geita gold mine limited vs dominic ishengoma 2013 tzhc 2019 12 september 2013

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION CIVIL REVISION NUMBER 05 OF 2010 (Arising from Miscellaneous Civil Application Number 13 o f2009 and Miscellaneous Civil Application Number 17 o f2009 o f the Resident Magistrates Court o f Mwanza.) GEITA GOLD MINE LIMITED................ •APPLICANT VERSUS DOMINIC ISHENGOMA......................... RESPONDENT RULING 30/08 & 12/09/2013 S. S. MWANGESI J.: The applicant herein has lodged an application under the provision of section 44 (1) (b) of the Magistrates Courts Act, Cap 11 of the Laws Revised Edition of 2002, moving this Court to be pleased to call, examine and revise the records of the Honorable Resident Magistrates Court of Mwanza in Miscellaneous Civil Applications Number 13 and 17 both of the year 2009, and give the necessary directives as it might deem just and proper. The application has been supported by sworn affidavit of one Kashindye Kichanja. Upon being served with the chamber application, the respondent has raised a preliminary objection founded on a number of grounds. And, by an order of this Court (Hon. Mruma J.), dated the 13th March 2013, it was ordered that, the preliminary objection had to be argued by way of written submissions, and 11th day of April 2013, was set to be the ruling date. However, when the learned Judge was in the course of preparing the ruling on the submissions that have been promptly lodged by the parties in compliance with the scheduling order, he noted that, an earlier order that had been issued by this Court (Hon. Nyangarika J.), of requiring the applicant to deposit in Court as security the decretal sum of TZs 50,730,000/=, as adjudged by the trial Court, had not been complied with. To that effect, he has refrained from disposing off the preliminary objection to await compliance with the order of the Court first. Following the transfer of Honorable Mruma J. from this station to another station of work, this case file has found its way onto my desk, to proceed from where it ended. And upon having satisfied myself that, the order of this Court dated the 05th October 2010 (Hon. Nyangarika J), of requiring the appljcant/judgment debtor to deposit in Court TZs 50,730,000/=, as a condition for staying the execution has been complied with since the 07th March 2013,1 will now proceed to consider the merits and demerits of the preliminary objection that has been raised by the respondent as contained in the already filed written submissions. As earlier hinted above, the grounds of the preliminary objection that have been raised by the respondent are numerous numbering to about six or so. At the outset, I would wish to applaud both sides and in particular the respondent, for the efforts which they have made in compiling their detailed written submissions of which, I believe was aimed at being a bit rather very precise. In the same vein, I will try my utmost to follow suit by being precise and concise for the sake of eluding a rather bulky and/or boring ruling. My reading of all the grounds of the preliminary objection that have been raised by the respondent to the application by the applicant, have noted that, there are some of which under the spirit of preciseness, might deserve to be fast tracked in their disposition because, their answers are somehow straight forward.. These grounds include ground number three and number five. In ground three of the preliminary objection, it has been argued that, the application is incurably defective for bearing an improper jurat of attestation. To my understanding, jurat of attestation is concerned with an affidavit and not an application. No wonder, even in his written submission, the respondent has discussed about affidavit and not application as contained in his ground of the preliminary objection. Undoubtedly, what can be noted here is that, preciseness has let down the respondent. The foregoing argument will as well be extended to the fifth ground of the preliminary objection, where it has been submitted that, the application by the applicant is incurably defective for containing points of law. Again according to the arguments that have been raised in the written submission, they suggest that, the intention of the respondent was to argue about the affidavit, which unfortunately is not the case in his ground of the preliminary objection which he has raised. As such, this ground of the preliminary objection cannot as well, detain me any longer as it appears to have been misconceived if not misplaced. In the sixth ground of the preliminary objection, the respondent has argued that, the application is bad in law for trying to revise the decision of the Resident Magistrates Court and the Labor Officer instead of the decision of the Minister for Labor. In amplification in his written submission, it has been the contention of the respondent that, the silence by the applicant to the decision of the Minister implies that, he did concede to the same. His current attempt to impinge what the Resident Magistrate has been intending to do, is improper, because what the Resident Magistrate