Onorato Della Santa & others v. Peera. (Part I ) Civ. App. 15-D-69; 31/10/69; Georges C. J.

Onorato Della Santa & others v. Peera. (Part I ) Civ. App. 15-D-69; 31/10/69; Georges C. J.

The appellant appealed from an order by the Senior Resident Magistrate, granting vacant possession of the suit premises to the landlord – respondent and ordering the tenant – appellants to any mesne profits for occupation. The first ground of the appeal was that the court

had no jurisdiction. There was no dispute that the court that has jurisdiction to hear claims for vacant possession of premises subject to Rent Restriction is the Court of the Resident Magistrate – Rent Restriction (Amendment) (No. 2) Act 1966 s. 11 A and s. 4(a) (iii). The plaint was headed “In the Resident Magistrate’s Court of Dar es Salaam’. It was clear from this that the plaintiffs wished to file their case in the correct court. (In Allarakhia’s case cited in the judgment below, the plaint was headed for filing in the District Court). Summons for disposal of suit were signed by a Resident magistrate. The form used was clearly designed for use in the District Court, but the word ‘District’ had been crossed out and the letters ‘R.M.’ s’ inserted. The statement of defence was also headed for the Resident magistrate’s Court. It was clear that both parties thought they were contesting a matter in the Resident Magistrate’s Court. The jacket folder, however, shoed that the matter was filed in the District Court and the number of the suit was that of the District Court Registry. Both registries are in the same building and the public attend for business at the same desk. The notes of the magistrate made at the hearing did not indicate in what court he was sitting. The formal decree embodying the result of the judgment is headed for the District Court, and proceedings for execution bear the same heading.

            Held: (1) “It has also been held by Biron J. in Tajdia Allarakhia v. H. H. Agakhan Civil Appeal 23 of 1968 that a District Court presided over by a Resident Magistrate is not a Court of a Resident Magistrate within the meaning of the relevant enactments . Such a court has no jurisdiction to deal with matters under the Rent Restriction Ordinance ….. The question is whether or not the decision in this case was the decision of the District Court or of the Court of a resident Magistrate. It is really quite unsatisfactory that the administration of justice should depend on matters of sheer form such as this without any substantial merit in terms of justice and fair play. It is to be hoped that the argument will be made impossible by a simple amendment vesting jurisdiction both in the court of the resident Magistrate and in the District Court when presided over by a Resident Magistrate because the Courts are in effect the same ….. [it was argued] that the matter has been heard by the District Court Dar es Salaam without jurisdiction and that the entire proceedings were presented for filing in the Resident Magistrates’ Court, Dar es salaam. Both parties treated it as having been filed there as the pleadings and the summons for disposal of suit would show. The magistrates who heard the case were all persons who would in the normal course of things preside over a Resident Magistrates’ Court in dare s Salaam. All that has happened is that by clerical error at it has been given a number on the District Court side of the Register.” (2) “I cannot agree that there is a duty on an advocate to check whether a plaint which he has presented properly intitled has been directed to the appropriate registry. The receipts for the fees for filling both the plaint and the written statement of Defence give no indication of the Registry in which the proceedings have been filed. They are marked “Court Fees and Fines Receipt” and the matter is designated as Civil Case 1628. They are signed on behalf of the Senior Resident Magistrate.” (3) (The Chief Justice referred to the case of Kotak v. Koovsnji [1967] E.A. 348)”. In that case the ruling by the magistrate was attached to a memorandum of appeal instead of a certified copy of the order. The Court held that the appeal could not be entertained because it had not been properly presented in conformity with the rules.” (The Chief Justice then quoted from the judgment of Hamlyn at p. 300).

“I would agree with the remarks of the learned Judge but they do not seem applicable in this case. Anyone who asks for an order and is given a ruling will immediately realise that he has not got that for which he has asked. A mere number on a suit properly entitled gives no such indication – more especially when the summons for disposal and the written statement of defence are also properly intituled.” (4) “I would hold that the suit was presented for filing in the Court of the Resident Magistrate Dar es Salaam, that it was accepted there for filing and that it was determined by the court of the Resident Magistrate Dar es Salaam. In error the matter was assigned a number in the District Court Registry. I would order that the matter be transferred to the Registry of the Resident Magistrate’s Court and wherever necessary documents be amended to bear the appropriate heading of the Registry of the Court of the Resident Magistrate bearing the case number unchanged.”