20071212 TZCA Zanzibar

IN THE COURT OF APPEAL OF TANZANIA

AT ZANZIBAR (CORAM: MUNUO, J.A., KILEO, J.A. AND KALEGEYA, J.A.) ZNZ CIVIL REVISION NO. 10 OF 2006 SHARIFF AHMED SALIM .................................................. APPLICANT

VERSUS KULLATEN ABDALA KHAMIS ........................................ RESPONDENT {Revision from the Judgment of the High Court of Zanzibar at Vuga) I {Kayange, RM/Extended Jurisdiction) dated the 28 th day of December, 2005 in Civil Appeal No. 35 of 2005

RULING OF THE COURT 10 &12 December 2007 KALEGEYA, J.A.: I The Applicant, by way of Notice of Motion, seeks a revisional order to the effect that "the proceedings and judgment of the High Court given by Yessaya Kayange, RM, with extended jurisdiction, in Civil Appeal No. 35/2005 dated 28.12.2005 is nullity and hence be nullified. " The application is supported by an affidavit of the Applicant himself. Relevant paragraphs thereof state as follows: "1. THAT, I am an applicant in this I application, an applicant in the Court of Appeal - ZNZ Civ. Apple. No. 3 of 2006, an appellant in the High Court ' Civil Appeal No. 35 of 2005 and a plaintiff in the Rent Restriction Board Civil Case No. 31 of 2004 and I am therefore conversant with the issues relevant herein. 2 2. THAT, the High Court Judgment in Civil Appeal No. 35/2005 which is subject matter of this application for revision was read over on the 28.12.2005 and I filed to the High Court of Zanzibar a Notice of Appeal and application for leave to appeal against the saidJudgment delivered by Hon. Yessaya Kayange, RM, with extendedJurisdiction.

3. THAT, my application for leave to appeal assigned to Hon. Mbarouk S. Mbarouk, Judge of The High Court of Zanzibar who dismiss (sic) with costs my said application on (sic) His ruling dated 1 jh day of July, 2006.

4. THAT, being aggrieved of the said ruling of Hon. Mbarouk S. Mbarouk, 1., I lodged a Notice of Motion in Court of Appeal of Tanzania seeking for leave to appeal against the Judgment of Hon. Yessaya Kayange, RM, with the extended Jurisdiction, the motion registered as ZNZ Civil Application No. 3 of 2006.

5. THAT, Hon. Mrosso, I.A., in his ruling delivered in ZNZ Civ. Apple. No. 3/06 dated 1:fh November, 2006, found that Hon. Yessaya Kayange, RM, with extended Jurisdiction, 'heard as the High Court" the appeal No. 35/06 of the High Court of Zanzibar, while he was neither a Judge nor an acting Judge of the High Court.

6. THAT, since the Hon. Yessaya Kayange, RM, heard the High Court appeal No. 35/06 'as the High Court' without having Jurisdiction then the proceedings and Judgment he gave would be nullity that (sic) the full Court has Jurisdiction to nullity the proceedings and Judgment purported to be of the High Court. 3 7. THAT, if the full Court will agree with this application and nullify the proceedings and judgment in the High Court appeal No. 35/06 it will wise (sic) to order the appeal No. 35/06 of the High Court be assigned to the Judge of High Court so as I will prosecute my appeal to the High Court according to law. " As it can be discerned from paragraphs 4 and 5 of the affidavit, the current application has the Court's findings in ZNZ Civil Application No. 3 of 2006 as its source. During the hearing, the parties, being laymen and also considering that the application concerned a point of law, did not have much to say and thus did not assist the Court. The Applicant simply complained against subsequent actions by the Respondent which allegedly led to his being manhandled, assaulted and injured, his properties taken away and evicted from the disputed house in violation of a court order for stay of execution. Nevertheless, he prayed for an order as sought in the Notice of Motion. On the other hand, the Respondent disputed all the allegations but conceded that not only eviction from

the disputed premises has been effected but also that even the said premises have already been sold. It is regretable that the parties' relationship has gone that much sour while court proceedings are still going on but we consider that 4 aspect to be irrelevant to the application. We shall therefore confine ourselves to the application before us. In the application (ZNZ Civil Application No. 3 of 2006) which ·ignited the current one, the Court (Mrosso, J.A.) detailedly expounded a principle that a Resident Magistrate with Extended Jurisdiction can not sit in the High Court as he is not a judge nor an acting judge appointed under Zanzibar Constitution. The court, in part, observed: "... since the learned Regional Magistrate heard the High Court Appeal as the High Court where he had no Jurisdiction the proceedings and Judgment he gave would be a nullity. . There could not be an appeal against a Judgment which was a nullity ..... " Having made that finding, the Court went further to observe on what steps can legally be taken to rectify the situation in the following wording: ''But a single Judge of this Court has no power to nullify the proceedings andJudgment purporting to be of the High Court. Only the full Court has such Jurisdiction either in an appeal properly before it or in a revision. All I believe I can do in the circumstances is to strike out the application as

incompetent. I so order. The parties may wish to take any appropriate steps, possibly by way of a revision application, to have the proceedings relating to High Court of 5 Zanzibar Civil Appeal No. 35 of 2005 which were before Mr. Kayange, Regional Magistrate with Extended Jurisdiction and what purported to be a High Court Judgment expunged. Thereafter, the applicant might wish to prosecute his appeal to the High Court according to law. " The Applicant therefore, clearly acted on this Court's advice and with which we are in agreement that it was soundly made. The Court (single judge) made a thorough analysis of the laws establishing the High Court and who mans it {The High Court Act, No. 2 of 1985 and S. 93 and 94 of the Constitution of Zanzibar); the power's and extent of Resident Magistrate/Courts with Extended jurisdiction and how they are derived (s.20 of the Magistrate's Court Act, 1985, No. 6. of 1985 as amended by Act 11 of 1986 which empower the Chief Justice to bestow such powers) and the Appellate Jurisdiction Act, 1979 as amended by Act No. 17 of 1993 (s.4(1) which prescribe jurisdiction of the Court to encompass appeals against decisions from the High Court and subordinate courts with Extended Jurisdiction) before arriving at the finding. On our part, we wholly subscribe to the findings made. A Resident Magistrate of whatever grade is not elevated to a judge/acting

judge and likewise a Regional Court does not become the High Court simply because Extended Jurisdiction has been conferred upon him or it by the Chief Justice. Once the Chief Justice transfers a matter from the High Court, to be dealt with under the 6 ., powers of Extended Jurisdiction, it should further be transferred to the registry of the particular magistrate or subordinate court and be given a new number and the same entitled accordingly. High Court proceedings presided over by a Resident Magistrate with Extended Jurisdiction as was the case here are a nullity. For reasons above stated, the application is granted. The proceedings of the High Court presided over by Kayange, RM with Extended Jurisdiction and the decree that ensued therefrom being a nullity are hereby quashed and set aside. The appeal to be heard de nova according to law. As this procedural aspect seems to have escaped even the court itself, in our considered view, each party to bear own costs. DATED at ZANZIBAR this 12th day of December, 2007. E.N.MUNUO

JUSTICE OF APPEAL E.A. KILEO

JUSTICE OF APPEAL L.B. KALEGEYA

JUSTICE OF APPEAL 7 • I certify that this is a true copy of the original. (S. M. ' ANYIKA)

REGISTRAR