mohamed amiry namlopa vs zahani khamis 2023 tzhc 23092 28 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY)

AT IRINGA CIVIL REFERENCE NO. 02 OF 2023 (Originating from Civil Case No. 4 o f2022 o f the Mufmdi District at Mafinga Court Before Hon. S.E Kyungu, RM) MOHAMED AMIRY NALOMPA ........................................... APPLICANT

VERSUS ZAHARANIKHAMIS ........................................... RESPONDENT

JUDGMENT 17th & 2£fh November, 2023 I.C. MUGETA, J: Briefly, facts leading to this reference are that the applicant's prayer for judgment on admission was rejected by the trial court for a reason that the admission was not explicit. Thereafter, in the course of the hearing of Civil Case No. 4/2022, the applicant sought to tender a document as exhibit. An objection was raised and the same was sustained. The exhibit was rejected. The two incidents aggrieved the applicant. He filed an application praying for, among other things, for reference to the High Court of the two rulings delivered on 17/4/2023 for the High Court's opinion. Other prayers are that the prayer for judgment on admission was erroneously rejected and that under Order XLI rule 5 of the Civil Procedure Code [Cap. 33 R.E Page 1 of 10 2019], the High Court to order judgment on admissionforTshs. 20,000,000/= and admission of the rejected exhibit. The application was granted. On 26/7/2023, by letter Ref. No. AB.34/1/114/01/5, the records of the trial court were remitted to this court for its opinion. The reference was madein terms of Order XLI rule 1 of the Civil Procedure Code whichreads: "Where before or on the hearing o f a suit in which the decree is not subject to appeal or where, in the execution o f any such decree, any question o f law or usage having the force o f law arises on which the court trying the suit

or appeal, or executing the decree, entertains reasonable doubt, the court may, either o f its own motion or on the application o f any o f the parties, draw up a statement o f the facts o f the case and the point on which doubt is entertained and refer such statement with its own opinion on the point for the decision o f the High Court". Inadvertently, I hope, the trial court referred the case without a statement of fact or a point on which doubt is entertained and its opinion on the point. On 11/8/2023, I required the parties to address me on the competency of the reference. Counsel for the parties, Dr. Ashery Utamwa, for the applicant and Benson Kuboja, for the respondent, were in Page 2 of 10 agreement that the reference cannot be heard without a statement of fact, point on which doubt is entertained and opinion of the trial court. They prayed and I granted that the file be remitted back to the trial court to state the fact, the point on which a doubt is entertained and its opinion on that point for the decision of this court. In compliance, the trial court drew the statement of fact and concluded: "That, there is no doubt that the subject matter o f this Reference to the High Court revolves around the issue of applicant being dissatisfied with decisions/ruling by this court. That, from the above statement o f facts, as both ruling not (sic) subject to appeal and for the

interest o f justice. This court entertain a reasonable doubt o f question o f law and usage arising in the course o fproceedings". Despite containing the statement of fact and the point on which doubt is entertained, the reference still lacked the opinion of the trial court on the point raised. Notwithstanding the obsecurity of what actually the point on which a doubt has been entertained is, as can be noticed from the above quotations, I formed the view that the trial court wished to get a decision, not an opinion, of this court on whether the two rulings are correct. The Page 3 of 10 applicant in the application had prayed the reference to be for the opinion of this court but that is not what Order XLI rule 1 of the CPC provides. The law requires this court to make a decision on the point raised not to give its opinions. After so determining, I required the parties to address me on whether a party's dissatisfaction with an interlocutory decision of the trial court can be referred to this court for its decision under Order XLI rule 1 of the Civil Procedure Code [Cap. 33 R.E 2019]. The learned counsel have presented their respective arguments by written submissions. However, besides the several arguments raised, I shall address arguments which I deem relevant to the point in issue only. Dr. Utamwa has submitted that the reference is proper as the two rulings are unappealable.

The learned counsel seems to suggest that this court should entertain this cause of action as an avenue to avoid the application of section 77 of the Civil Procedure Code. The learned counsel has submitted: "It is my submission that the two ruling... are none- appeiiabie in compliance to rule 1 o f Order XL, which means, they may come to the attention o f the High Court by way o f reference under Order XLI o f the Page 4 of 10 CPC... application for reference to the High Court is the only legal enjoyment o f the trial court subordinate to High court from the dictate o f section 77 o f CPC". Counsel for the respondent has argued that the orders of the trial court being interlocutory cannot be referred to this court for its opinion. He has cited several authorities of this court which I find unnecessary to reproduce. In rejoinder, counsel for the applicant has argued that if Order XLI rules 1, 2, 3, 4 and 5 are read conjunctively, the inevitable conclusion is that the impugned rulings are subject to reference. Since the argument of the learned counsel for the applicant centres on the rulings being unappellable, I think reference to section 77 is a slip of the pen. The section which bars appeals in interlocutory matters is section 74(2) of the Civil Procedure Code. If the learned counsel was trying to distinguish reference by the court under section 77 and under order XLI rule 1,

