20140000 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA ((?AR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CIVIL REVISION NO. 3 OF 2012 } t . MUGANDA 'CONSTRUCTION COMPANY ............................... APPLICANT

VERSUS '. TEMEKE MUNICIPAL COUNCIL ....................................... RESPONDENT

RULING F. Twaib, J: These are revision proceedings prompted by an application by Muganda Construction Company (the applicant), acting through learned advocate Eliya ·, Mbuya, pleading to this court to call for the record of the District' C66'rt ·of Temeke at Temeke in Civil Case No. 32 of 2007 and revise the same, on the ground that the District Court acteq illegally or with material irregularity. The applicant thus prays that the judgment and decree of the court dated 26 th August 2011 to be set aside. The-,application is supported by the affidavit of one ANSELM FLAVIAN MUGANDA who identifies himself as the proprietor and principal. officer of the applicant. He states that he was present when the impugned judgment was delivered on 26 th August 2011. Also present was one Eva Mchau, a Municipal Solicitor, who represented the respondent (defendant in the original case). ... ... Page 1 of 4 _, According to Mr. Muganda, though the judgment was apparently written and signed by the presiding Resident Magistrate, it was read and pronounced by a lawyer intern who was then in Court. The Magistrate had by then left his chambers. In other words, the judgment was delivered to the parties' representatives by the intern and in the absence of the presiding Magistrate . . i Mr. Muganda later realised that the intern did not record his name and neither . '. did he r~cord the names of the

parties' representatives who were present. The . applicant thus opines that this was irregular and vitiates the judgment. The respondent has filed a counter affidavit through its solicitor EVA PHILIP MCHAU, who denied the allegation that the judgment was pronounced by an intern. She averred that the learned trial magistrate pronounced the judgment himself and the intern was merely present as part of his learning process. Ms. Mchau thus maintains that there was no irregularity in· pronouncing the judgment. Submitting in support of the application, learned counsel Mbuya told the court . that the record of proceedings shows that there was no coram recorded showing the names of the magistrate or the persons who appeared on behalf of the parties. He said that the plaintiff was a company and the defendant, a District • Council, was a Local Government Authority. They could not have appeared as such but through principal officers or solicitor, as the case may be. Council - Mbuya maintains that what happened during the delivery of the judgment was contrary to the provisions of Order XX rules (1), 2 and 3 of the CPC. He referred the Court to the decision of the Court of Appeal in Civil Appeal .: :1 No. 88 of 2008 between Dr. Maua Abeid Daftari and Fat171a Sa/min Said. Order XX rules 1, 2 and. 3 require that once the case has been heard the Court should pronounce judgment in open Court.

The judgment shall be written by, or reduced into writing under, the personal direction and ttile superintendence of the presiding Judge or Magistrate. Furthermore, under Sections 3 and 28 of the Page 2 of 4 . ' CPC, a judgment is defined as a statement given by a Judge or Magistrate of the grounds for a decree or order. It is clear from the above legal provisions that once written, a judgment must be pronounced by the Judge or Magistrate who wrote it, or under whose supervision it was written. The Court of Appeal in Dr. Maua Daftari (supra) struck out the appeal upon finding that the judgment, which was read by the Senior Deputy Registrar of the High Court instead of the presiding Judge (or successor Judge) I ;"/'• was invalid. It is to be noted, obiter, that the law has now been amended and Registrars are allowed to pronounce judgments of the High Ccourt on behalf of Judges where appropriate. Based on the parties' averments, the question that calls for determination 'is whether, in this case, it has been sufficiently demonstrated that the impugned judgment was read and pronounced not by the presiding Magistrate butnby an intern. The latter is not an employee of the Judiciary, let alone a Magistrate with competent jurisdiction. 1:,,,: fi·1. ..., '~ , ,.,.,,' ·, -~ The parties are not at one on this. The respondent refutes the applicant's ' I- :.•• statement that the judgment

was pronounced by an intern. As council for the respond submits, it requires very strong evidence to impeach the Court record. Mere assertions are not sufficient: see Nguza Vvking @ Babuseya v R. Crim Appeal No. 84/2004 (HCT - DSM). Hence, this dispute can be resolved by reference to the record of the Court. Who, from the record, pronounced the judgment? The proceedings do not show _, ~- .. ,· that the judgment was pronounced by the intern. In fact, they do not show who _ pronounced it at all, as there is no record of the coram before which the judgment was delivered. As counsel Mbuya contends, this' is a serious irregularity. While it is difficult to conclude that it was the intern who pronounced .the judgment, it is not clear from the record who pronounced it. From what one .j Page 3 of 4 .. ·.., l can see from the record, the judgment could have been pronounced by the Magistrate, the intern· or even the Court Clerk! A judgment whose pronouncement cannot be ascertained from the record is Jnvalid and cannot be allowed to stand. For the foregoing reason, I would allow this application for rev1s1on. The Applicant has· urged this court to set aside the judgment and order a retrial. The respondent on the other hand has contended that all that the Court can do is to order that the judgment be properly pronounced according to law. I agree. The only irregularity in the proceedings of

the trial Court as we have seen is in the . pronouncement of the judgment. The applicant did not allege any irregularity anywhere else in the proceedings. For these reason, I would only set aside the judgment as purportedly pronounced on 26th Aug~st 2011 and order that the file be returned to the .,, ., District Court where the judgment shall be pronounced according·to law by the , •. <t\·, •'.1 learned trial Magistrate or a successor Magistrate. DATED arid DELIVERED at Dar es Salaam this ......... day of ........................

2014. F. Twaib

JUDGE Page 4 of4