IN
THE COURT OF APPEAL OF TANZANIA
AT TANGA
(CORAM: MSOFFE,
J.A., KILEO, J.A. And KALEGEYA, J.A.)
CIVIL
APPEAL NO. 22 OF 2007
ABDALLAH HASSANI …………………………………..
APPELLANT
VERSUS
JUMA
HAMIS SEKIBOKO ……………..…………... RESPONDENT
(Appeal
from the Ruling of the High Court of Tanzania
at Tanga)
(Shangali, J.)
dated
the 25th day of February, 2005
in
Civil Revision No. 6 of
2004
--------------
JUDGMENT
OF THE COURT
5 July, 2007
KALEGEYA,
J.A.:
The
appellant, Abdallah Hassan, is challenging the decision of the High Court
(Shangali, J.) in Miscellaneous Civil Revision No. 6 of 2006, in which he was
the applicant.
In Civil
Case No. 6 of 1999 at Lushoto District Court, the respondent, Juma Hamisi
Sekiboko, successfully sued the appellant for recovery of shs 850,000/=
allegedly being the balance of purchase price of a Lorry motor vehicle sold by
the former to the latter. The
appellant’s claim of shs 2,163,000/= allegedly being storage charges for the
said motor vehicle contained in a counter-claim was not determined by the court
as such but it was observed in the judgment that there was no evidence in
support thereof. On this however, the
court made a further order thus:
“I order
that the defendant file a suit against the plaintiff to claim custody charges
of the suit motor vehicle.”
The
judgment composed by the trial magistrate (Mussa, SDM) was delivered by his
successor in office (Charaza DM) on 26.03.2001.
The appellant was not amused by that decision, especially the verdict on
his counter claim. On 24.05.2002,
according to original records availed to us he unsuccessfully filed in the High
Court at Tanga Misc. Civil Application No. 31 of 2002. In that application, he was applying to have
the trial Court’s judgment and decree revised by “quashing
the same and ordering that the trial magistrate rewrite the judgment and
incorporate the counter claim”. The
High Court (Mkwawa, J.) however, struck it out for being “incompetent
and misconceived” having been filed beyond 60 days, a period
allowed for the filing of applications for revisions (Item 21, part III of the
first schedule to the Law of Limitation Act, 1971).
Not
subdued, almost a year later, on 13.05.2003, the appellant filed yet another
application (Misc. Civil Application No. 54/2003) asking the High Court “to
extend/enlarge time for filing the application for revision”. The respondent resisted the application by
among others, fronting a preliminary objection that legally the applicant could
not come to the court by way of revision when the remedy for appeal was
available. This time the High Court
(Mkwawa, J.) granted the application hence the filing of Misc. Civil Revision
No. 6 of 2004.
In the said
application (No. 6 of 2004) the appellant sought the following orders:–
“1. That the record in the District Court of
Lushoto at Lushoto in Civil Case No. 6/1999 be called and inspected in order
that this Honourable Court may satisfy itself as to the correctness, legality
and propriety of the judgment therein which appear materially erroneous to the
merits of the case involving injustice.
2. That
as a corollary to prayer 1 immediately hereinabove, this Honourable Court may
be pleased to revise, quash and set aside the judgment and make orders or
directions all being in the interest of justice.
3. That
the Respondent pays costs of this Application and of all proceedings in court
below.”
The High Court (Shangali, J.) upheld
the application by quashing the entire decision of the trial court save the
order on the counter claim on which it was held:
“I therefore
find that the counter-claim were correctly dismissed ………. The applicant is still at
liberty to file a fresh suit on the counter-claim if he so wishes”.
Not
satisfied with the fruits of his application on revision, the appellant is
before this Court on the following complaints:
“1. That the High Court judge erred in law by
proceeding to determine the revisional Application as an appeal
2. The
High Court judge erred in law by confirming the invalid judgment of the lower
court.”
The parties being laymen did not assist
us in any way during the hearing of this appeal. They each stated that they were leaving
everything to the Court’s decision.
Before going into the merits of the
appeal we feel duty bound to make an observation on the manner the application
found its way to the High Court.
