victor m batule 17 others vs john wambura bina ta john w bina gold mine 2023 tzhc 21435 29 september 2023

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CIVIL REVIEW NO. 02 OF 2023 (Arising from Civil Case No. 21 of2022 of the High Court of Tanzania at Musoma District Registry) BETWEEN VICTOR M. BATULE .................................................................. 1st APPLICANT JUMANNE GUGUYE.................................................................... 2nd APPLICANT BONIPHACE K. MICHAEL......................................................... 3rd APPLICANT DICKSON JOHN.............................................................................................. 4™APPLICANT NEEMA M. KIDAI........................................................................................... 5thAPPLICANT FREDRICK GEORGE...................................................................................... 6thAPPLICANT SAKISAKI KIGANJA...................................................................................... 7thAPPLICANT MODESTER ROBINSON................................................................................. 8thAPPLICANT MAKOYE GOSE.............................................................................................. 9thAPPLICANT KIMOLA KIPEJA.......................................................................................... 10thAPPLICANT ALLY JUMA.................................................................................................. 11stAPPLICANT AMOS MWITA.............................................................................................. 12thAPPLICANT CHAGU MADUHU......................................................................................... 13thAPPLICANT MAKWI KANGA............................................................................................ 14™APPLICANT RABECA JULIUS........................................................................................... 15thAPPLICANT JOSEPH S. MARWA...................................................................................... 16thAPPLICANT HAPPYNESS BAHARINI............................................................................... 17thAPPLICANT MASHAKA MAGU.......................................................................................... 18thAPPLICANT t VERSUS JOHN WAMBURA BINA t/a JOHN W. BINA GOLD MINE......... RESPONDENT Page 1 of 12 RULING ig* & 2$h September, 2023 M. L. KO MBA, J.: Applicants herein had an issue with the respondent at Nyanzawe Hamlet within Imalamate Village in Imalamate Ward of Busega District, Simiyu Region and the applicants did file their Land Case No. 21 of ! 2022 at this court (before Hon. Mtulya J.) where they were plaintiffs. It was noticed that the matter was wrongly filed to the court as Busega is located within Shinyanga Region. As the master was raised by this court suo motto, parties were invited to address the court over the matter on the table where both agreed that the case was wiiongly filed but they differ on the remedy. Mr. Zake, counsel for the plaintiffs in that suit was of the view that case may be transfered to Shinyanga High Court Registry while Mr. Kiligiti was of the submission that incompetent case cannot be transferred but withdrawn. This court ruled out that the suit was incompetent and basing on a bundle of authorities, honorable judge ruled that the case cannot be transferred as there is nothing in court for any other order and it was struck out without costs. Page 2 of 12 That decision did not amuse the plaintiffs who are applicants herein and opted for this review filed under Order XLII rule 1(1) (b) of Civil Procedure Code [Cap 33 R. E 2019] that; ' There is there is an error on the face of Ute record in that the court has jurisdiction to transfer the civil case no. 21 of 2022 to the Shinyanga District Registry of the High Court of Tanzania instead of striking out the same by virtual of rule 7(4) of the High Court Registry Rules No. 164 of 1971 as amended from time to time'. Applicants pray this court to review its own decision of stricking out the case and allow the transfer to the proper registry of the High Court at Shinyanga. It was the same Advocate Protace Zake who represented applicants in this review and submitted that this court had jurisdiction to transfer the matter to the proper registry and the transfer can be made suo motto as applicants believe that the order of striking out the suit was not proper. It was his submission that the review be allowed so that this court can overturn its order as applicants has established relevant issue. The court has jurisdiction to do that its territorial jurisdiction is limited to legal issues Page 3 of 12 that arise in mainland which has 19 sub registries according to High Court I sub registries Rule GN 611 of 2022 which amended GN 638 of 2021 (the