DINA THOBIAS SAFII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. APPLICATION NO. 565 OF 2023. (Arising from the decision of Misc. Land Appeal No. 71 of 2019 designated as Extended Misc. Land Case Appeal No.18 of 2019 at Kinondoni and the Original Ward Tribunal of Kunduchi in Application No. 51 of 2018) DINA TOBIAS............... ................................ .......... APPLICANT VERSUS FAUSTA TOTO......................................................... RESPONDENT RULING Date of last order: 15/03/2024 Date of Ruling: 21/03/2024 MWAIPOPO, J The applicant Dina Thobias has filed the present application under Section 14 (1) of the Law of Limitation Act Cap 89 R.E 2019 praying for the following reliefs: 1. That the Honourable Court be pleased to extend time within which the Applicant herein shall be allowed to lodge to the Registrar and thereby serve the Respondent herein with a copy of letter requesting certified copies of judgment, decree and proceedings in Misc Land Case Appeal No. 71 of 2019 which was subsequently designated as extended Miscellaneous Land case no 18 of 2019 at Kinondoni (extended jurisdiction) Dina Tobias Vs. Fausta Toto. 2. Each party to bear own costs 3. Any other relief and direction as the Honourable Court shall deem fit and proper to grant The Application has been taken out at the instance of the Applicant on the grounds and reasons set forth in the Affidavit of Albert Sylvester Nkuhi, learned counsel for the Applicant and is opposed by the Counter Affidavit of FAUSTA TOTO the Respondent which was filed along with the Notice of Preliminary objections on the following points. 1. That this Honourable Court has no jurisdiction to entertain the present Application. The hearing of the Preliminary objection was done by way of written submissions according to the timetable drawn by the Court. At the commencement hearing the Applicant and the Respondent enjoyed legal 2 services from the learned Advocates Albert Nkuhi and Joseph Kipeche respectively. Submitting in support of the preliminary objection, the learned counsel for the Respondent stated that the Applicant has filed the present Application under Section 14 (1) of the Law of Limitation Act Cap 89 R.E 2019 praying for an order of extension of time to lodge to the registrar and thereby serve the respondent with a copy of the letter requesting for certified copies of judgment, decree and proceedings in Misc Land Case Appeal No. 71 of 2019 which was subsequently designated as extended Miscellaneous Land case Appeal No. 18 of 2019 at Kinondoni extended jurisdiction. The learned counsel contended that the Applicant has pleaded at paragraph 11 of the Affidavit that she has already lodged the notice of appeal against the judgment complained of. He went on submitting that this Hon Court has no jurisdiction to entertain an Application for extension of time within which to lodge a letter requesting certified copies of judgment, decree and proceedings and serve the same to the Respondent. He added that it is a settled law that when the notice of appeal is lodged under rule 83 of the Court of Appeal Rules, that the same is seized of the matter in exclusion of the High Court except for Applications specifically provided for such as 3 Applications for leave to appeal under section 5 (1) (c ) ,(2) (a) of the Appellate Jurisdiction Act Cap 141 R.E 2019 or provision of certificate of point of law under section 5(2) (c) of Appellate Jurisdiction Act or application for extension of time to lodge the notice of appeal out of time or application for extension of time to lodge an application for leave to appeal under section 11(1) of the AJA. The learned counsel referred the Court to the cases of Awiniel Mtui & 3 Others v Stanley Efatha Mathayo Kimambo (Attorney for Efatha kimambo Civil Appl No 19 of 2014(unreported), Matsushita Electronic Co ltd v Charles George t/a CG travers, Civil application No.71 of 2001 (unreported), and the case of Hussein Korogwe Chuyangula v Shaibu Aman Korogwe (legal representative of Angelina Haruna Amon) Misc. Land Appl no. 313 of 2021 HC DSM (unreported) He submitted further that the jurisdiction to extend time for lodging the letter requesting for copies of judgment, decree and proceedings and serving the same to the Respondent is in terms of rule 10 of the Court of Appeal rules vested in the Court of Appeal and not the High Cort. Rule 10 of the Court of Appeal provides that; "The Court may upon good cause been shown, extend the time limited by these rules or by any decision of the High Court or Tribunal, for doing of any act authorised or required by these Rules, whether before or after expiration of that time and whether before or after the doing of the act, and any reference in these Rules to any such time shall be construed as reference to that time so extended". He further argued that section 14 of the Law of Limitation Act relied upon by the Applicant in the present Application does not vest the High Court with jurisdiction to extend the time within which to lodge the letter requesting for copies for judgment, decree and proceedings and. serving the same to the Respondent. Section 14 of the Law of Limitation Act gives the High Court Powers to extend the period of limitation for the institution of Appeal or an Application. It provides that: 14.