The application for revision was
purportedly made under Section 44 (1) (a) and (b) of the Magistrates Court Act,
No. 2 of 1984 read together with Section 95 of the Civil Procedure Code.
Section 44 reads in part as follows:–
“(1) In
addition to any other powers in that behalf conferred upon the High Court, the High Court–
(a) shall
exercise general 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 interests of justice, and all such courts
shall comply with such directions without undue delay;
(b) may,
in any proceedings of a civil nature determined in a district court or a court
of a 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 order therein as it sees fit …”
Looking at the quoted provision, we are of the settled
view that the mode by which a matter comes to the High Court and the type of
powers to be exercised under one subsection differ from the other. Under subsection 1 (a) the court acts suo
motu and of course this can be ignited by a complaint, a tip-off from a
law abiding citizen or a discovery of undeserving element in the course of its
inspection of lower court’s records.
Here, the High Court’s powers are mainly administrative and not judicial
as such. We are fortified in this view
by the wording used. The court would “give
directions”, where necessary in the interest of
justice and the “Courts shall comply with such
directions without undue delay”. This cannot be on merits of the case because
the High Court cannot direct a lower court what decision it should make and
how. In our view, directions envisaged
here are the ones related to the supervisory role of the High Court and which
would include for example, transferring a case from one court to another or
from one magistrate to another or directing that it be put on first track
during scheduling for hearing. Under
this subsection, in giving its orders, the High Court is not enjoined to
contact any of the parties involved.
However, the Court’s action which goes
into the merits can only come under subsection 1 (b). Again, here the High Court may act suo motu
or on application by a party as was the case here. Unlike under subsection 1 (a) however, the
High Court cannot alter the parties’ rights without hearing them. The proviso to section 44 (1) states:–
“Provided
that no decision order shall be made by the High Court in the exercise of the
jurisdiction conferred by paragraph (b) of this subsection, increasing any sum
awarded or altering the rights of any party to his detriment, unless the party
adversely affected has been given an opportunity of being heard.”
The two different roles to be played by the court are
also put bare by the marginal notes: “Additional powers of
supervision and revision”.
We have
gone into details of the provisions of section 44 because we are satisfied that
the appellant’s application for revision was wrongly entitled. He should have indicated section 44 (1) (b)
only. Although the court should not be
made to swim in or pick and choose from a cocktail of sections of the law
simply heaped up by a party in an application or action, in the present situation
we are satisfied that citing subsection (a) as well was superfluous but that
this did not affect competency of the application for subsection (b) is clearly
indicated.
We turn to
the merits of the appeal. The High Court
moved under section 44 (1) (b) can only revise the proceedings where there is
an “error
material to the merits of the case involving injustice.” Throughout, the court would act to rectify
that error apparent on the face of the record and not that it sits in its
appellate capacity as if on appeal: to evaluate evidence. And neither can it perform both roles
(revision and appeal) simultaneously.
With
respect to the High Court Judge (Shangali, J.) what is depicted by the record
supports ground one of the Appellant’s complaints. The learned judge overstepped from the arena
of revision into that of an appeal, confusing the process in the end as she
branded what was before her as a “revision”
and at the same time as an “appeal.” Let the very wording in her ruling bear
witness to our finding above:
“Having said
that and having freshly peruze (sic) and evaluate (sic) the evidence on record
and the whole counter claim issues as presented, I am of the view that there
was no evidence whatsoever to prove the said counter claim. It must also be recalled that the transaction
between the parties were reduced in writing while the counter claim is sonely
(sic) based on oral evidence.
Principally, a counter claim against a written agreement should not
attempt to vary, alter or affect the rights and obligations of the parties
stipulated and expressed in that written agreement. Any variation of terms under a written
agreement must also be in writing – See EDWIN SIMON MAMUYA vs ADAM JONES MBALA
(1983) TLR 410.
I am convinced that the counter claim
filed by the applicant/defendant is remote
too far from the terms in the written Agreement between the parties; and it
also attempts to vary and distort the terms of the written agreement. I therefore find that the counter claims were
correctly dismissed by the trial District Magistrate. That findings also conclude the third ground
of this revision and I may add that the applicant is still at liberty to file a
fresh suit on the counter claim if he so wishes.
