CRDB Bank PLC & Others vs Samira Said Mohamed & Another (Civil Appeal No. 279 of 2024) [2025] TZCA 1185 (13 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA frORAM: KEREFU. 3.A.. MPEMU- J.A. And MANSQOR, J-A.) CIVIL APPEAL NO. 279 OF 2024 CRDB BANK PLC..................................................................... APPELLANT COPS AUCTION MART & COURT BROKERS............................2 nd APPELLANT JAMAL SALUM ADIMU............................................................. APPELLANT VERSUS SAMIRA SAID MOHAMED ..................................................... 1ST RESPONDENT IBRAHIM HEMED SAID........................................ ..... ....... 2N D RESPONDENT (Appeal from the judgment of the Resident Magistrate's Court of Tabora, at Tabora) fNvakunaa- PRM -Ext. Jurist dated the 15th day of November, 2022 in Land Appeal (Extended Jurist No. 22 of 2021 1UDGMENTOF THE COURT 7th & 13th November, 2025 MPEMU, J.A.: In the District Land and Housing Tribunal for Nzega (the DLHT), the 1st respondent in her administratrix's capacity of the estate of the late Khadija Jalal Khan, filed a suit for orders that, the sale of Plot No. 166 Block "A" Igunga Urban valued atTZS 200,000,000.00 made by the 2n d appellant in favour of the 3rd appellant be declared null and void, along with restraining the appellants to evict her from the suit premises. She also prayed for costs of the suit to be borne by the appellants. We note in the record of appeal that, the 2n d respondent secured a loan facility of TZS 41,287,000.00 from the 1st appellant and mortgaged the suit property as a security thereof. According to the complaint, the 1st respondent, being an administratrix, was not involved in the mortgage transaction. That besides, the DLHT found that, the 2n d respondent had defaulted to discharge the loan facility, thus auctioning the mortgage for recovery of the said loan was justified. It proceeded to dismiss the 1st respondent's claim on that account. Being convinced that the DLHT slipped into an error in determining her claim, Land Appeal No. 36 of 2021 was filed in the High Court against all the appellants and the 2n d respondent by the 1st respondent. On 2n d December, 2021, the learned Judge In-charge transferred and assigned the appeal to Seraphine Bernard Nsana, Senior Resident Magistrate with Extended Jurisdiction (SRM, Ext-Juris.) of the Resident Magistrate's Court of Tabora at Tabora. The record is silent as to what had happened to the assignee in determining the appeal. We note further of another transfer order made by the learned Judge In-charge to Demetrio S. Nyakunga, SRM, Ext. Juris. This time, 2 the latter determined the appeal which was registered as Land Appeal No. 22 of 2021 and which is now the subject of the appeal before the Court. The learned SRM, Ext. Juris, found the appeal meritorious, thus allowed it. The appellants were not happy with the said finding and are now before the Court canvasing four grounds of complaint which, for reasons soon to follow, their reproduction is waived. Before we embarked on the hearing of the appeal, Mr. Mugaya Kaitila Mtaki assisted by Mr. Akram William Magoti, both learned advocates, prayed for leave of the Court to add one more ground of appeal, the prayer which was not objected to by Messrs. Audax Theonest Constantine and Samwel Lucas Ndanga, learned advocates for the 1st and 2n d respondents respectively. We granted leave to that effect in terms of rule 113 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The ground so added reads as hereunder: The learned Resident M agistrate with extended Jurisdiction (Dem etrio S. Nyakunga, SRM-Ext. Juris.) had no jurisdiction to determ ine the appeal before him due to the irregularities endowed in the transfer order by the learned Judge In-charge. 