-(1) Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be 5 made either before or after the expiry of the period of limitation prescribed for such appeal or application. (2) for the purpose of this section Court means the Court having jurisdiction to entertain the appeal or as the case may be, the application. The learned counsel for the Respondent submitted that in the present , , Application the Applicant is not seeking for extension of the period of limitation for institution of an Appeal or Application as required under section 14. Submitting in rebuttal the learned counsel for the Applicant submitted that the judgment and decree forming the basis of this Application were read on 24th day of August 2020 by Hon. Sr Ding'ohi, SRM (Extended Jurisdiction (As he then was) sitting at Kinondoni District Court. As far as the Application is concerned the learned counsel submitted that this Application falls squarely within the ambit of the law governing Applications founded upon decisions made by Magistrates under extended jurisdiction. He argued that such a position is stated under the Judicature and Application of Laws (Transfer and Management of cases assigned to Magistrates with extended jurisdiction) Rules 2023. The law expressly stipulates the place of filing Applications arising from 6 decisions made in extended jurisdiction before and after determination to be the High Court. The provision reads; 13(l)Applications arising from matters transferred to the Magistrate, whether filed when the matter transferred is pending or after its determination, shall be filled before High Court" The learned counsel contended that it goes without saying that from the foregoing the High Court acquires jurisdiction to entertain this Application by virtue of the foregoing provisions on extended jurisdiction. He submitted further that, the intention of the legislature in enacting the Judicature and Application of Laws Act (Transfer and Management of cases assigned to Magistrates with extended jurisdiction) Rules 2023 is to empower the Court to handle all Applications from the decisions made under extended jurisdiction, thus the law used the word shall to mean that it must be filed to the High Court. This is supported by the case of Erenico Kakala v Mohamed Musa (Adminstrator of the Estate of the Late Ahmed Zahor Ahmed Civil Application No.40 of 2011 (unreported) CAT of Tanzania at Dar es Salaam held that; "Indeed, attaching to the notice of preliminary objection copies or photostat of the law or decision relied on in a notice of preliminary objection is a requirement of the law. The Rule is coached in a mandatory terms as the word Shall is used it is insisted under section 53 of the Interpretation of Laws Act that when the word shall is used in any written law, in conferring a function that word shall be interpreted to mean the function must be performed" Furthermore, he submitted that the Judicature and Application of Laws Act (Transfer and Management of cases assigned to Magistrates with extended jurisdiction) Rules 2023 under Rule 15 and 16 stipulate on the place of lodging the Notice of Appeal to be the Court of Appeal of Tanzania and issuance of the record of appeal, proceedings and certificate of delay which are matters to do with the Appeals to the Court of Appeal of Tanzania in which there is a general set of principles and rules for that matter. He contended that despite having the Appellate Jurisdiction Act and the Court of Appeal Rules when it comes to matters heard and decided under extended jurisdiction some rules to do with Appeals to the Court of Appeals are found in the Judicature 8 and Application of Laws (Transfer and Management of Cases Assigned to Magistrates with Extended Jurisdiction) Rules, 2023 including Rule 13 as extracted above. He finalised his submissions by stating that the Respondent's Counsel submissions are a total misconception of the law applicable on the;... matter at hand for having generalised the character of this Application and being oblivious of the provisions of the Judicature and Application of Laws act (Transfer and Management of cases assigned to Magistrates with extended Jurisdiction) Rules 2023. The learned counsel submissions on the applicability of section 5 of the Appellate Jurisdiction Act, Rule 10 and 83 of the Court of Appeal Rules 2019 and section 14 of the Law of Limitation are misconceived as the said provisions must be read with rule 13 of the Judicature and Application of Laws act (Transfer and Management of cases assigned to Magistrates with extended jurisdiction) Rules 2023 and not in isolation as he submits. He added in this regard the cases cited in support of the Preliminary objections are distinguishable. In Rejoinder the learned counsel for the Respondent reiterated