20101116 TZHC Mwanza

•· ~~ ¥ -,r'~'I, 'V '\:_.) IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA MISCELLANEOUS CIVIL APPLICATION NO. 5 OF 2009 {Arising from Nyamagana District Court in Probate Appeal No. 3, of 2009/ and Misc. Civil Application. No. 18 of 2009 ,Originating frpm Mwanza Urban Primary Court Probate and Administration Cause No. 50 of 2007) LEILA JOHN KUNSINDAH ...................... APPLICANT Versus JEREMIAH L. KUNSINDAH ................ RESPONDENT RULING 20/10/2009 & 23/10/2009 NYANGARIKA, J. On 21/5/2007, the respondent was appointed by· Mwanza Urban Primary Court (hereinafter referred to as the trial court) to administer the estate of the late Leah L. Kunsindah who passed away on 20/1/2007. Thereafter, on 15/11/2007, the applicant attempted to object the .. appointment of the respondent before the same Primary Court but her objection was overruled on 9/1/2007. Dissatisfied by the decision of the trial court, on 9/3/2009, the applicant filed probate appeal No. 3 of 2009 before the District Court of Nyamagana at Mwanza (hereinafter referred to as the first appellate court). The said appeal is still pending in the First Appellate Court to date. Hoyvever, while probate appeal No. 3 of 2009 was still pending before the First Appellate Court, the. r~spondent sought and · obtain an I •. ·•. 'i!I _________________________________;~~::. . . _JJ I l' . injuction order under the Provisions of Order XXXVII rule 1 (a) of the Civil Procedure Code (cap 33 RE 2002) to stop the applicant from collecting rent from the tenants of the Estate of the deceased's house. and to vacate the tenants from that house in an application titled as Misc. Civil application No. 18 of 2009. The temporary injuction orders granted on 9/4/2009 in favour of the respondent by the First Appellate Court in Misc. Civil Application No. 18 . of 2009 is now the st:ibject of the present application before this court. In this application, the applicant was represented by Mr. Mag9iga, learned counsel and Mr. Kassim S. Gilla, Advocate from National Organization for Legal Assistance· (NOLA) appeared for the respondent. The respondent counsel raised a Notice of preliminary objection that: (a) The application for revision is premature. (b) This Honourable Court has no jurisdiction to determine this application. I: I i On the first objection, Mr. Kassim S. Gilla, learned Attorney for the respondent was of the view that the order sought to be revised was an interlocutory order granted by the First Appellate Court, which does not decides the rights of the parties. He said that the said interim order was open to be vacated; varied or discharged by the same First Appellate Court if moved under the provisions of Order XXXVII rule 5 of Civil Procedure Code. 2 i ' ,. ,.· The learned counsel· referred me to the case of John Mtinginj·a v. Pius Charles Kadena Misc. Civil Appeal No. 2 of 2003 (HC) (unreported) to support his argument. r :i [ ,., On the second ·limb of objection, the learned counsel for the respondent submitted that since the interim order issued by the First Appellate Court did not finally determine the matter, this Court has no jurisdiction to entertain and hear the present application as provided for under Section 43 of MCA as amended by Act No. 25 of 2002 which introduced the provisions of Section 43 (2) of MCA. Further, the learned counsel insisted that this court cannot be moved under both supervisionary and reversionary powers of this court. He said that the supervisionary power can only be exercised by an informal administrative complaint but not by a formal application. In response, Mr. Mgoiga, learned counsel, for the applicant submitted that the First Appellate Court was wrong to entertain and determine an application for temporary injuction under the provisions of Order XXXVII rule 1 (a) of Civil Procedure Code. He said such an application, if any, was supposed to have been made before the trial court itself. Further, he spbmitted that the first Appellate Court has no jurisdiction to issue the purported temporary orders and therefore the applicant could not apply the provisions of Order XXXVII rule 5 of Civil Procedure Code to have the said orders vacated, varied or discharged as suggested by the respondent's counsel. 3 -, ~_.-,.,..µ~,I .....,, •.,_,.~;, i-:',u,!O Mi -•· h( -~ ,· :} .1'l •.. ;; • . 1.··, . .. ;,1·1.~ . He said that although the cited case is not binding, the facts and t ·\ ff circumstances are not the same because the present application is not an ') ., appeal. The learned counsel for the applicant submitted· that the present application was carefully and intelligently presented under Section 30(1) (a) of MCA to move this court under supervisionary powers and _not under . Section 43 (2) of MCA as argued by the respondent counsel. He said that there was no any other remedy to correct the material error committed by the First Appellate Court other than the present application, and therefore the application is not premature. Regarding the second limb of objection, Mr. Magoiga, responded that the present application is gauged under Section 30 (1) of MCA and not under Section 43 (2) of MCA. He said that the procedure of moving this court to exercise its supervisionary powers is not limited by way of an informal administrativ~ complaint as suggested by the respondent counsel. The counsel was of the view that the method he has chosen of filing a formal application appears to be the best as both parties will have an equal opportunity of being heard before this Court rather than an informal method where the complainant is the one heard only. The learned counsel for the applicant submitted further that the effect of. the purported temporary orders issued by the First A~pellate Court had the effect of pre - determining ····· .. the pending appeal. .. . 