governing body of co op college moshi another vs symphorian j nkuba another 2006 tzhc 231 28 february 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI MISC. CIVIL APPL. NO. 65 OF 2004 ORIGINAL MISC. CIV. APPL. NO. 15, 69 AND 70 OF 2003 ^ 1. THE GOVERNING BODY OF CO-OP. COLLEGE M O SH I)—APPLICANTS 2. PROF. SULEIMAN ADAM CHAMBO ) VERSUS 1. SYMPHORIAN J. NKUBA ) 2. RWEZAURA G.F. KIMASHA)------------------------- RESPONDENTS RULING: HON. JUNDU, J. The Applicants in their Chamber Summons filed under Certificate of Urgency have prayed for the following Orders:- (a) The Honourable Court be moved to revise the proceedings and Ruling of the District Court below in Misc. Civil Application No. 15 of 2004 and set the same aside. (b) The Court be pleased to make any other or further appropriate order. (c) Costs be in the cause. The above named application has been made under Section 44 (1) (a) of the Magistrates Courts Act, 1984 and is supported by the affidavit of the Second Respondent, one Prof. Suleiman A. Chambo. The Applicants are represented by Prof. Itemba, learned counsel. On the other part, the Respondents who are represented by Mr. Kimomogoro, learned counsel have filed Notice of Preliminary Objections stating:- 1. That this Hon. Court has not been properly moved in view of the cited provisions of the enabling law. 2. That the application is misconceived for being a disguised application for stay of execution. 3. That the affidavit of Professor Suleiman Adamu Chambo in support of the application is incurably defective for containing arguments, prayers and conclusions. Based on the above preliminary objections, the Respondents in their Notice of Preliminary objections have prayed to this court to struck out the application with costs. On 11/7/2005, by consent, this court ordered the parties to argue and dispose the above named preliminary objections by way of written submissions. Both learned counsel have obediently and dutifully complied with the Order of this court. I hereby commend them for their lucid and meaningful submissions. However, this Ruling is entirely based on preliminary objection No. 1 above as in my considered view suffices to dispose the application before this court. In short the issue in the said preliminary objection is whether by basing the application under Section 44 (1) (a) of the Magistrates’ Courts Act, 1984 this court has been properly moved. The application seeks to move this court to revise the proceedings and Ruling of the District Court of Moshi in Misc. Civil Application No. 15 of 2004 and set them aside. In his submission, Mr. Kimomogoro learned counsel for the Respondents contends that Section 44 (1) (a) of the Magistrates Courts Act, 1984 deals with the powers of the High Court to “call for and inspect or direct the inspection of the records o f’ the lower courts and that the said section is inapplicable in a situation like the present one where a formal application for revision has been brought by the Applicants. Mr. Kimomogoro has cited the decision of the Court of Appeal in Civil Application No. 5 of 2002 between Sunflag ( T ) Limited Vs. Jerome Wambura & Others (unreported) where the said Court stated that “This court has consistently held that in an application the applicant has to cite the relevant provision from which the court derives the power to hear and determine the application.” So, it is the submission of Mr. Kimomogoro that this court has not been properly moved in view of the cited Section 44 (1) (a) of the Magistrates’ Courts Act, 1984 by the Applicants in the Chamber Summons. On the other hand, Prof. Itemba, learned counsel for the Applicants in his submission vehemently contends that this court has been properly moved by basing the application under Section 44 (1) (a) of the Magistrates Courts Act, 1984. He contends that generally Section 44 of the Magistrates Courts Act 1984 provides for additional powers of the High Court of supervision and revision. He contends that Section 44 (1) (a) of the said Act allows this court to call for and inspect the records of the lower courts or may direct the inspection of the same. He argues that though on the face of it, it would appear that the court has to act suomotu under the said subsection (a) but in his view it does not exclude an aggrieved party moving the court toexercise its powers under the said subsection (a). Prof. Itemba contends further in his submission that Section 44 (1) (b) of the Magistrates Courts Act, 1984 is much more cleaver in that the High Court may act suo motu or may act on the application made by a any party. He further tries to distinguish the decision of the Court of Appeal in the case of Sunflag (T) Limited (supra) in that in the said case the issue was failure to mention a specific sub rule under which the Notice of Motion was brought and that the said court citing Abdulhamid Ramadhani Niumbo and Thee Others V. Ali Salim Ali and Two Others stated that Rule 9 of the Court of Appeal Rule 5 deals with several matters hence it was necessary for an applicant to be very specific in moving the said court to exercise its jurisdiction in a particular situation. He contended that the situation in the present application is different from the one in Sunflag (T) Liminated and that Section 44 of the