his submissions in chief and in support of the preliminary objection he contended that the submissions by the Applicant on the applicability of 9 Rule 13 of the Judicature and Application of Laws( Transfer and Management of cases assigned to Magistrates with extended jurisdiction Rules 2023 apply to regulate the transfer of cases by the High Court to a Magistrate and management of such cases . See Rule 2 of the said rules. He contended that Rule 13 applied upon by the Applicant's counsel simply stipulates a place of filing an application arising from matters transferred to a Magistrate to be the High Court and not the subordinate court with extended jurisdiction. The said Rule does not create new jurisdiction to the high court on matters that the high court does not have in the first place. He submited that applications to be filed before the High court from matters transferred to a magistrate are those that the High Court is vested with jurisdiction and not Applications whose jurisdiction is exclusively vested in the Court of Appeal like the present Application. He argued that the Applicant has filed the present Application under section 14(1) of the law of Limitation Act which speaks for itself that it empowers the High Court to extend the period of limitation for the institution of an appeal or an application. In the present application the Applicant is not seeking extension of the period of limitation for the io institution of an appeal or an application. In other words the intended action is not the institution of an appeal or an application so as to confer jurisdiction on this court under section 14(1) of the Law of Limitation Act. To the contrary the Applicant is seeking for an order of extension of time to enable the Applicant to lodge to the Registrar and thereby serve the Respondent with a copy of the letter requesting certified copies of Judgement, Decree and proceedings in Misc Land case Appeal No. 18 of 2019 at Kinondoni (Extended Jurisdiction). Lodging a letter to the Registrar out of time and serving the same to the Respondent is different from institution of an appeal or application. The learned counsel for the Respondent argued further that jurisdiction to extend the time for lodging the letter to the Registrar requesting for copies of Judgement, Decree and proceedings and serving the same to the Respondent in terms of Rule 10 of the Court of Appeal Rules is vested in the Court of Appeal of Tanzania and not the High Court. He thus concluded by imploring the court to strike out the Application on the basis that the Court lacks jurisdiction to entertain the same. Having gone through the rival submissions of the parties, the broad question to be determined is whether the preliminary objection raised by the counsel for the Respondent has merit. li The Respondent has raised an objection to the effect that this Court has no jurisdiction to entertain the present application hence it should be struck out with costs. The main argument put forth by the Respondent is that the Application has been filed under section 14(1) of the Law Limitation of Act in order to enable the Applicant who has already lodged a Notice of Appeal to the Court of Appeal against the Judgement complained of, to lodge to the Registrar and thereby serve the Respondent with a copy of the letter requesting certified copies of judgement, Decree and Proceedings in Misc. Land Case Appeal No. 18 of 2019 at Kinondoni (Extended Jurisdiction). The learned counsel submitted that this court has no jurisdiction to entertain this Application since once the Notice of Appeal is filed under Rule 83 of the Court of Appeal Rules then it is the Court of Appeal that is seized with the matter in exclusion of the High Court except for Applications specifically provided for such as leave (as the position was before),certificate of point of law or extension of time to lodge notice of appeal out of time, etc. The Applicant's Counsel on his part has argued that this Court has jurisdiction to entertain the Application since it arises from the decision of Hon Dingohi, SRM (Extended Jurisdiction) (as he then was) who was 12 sitting at the District Court of Kinondoni at Kinondoni. It therefore goes without saying that the Application at hand is founded upon a matter heard and decision made under the extended jurisdiction. He argued that the Application falls squarely within the ambit of section 13(1) of the Judicature and Application of Laws (Transfer and Management of Cases assigned to Magistrates with extended Jurisdiction) Rules 2023 which stipulates the place of filing the Applications arising from decisions made under extended jurisdiction before and after their determination to be the High Court and not otherwise. In determining the preliminary objection, I have perused the Application, enabling provisions, annexures and the relevant laws governing the subject matter and observed that indeed the instant Application is filed under the provisions of section 14(1) of the Law of Limitation Act Cap 89 • - SsTl RE 2019. The