nathaniel

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA PC CIVIL APPEAL NO. 24 OF 2023 (Arising from the decision of Tabora District Court in Civil Revision No. 4 of2022, originating from Tabora Urban Primary Court in Civil Case No. 121/2022) NATHANIEL STEPHANO MBOYA............................... APPELLANT VERSUS SADUNI ISSA MUTABUZI...................... RESPONDENT JUDGMENT Date of Last Order: 22/08/2024 Date of Delivery: 29/08/2024 MANGO, J. The Appellant has lodged this appeal against the decision of Tabora District Court in Civil Revision No.4 of 2022. The brief facts that led to the present appeal are that, the Respondent Saduni Issa Mutabazi filed a suit against the Appellant in Tabora Urban Primary court claiming for Tshs 16,200,000/= being a consideration for purchase of a house which belongs to the Appellant. At the trial, the Respondent never attended physically in court but he was represented by Magreth Mabula learned advocate from 19th October 2022 to 2nd November 2022 when the advocate withdrew her services from the Appellant for lack of cooperation. On 09th November 2022 when the matter was called on for hearing, Monica Julius Toba appeared i with a power of attorney empowering her to represent the Appellant. The Court after being satisfied with the contents and competency of the power of attorney granted to Monica Julius Toba by the Appellant, recorded existence of the power of attorney and continued with hearing of the matter. The said Monica admitted the claim and the Court entered a judgement on admission in favour of the Respondent. Record also shows that the Respondent filed an application for execution which was heard, and the court ordered attachment of the Appellant's house located at Kidatu Mtendeni within Tabora Municipality. From there, records are silent on whether or not execution proceeded or was stayed. Aggrieved with decision of the trial court, the Appellant filed an application for revision before Tabora District Court, the same was struck out for being incompetent. Hon. Magistrate held that, the Appellant was supposed to file an appeal instead of an application for revision because there were no exceptional circumstances to warrant revision. Dissatisfied with the findings of the District Court, the Appellant filed the current appeal with five grounds of appeal as follows: - 1. That the learned District Magistrate erred in law and facts when he dismissed the application for revision on grounds of incompetence against the interest of justice and known principles of law governing revision against the proceedings of the primary court. 2. That in applying the general law instead of specific law the learned magistrate misdirected himself against the interest of justice. 2 3. That the learned magistrate erred in law by reading the application in piece meal in attempt to justify the pre-determined will to dismiss the matter against the interest of justice. 4. That the learned magistrate upon having expressed his intention to dismiss the application on any ground which leads to his raising the objection suo moto, erred in law and facts when proceeded to determine the matter contrary to the principles of natural justice and without a ruling on his impartiality over the proceedings. 5. That the learned magistrate on account of on inapplicable, irrelevant and distinguishable authorities, erred in law and facts when holding that the matter was incompetent for being brought by way of revision instead of appeal. During hearing of this appeal, the Appellant was represented by Mr. Kelvin Kayaga, learned advocate whereas the Respondent was represented by Mr. Khalid Suddy Rwebangila, learned advocate. Submitting on the 1st ground of appeal, Mr. Kayaga asserted that, in the case at hand the Appellant was not present when the case was called for hearing, rather the Respondent and the trial Court forced the Appellant's wife to appear and answer the complaint in lieu of the Appellant, then such right to be heard was indeed impaired, especially since the same person was not instructed by the Appellant to appear nor answer on his behalf. He referred to the case of Julius Petro v Cosmas Raphael [1983] TLR 346 wherein the Court emphasized that a legal representative who needs no power of attorney to represent a party is an advocate or a public prosecutor. 3 He went on to submit that, the procedure applicable in Primary Courts permits a party to be represented by a close relative but for such representation to be made the party (named party) in the proceedings must make such prayer to the Court and authorize such representative to appear on his behalf, something which was not complied in the case at hand. Submitting on the 2nd ground of appeal, the counsel argued that, whenever there is a general law and a specific law, it is the specific law that should take precedence. He faulted the findings of the Magistrate in holding that the Application was incompetent relying on the general position of the law as shown in the case of Erasto Ngailo v Blastus Allen Mgimwa, Misc. Land Application No. 15/2022, HC at Iringa, (unreported) and that of Adrofu Fulgence Mfumya v Juma Hereye & others, Civil Application No. 33/2021, CAT at Kigoma. He added that, supervisory powers of the District Courts over Primary Court proceedings are provided for under section 22(1) of the Magistrates Courts Act, [Cap.ll R.E 2019]. Hence there was no justifiable grounds to limit the jurisdiction of the District Court contrary to the spirit of the law. He cited the case of Tanzania Electric Supply Company Ltd v Shaffi Ali Nuru, civil Appeal No. 02/2018, CAT at Dar es salaam (unreported). On the 3rd and 4th grounds of appeal Mr. Kayaga challenges the impartiality of the District Court, he stated that it was wrong for Hon. Magistrate to ignore the impartiality concern and treat them as mere lamentation in a language that would underline the same fear. He referred to the case of Charles Mayunga @ Chizi V R, Criminal Appeal No. 493/2015. 