19960324 TZHC Dar es Salaam

IN THE HIG~:.. CGU ... T OF TANZANIA ,.. DAR ES S!J__,A::J-t DL:>TRICT REGISTRY AT DAR ES :SALAJ\Jvl V.SRSt; 3 TANZANIA ICE Al\iD S;~:Z :TOODS Lil''t':T~:tJ ! • • RESPONDENT . BUBESHI, J4 The applicants throur;h their counsel Mr• Majithia learned 1punsel filed a chamber applicatio11, in terms of Section 44 o.t' MCA 1984 anc':. or und~1~ ,Section 79 0r 95 of the CPC l9d6 '-- praying for this court to set as::....\~ t'.12 ~-(uling of the trial magj,strate in Ci viJ.. C'-'s2 No .222/~ .!+ cla·s,::c: 24/3/9,. T The applic2.nts zround is maL:;.ly -. . ,~ t the vourt of the resident magistrate has no jurisdi~tiL try/hear ease, -in matters pertaining to dwelling/ ~.:01m~c =.-~ . .,l premise,, As usual, the application has 1:;hr:=: support or ~- affidavit deponed to by ABDULRASUL GULAMHUSSEIN VLSRAM1 ib,e ;.§t ~pplicant and also Diractor in the 2nd applicant. The deponent has stated that he moved his company te Plot No,16/8 Pugu Road, Dl~aam as a sµbteJ!.ant of the respondents who were tenants of the said plot (11,ereinaf-;er "t, oe called the suit premise a) l'hat he w~~ invited by the ., re&pondents and the land lord, the iegistrar of Buildings .informe.d of the arrangements tnat the applicant has many machines and equipment all valued oveF. Ts~.200, million at the suit premises the· applicant has. regulaX'l.y paid rent, in goods inform of supply Qt prat.ens and the new tenant inherite~ them under the same arrazigement o{ aeoepting prawns as payment for rent and qav:e 'been on·the stJit,.premises for the last 8 years! That.the respondent .f'ilf:d iµ l99Z an applieation tn the Regional Housing Tribunal to haye the applicants e~ic"t;.ed - 2 and same was withdrawn in 1994~ And 1'0'\f another suit \ • 1 ' has been filed at the RlV:tS couTt to have them evicted. The deponent is of tL-:: new ·c .. ~- . ~hf.> proper :fo:rum to hear ib,e matter is the :'..ec;ional 1--fo,_: 3 ..1g Tribunal and not the court of the Resident Mag::.strate o Mr. Luoga, l0arned cotu1,st :~. :'.:'or the respondents raised some preliminar:r poird.;2 ):h:::t U:v2re a:ce new evidentiary . matters included in the af·P-:Lcavit not forming part of the proceeding8 before the trial s-:..1borciinat':? col::"t E,nd which were not addressed ~o by the trial court. ~:n 1; .1.2ti :·-~=- ::.l" the respondent have attached paragraphs 2, :: , !+, 5, ~ =:1.d lC of the affidavit as seaking to introduce ::.~1 L..: :1 evic. '· .~C:. :~,':!t us examine ' the same 0 : 0 2. That on or abcJt March, '- ...J.../ ' .... . . ., ,_ sa.id company, the · the 2nd G.f,pL_ ::.:~: ·~ and. J. co .c·'lbt No-.lS/8 · Pugu .tload - - 8.S sub-tenant. of . the Tanzania !?:. . ozen :-' ...10::.. ,. td :- .... ·· - •-, theri ·tenants .::he invitation- ·. C .of. the se~.-.: tenant. The L :d lord, the Registrar of Buildings w:.s also in:rcn ·::d - • - - - and made C . . . . aware· ·of the - - :1.rrar ~e:r,ents they had no ~ a • •~ ~ ~~ obje:.tion • . . t · 3. That all the r_::-.:.chines. on th~ suit premises· belong· to me• I '.:::c ~ .,:~t ther.1 from t · owriers<sometime in .Marcl1 21 1938.., Tb.at s ..:..1cE: then:: I have· -added many machines anci. e;c/iipm2~1t on the :mi t p;.