sumry high class vs sadallah ibrahim sadallah 2010 tzhc 246 16 december 2010

IN THE HIGH COURT OF TANZANIA

AT DODOMA CIVIL REVISION NO. 2 OF 2010 SUMRY HIGH C L A S S ................................... APPLICANT Versus SADALLAH IBRAHIM SADALLAH .......... RESPONDENT

REVISION ORDER HON. MADAM. SHANGALI. J. Som etim e in May, 2007 the plaintiff/Decree Holder, SADALLAH^ IBRAHIM SADALLAH had filed a suit before Dodoma Resident Magistrate Court against SUMRY HIGH CLASS defendant/judgem ent Debtor claim ing for refund of TShs.27,200/= special damages of T S h s.103,200/= and general dam ages of T S h s.15,000,000/= for inflating bus fare contrary to the rate fixed and approved by the Surface and Marine Transport Regulatory ■'Authority com m only known by its acronym SUMATRA. This was Civil Case No. 21 of 2009. The defendant/judgem ent Debtor failed to appear before the trial court and on 21st January, 2010 the trial court granted the plaintiff's application to proceed with his case ex- parte. Exparte hearing was accordingly conducted from 15th 2 February, 2010 and on 6m May, 2010, the judgem ent was pronounced in favour of the plaintiff/Decree Holder as prayed. It appears that on 25th August, 2010, the advocate for ' the defendant/judgem ent Debtor filed an application under certificate of urgency praying for interalia Exparte temporary injunction to refrain the respondent or his agent from proceeding with execution pending the determ ination of his main application interparties for leave to file his application to set aside the exparte judgem ent out of the prescribed time limit. On 2nd December, 2010, the date fixed for the hearing of •' ttie

application, the trial court (Hon. Mbilu R.M.) ordered the execution of decree to proceed pending the determ ination of the application. Then, she adjourned the application to be heard on 24th January, 2C11. It is also on the recordjthat on 13th August, 2010 the plaintiff/Decree Holder filed his application for execution of decree in which he was claim ing T S h s.l6 ,1 8 5 ,9 1 2 /= . That is according to the Exchequer Receipt No. 40695818 for fees for «4v'- ^ * - >-• , .j -. /Jj ‘ \v.*rj,;T■'' ^filing application for execution Misc. Application No. 31 of 2010 dated 13th August, 2010. Then on 22nd November, 2010 the plaintiff/Decree Holder filed another application for execution of decree with TShs.20,243,548/= when the application for stay of execution was in progress and pending before the trial court. This is evident from exchequer receipt No. 41565661 fees for Misc. Civil Application No. 31 of 2010. . • On 4th November, 2010 the trial court (Mr. Mutaki R.M. I/C) allowed the execution to proceed forthwith by attachm ent of property of the defendant/judgem ent Debtor. On 7th December, 2010, I received a com plaints letter from Mr. Salim Abubakari, learned advocate for the Defendant/Judgem ent Debtor Ref.No.BLC/CIV.CASE No. 21/09/1 dated 3rd December, 2010. The com plaints were based on the conducts of the Civil Case No. 21 of 2009 specifically on the execution process. I im

m ediately called the relevant case file for inspection and discovered what I have stated above. In his letter of com plaints the learned advocate have complained that im m ediately after receiving the notice to show cause as to why execution should not be carried out, the defendant/judgem ent Debtor instructed them to file necessary application to halt the exercise. In the result on 25th August, 2010 they filed the above said chamber 4 application praying for orders to set aside the exparte judgem ent and stay of execution of the exparte decree. Mr. Abubakari com plained that their application never received a normal welcome because the Resident Magistrate In-Charge hesitated to adm it it and that when the same was placed before the trial m agistrate they were told not to waste their time. Mr. Abubabakari complained further that, after a prolonged discussion, the Resident Magistrate In-Charge decided to separate the applications and ordered the application for execution to be heard by him self while the application for stay of execution and setting aside the exparte decree to be heard by the trial Resident Magistrate. In*his letter, the advocate went on to com plain that, their application before the trial Resident M agistrate (Hon. Mbilu) could not be heard for a long tim e because o f’ her several absence. As a result the Resident M agistrate In- Charge proceeded with