4 After heating the preliminary objections I ruled that I shall decide the objection when I have heard both parties on the application itself. ' I will t~erefore now decide whether the application is incompetent or otherwise on the strength of ~he objection raised. However, I must wam myself that in discussing, the objection, I do not appear to Pre - empty or pre - judge the application itself. In the case of Musika Biscuit Manufactoring Ltd v. West End Distributors Ltd (1969] EA 699 at page 700, law JA held that: "So far as we are aware a preliminary objection consists of points of law which has been pleaded or which arises by necessary implication out of the pleading and ·which where argued as a preliminary point may dispose of the suit. Example is an objection to the jurisdiction, a plea of limitation or submission that parties are bound by contract giving rise to the suit to refer the dispute to arbitration." ! ' Sir Charles Newbold at page 701 states: "A preliminary objection is nature of what used to be a demurer. It raises pure points of law which if argued on assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." L i 5 I: I :i J In Bikubwa Issa Ali v. Sultan Mohamed Zahran [1997] TLR 295 (HC) this court held that a preliminary objection on an issue which needs to be proved one way or the other cannot be relied upon to dispose of the suit. With the above principles of law in mind, I now turn to decide the preliminary objection raised by the respondent in this application. The first objection raised is that the application for revision is premature because the applicant had an avenue before the same First appellate court under the provisions of order XXXVII rule s of Civil Procedure Code. First ad Foremost, the present application has been filed under the provisions of Section 30 (1) (a) of the MCA (cap 11 RE 2002) calling this court to exercise its general powers of supervision over the first Appellate Court to satisfy itself as to the correctness, legality and /or propriety of the ruling issued by Rujwahuka, SRM. Therefore this court can only exercise its reversionary powers upon being satisfied or convinced one way or the other after hearing the parties that indeed the ruling appears to have some problems. Therefore, I am satisfied in my mind that the instant application is not an application for revision but rather it is an application moving this court to exercise its supervisionary powers for calling and inspecting the record of proceedings of the first appellate court in order to satisfy itself as to the correctness, legality and propriety of the ruling or order contained in the record of the subordinate court. 6 Thereafter, if this court is indeed satisfied that the ruling or order or proceedings of the First Appellate Court appears to be incorrect or illegal or impropriety, then, it can decide to exercise its reversionary powers after .i calling and hearing the parties. I am saying so because this court may decide to exercise its super visionary powers of calling · the record but decline to exercise its 'i ·; reversionar:y powers if it is satisfied that there is nothing wrong in the record of p_roceedings of the subordinate court. Therefore the objection raised by the respondent is neither a pure point of law nor had qny legal significance to be considered. The Respondent's counsel had cited the case of John Mtinginya v. Pius Charles Kadero MZA Civil appeal No. 2 of 2003· (unreported) to support his argument and I may also add the case of Henry Lyimo v. Eliabu E. Matee [1991] TLR 93 (HC}, but with respect, the cases are not relevant in this matter. The second objection centres on the question of the jurisdiction of this court to entertain and decides the application. Apparently, the application moves this court under Section 30(1) {9} of MGA. With respect, it is not my intention to be drawn into the applicability. · of Section 43 of MCA as amended by Act No. 25 of 2002 at this preliminary stag~ in deciding whether or not the disputed order is an i I 7 i interlocutory or conclusive order so as to be entertained by this court. for revision. It will suffice to say at this stage that since this is an application calling this cou.rt to exercise its supervisionary powers under Section 30 (1) (a) of MCA, the issue w~ere the order intended to be surpervised is interlocutory or conclusive is not an issue at this stage. If it was an application for revision, then, Section 43 of MCA as amended by Act No. 25 of 2002 ought to have been cited as suggested by the respondent's counsel. As observed, this court, have jurisdiction under the provision of Section 30 (1) (a) of MCA to exercise its supervision powers over the · Resident and District Courts upon being moved both informal or formal. The idea that this court can only be moved to exercise its supervisionary powers informal and ~ot formal had no substance and with respect, such an idea might be tainted with a disturbed mind. The preliminary objections raised are both overrulled. Next, I will move to decide on the merit or demerit of the application. The record of the· first appellate court show that the applicant filed I probate appeal No. 3 of 2009 on 9/3/2009 and on 8/4/2009 a separated file was opened and numbered as Misc. Civil application No. 18 of 2009. 