SANAI MURUMBE AND ANOTHER v MUHERE CHACHA 1990 TLR 54 (CA)

 SANAI MURUMBE AND ANOTHER v MUHERE CHACHA 1990 TLR 54 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Makame JJA and Ramadhani JJA

22 June 1990

Flynote

B Prerogative Orders - Certiorari - Circumstances under which it may issue.

Prerogative Orders - Scope of jurisdiction of the High Court.

C Criminal Practice and Procedure - Stock Theft Ordinance - Procedure to be

followed - Section 15.

-Headnote

While 145 head of cattle of the respondent and another person were being moved

from Mugumu to Mugeta village in Bunda District they disappeared at Singisi village,

Serengeti District. It was sought to order the Singisi villagers to D compensate the

respondent. Consequently an inquiry was instituted in the District Court of Mugumu

under section 15 of the Stock Theft Ordinance, Cap.422. The inquiry was instituted

before seizing the cattle. Being dissatisfied with the proof of the claim the District

Court dismissed it. As that decision was not appealable the aggrieved party E applied

for and was granted an order of certiorari by the High Court. After quashing the

proceedings the judge went further and ordered the villagers to compensate the

respondent.

On appeal the compensation order was attacked. It was submitted that the judge was

wrong in treating the matter F as if it was an appeal. It was further contended that

the judge acted beyond the scope of his jurisdiction. The appeal court considered the

matter raised and also the proper procedure to be followed under section 15 of the

Stock Theft Ordinance.

G Held: (i) An order of certiorari is one issued by the High Court to quash the

proceedings of and decision of a subordinate court or tribunal or public authority

where, among others, there is no right of appeal,

(ii) the High Court is entitled to investigate the proceedings of a lower court or

tribunal or public authority on H any of the following grounds apparent on the

record:

(a) taking into account matters which it ought not to have taken into

account;

(b) not taking into account matters which it ought to have taken into

account;

I (c) lack or excess of jurisdiction;

1990 TLR p55

NYALALI CJ, MAKAME JJA and RAMADHANI JJA

(d) conclusion arrived at is so unreasonable that no reasonable authority

could ever come to it; A

(e) rules of natural justice have been violated;

(f) illegality of procedure or decision;

(iii) the judge properly granted the order of certiorari because the decision of

the subordinate court was B contrary to the evidence and that the magistrate was

biased against the respondent, the order was also to issue because the procedure under

section 15 of the Stock Theft Ordinance was not complied with;

(iv) under section 15 of the Stock Theft Ordinance Cap. 422 an authorized

officer is required to seize cattle C from the village suspected of cattle rustling equal

to the number of cattle stolen and then to apply for an inquiry. That was not done in

this case;

(v) the compensation order for the 145 head of cattle given by the judge was

contrary to the existing law. D

Case Information

Order accordingly.

Kahangwa, for the appellants

[zJDz]Judgment

Ramadhani, J.A.: An inquiry was instituted in the District Court of Mugumu,

Serengeti District, under section 15 E of the Stock Theft Ordinance, Cap. 422. The

inquiry was erroneously treated as Criminal Case No 295/86. Briefly the facts were

that some 145 head of cattle belonging to the present respondent, Muhere Chacha,

and another F person, who was P.W.3 in the District Court, disappeared at Singisi

Village, Serengeti District. The cattle were being moved from Mugumu to Mugeta

Village in Bunda District. It was sought to order the Singisi Villagers to compensate

the respondent. The villagers were represented in the proceedings by Sanai Mrumbe,

the Village G Chairman, and Joseph Mimberera the Secretary, who are now 1st and

2nd appellants respectively. The District Court, being dissatisfied with the proof of

the claim, dismissed it. As that decision was not appealable, the aggrieved party

applied for and was granted on order of certiorari by the High Court of Tanzania

(Munyera, J.). The learned judge after quashing the proceedings went further and

ordered the villagers to compensate the respondent. This H appeal is against that

order.

