20140626 TZHC Arusha

' ' / IN THE HIGH COURT OF TANZANIA AT ARUSHA CIVIL REVISION NO. 2 OF 2014 (Originating from District Court of Arusha Misc. Civil Appl. No. 40 of 2013 Originating Maji ya Chai Primary Court at Maji ya Chai in Probate and Administration Cause No. 3 of 2010) EMILIANO NDERINGO NNKO .............................................APPLICANT. VERSUS NDEKIRWA AFRAEL NNKO ........................................ RESPONDENT RULING Date of last order:- 22/5/2014 Date of Ruling:- 26/6/2014 F.H. MASSENGI, J. Applicant Emiliano Nderingo Nnko under the service of Mr. Makange, learned advocate, and under the provisions of section 79 (l)(b) of the Civil procedure Code Chapter 33 Revised Edition 2002 is applying for the following orders:- (i) That, the High Court calls for the entire record of Arusha Misc. Civil Application No. 40 of 2013, examine and inspect the same for the purposes of satisfying itself that the said subordinate Court upon an Application Under Section 47 (l)(B) of the 1 • Magistrate's Court Act Cap. 11 Revised Edition 2002 declined to exercise Jurisdiction rested upon it of giving consent to the t Applicant to transfer of the same to itself or a court of a Resident Magistrate, Arusha thereby enabling the Applicant hereto to be represented ,by an Advocate of his own choosing, and (ii) Costs of this application td be borne by the Respondent hereto. Respondent Ndekirwa Afraeli Nnko appeared in person as he was not represented. Before going to the merits of this application, I find the application is not properly before this court as is, brought under the wrong provision of the law. The matter in which this application arises originates from a Primary Court where by the Civil Procedure Act Cap. 33 is not applicable. Under section 3 of the Civil Procedure Code a court is interpreted as follows:- ." court" except in the expression "foreign court" means the High Court of the United Republic, a court of a resident Magistrate or a district court presided over by a Civil Magistrate. The Act further interprets subordinate Courts under section 4 as follows:- "For the purpose of this code every court of a resident Magistrate and every district court is a subordinate Court to the High Court, and every district court is a subordinate court of the resident magistrate within the area of whose Jurisdiction, it is situated." ·2 • ~ · ·-i:he applicable law to matters which originates from Primary Court is the Magistrates' Courts Act Cap.11. ' / As the application is brought under a wrong provision of the law then it is in properly before this court and cannot move the court to grant the application. Therefore it hereby dismissed with costs. JUDGE 26/6/2014. Delivered in court this 26th June, 2014 in presence of the Mr. Makange for applicant and respondent in person. JUDGE 26/6/2014. FHM/mk. 3