Applicant in the said Application is praying for among other reliefs for the Court to be pleased to extend time within which he should be allowed to lodge to the Registrar and thereby serve the Respondent herein with a copy of the letter requesting for certified copies of judgment, decree and proceedings in Misc. Land Case Appeal No. 71 of 2019 which was subsequently designated as extended 13 Miscellaneous Land case no 18 of 2019 at Kinondoni (extended jurisdiction) Dina Tobias Vs. Fausta Toto. I have also perused the Affidavit of the Applicant and observed that under par 11 of the same the Applicant's Advocate has deponed that the Applicant being aggrieved by the decision of the Hon. Dinghoi as he then was, filed a Notice to Appeal to the Court of Appeal against the said decision on 5th day of September 2020 pursuant to Rule 83 of the Court of Appeal Rules 2009 and has now made an Application for extension of time within which she can lodge a letter to the Registrar of the High Court Land Division requesting for certified copies of judgement, Decree and proceedings in Misc. Land Appeal no. 71 of 2019/extended Misc. land appeal case no 18/2019 at Kinondoni (extended jurisdiction) . Thus in answering the question as to whether this court has jurisdiction to entertain this Application let me start by reproducing the said provisions of section 14(1) of the Law of Limitation Act which the Applicant has cited to move this court to grant extension to the Applicant to enable her obtain certified records. The said section reads; (1) Nothwithstanding the provisions of this Act, the Court may for any reasonable or sufficient cause extend the period of 14 limitation for the institution of an appeal or an application other than an application for the execution of a Decree and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application. (2) For purposes of this section, the Court means the court having jurisdiction to entertain the Appeal or as the case may ..... be the Application. As contended by the Respondent, which I rightly agree, in order to bring the Application of section 14(1) and (2) of the Law of Limitation into play, there are two conditions. One, the Application should be for extension of the period of limitation for the institution of an appeal and an application and two, the court should be the court having jurisdiction to entertain the appeal or application. Indeed, in the present Application the Applicant is not seeking extension of the period of limitation for the institution of an appeal or application so as to bring into play the application of section 14 (1) of the Law of Limitation act. To the contrary the Applicant is seeking extension of time within which to lodge the letter requesting for copies of judgement, decree and proceedings and serve the same to the Respondent and the Notice of Appeal to the 15 Court of Appeal has already been filed in accordance with Rule 83 of the Court of Appeal Rules 2009.. Similarly, since the Notice of Appeal to the Court of Appeal has already been filed, it is a settled law in our jurisprudence that once the Notice of Appeal is filed under Rule 83 of the Court of Appeal Rules, 2009, then it is the Court of Appeal that is seized of the matter in exclusion of the High Court except for Applications in which the High Court specifically enjoys concurrent jurisdiction with the Court of Appeal such as; a)Provision of a certificate of point of law under section 5(2) of the Appellate Jurisdiction act b)Application for extension of time to lodge notice of appeal out of time under section 11(1) of AJA This position was also affirmed in the case of TANESCO Vs DOWANSv Holdings (SA) Costarica and another Civil Application No. 142/2012 CAT Dar es Salaam whereby it was held that; Once the Court of Appeal of Tanzania is seized with the Notice of Appeal then the High ceases to have jurisdiction on any matter related to the Appeal, except for applications specifically provider for such as leave to appeal, provision of certificate of law. 16 See also the position of the Court in the following cases cited by the Respondent; the case of Awiniel Mtui & 3 Others v Stanley Efatha Mathayo Kimambo (supra),Matsushita Electronic Co ltd v Charles George t/a CG travers,(supra) and the case of Hussein Korogwe Chuyangula v Shaibu Aman Korogwe (legal representative of Angelina Haruna Amon) (supra). That the jurisdiction to extend the time or lodging the letters requesting for copy of judgement, Decree and proceedings and serving the same to the Respondent is in terms of Rule 10 of the Court of Appeal Rules is vested in the Court of Appeal of Tanzania and not the High Court. Rule 10 of the Court of Appeal Rules provides as follows; "The Court may upon good cause been shown, extend the time limited by these rules or by any decision of the High Court or Tribunal, for doing of any act authorised or required by these Rules, whether before or after expiration of that time and whether before or after the doing of the act, and any reference in these Rules to any