salvado kipengele vs john pajero others 2003 tzhc 34 30 may 2003

IN THE HIGH COURT CF TANZANIA AT DAE SS SALAAM CIVIL REVISION N o.te OF 2002 SALVADOR KIP5NGELE - APPLICANT VERSUS JOHN PAJERO & OTHERS - RESPONDENT S uL ING LUANDA. J. This is an application for roviaion. The application has been made under S.79 and S.95 of the Civil Procedure Code, 1966 and of the Magistrate Courts Act, 198*f. The applicant through'- his advocate one Mr* Ukwonga raised three grounds in his application. And among the three grounds raised is the question of jurisdiction in that the presiding Senior District Magistrate had no jurisdiction. However, kefore hearing the application Mr. Mfungamtama who advocated for the Respondent raised two preliminary points s,«a points of law*1 namely:- 1 ) that is court has been improperly moved*, as neither Section 79(1) of the CPC 1^66 nor Section of the MCA, 1984 apply : and 2 ) if the Honourable court has been properly moved, the * application could not be preferred in lieu of an appeal the right of which did exist. I have gone through the written submission of the parties. Hie objections, to say the least, ware raised |>rec»'twJ:y The points raised in my considered view ought to be raised during hearing of th^ application. Then one would b* in a fjtoaitian^bo agreed* not-'to1 agree as to whether the court was not prpperly moved. In view of that, the objection are dismissed with costs. Earlier I said one of the ground of the application is that the presiding Senior District Magistrate had no jurisdiction. Indeed the record support that - the applicant filed this matter in the court of Bar es Salaam Resident Magistrate Court at Kisutu vide ERV. 251666 dated 25/10/1990. So this probate has been filed in the Dar es Salaam Resident Magistrate Court notwith standing some endorsement at a later stage indicating it was filed in the District Court of Ilala. Since that is the position, then Mr. Kissetto, Senior District Magistrate had no jurisdiction to adjudicate, the case filed in that court (See S. 6 (1) (c) of the Magistrate Courts Acts 1984). But the big question is: at what time can one raise the issue of jurisdiction can be raised?. The iasu© of jurisdiction can b<s raise-i at any time and at stage as it. goes to the root of Justice (See Michael Leseni Kweka v John Elafe Civil Appeal No.51/1997 CAT Unreported) In sum the application has merits. The same is allowed with costs. The proceeding recorded by Mr. Kissetto is quashed and expunged from the record. The application be heard by a resident Magistrate. It is so ordered. '■ V )-\ A /" iB.M . Luanda^ JJBCrE ^ ^^2/4/2003 Ruling delivered Mr. Rwabutaza for Mr. Fungamtama for the Respondent Applicant - present in person.