Abdalla El-Kuneity v. Abriya Civ. App. 24-D-69; 30/6/70; Biron, J.

Abdalla El-Kuneity v. Abriya Civ. App. 24-D-69; 30/6/70; Biron, J.

This was an appeal from the judgment and order of the District Court of Dar es Salaam dismissing a claim for possession of a house brought by the appellant. The appellant was or had been the husband of the respondent and he left fro Arabia sometime in 1965 taking with him five children of the marriage ad leaving the sixth child with the respondent here in Dar es Salaam. At the hearing there was produced a document in Arabic purporting to grant Mr. Abdalla Hemed El-Lemky power of attorney. It was asserted on behalf of the appellant that he had divorced the respondent before he left for Arabia and that he had not given her the house, the subject matter of the suit, as provision for the maintenance of herself and the child. The respondent’s case was that the plaintiff had in fact given her the house in question as provision for the maintenance of herself and the child of the marriage left with her. In his judgment the magistrate inter alia, declared that he was not satisfied that El-Lemky was the properly constituted attorney of and appellant- that the parties had divorced, stating that possibly they had only separated – that the appellant had made provision for his wife and child before leaving for Arabia. He therefore dismissed the claim for possession.

            Held: (1) At the hearing of his appeal, I referred [the Counsel to the case of TAJDIN ALLARAKHIA v. H.H. THE AGA KHAN: Civ. App. 28-D-68, reported in volume IV of the Tanzania High Court Digest, 1969 as case No. 121 at page 107 where in I rule that a District Court has no jurisdiction to entertain claims for possession of premises, the proper Court for such a claim, as provided for in the Rent Restriction (Amendment) (No. 2) Act 1966, Section 4, being the Court of the Resident Magistrate. That ruling of mine …. Has …. Been strengthened by a ruling to the same effect by Platt, J. delivered on the 21^st January, 1970 in the case of BERNARD v. ASHA: Civ. App. 7-A-69 and reported as case No. 124 in the same volume of the High Court Digest referred to above.” “(The Counsel) agreed that the District Court in this instant case had no jurisdiction to deal with the claim for possession and he further expressed agreement with the Order I proposed to make.” (2) “….. the appeal is dismissed … (a)and the proceedings of the District Court are formally declared a nullity, which in effect, restores the status quo of the parties before the suit was filed.” (3) “It should be made clear that as the District Court proceedings have been declared a nullity, there can be no question, if the a plaintiff should file a fresh suit in the proper Court claiming possession, of the defence that the case is re judicata being raised.” (4) Appeal dismissed.