20150821 TZHC Dodoma2

IN THE HIGH OF TANZANIA AT DODOMA Civil Case No. 1 of 2010 MBUGA ENTERPRISES SUPPLIES COMPANY LIMITED......PLAINTIFF VERSUS KONGWA DISTRICT COUNCIL .............................. DEFENDANT Date of Last Order: 20/08/2015 Date of Ruling: 21/08/2015 SEHEL, J. RULING This is a ruling in respect of a prayer made by Mr. Nyangarika, learned counsel for the plaintiff that the case be transferred to a lower court in terms of Section 21 of the Civil Procedure Act, Cap. 33 R.E 2002 after he has conceded that this court has no jurisdiction to try the suit. Mr. Nkangaa, learned advocate who appeared for the defendant left the matter to be decided by the Court. Section 21 of the Civil Procedure Act, Cap. 33 R.E 2002 to which Mr. Nyangarika is relying upon pr vi 1 "(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage- transfer any suit or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or withdraw any suit or other proceeding pending in any court subordinate to it, and- (1) try or dispose of the same; transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or retransfer the same for trial or disposal to the court from which it was withdrawn. Where any suit or proceeding has been transferred or withdrawn under subsection (1), the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either re-fry it or proceed from the point at which it was transferred or withdrawn. The powers of transfer and withdrawal of suits conferred by this section and section 20 shall be in addition to and not in substitution for the powers contained in Part V of the Magistrates' Courts ~&2 The above provision provides general powers of transfer or withdrawal of suit at any stage. This provision seems to confer wider discretion to a transferring court. But does it confer a Court which has no jurisdiction to fry a suit, powers to transfer the case to a competent jurisdiction? In order to determine this issue, I have decided to look at the practice in India as our Civil Procedure Act is somehow almost similar to Indian Code of Civil Procedure. In Mulla's Code of Civil Procedure, Vol I, 16th Ed Butterworth's 2001 at pg 477 to 478, the learned author states: "Before the Amendment Act, 1976, one view was that an order for transfer of a suit from one court to another court cannot be made unless the suit had been in the first instance brought in a court which had jurisdiction to try it......The Allahabad High Court took a contrary view and held that the fact that the court of first instance had no jurisdiction to dispose of the suit could not oust the jurisdiction of the High Court or District Court to transfer the same to a court competent to try it" The above shows that prior to the Amendment Act in 1976 there were two contradictory view on the issue. However, after the Parliament in India passed the Civil Procedure (Amendment) Act No. 104 of 1976 which came into force on 14 1 h January, 1977, the position changed. The position changed as a new subsection (5) was added to Section 24. The subsection 5ads: 3 "A suit or proceeding may be transferred under this Section from a Court which has no jurisdiction to try it" The above sub-section has now settled the position in India. It is now clear from its statute that the court which has no jurisdiction to try a case can transfer that case to a court of competent jurisdiction. The amendment was introduced following a recommendation made by the Law Commissioner. The Law Commissioner in its report considered the two contradictory view and opined that it was to adopt the wider view in the interest of expedition and accordingly recommended sub-section (5) of Section 24 be inserted in the new Code (See the case of In Re Vivekananàda Nidhi And Another Vs Smt. Ashima Goswami AIR 1997 Cal 340). Now coming back to the matter before me. Section 21 above cited does not have similar provision to that of Subsection 5 found in India. There is nothing which suggests that a court which has no jurisdiction to try .a suit can transfer it to a lower court. The position as it stands, is the same to that in India prior to its amendnt. However, in a book by B.D Chipeta titled "Civil Procedure in Tanzania- A student Manual" published by LawAfrica 2002 at pg. 10, the author stated that the High Court has power to order the transfer of the proceedings to itself or to some other magistrate's court. He further gave circumstances under which the primary court can exercise the power of trar. One of the 4 circumstances as contained in Section 47 (1) (c) (iii) of the Magistrates' Courts Act, Cap. 11 R.E 2002 is "where the subject matter of the proceedings arose outside the local limits of the primary court's jurisdiction or is not within its jurisdiction..". It follows then that though the primary court had no jurisdiction to try the case, it can still make a transfer. This means that the position in Tanzania is like that of Allahabad High Court in India which held that the fact that the court of first instance had no jurisdiction to dispose of the suit could not oust the jurisdiction of the High Court or District Court to transfer the same to a court competent to try it. With this view and having taken the fact that the present case has been pending in this Court for the past five years, then for interest of expedition, I am certain in my mind that under Section 21 of the Civil Procedure Act, Cap. 33 R.E 2002 I have power to make a transfer of the case to which I have no jurisdiction to try it. For this reason, in terms of Section 21 (1) of the Civil Procedure Act, Cap. 33 R.E 2002 I order the transfer of this Civil Case No. 1 of 2010 to the District Court, a court which is competent to try and dispose of the same. The costs of the suit shall be in due cause. It is so ordered. DATED at Dodoma this 21' day of Au u t, 2015. 5 VO B.M.ASeheI JUDGE 21st August, 2015 Ruling delivered at Dodoma in open court, under my hand and seal of the court, this 21st day of August, 2015 in the presence of Mr. Nyangarika, advocate for plaintiff and Mr. Nkangaa, advocate for the defendant. B.M.A Sehel • JUDGE NK . 21st August, 2015. . 5 ' • - 11