image5208

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO MISCELLANEOUS LAND APPLICATION NO 4696 OF 2024 [Arising from the decision of A .E. Ringo Esquire Principal Resident Magistrate with Extended Jurisdiction in Land Appeal No 31 of 2023 of the Resident Magistrate Court of Morogoro at Morogoro] BETWEEN DAMIAN AMRI MKUYA APPELLANT VERSUS JOSEPH S. MAPUNDA RESPONDENT RULING MRUMA,J This is a ruling on an application for extension of time within which the Applicant Damian Amri Mkuya can lodge an appeal to this court out of time against the decision of the District Land and Housing tribunal for Ulanga District in Land Case No 40 of 2022. In Land Application No 40 of 2022 the Respondent herein (Joseph Mapunda), had sued the present Appellant (Damiani Amri Mkuya) for a piece of land measuring 25. 85 acres located at Kisiwani neighbourhood in Kivukdni Village of Minepa Ward in Ulanga District. After hearing both parties the District Tribunal declared the Respondent herein lawful owner of the suit land. Aggrieved by the judgment and decree of the District Land and Housing Tribunal the Applicant lodged an appeal to this Court to wit; Land Appeal No 31 of 2023. By order of the honourable Judge in charge made under Rule 4 (2)(b) of the Judicature and Application of Laws (Transfer and Management of Cases Assigned to Magistrates with Extended Jurisdiction) Rules, 2023 the appeal was assigned to honourable A. E. Ringo Principle Resident Magistrate with extended jurisdiction for hearing. Honourable Ringo ordered the appeal (which was registered as Extended Jurisdiction Land Appeal No 31 of 2023 to be argued by way of written submissions. Parties complied accordingly, however, in the cause of composing a judgment, the learned Principle Resident Magistrate discovered that no payments of court fees were made in respect of parties' pleadings. The learned Magistrate proceeded to struck out the appeal on 19^^ January 2024. The Applicant was aggrieved by that decision of the learned Principle Resident Magistrate and he instructed his advocate Mr Stumai Moshi Omari to lodge an appeal. According to the supporting affidavit sworn by the learned advocate, efforts to obtain a copy of the ruling of the learned Principle Resident Magistrate in time proved futile (See paragraphs 13, 14, 15 16 and 17) and hence this application. The Applicant now seeks the clemency of this court to grant him an extension of time within which he can appeal out of time not against the decision of Ringo PRM, in Land Appeal No 83 of 2023 but against the decision of District Land and Housing Tribunal for Ulanga in land case No. 40 of 2022 which was delivered on 30^^^ June 2023. The application is brought by way of chamber summons made under section 41(2)of the Land Disputes Courts Act and supported by an affidavit of Ms. Stumai Moshi, the Applicant's advocate. When the application was called on for hearing, I asked parties together with the merits and demerits of the Application to address me on the question whether it was proper for this application to be instituted and determined by this court. Submitting on the point raised by this court, Ms Situmai, relying on the decision of the Court of Appeal in the case of Nassir Edward Mwakamboja Vs Saada Bakari Civil Application No 605/01 where it was held that when a case is struck out it is as if no case had been filed in the court and the proper remedy is to file it afresh. On his part, the Respondent who is not represented submitted that the application ought to have been filed in the same registry in which the matter was heard. I have carefully considered the submissions of the parties for and against the point with regards to the place of filing an application and/or an appeal arising from matters transferred to a magistrate and, I note that in terms of Rule 13 (1) of the Judicature and Application of Laws (Transfer and Management of Cases Assigned to Magistrates with Extended Jurisdiction), Rules, 2023 an application arising from matters transferred to a magistrate, whether filed when the matter transferred is pending or after its determination shall be filed before the High Court, thus it was correct for the Applicant to file this application in the High Court. In terms of sub rule (2) of Rule 13 of the said Rules and upon admission of the application filed under sub-rule (1) the Judge in Charge should issue a transfer order to a subordinate court for the matter to be heard and determined by a magistrate with extended jurisdiction. Pursuant to the provisions of Rule 14 of the Rules an application arising from any matter determined by a magistrate shall be heard by a magistrate who heard or presided over the matter or any other magistrate to be assigned. As stated above this arose or originated from the decision of his worship A. E. Ringo PRM (With extended Jurisdiction) in Land Appeal No 31 of 2023 which was filed in this court but was transferred to the Resident Magistrate's Court for hearing and determination there. In law a party aggrieved by a decision of a Resident Magistrate with extended jurisdiction can seek remedies in the Court of Appeal and not this court. Thus because the proceedings in this matter had already been transferred to a magistrate with extended jurisdiction and the impugned decision is that of the said magistrate sitting in the Court of Resident Magistrate available remedies to the Applicant was either to apply before the same court for extension of time to appeal or lodge an appeal to the Court of Appeal. But assuming as the title would depict, this application was intended to seek an extension of time to lodge an appeal against the decision of the District land and Housing Tribunal of Uianga District in Land Application No 40 of 2022 which was handed down on 30*^'^ June 2023; the fact that there was an appeal against that decision which was filed in this court as Land Appeal No 83 of 2023 and which was transferred for determination by a Resident Magistrate with extended jurisdiction who determined it on 19^^ January 2024 makes the present application nugatory as it circumvents the ruling of the learned Magistrate with extended jurisdiction by seeking a fresh and/or new remedy on a matter which had already / been determined by a court with competent jurisdiction. Because the proceedings in the matter had been transferred to another registry, any remedy should sought and dealt with in that registry. It is my view that the mischief was an oversight on the part of the registry of this court to direct this matter to be assigned to a judge for determination contrary to the requirement of the law. In the circumstance neither party can be blamed for a mistake committed by the court's registry. Under normal circumstance a quick remedy was to struck out the matter, however by applying the overriding objective principle and the provisions of Section 3A and 38 of the Civil Procedure Code (Cap 33 R. E. as amended from time to time), and in the interest of justice, I find that the just and the proper way forward for this court is to order the record of this matter to be placed before the Honourable judge In-Charge who may exercise her powers under Rule 13 (2) of the Judicature and Application of Laws (Transfer and Management of Cases Assigned to Magistrates with Extended Jurisdiction) Rules GN No 11 of 20^^ January 2023 and assign and issue a transfer order for this matter to be heard by a magistrate or as she may direct. I will make no orders as to costs. I so order. /\j^ \y^ A. R. MRUMA b -7. Uj JUDGE X Vv» V- Jfc. 25. 9. 2024.