3 Submitting on the added ground of appeal, Mr. Mtaki made reference to page 288 through 289 of the record of appeal and submitted that, there are two transfer orders by the learned Judge In charge. The first was on 2n d December, 2021 assigning the appeal to Seraphine Bernard Nsana, SRM (Ext-Juris.) and the second directed Demetrio S. Nyakunga, SRM (Ext. Juris.) to determine the same appeal without assigning reasons for inaction of the first assignee. Mr. Mtaki hinted further that, indeed, after the first transfer and assignment, the learned Judge In-charge had no file for the second transfer and assignment he made because the record of appeal is silent if the file moved back to him for his second administrative actions. He cited the case of Dibron Said v. Republic (Criminal Appeal No. 843 of 2023) [2025] TZCA 281 (24 March 2025; TanzLII) arguing that, Demetrio S. Nyakunga, SRM (Ext. Juris.) had no jurisdiction to entertain the appeal before him. Mr. Mtaki again, drew our attention at page 297 of the record of appeal such that, another magistrate (J. Mdoe, RM), on 28th February, 2022 granted an order to the 1st respondent to amend the memorandum of appeal without the requisite jurisdiction to do so. He was not assigned to preside over the appeal, as such the amendment 4 occasioned to the memorandum of appeal was illegal. In this, Mr. Mtaki sought reliance in the case of Yaza Investment Company Limited v. NMB Bank Public Company (Civil Appeal No, 255 of 2022) [2025] TZCA 244 (19 March 2025; TanzLII). Having in mind the two jurisdictional components, his final remark was for the Court's indulgence to nullify the proceedings and the resultant judgment which proceeded before Demetrio S. Nyakunga, SRM (Ext. Juris.). Mr. Costantine associated himself with the submission made by Mr. Mtaki and added that, as we allow the appeal, parties should each bear own costs because the mishaps in the transfer and assignment orders is the creature of the court. This was also the position of Mr. Ndanga who represented the second respondent. As to costs, Mr. Mtaki submitted that, the appellants be provided with costs for researching, preparation and travelling all the way from Tabora to Dodoma solely for the purpose of the appeal. On our part, and having considered the submissions made by the learned counsel and the entire record of appeal, we note that, after the filing of Land Appeal No. 36 of 2021 in the High Court by the 1st respondent against all the appellants and the 2n d respondent, the matter was transferred to the resident magistrate with extended 5 jurisdiction for the determination of the appeal. It was registered as Land Appeal No. 22 of 2021. The administrative power of the learned Judge In-charge was sought under section 45 (1) (a) and (b) of the Magistrates' Court Act, Cap. 11 read together with the Land Disputes Courts (Extension of Appellate and Revisional Jurisdiction Order) Government Notice No. 802 of 2018). We think the proper provision should have been section 45 of the Land Disputes Courts Act, Cap. 216 which reads as follows: "45. (1) Notwithstanding section 44, the C hief Justice may, after consultation with the M inister responsible fo r legal affairs and the Attorney General\ by order published in the Gazette , vest any resident m agistrate with the appellate or revisional jurisdiction ordinarily exercisable by the High Court under this Act. " (2) For the purpose o f any appeal from o r revision in the exercise o f jurisdiction referred to under subsection (1), the resident m agistrate with extended jurisdiction sh all be deemed to be 6the judge o f the High Court, and court presided over by him while exercising such jurisdiction sh all be deemed to be the High Court. 6 (3) The High Court m ay direct that an appeal or revision instituted in the High Court be transferred to and be heard by a resident m agistrate upon whom extended jurisdiction has been conferred by this section. Mr. Mtaki submitted, and indeed we note so that, there are two transfer orders. The first was on 2n d December, 2021 assigning the appeal to Seraphine Bernard Nsana, SRM (Ext-Juris.)- The second one was on 20th April, 2022 directing Demetrio S. Nyakunga, SRM (Ext. Juris.) to determine the same appeal. For purposes of jurisdiction, the latter order is the one to deal with because, as all counsel argued, it was made in ignorance of the earlier one which transferred and assigned Seraphine Bernard Nsana, SRM (Ext-Juris.) to preside over the appeal. The latter, as we note in the record of appeal at pages 295 and 296, did not determine the appeal as directed in the order. What she recorded so far when she attended the appeal at last, as appearing at page 296 of the record of appeal is to set the appeal for mention because the original file was not with her. Tliere is no explanation in the record of appeal as to why she did not complete