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COMMERCIAL DIVISION
AT DAR ES SALAAM
COMMERCIAL CASE NO.159 OF 2013
ISLAM ALLY SALEH BALHABOU
PLAINTIFF
VERSUS
LATIF NASHER NUMAN
DEFENDANT
2013
Kilindu further submitted, was sent to the Defendant in Dubai where the
Defendant's contacts are undoubtedly known to the Plaintiff and his lawyer
as well. Mr. Kilindu submitted further that in terms of section 18 (c) of the
Civil Procedure Code, the Plaintiff has a right to file a suit where the cause
of action arose wholly or in part.
It is quite evident from paragraphs 3, 4, 5 and 6 of the Plaint, Mr.
Kilindu further submitted, that, the parties to the contract, which is the
foundation of this suit, formed a company in Luanda, Angola for
investing in a project which had to be implemented in Angola. The
parties have even rented an office in Luanda, Angola in furtherance of their
investment objective, Mr. Kilindu pointed out. Even the documents
attached to the Plaint relating to the incorporation of the company,
including the investment contract and other documents were made in
Angola and are in Portuguese language, Mr. Kilindu further elaborated.
This shows that parties had in mind of subjecting themselves to the
jurisdiction of Courts of Angola in interpreting those documents, should the
need to do so arise, Mr. Kilindu suggested. Mr. Kilindu sought refuge in
Black's Law Dictionary, 8th Ed. at page 930 wherein to the effect that
"the law of the place where a contract is executed or to be performed or
the lex loci contractus (in LatinJ is often the proper law by which to
decide contractual disputes."
Mr. Kilindu buttressed his argument on the validity of the law of the
place where the contract was entered into by referring to the decision of
the Court of Appeal in the case of GHARIB ABDALLAH JUMA VERSUS
KAY MLINGA [2004] T.L.R. 74 where the Court had this to say:
evidence that the marriage settlement was illegal under Danish law,
the High Court in Zanzibar had no option but to accept it in evidence
for what it was, a marriage settlement. "
of
with
''In a suit for damages for breach of contract, the cause of action
consists of the making of the contract, and of its breach, so that the
suit may be filed either at the place where the contract was
made
provisions of section 98 (1) of the Civil Procedure Code, Cap.33 R.E. 2002
instead.
Mr. Mwakajinga submitted further that, the preliminaries of forming a
company in Luanda by the parties was done by the shareholders in Dar es
Salaam, Tanzania. According to Mr. Mwakajinga, the present dispute is all
about the preliminaries of forming a company in Luanda and therefore it
constitutes jurisdiction of this Court under section 18(c) of the Civil
Procedure Code. According to Mr. Mwakajinga, the present dispute is not
between the companies but between the shareholders. Mr. Mwakajinga
referred this Court to a copy of Police Clearance Certificate for the
Defendant from the Ministry of Home Affairs of the United Republic of
Tanzania in Dar es Salaam to emphasis his point that the cause of action
arose in Dar es Salaam, Tanzania. Mr. Mwakajinga submitted further that,
all the agreements, including the allotment and payment of shares was
done in Dar es Salaam and therefore any breach of the agreements made
in Dar es Salaam constitute a cause of action in Dar es Salaam.
Mr. Kilindu maintained in rejoinder that, the Plaintiff can file a suit
where the Defendant resides. In this case the Defendant neither resides in
nor works for gain in Dar es Salaam. According to Mr. Kilindu, the question
whether the cause of action arose in Dar es Salaam is discernible from the
Plaint itself. Mr. Kilindu added that, shareholders and allotment of shares
are not mentioned in the Plaint. Mr. Kilindu therefore invited this Court to
ignore the comments of Mr. Mwakajinga in that regard and also to ignore
annexture "A" to the submissionsof Mr. Mwakajinga.
Mr Kilindu noted that, the learned Counsel for the Plaintiff has not
commented on the doctrine of "lex loci contractus." Mr. Kilindu reiterated
that this suit is not maintainable in this Court and it should therefore be
struck out with costs.
In the present matter, the learned Counsels for the parties have
flexed their muscles on the reach and import of section 18 of the Civil
Procedure Code, Cap.33 R.E. 2002, which provides as follows:
(a)
the defendant
(b)
any of the defendants, where there are more than one, at the
time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain,
prOVidedthat in such case either the leave of the court is given
or the defendants who do not reside or carry on business, or
personally work for gain, as aforesaid, acquiesce in such
institution;
or
(c)
The provIsions of section 18(a), (b) and (c) are couched in the
alternative by the use of the word "or." This means that either one or all of
the situations stated under that section may be present in determining
were a suit should be instituted. I should point out here that jurisdictional
limitation can be either by subject matter of the suit, the nature of the
dispute, the value of the subject matter of the suit (pecuniary), territorial
(spatial), or personal.
The provisions of section 18(a) and (b) of the Civil Procedure Code
concern the personal jurisdiction in the sense of where the defendant,
or
each of the defendants (if more than one), at the time of the
commencement of the suit, actually and voluntarily resides, or
carries on business, or personallY works for gain. In order for the
provisions of section 18(a) and (b) to come into play it must be established
that at the at the time of the commencement of the suit, the
defendant actually and voluntarily resides, or carries on business,
or personallY works for gain within the local limits of the Court and in
this regard we mean the Commercial Division of the High Court of
Tanzania.
A closer look at paragraph 2 of the Plaint reveals that, the Defendant
actually and voluntarily resides in Dubai and his address for purposes of
summons is that of Dubai, which means that that is where the Defendant
carries on business or personally works for gain. This is buttressed further
by the paragraph 8 of the Plaint which shows that, the Plaintiff's lawyer
travelled from Luanda, Angola to Dubai to see and claim the necessary
money from the Defendant, which money, the subject of the pending suit,
was supposed to be paid by the Defendant but the Defendant did not
respond. This fact much as it emphasizes the residency of the Defendant
also shows that the cause of action arose in Luanda, Angola and in Dubai,
United Arab Emirates.
This brings us to the other alternative for filing a suit, which is found
under section 18C c) of the Civil ProcedureCode, that is, where" the cause
of action,
wholly or part,
J., as he then was in the case of K.N. MAFOLE AND OTHERS VERSUS
TANZANIA
(unreported),
of 1998,
then was, in his ruling in the case of IPP LIMITED VERSUS ERNEST
COOVI ADlOVI
(above).
LTD
Kilindu when insisting that the suit should have been filed in Dubai or
Luanda Angola and cited the learned author of Mulla the Indian Civil
Procedure Code, 15th Ed, for the reason that that is "the place where
the defendant can defend the suit without undue trouble. "
The undisputed facts in this case are that the Defendant, who is a
Kenyan citizen, has his place of residence in Dubai and actually works for
gain in Dubai and Luanda, Angola. The parties formed a company in
Luanda, Angola for investing in a project which had to be
implemented
performed and the breach occurred, and the Defendant who actually
resides and works for gain in Dubai and Luanda, Angola, clearly this Court
has no jurisdiction in the suit.
In the whole and for the foregoing reasons the preliminary objection
raised by the Defendant that this Court lacks jurisdiction to entertain the
suit is hereby upheld. Accordingly the suit is hereby struck out with costs.
R.V. MAKARA
JUDGE
02/05/2014
Ruling delivered this 02nd day of May 2014 in the presence of:
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R.V. MAKARAMBA
JUDGE
02/05/2014
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