20060601 TZCA Dar es Salaam4

IN THE COURT OF APPEAL Of TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, J.A., MSOFFE, J.A., And KA.JI, J.A.) CIVIL REFERENCE NO. 9 OF 2004 In the Matter of an Intended Appeal DAVID MWAKIKUNGA .............................................. APPLICANT VERSUS MZUMBE UNIVERS.ITY (SUCCESSOR IN TITtE OF IDM MZUMBE) .............. RESPONDENT (REFERENCE from the Ruling of a single Judge of the Court of Appeal of Tanzania at Dar es Salaam) (Munuo, J.A.) dated the 23 rd day of August, 2004 in Civil Application No. 131 of 2002 RUUNG OF THE COURT 17 May & 1 June 2006 l<AJI, J.A.: Way back in 1999 the respondent's predecessor-in-title, the Institute .of Development Management, Mzumbe, instituted RM Civil Case No. 2 of 1999 in the Resident Magistrate Court at Morogoro against tbe applicant, David Mwakikunga, for vacant possession of a residential house then occupied by the applicant. The applicant resisted the suit and raised a preliminary objection to the effect that the suit had already been decided in Civil Case No. 75 of 1996 and 2 therefore was Res Judicata. The preliminary objection was upheld and the suit was dismissed. The respondent was dissatisfied and moved the High Court to revise the matter under Section 44 ( 1) (b) of the Magistrates Courts Act, 1984. The applicant opposed the intended revision by way of a preliminary objection that, since the respondent had a right of appeal it ought to· have exercised that right instead of resorting to a revision. The preliminary objection was overruled on the ground that a revision under Section 44 (1) (b) of the Magistrates Courts Act, 1984 is proper even if the party has a right of appeal. The applicant was dissatisfied. He moved the High Court for leave to appeal to this Court, apparently under Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979. His application was dismissed on the ground that the intended appeal lacked serious issues of law worth consideration by the Court. The applicant was dissatisfied. Under Rules 43 (b) and 46 (3) of the Court of Appeal Rules, 1979 and Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979 the applicant lodged his application before a Single Judge of the Court for leave to appeal to the Court. His main complaints against 3 the revisional order were two, as deponed in paragraphs 9 and 10 of his affidavit, that is:- (i) That, because the respondent had a right of appeal which it did not exercise, the venue for revision was not its right and the High Court ought not to have revised the order of the trial court; (ii) That, he was denied a hearing in the revision which is a fundamental error. The learned Single Judge of the Court (Munuo, J.A.) considered the legal position of a revision by the High Court under Section 44 (1) (b) of the Magistrates Courts Act, as analysed by the High Court as well as the parties' submissions before her, and was of the view that, the High Court has jurisdiction to revise a decision under that provision of the law irrespective of whether or not the aggrieved party has a right of appeal. As for the other complaint that the applicant was denied a hearing in the revision, the learned Single Judge had this to say:- 4 "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 right to his detriment because the trial is yet to commence." Against that decision the applicant has preferred this application for reference. His main complaint is that the learned Single Judge erred in refusing to grant him leave to appeal simply because he will be accorded a full hearing when the suit is heard on merit. He pointed out that his complaint is not that he was denied a hearing at the Resident Magistrate Court, but that he was denied the same by the High Court at the hearing of the revision. On his part Mr. Kamara, learned counsel for the respondent, contended that, the applicant has failed to show sufficient ground to 5 fault the decision of the Single Judge which, in his view, is sound and proper. Mr. Kamara contended that, in exercising its revisional jurisdiction under Section 44 (1) (b) of the Magistrates Courts Act, the High Court is not bound to afford a party an opportunity to be heard, except where the revision involves increasing any sum awarded or altering the rights of any party in which case it is mandatory such party to be given first an opportunity of being heard. The learned counsel pointed out that, in the instant case the revision neither increased any sum awarded nor altered the applicant's rights, since he will be accorded full opportunity of being heard when the case is heard afresh before the Resident Magistrate Court. We must make it clear at this juncture that there is a difference between certification of a point of law for an appeal in a case originating from a Primary Court under Section 5 (2) ( c) and leave to appeal from a case originating from a District or Resident Magistrate Cou1t in their original jurisdiction under Section 5 (1) (c) of the Appellate Jurisdiction Act. Whereas for an appeal from a case originating from a primary court there must be a certificate that the 6 intended appeal involves a point of law, on the other hand for leave to appeal under Section 5 (1) (c) of the Appellate Jurisdiction Act what is required is that there must be an important issue or issues worth consideration by the Court. In the instant case, the applicant is complaining that, the revision was not properly conducted in that he was denied an opportunity of being heard. He wants to be granted leave to appeal to the Court so that the Court can decide whether it is proper to revise a case under Section 44 (1) (b) of the Magistrates Courts Act without according a party an opportunity of being heard where the court had been moved. He is complaining that the learned Single Judge did not address this issue. It is his view that, had she considered it she would have granted him the leave he had applied for. He wants this Court to fault her on this and grant him leave to appeal. As observed earlier on, the learned Single Judge refused leave, inter a!ia, on two grounds. First that the revisional order allowed the suit to proceed to hearing in the Resident Magistrate Court where the applicant will be accorded a full hearing when the suit is heard on merit. Secondly, that the revisional order the applicant wants to • 7 appeal against did not alter his right to his detriment because the trial is yet to commence. With due respect to the learned Single Judge, we think the issue here is whether it was proper to revise the case in which the applicant was the successful party without affording him an opportunity of being heard. In our view, we think, this is an important issue worth consideration by the Court. We are aware that Section 44 (1) (b) of the Magistrates Courts Act does not expressly provide that parties must be accorded an opportunity of being heard when a revision is heard. It reads:- "44 (1) (b) In addition to any other powers in that behalf conferred upon the High Court the High Court may, in any proceeding of a civil nature determined in a district court or a court of a resident magistrate, on application being 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; 8 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 or altering the rights of any party to his detriment, unless such party shall have first been given an opportunity of being heard." Our understanding of this provision is that, where the revision has been ordered by the High Court suo motu, the court can make a decision or order without necessarily giving the parties an opportunity to be heard, except where the decision or order given has increased the sum awarded or altered the right of any party to his detriment, in which case the affected party must first be given an opportunity of being heard. But where the revision has been initiated by a party, the other party must be given an opportunity of being heard before any decision or order is made irrespective of whether the decision or order is to his detr,.ment. In the instant case the revision was initiated by the respondent. We think the applicant should have been given an opportunity of . 9 being heard before the decision to quash the Resident Magistrate's _holding of a Res Judicata was made. Secondly, we doubt whether it is correct that the revisional order did not alter the applicant's right to his detriment. In Civil Case No. 2 of 1999 mentioned above the applicant had raised a preliminary objection that the suit was res Judicata. The preliminary objection was sustained and the suit was dismissed. The revisional order quashed that decision and ordered the case to be heard on merit. This, in our view, somehow altered the applicant's right who was a successful party, to his detriment. Since the applicant was denied an opportunity of being heard in the revision which had been initiated by the respondent, we are of the firm view that, this is an important issue worth consideration by the Court, and that, had the learned Single Judge considered it, she would have granted the leave sought. In the result we allow the application with costs and grant the applicant leave to appeal to the Court for consideration whether it is proper, where a revision has been initiated by a party, to deny the other party an opportunity of being heard. DATED at DAR ES SALAAM this 1st day of June, 2006. A. S. L. RAMADHANI JUSTICE OF APPEAL . J. H. MSOFFE JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original.