is doing, is just to enforce such decision of the Minister as a decree, in compliance with the provision of section 27 (1) (c) of the Security of Employment Act Cap 387. Reliance to this stance has been sought from the decision of this Court in the case of Shaaban Msenaesi Versus National Milling Corporation Civil Appeal No. 44 o f1994, High Court Registry Mwanza (unreported). The response from the applicant has been that, their complaint in the application is not pegged on the decision of the Minister, which they believe to be final, but. rather on the modality of executing such decision, a's taken by the Resident Magistrate. On my part, Iam in agreement with thesubmission from the applicant that, what is being soughtin the application at hand, is not to revise the decision of the Minister, but the interpretation that has been given by the Resident Magistrates Court to such decision. This Court is thus being invited to assess as to whether in the words of the Minister, the amount assessed by the Resident Magistrate to get executed in terms of the provision of section 28 (1) (c) and not 27 (1) (c) as cited by the respondent, was correct as contrasted to the one assessed by the Labor Officer, or any other amount more or less than the one under discussion. Under the circumstances, the authority of the decision in the case of Shaaban Msengesi (supra), which has been cited by the respondent, is inapplicable to the circumstance of this matter. The contention of the respondent in the fourth ground of the preliminary objection has been to the effect that, the application by the applicant is incurably defective for being brought under revision instead of appeal. If I have correctly grasped him in his written submission, it has been his understanding that, the act by the Resident Magistrate in Miscellaneous Civil Application No. 17 of 2009, to permute the amount of money td get executed against the applicant from TZs. 63,170,000/=, as assessed by the Labor Officer to TZs 50,730,000/=,was already a revision and that, in case the applicant was not satisfied by such an amount, then he ought to have appealed against such findings of the Resident Magistrate and not otherwise. From the other hand, it has been submitted on behalf of the applicant that, the order of the Resident Magistrate could not have been appealed against because it is not among appealable orders in terms of the provisions of Order XL Rule 1 of the Civil Procedure Code Act, Cap 33. In my view, I do not think that the respondent is correct to content that, the computation that was made by the Resident Magistrate as regards his entitlement to get executed against the appellant could not be equated to a revision. The same was made to just satisfy itself as to whether the figure that was presented' to it by the Labor Officer was proper. And, as argued on behalf of the applicant, such assessment could not be appealed against, because it is not appealable in terms of the provision of Order XL Rule 1 of the Civil Procedure Code Act. To that end, this ground of the preliminary objection has to flop. The application being brought under wrong citation of the law is the gist of the second ground of the preliminary objection. According to the respondent's version, the application before the Resident Magistrates Court was just for execution of the Minister's decision in terms of theprovision of section 28 (1) (c) of the Security of Employment Act Cap 387. The factthat the genesis of the decree under execution is the decision of the Minister, then any application to challenge it, cannot be made under the provision of section 44 (1) (b) of the Magistrates Courts Act Cap 11, because the same carters for only matters arising afresh from the District/Resident Magistrates Court. In his opinion, sections 79 and 95 of the Civil Procedure Code, Act could have served the purpose. As such, he has prayed for dismissal of the application for incompetence on non- citation of proper provision of law. A number of authorities have been cited to back up the contention. The response from the applicant has been that, while they appreciate the fact that, the proceedings at hand trace their origin from the decision of the Minister for Labor while exercising his powers under the Security of Employment Act, their concern is with the Court's move to require them to pay the respondent an amount of TZs 50,730,000/= which in their view, it has not been supported by the law. The same has been the cause for lodging the current application, aimed to move the Court to look into the legality of such an amount. And with regard to the provision of section 79 of the Civil Procedure Code Act, which has been proposed by the respondent, it has been the opinion on behalf of the applicant that, such provision is only applicable, where this Court is exercising its powers of revision suo motu and/or, where the subordinate Court has acted without jurisdiction as per the holding in the case of Zabron Panaamaieza Versus Joachim Kiwaraka and Another f 19871 TLR140. I am agreeable to what the applicant has submitted that, the provision of section 79 of the Civil Procedure Code Act proposed by