rules were made under the Judicature and Application of Laws Act (JALA). It was his submission that under S. 4 the fundamental role of the High Court is to oversee prompt resolution and management of cases arising at timely disposition of the case. By virtual of S. 2 (1) of JALA he submitted that the High Court is designated as superior court with complete jurisdiction with civil and criminal issues as well as under 107 (2) of the Constitution of United Republic of Tanzania. It was Mr. Zake's position that although High Court Rules set sub registries, it does not outset the High Court with jurisdiction basing on Constitution and request me to reyisit rules cited and the Land Case No. 21 of 2022. Counsel had a list of authorities to support his I submission which includes Mohamed Ismail vs. Juma Rajab (1995) TLR I 204 page 206 where this court while in Tanga before Sisya J, the Judge I looked at civil practice and procedure of sub registry. The matter was instituted at Tanga while cause of action arose within Arusha and it was held that error of filing the case to Tanga registry does not cause any I miscarriage of justice. Comparing to the instant revision he said would the Page 4 of 12 matter not been struck out but transferred to Shinyanga Registry. Further he prayed me to read CR. F. Lwayantika Masha vs. AG, Civil Case No. 136 of 2001 where Manento JK (as he then was) held that the suit was filed in Dar es salaam and the Attorney General in WSD raise Preliminary Objection on territorial jurisdiction stating that cause of action arose in Mwanza and the matter was supposed to be determined in Mwanza the issue of the location of the AG's office was considered and honorable Judge transfer the case to Mwanza. He said in the present case the respondent resides in Mara Region and conduct his activities within Musoma and Simiyu. Counsel said the situation is similar with one in CR. F. Lwayantika Masha vs. AG (supra) in the sense that cause of action in the present application arose in Simiyu within the High Court Registry of Shinyanga and this court has jurisdiction to transfer matter to Shinyanga and proceed with hearing. Under Order 42 (1) (1) (d) he prayed this court to review its decision for striking out the suit Civil Case No. 01 of 2022 together with its application No. 01 of 2023 and transfer the same in sub registry of Shinyanga under Page 5 of 12 Rule 7 GN 164 of 1971 read together with other amendments in adherence to Overriding Objective Principle. That being not enough Mr. Zake refer again I this court to the decision in Mushuti Food Supply Ltd vs. CRDB Bank & 2 Others, Civil Appeal No. 79 of 2013 about powers to transfer case from one registry to another I court and pray this court to order transfer of the suit via S. 95 of the CPC that the court may order transfer without being disturbed by the absence of rules regarding electronic transfer. Objecting the application, defendant had a| legal service of Mr. Julius I Kiligiti, a learned advocate, who submitted that this is the court of law which was established to administer justice and therefore he strongly oppose the submission that the trial judge j erred on face of record by striking out Civil Case No. 21 of 2022 by virtual of rule 7 (4) of High Court GN No. 164 of 1971 as amended from time to time. He lamented that the counsel for the applicants intends to disturb and waste time of the court by coming up with this application while knowing rule 7 (4) of High Court Rules, GN No. 164 of 1971 has very clear provisions about electronically filing suits as well as documents. He submitted that the JALA (Electronic Page 6 of 12 filing) Rules GN No. 148 of 2018 under rule 4 (2) is about document to be filed electronically to the proper registry. He said the High Court Registry amendment rules of 2022 specifically rule (1) and (2) empowers High Court of Shinyanga to hear and determine all matters arise from Simiyu and Shinyanga. Ever since the cause of action arose within Simiyu, the proper forum to institute the matter was Shinyanga High Court and not Musoma High Court, he submitted. He distinguished the case of CR. F. Lwayantika Masha vs. AG (supra) that it does not fit the case at hand as it is against the High Court Registry Amendment Rules of 2022. Mr. Kiligiti opposed the case of Mushuti Food Supply Ltd vs. CRDB Bank & 2 Others (Supra) that the case is immaterial as it does not correlate with the suit before this court as it is against High Court Registry amendment rules of 2022 and JALA (Electronic Filing) rules GN 148 of 2018 and prayed the same to be impeached form the record. It was his further submission that counsel misinform this court on the residential area of respondent and said the respondent resides at Dar es salaam and not in Musoma. He prayed the application to be dismissed with costs following his strong submission. Page 7 of 12 