granting the order of execution.' Mr. Abubakari complained that on the date of hearing of the main application i.e. 2nd December, 2010 the trial Resident Magistrate ordered the execution to proceed and on the same date they were served by the plaintiff/Decree Holder with a w arrant of attachm ent from Kondoa Auction Mart and Court Brokers to attach the applicants bus with Reg.T138 BDH in execution of a Decree worth TShs.22,267,902/= . The learned advocate concluded that justice must be seen to be done but he was convinced that the way the case was conducted left much to be desired. He request for this court's intervention for the sake of justice. I agree with com plaints raised by Mr. Abubakari. Much of his com plaints do not require evidence for their obvious on the trial courts record of proceedings. Having filed his application under certificate of urgency praying for stay of execution and leave to file his application to set aside the exparte judgem ent out of time, the trial court should have equally attended the application with urgency and pronounce decision. Instead the trial cpurt capitalized an execution * proceedings and eventually both m agistrates ordered for execution before hearing the defendant/judgem ent Debtor's application without giving any reason or viable explanation. I couid not understand why the Resident Magistrate in-Charge decided to proceed with the

hearing of the application for execution knowing that his learned sister was dealing with an application for stay of execution, and setting aside the exparte judgem ent. It is neither clear as to why on 13th August, 2010 the plaintiff/Decree Holder filed his application for execution of a decree amounting to 16,185,922/= and later uncerem oniously on 22nd November, 2010 filed another decree showing 20,243,548/= in the same file. Nonetheless, that application for execution and attachm ent was granted on 6 4th November, 2010 although the decree of TShs.20,243,548/= was filed on 22nd Novem ber 2010. Mr. Abubakari com plained that he was served with a decree worth T Shs.22,267,902/= I could not trace a copy of such a decree in the trial courts record of proceedings. Be it as it may, it is a general principle of law that where the determ ination of the right or obligations of person is involved, the decision m aker must give reasons for his decision - See Tanzania Air Services Ltd vs. Minister for Labour, Attorney General and the Commission for Labour (1996) TLR 217. If a judge or m agistrate want his decision to com m and public confidence he m ust support them with reasons. In fact reasons indicate that the decision maker has brought his mind to bear on the subject m atter in question. It. shows that his decisions are not arbitrary or partisan. The defendant/judgem ent debtor

should have been told why his application was not heard; why the trial court was not paying attention to his advocates endeavours; why the trial court decided to speed up execution process leaving other im portant application on the same m atter pending and why the decision were in favour of the plaintiff/Decree Holder inspite of differences in the filed am ount on the Decrees. It is not wrong for the courts to speed up the trials, but that speed must consider the rights of both parties and there must be good reasons for that speed. Reasons in decision making are strong proof that the conduct of the case and decision thereof was made fairly based on the facts and circum stances of the case and not m otivated by personal factors. Parties to the case are entitled to know the reasons of the decision against them and even those favouring them . For the above reasons justice was not seen to be done and infact it was not done at all. The defendant/judgem ent Debtors advocate was not given his deserving right to be heard. No reasons for the decisions made by the trial Resident Magistrates were' discernible on record. Both decisions from the two trial Resident Magistrates made after the exparte judgem ent were seriously wanting in judicial objectivity hence unacceptable. * In the exercise of my revisional powers under section 44 (1) (b) of the Magistrate Court's Act, Cap II R.E. 2002,

I hereby declare all decisions^made by the two trial Resident Magistrates after the Exparte Judgem ent null and void. To be specific the said decisions include order of execution dated 2/02/2010 in Civil Case No. 21/2009 and Execution Orders in the Misc. Civil Application No. 31 of 2010. The trial court is now directed to hear and determine the application filed by the Defendant/Judgem ent Debtor for stay of execution and 8 leave to file application to set aside the exparte judgem ent out o ftim e and any other application (as may be filed by any party) in accordance to the principles of natural justice. ♦ In the interest of -justice this m atter should now be attended and conducted by another Resident Magistrate, other than the previous two. It is so ordered. 16/ 12/2010 Copies of this ruling to be issued to both parties and Kondoa Auction Mart and Court Brokers im m ediately. 16/12/2010