Tabu Ramadhani Mataka vs Haji Shabani Kibwana (Civil Appeal No. 212 of 2024) [2025] TZCA 865 (21 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: KOROSSO. J.A.. MAKUNGU, J.A. And RUMANYIKA, 3.A.) CIVIL APPEAL NO. 212 OF 2024 TABU RAMADHANI MATAKA ................. ..................... ...... APPELLANT VERSUS HAJI SHABANI KIBWANA ........... ......... ................................ RESPONDENT (Appeal from the decision of the High court of Tanzania at Dar es Salaam) fLuambano. Deputy Registrar) dated the 21st day of March, 2023 in Miscellaneous Civil Application No. 216 of 2022 JUDGMENT OF THE COURT 30th July & 21s t .August, 2025 RUMANYIKA. 3.A.: This appeal emanates from the decision of the High Court of Tanzania in an omnibus Misc. Civil Application No. 216 of 2022 (Luambano-Deputy Registrar). In that application, the respondent herein was granted extension of time to file application for a certificate on point of law and notice of appeal challenging decision of the High Court in PC Civil Appeal No. 145 of 2019. Previously, the respondent had lost in an appeal against decision of the District Court of Kinondoni in Misc. Civil Application No. 74 of 2019. He appealed challenging a dismissal of his application for revision of decision of

the Primary Court of Kinondoni (the probate court) in Probate Cause No. 121 of 2005. In that matter, the parties herein were appointed co- administrators of the estate of the late Fatuma Kibwana (the deceased) who was the appellant's mother-in-law. The record also reveals that, initially, one Ajuza Mzee who was the deceased's daughter and wife of the appellant was appointed by the Primary Court of Kinondoni ("the Probate Court") vide Probate Cause No. 124 of 2005 as administratrix of that estate. Upon her death, Sadick Iddi Mwinchande took over administration of the estate. However, for some reason his letters of administration were revoked. Consequently, on 12th April, 2019, the parties herein were appointed as co- administrators of the said estate as observed above. Displeased by that appointment, the respondent unsuccessfully challenged it in the District Court. As such, the District Court of Kinondoni reversed the decision which the High Court upheld. His application for extension of time to file an application seeking a mandatory certification on points of law and to file a notice of appeal was successful before Mr. Luambano-Deputy Registrar as highlighted earlier on. Disgruntled, the appellant is before us assailing the said granting of extension of time on two grounds paraphrased as follows; One, that, the Deputy Registrar had no jurisdiction and two, that, the Deputy Registrar improperly exercised discretion in granting the extension of time.

At the scheduled hearing of the application, the appellant had the service of Mr. Nickson Ludovick, learned counsel whereas Mr. Ezekiel Ngwatu, learned counsel represented the respondent. Mr. Ludovick relied on the appellant's written submission filed on 18th June, 2024 to form part of his arguments. In a nutshell, he contended that, in determining Misc. Civil Application No. 216 of 2022 the Deputy Registrar acted without jurisdiction. He implored us to nullify the impugned proceedings and quash the resultant decision for being inconsequential. To reinforce his proposition, Mr. Ludovick cited the Court's decision in Commissioner General of Tanzania Revenue Authority v. JSC Atom red metzoloto (ARMZ), Consolidated Civil Appeal Nos. 78 and 79 of 2018. Further, it was Mr. Ludovick's contention that, the Deputy Registrar wrongly assumed powers of the High Court Judge in the guise of extended jurisdiction without authority. He urged us to allow the appeal by quashing the impugned decision and set aside the resultant orders because they emanate from null and void proceedings. Replying, Mr. Ngwatu began by adopting the respondent's written submission filed on 18/07/2014 against the appeal. He asserted that the Deputy Registrar had jurisdiction to entertain the application which was properly assigned to him in terms of Rule 4(1) (2) (b) of the Judicature and Application of Laws (Transfer and Management of Cases Assigned to 3

Magistrates with extended Jurisdiction) Rules, 2023). According to Mr. Ngwatu, the Deputy Registrar was not duty bound to indicate in the ruling that he presided over in the proceedings in exercise of his extended jurisdiction. Nonetheless, Mr. Ngwatu argued that the omission, if any, was curable by a court order removing the alleged procedural infraction. He cited Jewels and Antiques (T) LTD v. National Shipping Agencies Co. LTD (1994) T.L.R. 107 to reinforce his point. Also, he asserted that, the applicant is not to blame because the filing of and assignment of a matter to the presiding judicial officer is an internal affair of the court of which the parties had no control. He pressed reliance on VIP Engineering & Marketing Ltd v. Societe Generali Re Surveillance (SA) & Another, Commercial Case No. 16 of 2000 (unreported) to fortify his argument. We have sufficiently heard the learned counsel's contending submissions and reviewed the record of appeal. As such, the central issue for our determination is whether the Deputy Registrar acted with jurisdiction in presiding over the impugned proceedings. We find only the 1s t ground of appeal good enough to dispose of the appeal in the light of the obtaining circumstances. Notably, Mr. Luambano determined the said omnibus application in his capacity as Deputy Registrar of the High Court and not a Resident Magistrate with extended jurisdiction as proposed by Mr. Ngwatu. This is exhibited by