8 f.r.i:,sf~: :::r~t:;,;<~1: I The learned· Resident Magistrate incharge is minded that this trend of opening . duplicate or separate files has . . been abolished as it tends to interfere with ~he smooth administration .of justice. Every applicatioll including Misc. Civil application No. 18 of 2009 must be included in the · main file record of appeal. In my view, the order issued by the First Appellate Court on 9/4/2001 is pregnant on two folds: One; The provisions of the law of Civil Procedure Code ( cap 33 RE 2002) under which the order was sought and granted does not apply to the Resident and District Courts when hearing appeal originating from Primary Court (see the case of Julius Petro versus Cosmas Raphael [1983] TLR 346 (CA), I had an occasion to examine· closely the scope and application of the provisions of order XXXVII rule 1 (a) and 5 of the Civil Procedure · Code (cap 33 RE 2002) and I think the said provision applies only where ! there is a suit pending. I The purpose of an interlocutory order is to preserve the status Quo l I of the parties before the suit is disposed off. Two; The applicant was not afforded an opportunity of being heard. The First Appellate court should have known that the applicant could not I be heard as he could not be_ able to canvas fully her objection to the I· I application without compromising her right when the matter was I only called for mention, a day before she was·served. I' li , 'I It_ may be argued that the brief address to the First Appellate Court . by Mr. Kabonde, learned counsel, might have amount_ed to a hearing on ,, 1: the part of the _applicant. t Ii In fact, that itself goes to show_ the difficult position the applicant II ' and his Advocate were put into being forced as it were, to say something in connection with the unexpected application in a· very short notice, which the First Appellate Court had wrongly entertained in a parallel separate file other than that of the main appeal. . The importante of right to be heard has been commented upon many eminent judges over the centuries. · Nearly, three centuries ago in R v. University of Cambridge, 1723, I Stra. 557 Cited with approval by Meggary Jin John v. Rees and others [1969] 2 ALLER 274, Vortescue, J. used the following celebrated words to emphasize the importance: . "The laws of God and Man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by very learned man upon such an occasion that even God himself did not pass sentence upon Adam before he was called upon to make his defence. Adam {says God) where art Thou? Hast thou not eaten of tree whereof I commanded three that thou should st not eat? And the same question was put to Eve also." I am satisfied that the first Appellate Magistrate erred in hearing the application in the circumstances as Mr. Kabonde could not even advance .• "\•:·:>: ·_-;;,~c,;:r·:· - - - / ~ ~ .I full arguments against the app"lication and infact the applicant was in effect condemned unheard. Three; It was also pointed by Mr. Magoiga that the order had another serious defect which render it illegal. He said that the order was not an interlocutory but conclusive. Plainly, the order had the effect of restraining the applicant from collecting rent and vacating the tenants pending appeal. In my view, the only interlocutory order open to the parties where an appeal is pending is that of stay or suspension of execution of a decree or order appealed from as envisaged under Section 24 (1) (b) (ii) of _MCA. It follows, therefore that the First Appellate Mag!strate has no jurisdiction to entertain an application for temporary injuction under _Order XXXVII rule 1 (a) of Civil Procedure Code (cap 33 RE 2002) pending appeal. Consequently, the entire proceedings and orders given by the First Appellate Magistrate in Misc. Civil application No. 18 of 2007 are null and void obinitio. .·,.1 The application succeeds and I therefore nullify the entire '' proceedings, quash and set aside all the orders granted therein but with no orders as to costs. :- ' 11 \-::;·;_·;.._;,;____;~====-=-----=--,=;a,.•------------------------__;, . , , . . I direct that Probate Appeal No. 3 of 2009 which is still pending before the First Appellate Court be heard by another magistrate with competent jurisdiction. Order accordingly. .,) K. M. yangarika JUDGE ''.-; ◄ t.'· /\,,;,, ,~:-:/ -.~.... .. I,,{!.;: ... ,.,,,,~,~""''"".,..,,,,. :, il '! i; i; 12 I • I l , ··•--·----------...........--..,.,,..-----~-------------------------' . ..,.,, ., ~ .., _---· . .._.-;. ~-:~s,:_f:··ii~;~;2:< :;_;.:;~~;~ . Order: - Judgment delivered today in the presence of _the appeUant in person and Mr~ Gallati ....: Learned Counsel for the Respondent. I I ;I :I,, 1· 1'.I ;I I ;i,, ij 16