the applicant, is inapplicable in the circumstance of this Case because, as held by the Court of Appeal in the case of Zabron Pangama/eza (supra), this section is primarily if not wholly, concerned with the jurisdiction of the Court. The fact that, the Resident Magistrate Court has jurisdiction to enforce the decision of the Minister for Labor, then there was no ground to ask for its revision under the section proposed by the respondent. To the contrary, the provision of section 44 of the Magistrates Courts Act which has been applied is the proper one. To that end, this ground of the preliminary objection has also to fail also. In the first ground of the preliminary objection, it has been submitted by the respondent that, the application is incurably defective for containing an improper verification clause in the affidavit, in that, the verification did not disclose the source of deponent's information and knowledge in particular in paragraphs 9, 10 and 11. Furthermore, the place where the affidavit was sworn has not been shown and it has not been dated. It has been the averment of the respondent that, such omissions were fatal and rendered the application incompetently before the Court. To fortify his assertion, the respondent has sought refuge from a number of authorities that include, Order VI Rule 15 (2) and (3) of the Civil Procedure Code Act, Salima Vuai Forum versus Registrar o f Co-operative Societies and Three Others Civil Appeal No. 36 o f 1994 CAT (unreported) and Wananchi Marine Products Limited Versus Owner o f Motor Vessels Civil Case No. 123 o f 1996 High Court Dar es Salaam Registry (unreported). In rebuttal, it has been asserted on behalf of the applicant that, the affidavit by the applicant's Principal Officer has complied with all the requirements required by the law. And, as regards the content of paragraphs 9, 10 and 11 of the affidavit, the source of information has been disclosed, which is according to the applicant's own knowledge. Or-else it has to be proved otherwise by the respondent through evidence, which in any case, it cannot be disposed of by way of preliminary objection. And with regard to the requirement under the provision of Order VI Rule 15 of the Civil Procedure Code Act, which has been mentioned by the respondent, the opinion of the applicant is that, the requirement under the same are applicable in pleadings which do not include affidavits. The relevant provision under the Code for affidavits is Order XIX Rule 3 (1), which has been complied with by the applicant. % As correctly submitted on behalf of the applicant, the provision of Order VI Rule 15 (2) of the Civil Procedure Code Act, which has been used by the respondent to challenge the affidavit sworn by the applicant, is not applicable in affidavits as the same concern pleadings. It would appear that, he has been misled somewhere. The applicable provision in so far as affidavits are concerned is Order XIX Rule 3 (1) of the Civil Procedure Code Act as rightly pointed out by the Counsel for the applicant. And with regard to the contention that, the source of information regarding the content of paragraphs 9, 10 and 11 of the affidavit has not been disclosed, such contention is not correct because the deponent has asserted that, the information contained in the said paragraphs, is according to his own knowledge. So if the respondent knows otherwise, then that is a question of evidence, which cannot be disposed of by way of a preliminary objection as argued by the applicant. Under the circumstance, the preliminary objection that has been raised at this moment, has been prematurely made and cannot therefore be sustained. My general view upon having dispassionately observed the affidavit being challenged by the respondent, it is my conviction that, the basic requirements as stipulated under the provision of Order XIX Rule 3 (1) of the Civil Procedure Code Act, have been complied with. In so stating, I believe I am backed up by the holding of the Court of Appeal in the case VIP Engineering and Marketing Limited Versus Said Saiim Bakhresa Limited Civil Appeal No. 47 o f 1996 CAT (unreported), which has been cited by the applicant when it held in part that; "Rules o f procedure do differ in importance as some are more vital and go to the root o f the matter and therefore cannot be broken. Others are not o f that character and therefore can be overlooked provided there is substantial compliance with the rules as a whole and provided no prejudice is occasioned. " What is basic in the instant matter the way I see it, is the fact that, the respondent has to be paid his entitlement as adjudged in the decision of the Minister. Since the dispute so far is on the amount which he is entitled to, it is pertinent that, this Court be given the requisite time to assess as to whether the amount assessed by the Resident Magistrates Court, which is lower to that assessed by the Labor Officer is fair or not. To that end, I would reject the preliminary objection which has been raised, and pave way to the sought revision and the costs to be in the course. j Order accordingly. 5. 5. Mwangesi JUDGE AT MWANZA 12 - 09 - 2013