it is my view that the two provisions caters for two different scenarios. Be as it may, the issue for my determination remains whether the trial court correctly referred the case to this court for a decision. Page 5 o f 10 This reference, simple as it may appear, has seriously taxed my mind. The reason being that the learned trial magistrate has entertained a doubt on points she has already decided. I sought in vain help from Mulla, the Code of Civil Procedure, Order 46 which is in pari materia to order XU of the CPC. I found all cases described therein irrelevant to our case where I am called upon to grapple with the issue whether a point already decided can be referred to the High Court for its decision. In my considered opinion, I doubt if Order XLI was intended for that purpose. I am settled in my mind that the point of law or usage on which doubt can be entertained must be that which its determination is essential for the disposal of a pending issue in the case. It follows, therefore, that a doubt cannot be entertained on a matter which has already been determined as in this case. The fact that interlocutory orders are unappellable, as suggested by the trial court, does not create an avenue for invoking Order XLI to defeat clear stipulation of section 74 of the Civil Procedure Code. Such interpretation would bring unnecessary conflict between the two provisions. Page 6 of

10 Notwithstanding, Order XLI (1) stipulates conditions upon which a reference can be made. One of them, which in my view is fundamental, is that the suit ought to be in which the decree is not appellable. The decree in this case is appellable. Dr. Utamwa has argued that the word decree in Order XLI rule 1 includes orders. He has supported his argument by Order XLI Rule 2 where the word "order" is mentioned and urged the court to read Order XLI as a whole and not one rule in isolation of the other rules. I respectfully disagree. Rule 1 of Order XLI is a stand alone rule which does not need to be read with other rules to make it meaningful. I shall explain by starting with the import of rule 2 of Order XLI. Rule 2 provides: "The court may either stay the proceedings or proceed in the case notwithstanding such reference, and may pass a decree or make an order contingent upon the decision o f the High Court o f on the point referred..." (Emphasis mine). It is my view that rule 2 does not concern the reference made to the High Court. It provides for procedure at the trial court after making a reference. That the trial court may stay the proceedings or proceed with the Page 7 of 10 trial. In case it opts to proceed with the trial, the subsequent decree or order shall have no effect until the High Court has decided on the reference. It seems to me that counsel for the applicant has

read rule 2 and 5 of Order XLI with special interest in the use of the words "decree"and "order" and concluded: "... it is my humbie opinion that, for reference to High Court as per Order XLI when read wholesomely, are both decree and orders o f the trial court made before or during hearing" Respectfully, this is a misinterpretation of the law. Before I give the reasons let me reproduce rule 5: "Where a case is referred to the High Court under rule 1, the High Court may return the case for amendment and may alter, cancel or set aside any decree or order which the court making the reference has passed or made in the case out o f which reference arose and make such orders as it thinks fit". In order to understand the import of the phrase "alter, cancel or set aside any decree or order" in rule 5, one must take into account the types of reference available in rule 1. They are two. Firstly, reference before or on the hearing of the suit. Secondly, reference in the execution of the Page 8 of 10 decree. The cancellation, alteration or setting aside of any decree or order in rule 5, therefore, refers to reference during execution where the High Court can decide in any one of the said manners. Therefore, rule 2 and 5 of Order XLI does not elaborate on rule 1 nor permits reference to the High Court of any decree or order. The suggestion by Dr. Utamwa to open this avenue to

challenge interlocutory decisions may sound good. However, I do not buy it because I understand the policy and logic behind the bar. Reference under Order XU of the CPC, considering the prayers in the application at the trial court, cannot be allowed to be an appeal in disguise. In the event, I hold that the reference is incompetent. Reference under Order XLI of the CPC is not intended to challenge decisions of the trial courts. It is an avenue for seeking direction and guidance in a trial or execution process in those courts in case a doubt on a point of law or usage is entertained on a matter which the trial court has not decided. The exception is when the trial is of an appeal where a doubt can be stated regarding the decree of the trial court. In the event, I hold that in this case decisions have already been made that the judgment on admission cannot be entered and the exhibits Page 9 o f 10 are inadmissible. If the decisions are erroneous, remedies are obtained on appeal after a full trial. There is nothing on which this court can decide to further the disposal of issues in contention. The reference stands dismissed. Costs shall be in the course of the proceedings at the trial court. I direct, the trial court to proceed with the trial from the stage it stopped. 28/ 11/2023 Court: Judgment delivered in the presence of Mr. Cleopas Mheluka, learned advocate holding brief for Mr. Kuboja, learned advocate for the respondent and in the absence of the applicant. Sgd. I.C. MUGETA

JUDGE 28 / 11/2023 Page 10 of 10