---emises. · That the value of the machinery on ,:he suit premises in over TShsc200 7 000,000/= (two h ..ctre:d million) for above the pecurL7.ry juris,:icti1 of the court of th2 Rerident Magistrat:. l . T:12.t I ~~ uve rGgularly paid rent_, to th.e .S(lid t~_nant. t. • ••• /3 As agreed the payr:2nt , _.. L~ade in goods, supply of prawns • ..... That the; new tenant J.r.::1er.:j_ted us and we have eontinued ..c.. .the same_ system ati:". arran ....::~Yts. He has been .paid by supvlY of prawns. 6. That we have been on the suit premises .for the last eight years. That we have expanded and grown at the place. Now the new tenant ·. ants to evict us for no valid reason. We are lioJ:; trespassers.• (1). - - - - - -~ - - - - - ~a>, -- - - - - - - - - (9)~ - - - - - ~-- - - ,_. (lQ), 1',tlat _copie~ of aJ.l .suppor·t., .ng ~L"ents are annexeci herewith and collectively ".'1ar1'.-:: 1 · :.11, 'A~ ·then Can the contention by :Mr• Luoga the:<; +1:fie application 0ring• in some fresh matters be upheld? I : ·c::1,:-:! a.'Ylm·,rer is J,n the affirmative Reading thro1.1gh the ht:=.~ng (:lated· Z4/3/~5. 'by , . . . "1'. ~~maro, PRM I am left in no doubt that what 'the applicant ha• deponed in the above paragraphs wa$ n,yt covered in the proceedings and hence ruling. Tne new assestions of facts did not form party of the proceedings and are not te£lectad in the ruling, I am therefore, minded to eonolude that the Cb,ambel' Summo~ 1ontain some fresh matters of evidence v.rhich were not addressed to hy the trial magistrate. Equally therefore I find the filed affidavit bad inlaw to i;he exten_t explainec: herein above_,_ · 14e same paragrc::1phs namt:_lY ,- 2 • 3, 4, 5 , 6 and 10 which seek \o bri11:g in new evidence. are bad in law and should be struck out. The remaining pa,ragraphs ,annot 011 ~their O\r.t;l stand h~noe the file« affidavit is a,$ good as no af.t'ida,v~.t qt all, This court has under Section 79 (l) of tne CPC 1966, powers to exercise its revisional jurisdiction. But this Court, can only do so condttior:.a.l ·chat if the subordinate eourt appears. (a) to have exercised .:1 j1.::~isdiction not vested in it by le:,,". (b) to have faile:::. -co 2xeroi.se a jurisdiction so vested or (c) to have acted in the exercise of its jurisdiction illegally or \.vith material irregularity. The question is whether the ·court of t.''.le resident ~1ag,;sti-a-;e had jurisdiction to hear ci Vil' case No. 222 of 1994 ~. ·A.~ding ~o Mr• Majithia this was '.a, matter ~·::.t the Regi6nal Housi'ng Tribun.al a:t the ~pplic~nts then _def'.::nd;nts ·'are lawfully in ocupation of the suit, l?remise"G al?-d ti.ere, C9re 'within the pu1'1Vtew o! the Ren:t- Restriction Act, ·. M,r. Naj.i<.·"1.ia ·:;id not present to .,ourt. ~ny l~i).d1ord/ten~ncy ag~eem.ent to ~ .'art his client; . , ·lase.•. T~i~ evidence is. now befng subrni tt 2 -: before this court~ 0 "Is. :~t ,prop~r? Likewise on the' pecuri'·r:' L1,..,:cisdiction, the report submitted by the respondents W:is rsjected by the court, and rightly so in my ,vj.ew. .'" All in all I am of the new that the p~eliminary objeftion~ raised by Mr, Luoga .. are meritious and I uph::iJ.d.them, ~ In the final analysi$, tne application which is devoid of affidavit support nor !Ubstantive merit is, hereby dismissed with costs. ~elivered before Applicants~ Re~pondents -