a breach of the terms of the special

order, the learned counsel pointed out that, there was an implied

term in the order that the appellant should not deal with the products

of the order, be it grade A, B or C, in a manner which would defeat

the purpose for which they were made. Further that, in selling them

to a third party before the occasion, and at a low price, that was a

clear violation of the terms of the special order, submitted the

learned counsel.

We have carefully considered the arguments and submissions

by counsel for both parties. We will start with the first ground of

appeal, that is, whether the trial court had pecuniary jurisdiction to

adjudicate upon the matter. Admittedly, this issue was not raised

before the trial court. But since it is about the jurisdiction of the

court, it can be raised at any stage even before this Court.

 It is common ground that, the substantive amount which the

plaintiffs/respondents were claiming before the trial court was Shs.

8,136,720/=. They were also claiming for genera! damages which

they quantified to the tune of Shs. 15,000,000/=. But since general

damages are awarded at the discretion of the court, it is the court

which decides which amount to award. In that respect, normally

claims of general damages are not quantified. But where they are

erroneously quantified, we think, this does not affect the pecuniary

jurisdiction of the court.

In our view, it is the substantive claim and not the general damages

which determines the pecuniary jurisdiction of the court.

In the instant case, the substantive amount is Shs. 8,136,720/=. It

is this amount which determines the pecuniary jurisdiction of the

court. At this juncture we ask ourselves: What is the pecuniary

jurisdiction of the High Court Commercial Division? The High Court

Commercial Division is a division of the High Court; and therefore its

pecuniary jurisdiction is the same as that of the High Court. "What is

the pecuniary jurisdiction of the High Court?" we ask. This question

has taxed our minds a great deal. It has taxed our minds greatly
because the answer is not found in a single legislation. We have to

consider several legislations. For example, Section 6 of the Civil

Procedure Code, 1966 which states:-

"6: Save in so far as is otherwise expressly

provided, nothing herein contained shall
operate to give any court jurisdiction
over suits the amount or value of the
subject matter of which exceeds the
pecuniary limits (if any) of its ordinary
jurisdiction"

Under Section 3 of the said code the word "court" has been defined

to include the High Court." Section 6 limits the pecuniary jurisdiction

of the court on amounts not exceeding the amount prescribed. It is

common knowledge that the High Court has unlimited pecuniary

jurisdiction upwards, and therefore no amount can be said to exceed

the pecuniary jurisdiction of the High Court. Another relevant

legislation is Section 40 (2) (b) of the Magistrates Courts Act No. 2 of

1984 which at the material time limited the pecuniary jurisdiction of a

District Court or a Court of a Resident Magistrate to not exceeding

 13

Shs. 10,000,000/= on movable properties. This by implication meant

that, a proper forum for a claim exceeding Shs. 10,000,000/= was a

court higher than a District or Resident Magistrate Court, that is, the

High Court.

But does this mean that at the material time the High Court had or

had no pecuniary jurisdiction over claims the amount of which did not

exceed Shs. 10,000,000/=? The jurisdiction of the High Court is

specified under Section 2 (1) of the Judicature and Application of

Laws Ordinance Cap 453 and under Article 108 of the Constitution of

the United Republic of Tanzania. Articles 108 provides as follows (in

Swahili)

108 (1) Kutakuwa na Mahakama Kuu ya

Jamhuri ya Muungano
(itakayojulikana kwa kifupi kama
"Mahakama Kuu") ambayo mamlaka
yake yatakuwa kama yalivyoelezwa
katika Katiba hii au katika Sheria
nyingine yoyote.
mahsusi kwa ajili hiyo, basi
Mahakama Kuu itakuwa na
mamlaka ya kusikiliza kila shauri la
aina hiyo. Hali kadhalika,
Mahakama Kuu itakuwa na uwezo
wa kutekeleza shughuli yoyote
ambayo kwa mujibu wa mila za
kisheria zinazotumika Tanzania
shughuli ya aina hiyo kwa kawaida
hutekelezwa na Mahakama Kuu.

Isipokuwa kwamba masharti

ya ibara hii ndogo yatatumika bila
kuathiri mamlaka ya Mahakama ya
Rufani ya Tanzania kama
ilivyoelezwa katika Katiba hii au
katika Sheria nyingine yoyote."
 15

English version -

108 (1) There shall be a High Court of the

United Republic (to be referred to in
short as "the High Court") the
jurisdiction of which shall be as
specified in this Constitution or in
any other law.

(2) If this Constitution or any other law

does not expressly provide that any
specified matter shall first be heard
by a court specified for that
purpose, then the High Court shall
have jurisdiction to hear every
matter of such type. Similarly, the
High Court shall have jurisdiction to
deal with any matter which,
according to legal traditions
obtaining in Tanzania, is ordinarily
dealt with by a High Court; save
that, the provisions of this sub
article shall apply without prejudice
to the jurisdiction of the Court of
Appeal of Tanzania as provided for
 Again, another relevant provision of law in the instant case is

the amendment to the First Schedule (Rules) to the Civil Procedure

Code, 1966 effected by GN No. 140 of 1999, which added sub rule

(2) to Rule 1 Order IV. The said subrule reads:-

(2) No suit shall be instituted in the

Commercial Division of the High
Court concerning a commercial
matter which is pending before another
court or tribunal of competent
jurisdiction or which falls within the
competency of a lower court."
(emphasis added)

The amount of Shs. 8,136,720/= falls within the competency of a

District Court or Court of a Resident Magistrate. Lastly, we remark in

passing that, in considering the circumstances of this case, we

considered also Section 95 of the Civil Procedure Code 1966, to see

whether, under the circumstances of the case, the trial court could

properly have invoked its inherent powers. But we are satisfied that,

under the circumstances of the case, which involves jurisdiction, the

trial court could not properly have invoked its inherent powers by

vesting itself with jurisdiction which it did not have. Generally

speaking, inherent powers of the court relate to matters of procedure

for the ends of justice and to prevent an abuse of process of the

court.

Since the trial court had no pecuniary jurisdiction as stated

above, the whole proceedings and the decision thereat are null and

void.

After holding so, we do not consider that it is necessary to

consider the other grounds of appeal.

u t \ i L .U a t. U M r \ C O o m l m m i vi Ullb iy Udy ur UClODer, ZUU^).

A.S.L. RAMADHANI
JUSTICE OF APPEAL

J.H. MSOFFE
JUSTICE OF APPEAL

S.N. KAJI
JUSTICE OF APPEAL

I certify that this is a true copy of the original.