20040823 TZCA Dar es Salaam 1

~ IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 131 OF 2002 In the Matter of an Intended Appeal BETWEEN DAVID MWAKIKUNGA ..................................................... APPLICANT AND MZUMBE UNIVERSITY (SUCCESSOR IN TITLE OF IDM-MZUMBE) .............................................................. RESPONDENT (Application for Leave from the decision of the High Court of Tanzania at Dar es Salaam) (Msumi, J.K.) dated the 6 th day of November, 2002 in Civil Revision No. 46 of 2000 RULING MUNUO, J.A.: The applicant, David Mwakikunga, brought the present application under the provisions of Rules 43 · (b) and 46 (3) of the Court of Appeal Rules, 1979 and Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979 seeking orders: (i) that the order of the High Court of 6th November, 2002 in Civil Revision No. \ 46 of 2000 be set aside; 2 (ii) that leave be granted to appeal to the Court of Appeal of Tanzania; and (iii) that costs abide by the result of this application. From the facts deponed in the affidavit in support of the application and from the written submission of the applicant, way back in 1999, the respondent instituted RM Civil Case No. 2 of 1999 seeking vacant possession of a residential house then occupied by the applicant by virtue of his employment with the respondent who was at that time known as the Institute of Development Mzumbe (IDM) which is now called the University of Mzumbe. In RM Civil Case No. 2 of 1999, the applicant's preliminary objection to the effect that the suit was Res Judicata Civil Case No. 75 of 1996 in the same court, was upheld. Dissatisfied with the Order of the trial court, the respondent moved the High Court to revise the matter. In Civil Revision No. 46 of 2000, Msumi, J.K. as he then was, reversed the order of the trial court and ordered that the suit be determined ·on merit. 3 The applicaht's com·t51alnts in respect of the revisional order in question are two: (i) that because the plaintiff had a right of appeal which he did not exercise, the venue for revision was not his right so the High Court ought not to have revised the order of the trial court; and (ii) that he was denied a hearing in the revision, a fundamental · irregularity which justifies setting aside the revisional order. It is the contention of the applicant that the High Court should therefore have given him leave to challenge the revisional order in the Court of Appeal of Tanzania. Hence this application for leave to appeal against the said revisional order. 4 The applicant cited the cases of M~ses Mwakibete versus The Editor, Uhuru Newspaper (1995) TLR 134; Halais Pro- Chemie versus Wella A.G. (1996) TLR 269; and Transport Equipment versus D.P. Valambhia (1995) TLR 161 wherein the Court of Appeal of Tanzania rejected applications for revision because the applicant had the option of appeal but chose not to exercise it. The Court stressed that only in exceptional circumstances would the Court of Appeal exercise its revisional powers. As Mr. Kamara, learned advocate submitted, the cases cited by the applicant are distinguishable because unlike the wide revisional powers conferred on the High Court under Section 44 (1) (b) of the Magistrates Courts Act, 1984, the revisional powers of the Court of Appeal are limited to exceptional circumstances. Section 44 (1) (b) of the Magistrates Courts Act, 1984 states verbatim:- 5 ''44 (1) In addition to any other powers in that behaff conferred upon the High Court, the High Court:- (a) (b) May, in any proceeding of a civil nature determine in a district court or court of a resident magistrate, on application made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit. If Provided that no decision or order shall be made by the High Court in the exercise of the jurisdiction conferred by paragraph (b) of this sub-section, increasing any sum awarded or altering the rights of any party to his detriment, unless such party shall have first been given an opportunity to be heard. 6 I have already observed that unlike the restrictive revisional power of the Court of Appeal, the High Court has wide powers of Revision under the provisions of Section 44 (1) (b) of the Magistrates' Courts Act, 1984. Mr. Kamara cited numerous authorities to support this view. In the case of Zabron Pangameza versus Joachim Kiwaraka and Another (1987( TLR 140 at Page 141 it was held that- "----Unlike Section 79 (1) (a) of the 1966 Civil Procedure Code, Section 44 (1) of the Magistrates Courts Act, 1984 goes beyond jurisdictional issues and covers all situations where it appears that there has been an error material to the merits of the case involving injustice." And in the case of Abdul Hassan versus Mohamed Ahmed (1989) TLR 181 at Page 184, it was held: "---- But revision under or taken as a result of exercise of powers under Section 44 (2) of the Magistrates Courts Act, 1984 and therefore . ' 7 under Section 43 (2) and 44 (1) of the same Act suffers no such limitation; other than that "it should appear that there has been an error material to the merits of the case involving injustice." In his ruling the revisional judge stated: "From the wording it is clear that the revisional power under Section 44 (1) (b) is wider than that under Section 79 [ of the 1966 CPC] whereas under section 79 the revisional power can only be invoked in the determination of issues involving jurisdiction, revision may be done under Section 44 (1) (b) on any issue --- its revisional power under Section 44 ( 1) (b) irrespective of whether or not a party who is applying for such revisional order has the right of appeal. This is not the position under Section 79 which is only applicable on decisions which are not appealable. Hence. in the present case the applicant's contention would hold water if the revisional application was filed under Section 8 79 challenging the jurisdiction of the trial magistrate. As a whole the intended appeal to the Court of Appeal does not raise serious issues of law as claimed by the applicant. The application for leave to appeal is accordingly dismissed with costs." The position taken by the learned Principal Judge is correct in law. With regard the applicant's complaint of being denied a hearing, I wish to point out that the revisional order allowed the suit to proceed to hearing because it is not res judicata Civil Case No. 75 of 1996 in the Court of Resident Magistrate, Morogoro. To that extent,. the applicant, like the respondent, will be accorded a full hearing when the suit is heard on merit. The revisional order the applicant wants to appeal against did not alter his rights to his detriment because the trial is yet to commence. . . . - . - -· ~ . All in all, I find no merit in the applicati~n foL leave. I _accordingly reject the application -for ieave to· appeal .. Costs to the· --respondent _-_- - DATED qt DAR ES SALAAM this 23 rd day of ·August, 2004. _,.,.-·· E: N. MUNUO ~- -- ·JUSTICE--OF APPEAL-; :, -- . I certify that this is a true copy of the original. ) R