On the fourth ground, the question is
whether there was a binding contract or sale agreement between the
parties. What is clear is that the
parties entered into a sale agreement of a motor vehicle. During the sale agreement the motor vehicle
was already in the hands of the applicant i.e. in his garage. After signing the sale agreement and effect
the payment of the first installment albeit Tshs. 100,000/= by the purchaser
(applicant) it was incumbent upon the seller (respondent) to hand over the
motor vehicle Registration Card and transfer forms to the purchaser and
thereafter wait for his remaining payments as agreed. That would have constituted part performance
by the seller and entitled him to claim even for specific performance. Instead, the seller (the respondent) retained
the Registration Card and the buyer (applicant) refused or neglected to pay the
remaining purchase price. There are two
issues here, one the sale agreement of a motor vehicle is inoperative if there
is no registration card of the said motor vehicle; two failure to pay the balance
of the purchase price in an agreement within the stipulated period or
reasonable period in an agreement constitute breach of contract.
According to the evidence the applicant
was supposed to pay the remaining sum of the purchase price Tshs. 850,000/= in
installment of Tshs. 150,000/= per month.
Therefore he should have completed his payments within six months from
the date of the agreement, instead he refused to perform his obligations and
capitalized on the failure by vendor to surrender the motor vehicle
Registration Card. I am of the view that
the part performed by the applicant of paying Tshs. 100,000/= and later allowed
the respondent to collect the windscreen valued at Tshs. 50,000/= is too
minimal to be the base of enforcing the agreement but possible to restore the
parties to their formal positions. At
the same time the respondent has remained with the motor vehicle documents
including the Registration Card, which means the vehicle is still the property
of the respondent.
In short, the sale agreement was simply
strangled by the conducts of both parties when they failed or neglected to
honour it and discharged their contractual and obligations.
From the foregoing, I am convinced that
the only fair cause of action to take is to recind the whole sale agreement
because both parties shares the blame for the failure to honour their own
agreement.
Consequently, the decision of the trial
District court is hereby revised, quashed and judgment and ordered set aside. The contract is rescinded to the extent that
applicant is ordered to allow the respondent to take his motor vehicle and the
respondent is to pay back to the applicant his part payment of Tshs. 100,000/=
Appeal
is allowed to that extent and each party to bear its own costs in this very revision.”
(Our
emphasis).
The
above quotation speaks for itself.
Without
going into the merits of what was decided, and indeed at this stage we are not
enjoined to do that, what is obvious is that the High Court dealt with the
matter as if it was an appeal. This was
legally wrong. And from another angle this supports the respondent’s complaint
both in Misc. Civil Application No. 54/2003 and again in Misc. Civil Revision
No. 6/2004 which led to this appeal. In
both applications, the respondent raised a preliminary objection that the
appellant could not embark on revision where the matter could properly be dealt
with under an appeal. His cry was
ignored in both applications. And this
accounts for our having gone into the detailed background at the beginning of
this judgment.
In Misc.
Civil Application No. 54/2003 the High Court (Mkwawa, J.) dealt with the issue,
thus:
“further it
is Mr. Mramba’s argument that if the applicant was aggrieved by the decision of
the lower Court he should have preferred
an appeal rather than revision as his right of appeal was available and not
blocked by judicial process.”
The High Court then side stepped the submission
immediately thereafter and observed:–
“The pivotal
question for consideration and decision is whether or not applicant has shown good
cause or advanced sufficient reason(s) that will warrant this Court to grant
his application.”
Which application?
Of course, an application for extension of time to file an application
for revision. The court proceeded and
granted leave on the ground that judgment was delivered in the appellant’s
absence and without notice but did not determine the preliminary objection
raised. It is obvious that when the same
issue was raised in Misc. Civil Revision No. 6 of 2004 and the Court (Shangali,
J.) held that it was res
judicata, the finding was not backed up by the
record.
In rejecting the preliminary objection, the court
(Shangali, J.) stated:
“…..
respondents objections were raised and discussed fully and the Court (Hon.
Mkwawa, J I/c) ruled in favour of the applicant. I had an opportunity to peruse the said Misc.