such time shall be construed as reference to that time so extended". It should also be noted that the Court being referred here is the Court of Appeal pursuant to Rule 3 of the Rules. The learned counsel for the Applicant has contended that since the decision has arisen from the decision Hon Dingohi, SRM (Extended Jurisdiction) (as he then was) who was sitting at the District Court of Kinondoni at Kinondoni. It therefore goes without saying that the Application at hand is founded upon a matter heard and decision made under the extended jurisdiction. He thus argued that the Application falls squarely within under the ambit of section 13(1) of the Judicature and Application of Laws (Transfer and Management of Cases assigned to Magistrates with extended Jurisdiction) Rules 2023 which stipulates the place of filing the Applications arising from decisions made under extended jurisdiction before and after their determination to be the High Court and not otherwise. He further argued that Rule 15 aricTTS of the said Rules also stipulate that the place of lodging the Notice of appeal to the Court of Appeal of Tanzania and on the issuance of the records of Appeal, proceedings and certificate of delay , which are matters to do with appeals to the court of appeal in which there is a general set of principles and Rules for that matter.The Applicant has argued that the provisions of Rule 13 have imported the use of the word 18 shall to connote that such an application shall be filed in the High court and that had the legislature intended the filing of the Applications arising from extended jurisdiction not to be filed at the High Court it would not have used the word shall. In support of the use and meaning of the word shall as provided under section 53(2) of the Law of Interpretation Act, Cap 1 RE 2002, the Applicant's counsel cited the case of Enerico Kakala vs. Mohamed Mussa (Administrator of the estate of the late Ahmed Zahor Ahmed(supra) With regard to the submissions of the Applicant under Rule 13 of the Judicature and Application of Laws ( Transfer and Management of Cases Assigned to Magistrates with Extended Jurisdiction) Rules,2023, I agree with the submissions by the Respondent that the said Rules apply to regulate the transfer of cases by the High Court to a • ... Magistrate and management of such cases. See Rule 2. Further, Rule 13 cited by the Applicant's counsel simply stipulates a place of filing an Application arising from matters transferred to a Magistrate to be the High Court and not the subordinate Court granted with extended jurisdiction. I agree with the Applicant's counsel that the said Rule does not create new jurisdiction to the High Court on matters that the High Court does not have in the first place since it will 19 contradict with the provisions of AJA, Court of Appeal Rules, 2009 and other relevant laws. That Applications to be filed before the High Court from matters transferred to a Magistrate are those that the High Court is already vested with jurisdiction and not Applications whose jurisdiction is exclusively vested in the Court of Appeal like the present Application. Moreover, since the Applicant has filed the present Application under section 14(1) of the Law of Limitation Act which speaks for itself that it empowers the High Court to extend the period of limitation for the institution of an appeal or an Application, in the present Application the Applicant is not seeking extension of the period of limitation for the institution of an appeal or an application . In other words, the intended action is not the institution of an Appeal or an Application so as to confer jurisdiction on this Court under section 14(1) of the' Law’of Limitation Act. To the contrary the Applicant is seeking for an order of extension of time to enable the Applicant to lodge to the Registrar and thereby serve the Respondent with a copy of the letter requesting for certified copies of Judgement, Decree and proceedings in Misc Land case Appeal No. 18 of 2019 at Kinondoni (Extended Jurisdiction). Lodging a letter to the Registrar out of time and serving the same to the 20 Respondent which is different from institution of an Appeal or Application. I am of the settled view that the jurisdiction to extend the time for lodging the letter to the Registrar requesting for copies of Judgement, Decree and proceedings and serving the same to the Respondent is in terms of Rule 10 of the Court of Appeal Rules vested in the Court of Appeal of Tanzania and not the High Court. Therefore, the Applicant has misdirected herself in bringing her Application before this Court and the arguments by the Applicant's counsel in opposition of the preliminary objection are hereby dismissed and all the cases cited distinguished in this regard. Guided by the above authorities, the Application at hand is incompetent for want of jurisdiction as submitted by the Counsel for the Respondent. I therefore proceed to dismiss it with Costs. Dated at Dar es salaam this 21st Day of March 2024 S.D MWAlPOPO JUDGE 21.03.2024 21