CHIBINZA KULWA v AMOSI KIBUSHI AND OTHERS 1990 TLR 36 (HC)

 

CHIBINZA KULWA v AMOSI KIBUSHI AND OTHERS 1990 TLR 36 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta, J

1 June, 1990

Flynote

F Civil Practice and Procedure - Counterclaim - Court's power to strike-out

counterclaim where it would embarrass or delay fair trial of suit - Order 8 Rule 12

Civil Procedure Code.

-Headnote

G After the plaintiff had filed his suit claiming damages for defamation the

defendants filed a counterclaim the subject matter of which was property in a

deceased estate, a subject of dispute between the parties. When the counterclaim was

filed the trial court ordered that the suit be transferred to the High Court on the

ground that the H sum claimed in the counterclaim was in excess of the jurisdiction

of the Resident Magistrate's Court. In its revisional powers the High Court considered

the nature of the counterclaim and the proper procedure to be followed.

I Held: (i) The nature of the counterclaim would clearly prejudice and embarrass

the plaintiff and would undoubtedly delay the fair trial of the suit if dealt with in a

single case;

1990 TLR 37

CHIPETA J

(ii)in such a case the court is at liberty to order the counterclaim to be struck

out or that it should be disposed of A by a separate suit or that it should be tried

separately.

Case Information

Order accordingly.

[zJDz]Judgment

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