4 On the 5th ground of appeal the counsel for the Appellant submitted that, the central issue subject to Revision was the conduct of the proceedings and the order inclusive as opposed to a challenge against the order only. He pointed out that, the admission to the claim made by third party amounts to illegality which was supposed to be dealt through revision. He prayed for the appeal be allowed with costs. In reply, Mr. Rwebangila, learned advocate, argued the 1st, 2nd and 5th grounds collectively. He submitted that, for a court to exercise revision jurisdiction it has to satisfy that there is no right of Appeal and that there are exceptional circumstances. He insisted that, the Appellant sought revision of the primary court decision which was appealable. He is of the view that, the alleged procedural irregularities and the entire decision of the Primary Court may be challenged via an appeal. According to the learned advocate, there was no misconception of the law and irregularity in the proceeding and the decision of the District Court as alleged by the counsel for the Appellant. He referred the Court to the case of Golden Palm Limited versus Cosmos Properties Limited, Civil Application No. 561/01 OF 2019 (CAT) to the effect that Revision cannot be invoked in alternative or a substitute of Appeal. He also contended that on the 9th day of November, 2022 when the matter was fixed for hearing the wife who represented the Appellant had the power of Attorney to represent the Appellant and the Court upon due consideration and authentication had no objection for such representation. 5 He urged this Court to consider that Court's records are accurate and unimpeachable as it was stated in the case Of Daffi Axwesso Umbe and Another Versus National Microfinance Bank Pic, Civil Appeal No 27 OF 2022 (HC). On the 3rd and 4th grounds of appeal the attorney averred that the allegation of impartiality by the Appellant's counsel towards the Court and learned Magistrate are in bad faith and are surreptitiously meant to mislead the Court because when the court raised the issue of competence of the Application suo moto, the parties were availed right to address the court on that aspect. He prayed for the appeal be dismissed with costs. I have considered submission by the parties and Court record. My reading of the grounds of appeal I find them centred on two issues. First the alleged dismissal of the application on grounds of incompetence against the interest of justice and known principles of laws governing revision of proceedings of the Primary Court by the District Court as it appears in the first, second and fifth ground of appeal. The second issue is basically accusations and personal attack against the Magistrate who determined the application as they appear in the third and fourth grounds of appeal. I will not write much on the accusations that Hon. Magistrate read the Application in piece meal and that, he had a predetermined intent to have the application dismissed on any ground because the accusations are not borne by Court record. My thorough reading of Court record reveals that, Hon. Magistrate reminded parties of the necessity of having the matter 6 disposed by 30fch August 2023 in order to prevent the case from becoming overdue, backlog. As correctly submitted by the Respondent's .counsel, when the Magistrate doubted the competency of the application, he informed parties and they were all afforded right to be heard. Later Hon. Magistrate pronounced his decision. In such circumstances I find the accusation to be unfound. In determining the first issue I find it necessary to point out that, in this appeal, powers of this Court are limited to determining whether the matter before the District Court ought to have been pursued by way of an appeal or revision. Having said so, I will not dwell much on the alleged procedural irregularity which were actually not determined on merits by the District Court. However, parties should keep in their minds that, procedural irregularities, if any, should be backed up by Court record and not parties' opinion. On whether the decision of the primary Court and the alleged procedural irregularities need to be challenged by way of revision or appeal, I agree with Hon. Magistrate that, where the right of appeal exists, a party should not pursue revision as an alternative to appeal. I also agree with Hon. Magistrate that a judgement on admission is very different from consent judgement and the former is appealable. There is no law that limits appeals originating from judgement on admission. The Courts have determined a number of appeals that originates from judgement oh admission. In Junior Construction Co. Ltd and 2 others versus 7 Mantrac Tanzania Ltd, Civil Appeal No. 252 of 2019, the Court of appeal determined an appeal that originates from a judgement on admission in Commercial Case No. 10 of 2017 entered by the Commercial division of the High Court. In National Bank of Commerce and Another Versus Ahmed Ali Abderhaman Civil Appeal No. 18 of 1995, the Court of appeal determined an appeal which originates from a judgement on admission entered by the High Court of Tanzania, Tanga sub registry in Civil Case No. 24 of 1993. In this case, the manner of recording of judgement in admission and extent of admission was challenged. The Appellant in this matter may also challenge the alleged procedural irregularities and legality of the judgment in admission entered by Urban Primary Court in Civil Case No. 121 of 2022 through an appeal. In such circumstances, I find no reason to fault a well-founded decision made by Hon. District Magistrate. The appeal is hereby dismissed for being unmeritorious. However, given circumstances in this appeal, I do not award costs. Dated at Tabora this 29th day of August 2024 Z. D. MANGO JUDGE 8