NUHU MBAGA v NBC AND ANOTHER 1997 TLR 173 (HC)

 NUHU MBAGA v NBC AND ANOTHER 1997 TLR 173 (HC)

Court High Court of Tanzania - Arusha

Judge Mroso J

B

CIVIL REVISION 13 OF 1997

17 June 1997

Flynote

Civil Practice and Procedure - Court - Jurisdiction - Resident magistrate - Deserving

cases may be filed in court of resident magistrate C

-Headnote

The applicant had brought a suit against the respondent and although the plaint had

correctly been entitled `in the court of the resident magistrate', the registry decided

to open the case in the District Court. The district magistrate rightly realised that he

had no jurisdiction to try the matter which was D outside his territorial jurisdiction

and returned the case file to the resident magistrate in charge who dismissed the suit

and remarked that it had to be filed at Babati District Court.

Held:

The magistrate had misconstrued a letter from the district registrar to the resident

magistrate in charge of the court of the resident magistrate of Arusha. The correct

import of that letter was not E that no case which could have been filed in the

District Courts would be filed in the court of the resident magistrate: the law allowed

deserving cases, even from the districts, to be filed in the court of the resident

magistrate who had jurisdiction throughout the region. The directive was aimed at

cases from the districts which were filed at the court of the resident magistrate for

improper ulterior motives. The dismissal order had to be quashed. F

Case Information

Order accordingly.

No cases referred to. G

[zJDz]Judgment

Mroso J:

One Nuhu Yatera Mbaga brought a suit in the Court of Resident Magistrate, Arusha

against the National Bank of Commerce and a firm of Auctioneers known as Nakara

Auction Mart of Dar es H Salaam. The suit related to a house in Babati which

belongs to Mr Mbaga which the defendants in the case allegedly threatened to sell

without any justification.

The resident magistrate in charge of the Court of Resident Magistrate at Arusha

assigned the case to a distict magistrate, one Mr Mbuge. The district magistrate rightly

realised that he had no I jurisdiction to try a dispute the subject matter of which was

outside his

1997 TLR p174

MROSO J

A territorial jurisdiction, not to say that he does not sit in the Court of Resident

Magistrate. Incidentally, although the plaint in the case was correctly titled `In the

Court of Resident Magistrate' the Registry decided to open the case in the District

Court of Arusha. This is a recurring careless mistake and the resident magistrate in

charge should ensure that her Civil Registry staff know the B difference between the

District Court of Arusha and the Court of Resident Magistrate for Arusha region and

that cases are filed and opened in the correct registry.

Mr Mbuge, on realising that he had no territorial jurisdiction, returned the case file to

the resident C magistrate in charge for reassignment to a resident magistrate who

would have requisite jurisdiction.

On 23 May 1997 the resident magistrate in charge wrote thus in the case file:

D `Court: Its very unfortunate that it was an oversight when I assign (sic) this

matter to D M Mbuge. In fact I have noted with concerned (sic) the NBC Branch is

situated at Babati District, that being the case the Plaintiff ought to file his suit at

court of competent jurisdiction and in this respect its Babati District Court unless the

plaintiff apply for leave E at the High Court to file his case in the RM's Court

Arusha. This court was once minded by his Lordship's (sic) Chief Justice's Circular

that suits should and must be filed where the cause action arose and RM's Court was

warned and directed not to admit cases/suits from Districts. They are to be filed in

their respective Districts. for that F reason the present suit plus Misc Civil

Application is dismissed and the same to be filed at Babati District Court.'

After his suit and a pending application were dismissed Mr Mbaga complained to the

judge in G charge of the High Court at Arusha substantially saying he has been

penalised on the basis of an alleged circular from the Chief Justice of which the public

are not aware.

H With respect, Mr Mbaga is not alone for being ignorant of the alleged circular

from the Chief Justice, I, too, am not aware of such a circular. What was referred to as

a circular from the Chief Justice apparently is a letter with reference No

DR.AR/69/Vol.III/7 dated 10 April 1996 which the District Registrar wrote to the

resident magistrate in charge of the Court of Resident Magistrate, I Arusha. The

substance of the letter is that the Chief Justice who had been visiting some district

courts of the Arusha region had received com-

1997 TLR p175

MROSO J

plaints that some people in the districts who had money had been opening cases

against their A adversaries at the Court of Resident Magistrate, Arusha knowing that

because of financial inability the other parties to the case would not be able to appear

in court at Arusha. Because of that ex-parte judgments would be given against them

on default. After he received those complaints the Chief Justice directed the District

Registrar to write to the resident magistrate in charge B `kukutahadharisha kuhusu

mtindo huu wa baadhi ya watu. Aidha, inategemewa kuwa mara upatopo maagize

haya, hakuna kesi za aina hiyo zitakazofunguliwa kwenye mahakama yake badala ya

huko Wilayani'. (My underlining.) C

The words which I have underlined are significant. The Chief Justice did not direct

that no case which could have been filed in the district courts would be filed in the

Court of Resident Magistrate. Indeed, the Chief Justice could not have made such an

administrative direction because that would fly in the face of the law. The law allows

deserving cases, even from the districts to be filed in the D Court of Resident

Magistrate which has jurisdiction throughout the region. The directive of the Chief

Justice was aimed at the cases from the districts which are filed at the Court of

Resident Magistrate for improper ulterior motives and the resident magistrate in

charge was being urged to E be on the lookout for such cases and send them right

back to the districts to be filed there.

It seems clear to me that the learned Principal Resident Magistrate, who is the

resident magistrate in charge, misconstrued the import of the District Registrar's

letter to mean that the Chief Justice F had slapped a complete ban on civil cases from

the districts being filed in the Court of the Resident Magistrate `unless leave of the

High Court' was obtained!

The case and application which the learned Principal Resident Magistrate dismissed

related to G defendants who would not fail to appear in Court at Arusha because of

financial incapacity. The Board and top management of the first defendant are in Dar

es Salaam and their zonal office is at Arusha. The second defendant is said to be of Dar

es Salaam. So, in fact, the Court of Resident Magistrate at Arusha would be the most

convenient venue for all the parties. The Principal Resident H Magistrate, therefore,

erred in dismissing those cases for the reasons she gave.

Using the revisional powers of this court under s 44(1)(a) of the Magistrates' Courts

Act 1984 I quash and set aside the dismissal order. The case should be properly

opened in the Court of I Resident

1997 TLR p176

A Magistrate at Arusha as the plaint correctly shows and proceed according to law.

1997 TLR p176

B