I am called upon to review this court (Muspma High Court) decision in Land Case No. 21 of 2022 where my brother Hon. Mtulya, J. struck out the said suit for it being incompetent before him. During submission as said both counsels agree that the suit was wrongly filed in Musoma District Registry instead of Shinyanga. Applicants wdre of the view that the suit was supposed to be transferred as rule 7 (4) of High court registry rules GN 164 of 1971 as amended and as was analysed in the case pf Mushuti II Food Supply Ltd vs. CRDB Bank & 2 Others (supra). The Mushuti Food Supply Ltd case was decided in 2016 whereby later on in 2018 Honorable Chief Justice make another rules| which are JALA (Electronic filing) Rules GN No. 148 of 2018 specifically rfule 4 (2) is about filing. The rule reads; 4. -(!) The Chief Justice may establish an electronic filing system and make provision for specified documents to be filed, served, delivered or otherwise conveyed using that system. I (2) Where a document is required to be filed with, served on, delivered or otherwise conveyed to the court under any other provision of these Rules, it shall be so filed, served, delivered or otherwise conveyed using die electronic filing service in accordance with these Rules and any practice directions for the time being issued by the ChiefJustice.' Page 8 of 12 Upon introduction of the electronic filing system in our courts, parts are supposed to file documents in responsible registry in accordance with the cited rules and practice. There are reasons for the establishment of district Registries in various regions and provides for the areas covered. Upon establishment of new registry in a region where there was no High court registry, then a suit may be transferred to relevant introduced registry within geographical demarcation. But if registry is in existence, parties are supposed to file suits in responsible registry and not otherwise. I find the case of Mushuti Food Supply Ltd vs. CRDB Bank & 2 Others (supra) is distinguishable. Mr. Zake said applicants opted for Musoma High Court because the respondent resides in Mara region and relied in CR. F. Lwayantika Masha vs. AG (supra) to pray this court to transfer the suit instead of struck out. This assertion was vehemently disputed by Mr. Kiligiti saying the respondent resides in Dar es salaam. It is true that in CR. F. Lwayantika Masha vs. AG (supra) this court (Dar es salaam Registry) ordered transfer of the case upon Preliminary Objection raised by the defendant. However, it must be noted that ruling of the cited case (according to Tanzlii) was delivered in in the year 2005 where the Rules GN Page 9 of 12 148 of 2018 was not enacted. Coming into force of GN No. 148 of 2018 brought some changes in legal position on filing of suits. Civil Procedure Code provides the suit to be instituted to the place where cause of action arose. The section reads as follows; 'S. 18 Subject to the limitations aforesaid, every suit shall be instituted in a count within the local limits of whose jurisdiction; (a) ... (b) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; (c) the cause of action wholly or in part arises'. Applicants' allegation that defendant resides in Musoma, Mara region as it appears in sub paragraph (b) did not carry water and therefore they remain with only one option, where the cause of action arose which is within Shinyanga Region and the proper registry was Shinyanga High Court registry. I find the duty of transferring cases from one registry to another was meant for newly established High Court Registries and not otherwise. Entertaining this application, this court will find to be exercise duties of the Page 10 of 12 parties and specifically applicants who failed to know where to institute their cases. Mr. Kate in his submission request this court to observe the Overriding Objectives, well I agree with him. Reading the ruling in Land Case No. 21 of 2022, Honourable Mtulya, J. who was the trial judge decided to struck out the suit. Not only the suit was strucked out, he ordered so without costs. Strucking out is done so as to give the party another chance. I find the Overriding Objective was considered as the applicants are at liberty to file their suit to proper registry. As it was found the suit was incompetent, there was nothing to transfer. Generally, I maintain what was decide by this court in Land case No. 21 of 2022 (Mtula, J.) and I hereby dismiss the application. Due to the nature of the matter, I did this without costs. It is accordingly ordered. DATED at TARIME this 29th day of September 2023. Page 11 of 12 Ruling delivered in chamber while this court was operating from Tarime District Court premisses, Mr. Zake and Mr. Kiligiti counsels for the applicants and respondent respectively were connected from their chambers. M. L. KOMBA Judge 29 September, 2023 Page 12 of 12