Magistrates Courts Act, 1984 is of different from those of the Court of Appeal Rules. He concluded that a proper subsection of Section 44 of the Magistrates’ Courts Act, 1984 has been cited in the application hence this court has been properly moved. He argued that subsection (a) of Section 44 (1) of the Magistrates’ Courts Act is wide enough to allow a party to file an application as the Applicant did without waiting for the court to act suo motu. I have carefully considered the submissions of the two learned counsel in respect of the preliminary objection. As I had earlier stated the issue is whether by basing the application under \ Section 44 (1) (a) of the Magistrates’ Courts Act, 1984, this court has been properly moved. It is the submission of Mr. Kimomogoro, learned counsel for the Respondents that Section 44 (1) (a) of the Magistrates Courts Act, 1984 deals with the powers of the High Court to “call for and inspect or direct the inspection of the records o f’ the lower courts, it is inapplicable for an application for revision like the present one. On the other hand, Prof. Itemba contends that the said Section 44 (1) \ (a) of the Magistrates Court Act, 1984 is applicable and that though on the face of it, the court has to act suomotu, it does not exclude an aggrieved party to move this court to exercise its supervision and revision powers under it and is wide enough to cover the present application without waiting for the court to move suomotu. In my considered view, Section 44 (1) of the Magistrates’ Courts Act, 1984 provides for additional powers of supervision and revision of the High Court. This can be clearly seen from the marginal notes to the said Section. In other words, the said Section is two fold, it provides for powers of supervision and for powers of revision. Now, as Section 44 (1) of the Magistrates’ Courts Act, 1984 has two subsections that is subsection (a) and subsection (b), one has to find out which subsection between the two subsection deals with which powers. Let me set out Section 44 (1) and its subsections (a) and (b) to resolve the issue: “44 (1) In addition to any other powers in that behalf conferred upon the High Court, the High Court - (a) shall exercise powers of supervision over all district courts and courts of a resident magistrate and may at any time, call for and inspect or direct the inspection of the records of such courts and give such directions as it considers may be necessary in the interest of justice* and all such courts shall comply with such directions without undue delay; (b) may, in any proceedings of a civij nature determined in a district court or a court of resident magistrate on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit:” (underlining mine). It is clear to me from the above wording of the two subsections of Section 44 (1) of the Magistrates’ Courts Act, 1984, that the supervisory powers of the High Court are contained in subsection (a) of the said Section and the revisional powers are contained in subsection (b) of the said Section. In other words, subsection (a) does not deal with powers of revision of this court. The present application being an application whereby the Applicant has prayed for this court to revise the proceedings and Ruling of the District Court in Misc. Civil Application No. 15 of 2004, it ought to have been founded under subsection (b) of Section 44 (1) of the Magistrates’ Courts Act, 1984 which provides for revisional powers of the court and not under subsection (a) of the said Section which provides for supervisory powers of the Court. In subsection (b), the Court can move suomotu, or can be moved by an application by an aggrieved party to exercise its revisional powers whereas in subsection (a), the Court has to move suomotu to exercise its supervisory powers. Here, a party cannot move the court by an application. If at all, he may merely inform it but in law cannot move it by an application. Basing on the aforesaid paragraphs, I quite agree with the submission of Mr. Kimomogoro, learned counsel for the Respondents that by basing the application under Section 44 (1) (a) of the Magistrates’ Courts Act, 1984, this court has not been properly moved by the Applicants. The said subsection (a) of Section 44 (1) of the Magistrates’ Courts Act, 1984 deals with supervisory powers of the court whereas the application filed by the Applicants seeks for this court to revise proceedings and Ruling of the lower court. The revisional powers of the court are contained in subsection (b) of the said section not cited by the Applicants. In the final result, I uphold the preliminary objection raised by the Respondents, that is the moved under the provision of law cited by the Applicants in their Chapfter Summons. /The application filed by the Applicants is hereby struck out with costs. It is ■» ^orderjed.pV- \% x > F.A.R. JUNDU, z JUDGE, 28/2/2006 F.A.R. JUNDU, JUDGE, \ 28/2/2006 28/2/2006 Coram:- F.A.R. Jundu, J. For the Applicant:- Prof. Itemba, Advocate. For the Respondents:- Prof. Itemba/Mr. Kimomogoro, Advocate. C/C:- Remla Court:- Ruling delivered in the presence of Prof Itemba, learned counsel for the Applicant and Prof. Itemba holding brief for Mr. Kimomogoro, learned counsel for the Respondents. F.A.R. JUNDU, JUDGE, 28/2/2006. AT MOSHI.