to determine the appeal to finality. To us, and for the given infraction, the appeal file was transferred to more than one magistrate, which we find to be improper 7 all together. In Dibron Said (supra), the Court at page 6 of the judgment observed as follows regarding such state of affairs: "Anyhow, the intriguing question before us is this; w ithout any reasons , , can a judge in charge transfer one and the same case fo r tria l to more than one m agistrate, as it happened in the m atter a t hand? We hasten to answer that question in the negative, and the reason is ju s t one; there is no indication on record as to why Isaya PRM Ext. Juris, did not proceed with the tria l o f the case to fin a lity" This being the position, there was no file for transfer to another magistrate strictly in the administrative function of the learned Judge In-charge after the first transfer. The Court in Dibron Said (supra) proceeded to state at page 8 that: "In view o f the above position o f the law in m atter sim ilar to the one a t hand, the summ ary o f our decision in this appeal is this; after the transfer o f the case for hearing was done to Isaya PRM E xt Juris., the m atter was not only transferred to him, but also it was assigned to him and to him alone. T hat m eans a s o f th e d ate o f th e tra n sfe r o f th e case to h im , in te rm s o f its su b stan ce a n d p h y s ic a l file , it 8 w as p e n d in g tr ia l b e fo re Isa y a PR M E xt. Ju ris , putting it differently; consequent to the transfer and assignm ent o f the m atter to the said PRM E xt Juris., there was nothing that rem ained with the judge in charge which he could transfer or assign to any other ju d icia l officer in respect o f that same case." [emphasis supplied] Given the above excerpt, the second assignment was without administrative justification. The record of appeal is thus silent regarding the status of the appeal file if it indeed left from the assignee as to get the status of the second assignment, now before Demetrio S. Nyakunga, SRM (Ext. Juris.) who heard the parties and finally delivered his judgment on 15th November, 2022. At the hearing of the appeal through written submissions before Demetrio S. Nyakunga, SRM (Ext. Juris.) when the appeal landed to him for the first time, the record is a revelation regarding the procedural mishaps at page 300, thus: "Sam w e li N danga, for the respondent and also holding b rie f fo r M taki fo r 2n d , J d and 4 h respondent That, the m atter is fo r hearing today. We agreed to continue with the hearing by way o f written subm ission. 9 M r. E vo diu s, I don't have no any objection ; we pray to file subm ission our subm ission on 02/09/2022. M r. N danga, Reply on 16/09/2022 O rder: Mention on 27/09/2022 Hon. D.S. Nyakunga-SRM-Ext J. 19/8/2022" In the absence of such administrative mandate pressed before the Judge In-charge, the appeal file is still in the hands of Seraphine Bernard Nsana, SRM (Ext-Juris.) as such, what proceeded before Demetrio S. Nyakunga, SRM (Ext. Juris.) was without jurisdiction. We are saying so because in the excerpt above, it is not clear as to how Nyakunga, SRM- Ext. Juris, assumed jurisdiction over the matter. We stated above and worthy re-noting that, reasons for uncompletion determination of the appeal before Seraphine Bernard Nsana, SRM (Ext- Juris.) are not apparent on the record of appeal. In the end, we proceed to allow the appeal by nullifying proceedings of the Resident Magistrate's Court of Tabora at Tabora presided over by Nyakunga-SRM-Ext. Juris, in Land Appeal (Ext. Juris.) No. 22 of 2021 and set aside the resultant judgment and all subsequent 10 orders followed thereafter. The case file is, for that matter, transmitted back to the High Court for the re-hearing of the appeal. Given the circumstances of this matter, we direct each party to bear own costs. DATED at DODOMA this 12th day of November, 2025. R. 1 KEREFU JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The judgment delivered virtually this 13th day of November, 2025 in the presence of Mr. Akram Magoti, learned counsel for the appellant, also holdings brief for Mr. Evodius Rwengobe and Mr. Samwel Ndanga learned counsel for the 1st and 2n d respondents and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. F. A^MTARANIA )EPUTY REGISTRAR COURT OF APPEAL 11