19980508 TZHC Dar es Salaam

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RULING Mackanja, J. This an application for lee.veto extend time within.which to file-an application for revision of the ruling of the Resident Magistrates Court at Kisutu dated 29th March, J,.996 in Employment Cause Noo 131 of 1994. The application is supported by tl:).e affidavit of Lawrence Massawe, the applicant. The application has not ''!Jeen opposedt· Mso H. Bayona, learned advocate, has argued the application on behalf of the applicant. She has backed up her written submissions by a number decided caseso She has pointed out five errors on the record of the lower court in respect of which he invites me to allow the applicat:i.or1. The is9 ue is whether the applicant has.a sufficient cause for the delay in lodging this applicc.tion. Three causes have been forward. The first cause for the delay is based en a })oint of law, namely, section 21(2) of the Law of Limitption Act, 19710 Ii:; provides:- .... ~"'" u (2) In computinr; the period of lir.iitation ·prescribed for any suit the time during which the applicant hs,s been_ prosecuting with due deligence, another civil proceeding, whether in a court of first instance or in a court of appe2,l, against the same party,- for the same relief shall ,be excluded where such proceeding is prosecuted in good faith, in a court which, from defect of jurisdiction or other causes of a like nature, is unable to entertain it." Ms. Bayona

submits that there are undisputE1d fact.sin the affidavit eviden.ce to the effect that the applicant had previously preferred an appeal against the same ruling which iC? between the s.:,_me parties in Civil Appeal Noe ·65 of 19960 Th2-t appe2cl wELs dismissed on a preliminary ' objection on 29th Marc.h, 1996. So if the period· within which the applicant filed the o.ppeal, the_t is from 8th May, 1996 to 20th March, 1997 is excluded, the instant application h.-3.ving been filed on 3rd April, 1997 would be in time. In princi:i::,l~ 1/s BaJci: ::J ; i2..y : c:rtl:r Uc' right on this pointo I say so because reading the law on wlnch she relies.; certain pre-conditions must be satisfied first bef0r& cl.ii ·,1.ppJic.:-i:ion such c;,/3 t·,,::3 one succeeds~ It must be shown that proceedings W1'~ cl1 :!.t :;_s intended ::o be reviewed failed for defect of jurisdict{on or like cmu:,8., I.n -::·_r,at connection, failure of a civil proceeding on the ground that it is misconceived or premature will not afford any. ground for the application of section 14(2) of the Le:.-v of Limitation. Act to a subsequent civil proceeding reg2.rcL.ng the s.3.me. issue., And., o.s it is apparent from the legislation, these provisions relate to the original j~risdiction of courtc What is the situation in the instant case? A ruling was to be delivered by Mrs William, o Resident Magistra.te, · on 4th December,

1995. .For some reason Mrs William was not to be available so the case wo.s re-assigned to Mr. Kiwango, another Resident .Magistrateo It is alleged that in.stead of delivering a ruling in respect of 8.n applic,:-.tfon for stay of execution of a decree Mr. KiwanGo went ahead to set aside en -~-part~ decree that had been passed in favour of the applicant. Thi$ course of action that was t,aken at the motion of the trial court aggrieved the applicant whc believed that Mr \ Kiwango had no jurisdiction to set aside the ex parte decree as in doing so he was acting in an appellate capacity over another m2.gistrate of concurrent jurisdiction. The ap1)licant was of the view that ho had a right 9f appea.l against the order that was me..de by Mro Kiw":lngo. He appealed but· the appeal was dismissed by Mr., AoRo Manento 1 Principal Resident Mngistrate, ~xercising extended jurisdiction. The applic.:Jtion before me is for extention of time within which to file an applic,c1ti,:;n for revision of the ,:~.rder by which the appeal was di,smissed by Mro Manento, · Prn1. It is lYJv/ contended that· the order that was m.::i.de by Mr. Mw1.ento is revisable bec,rnse if, c1.s it appears, the appeal was incompetent, the right cause of action was to strik it not dismiss it. I agree :for an appeal will nnly be dismissed if it is determined on the merits. If the appellate court finds that the appeal is

premature or that it is incompetent from some other causes the proper c,3_use of action is to strike· it ou~. If Mr. Manento erred in dismissing the ap1::oal instead of striking it, has this court jurisdiction to revise the proceedin~s of a Principal Resident Magistrate who decided the rJ'\atter in the exercise of ext2nde_d jurisdiction? The High Court has revisional jurisdiction over decisions of subordinate courts in terms of sections 25 to 32 of the Magistrates, Courts Act,_ 1994 1 as relat es to proceedings originating from primary cmtrts and sections 43 and 44 of the ·said relates to proceedings orii:;inaling from District Courts and courts of Resident Magistrate.· I> 3 ... These- proceedings have been 1Jrou 0ht under section 440 These provisions do not relate to powers exerciable by Resident Magistrates with extended jurisdictiono This is so because :·ection l}5 (1) of the JvI3.gistrates Courts Act provides that when exercising extended jurisdiction a resident Magistrate:- 11 • •• shnll be deemed to be a judge of the High Court, and the court presided over him 1-1hile exercising such jurisdiction shall be deemed to be the High Court 0 ° Obviously, section 44 of the s;::i_id Act does not apply to decisions of the High Court •. On the same parity, th'i,s piece Qf letislntion does not apply to decisions made by a resident magistrate exercising extended jurisdiction. Where,

therefore a party is agsrieved by the decision of a Resident ·Magistro.te exercising extended jurisdiction ha..s to appeal to the Court oa· Appeal. If he will wish to have the matter revised he hcts no alternative by the lodge his .:::tpplication in that behalf to the Court of Appeal •. In fine, this Court hc1s neither appello.te nor revisional jurisdiction IB9a~ do~.ision~ made by resident magistrates exercising extenJed jurisdiction. This point o.lone, then disposes of this :::i.pplic:-1tion. I considet it unnecessary to delve into whether there are irregularities L,s cr,mplained because the only Court with jurisdiction to entertain such complaints_ ,~ill be the Court of Appeal. It is in that connection that this applicc,tion would fo.ila Application dismissede There will be no order 2.s to costs. Delivered. J. Mo Hackanja

JUDGE --= - Mse Bayona, Advocate: For the Applicant Mr. Kisusi 7 Advoc,::,te: For the :Respon:lent. I Certify th.::tt true copy the Original .. 8/5/1998