Civil Application No. 54/2003 and I am fully convinced that the issues raised
by the respondent’s counsel were thoroughly discussed and ruled in favour of
the applicant. To discuss those issues
again at this stage will amount to empty repetition barred by the doctrine of res
judicata”.
It suffices to say, as we have shown,
that there was no such thorough discussion let alone any and the conclusion is
not supported by the record anyway.
And this
brings us to our next finding that apart from the error of treating revisional
proceedings as an appeal, the court also erred in not determining the legal
issue posed as a preliminary objection.
We are of the settled view that where revisional proceedings are
prompted by a party (as opposed to where the court acts suo motu,
in which case it will have satisfied itself that it is a fit case for
revisional proceedings) as was the case here, and the opposite party raises a
preliminary objection to the effect that the matter does not fall within the
parameters of revision but rather an appeal, this being point of law, the court
is duty bound to dispose of that point first.
This is important because otherwise shrewd parties would make revisional
proceedings a substitute for appeals, which we think will be contrary to the
spirit of the law. We think the
principles guiding revisional proceedings before this Court, that is that
revision should not be a substitute for an appeal and that the court should be
satisfied that in the interest of justice a revision should be employed rather
than an appeal, should as well guide the High Court in applications for
revision made under Section 44 (1) (b) of the Magistrates Court Act, No. 2 of
1984.
Regarding
the 2nd ground of appeal, here we were faced by some difficulties as
the appellant being a layman did not elaborate thereon. We were left to guess as to what he could
have meant by the “High Court confirming an
invalid judgment of the lower court.” However, considering the fact that the High
Court quashed and set aside the entire decision except the order that the
appellant may file afresh his claims that were contained in the counter-claim,
we think that this is what he calls an invalid judgment of the lower court.
As already
indicated, we unreservedly deplicated the way the revisional proceedings were
conducted. Invariably, findings
emanating therefrom cannot be allowed to stand.
From the
record of the trial court however, we note two glaring procedural flaws. One,
the court did not frame issues as required under O. XIV, Rule 1 (5) of the
Civil Procedure Code. Two, the trial court having found that
there was no evidence adduced in support of the counter-claim it should have
proceeded to dismiss it and not to order that a fresh suit may be filed. The High Court, assuming the revisional
proceedings were properly conducted, fell into the same error.
We agree
with the appellant that the High Court should not have confirmed the trial
court’s order for filing afresh a suit concerning a counter-claim. Our reasons however, differ from those
projected by the appellant. As stated
already, having found that there was no supporting evidence, the trial court
should have dismissed the counter-claim.
For reasons
we have stated, the High Court purported revisional proceedings and ensuing
orders are quashed and set aside.
What has
exercised our minds however is how the matter should proceed from here. Allowing the appeal restores the trial
court’s proceedings and orders. We have
seen however that these are not without problems. Having carefully considered the matter, we
have concluded as follows. The same
should be quashed as well for the two flaws – one, failure to frame issues which is an incurable irregularity [Janmohamed Umerdin vs Hussein Amarshi and
three others (1953) 20 EACA 41 cited with approval by this court in Edson Mwakandamale vs NBC (1997) Ltd, Civil
Appeal No. 63 of 2003] – unreported and, two, for failure to decide on the counter-claim: having concluded that there was no supporting
evidence the trial court should have dismissed the counter-claim.
We are
satisfied that for ends of justice a trial de novo
should be ordered, as we hereby do without
payment of fresh fees. Considering the
time the dispute has taken, it is ordered that the Magistrate to whom it will
be re-assigned should put it on first track.
Again, we
have paid serious consideration to the question of costs. We think that generally, where the court has
a hand, albeit innocently, in unwanting conduct of proceedings which finally
lead to their being quashed, no party should be penalized or allowed to take
advantage thereof. What is at hand is an
example of such cases. For ends of
justice, each party shall bear its own costs.
Thus, the Appeal
is allowed in terms indicated above.
DATED at DAR ES SALAAM this 21st
day of September, 2007.
J. H. MSOFFE
JUSTICE
OF APPEAL
E. A. KILEO
JUSTICE
OF APPEAL
L. B. KALEGEYA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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