the proceedings which appear on pages 88-90 and in the impugned ruling on pages 91-97 of the record of appeal respectively. At least for matters filed in the High Court, other than those transferred to the Resident Magistrate (Ext. jurisdiction), a Deputy Registrar derives his power from Order XLIII rule 1 of the Civil Procedure Code Cap. 33 ("the CPC") which provides as follows: " 1. Subject to any genera / or special direction o f the ChiefJustice, the following powers may be exercised by the Registrar or any Deputy or District Registrar o f the High Court in any proceedings before the High Court- (a) to appoint and extend the time for filing the written statement o f defence, to give leave to file a reply thereto and to appoint and extend the time for filing such reply under Order VIII, rule 1, 11, and 13; (b) to order that a suit be dismissed under Order IX, rules 2, 3 and 5; (c) to make an order or give judgment on admissions under order XII, rule 4; (d) to sign decrees under Order XX, rule 9; (e) to admit, reject or allow the amendment o f an application for execution o f a decree under Order XXI, rule 16; 5

(f) to issue notice under Order XXI, rule 22; (g) to order that a decree be executed under Order XXI, rule 23; (h) to issue process for execution o f a decree under Order XXI, rule 24; (i) to stay execution, restore property, discharge judgment debtors and require and take security under Order XXI, rule 26; (j) if there is nojudge at the place o f registry, to issue a notice to show cause and to issue a warrant o f arrest under Order XXI, rule 37; (k) if there is no judge at the place o f registry, to order attendance, examination and production under Order XXI, rule 42; (I) to order that an agreement, compromise or satisfaction be recorded under Order XXIII, rule 3; and (m) to exercise the powers and duties o fajudge or o f a magistrate and may pronounce judgements and sign decrees and make orders and transact the business o f the High Court or the court o f a magistrate". Gauging from the excerpt above, it is patently plain to us that, the list of judicial functions of a Registrar of the High Court is so limited. As such, an application for extension of time to seek certification on point of law and or 6

to file a notice of appeal, subject of the present appeal is not one of the functions which are stipulated above. The Latin Maxim: expressio unius exciusio alterius. Needless to say, under section 3 of the Appellate Jurisdiction Act, Cap. 141, the term Registrar includes a Deputy Registrar. Therefore, with respect the Deputy Registrar acted improperly and irregularly. He contravened Rule 4(1) (2) (b) of the Judicature and Application of laws (Transfer and Management of Cases Assigned to Magistrate with Extended Jurisdiction) Rules, 2023. Similarly, he acted in violation of Order XLIII, rule I of the CPC by going beyond the scope of his functions. It is stressed that the laws speak the Legislature's minds and that was the intention of the Legislature. Therefore, had it been intended for the Deputy Registrar to also hear and determine applications, subject of this appeal before us, the Legislature would have stated it so expressly which is not the case. The foregoing apart, we do not agree with Mr. Ludovick's contention that all would be well had the Deputy Registrar in his ruling indicated that he is exercising extended jurisdiction. Court users are reminded that powers of judicial officers are statutory and not created at their whims. Therefore, lack of jurisdiction is not a mere legal technicality which is curable as proposed by the learned counsel. It follows that, the issues of curability of the said ailment and invocation of Overriding Objective Principle in terms of 7

section 3A and B of the Appellate Jurisdiction Act Cap. 141 (the AJA) should have not been raised. At least we agree with Mr. Ludovick's assertion that, case assignment to judicial officers is a court's internal arrangement not concerning the parties. However, be it as it may, now that, from the word go the Deputy Registrar had no jurisdiction to entertain the said application, the impugned proceedings have to be nullified as observed earlier on. We remark that, in any judicial proceedings, the issue of jurisdiction of the court is so paramount. It has to be established ahead of it all to be real and not assumed. Therefore, Mr. Ngwatu cannot be right to say that he being a judicial officer stationed at the High Court, the Deputy Registrar rightly determined the application, subject of this appeal. As such, the infraction above vitiated the proceedings as stated above. See- for instance our decisions in Secretary General Bilal Muslim Mission v. Mwinyishehe A. Mwinyishehe (Civil Reference No. 6 of 2011) [2012] TZCA 497 (6 December 2012; TanzLII) and Chilingazi Kaje And Others v. R (Criminal Appeal No. 9 of 2006) [2009] TZCA 125 (12 October 2009; TanzLII). On account of the foregoing, therefore, the impugned ruling and drawn order cannot stand anymore. As the point of jurisdiction is decisive of the appeal as highlighted earlier on, to deliberate on the remaining grounds of appeal would only serve academic purpose only. In the result, 8

we nullify the impugned proceedings in terms of section 4(2) of the AJA. We also quash the resultant decision and set aside the orders. The record is hereby remitted to the High Court of Dar es Salam for determination of Misc. Civil Application No. 216 of 2022 in accordance with the law. DATED at DODOMA this 20th day of August, 2025. W. B. KOROSSO JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 21s t day of August, 2025 in the presence of Mr. Ludovick Nickson, learned counsel for the Appellant and Mr. Ezekiel Joel, learned counsel for the Respondent both through Virtual Court; is hereby certified as a true copy of the original.