Before us and on behalf of the appellants was Mr. Kahangwa, learned counsel, while

the respondent appeared in person. Two grounds of appeal were filed. One, it was

submitted that the learned judge misdirected himself in law I in treating the matter

as if it were an appeal.

1990 TLR p56

NYALALI CJ, MAKAME JJA and RAMADHANI JJA

A Two, it was contended that in certiorari the most the superior court could do was

to quash the decision complained of thereby reinstating the status quo. Mr. Kahangwa

pointed out that in the present case the learned judge, after compensation, which had

been denied, as if this was an appeal. He referred us to a number of B authorities

which we shall touch upon in due course. The respondent, on the other hand, merely

expressed the difficulty he would encounter in summoning his witnesses if he were to

institute a fresh inquiry.

An order of certiorari is one issued by the High Court to quash the proceedings and

the decision of a subordinate C court or a tribunal or a public authority where,

among others, there is no right of appeal. The High Court is entitled to investigate the

proceedings of a lower court or tribunal or a public authority on any of the following

grounds, apparent on the record. One, that the subordinate court or tribunal or public

authority has taken into account D matters which in ought not to have taken into

account. Two, that the court or tribunal or public authority has not taken into

account matters which it ought to have taken into account. Three, lack or excess of

jurisdiction by the lower court. Four, that the conclusion arrived at is so unreasonable

that no reasonable authority could ever come to E it. Five, rules of natural justice

have been violated. Six, illegality of procedure or decision. (Associated Provincial

Picture Houses, Ltd. v Wednesbury Corp. [1947] 2 All E.R. 680 and Council of Civil

Service Unions v Minister for the Civil Service [1984] 3 All E.R.935).

In Tanzania certiorari is provided for in Sections 17,18 and 19 of the Law Reform

(Fatal Accidents and F Miscellaneous Provisions) Ordinance Cap.360.

In the exercise of such investigation the High Court is not entertaining an appeal. If

any of the above six grounds has been offended the proper action of the High Court is

to quash the decision and the proceedings. On that principle of G law Mr. Kahangwa

has referred us to R.v Northumberland Compensation Appeal Tribunal ex parte Show

[1952] 1 All E.R. 122, R.v Net Bell Liquors [1922] A.C. 126; Associated Provincial

Picture Houses Ltd., v Wednesbury Corp. [1947] 2 All E.R. 680 and Anisminic Ltd. v

Foreign Compensation Commission [1969] 1 H All E.R. 208. Thus for instance Lord

Green, M.R. has said in Associated Provincial Picture Houses (already cited above at

p.685) that:

The power of the court to interfere in each case is not that an appellate authority to

averred a decision of the local I authority,

1990 TLR p57

NYALALI CJ, MAKAME JJA and RAMADHANI JJA

but is that of a judicial authority which is concerned, and concerned only, to see

whether the local authority have A contravened the law.

Munyera, J. in the present case, was well aware of the above outlined legal position

for he said: B

Finally the question is what should this court do. Normally an order of certiorari is to

quash the decision complained against. But in this case mere quashing of the

Magistrate's order will not afford the justice desired. Moreover, subordinate to the

High Court and the matter is properly before the later. I think I can correct what I

believe to be an error. C

After that the learned judge went ahead to order the compensation for the 145 head

of cattle. With due respect, and though the learned judge had the best of intentions,

that was contrary to the existing law. D

The learned judge granted the order of certiorari because the decision of the learned

magistrate was contrary to the evidence before him and he concluded that the

magistrate was biased against the present respondent. However, there was another

reason why the order should have been granted. Again the learned judge touched on

it but discarded it. E

Under section 15 of the Stock Theft Ordinance, Cap. 422, an authorized officer is

required to seize cattle, from the village suspected of cattle rustling, equal to the

number of cattle stolen and then to apply for an inquiry. That was not done in this

case. According to the learned judge experience has shown that if some cattle are

seized as required by F law, by the time the inquiry is over the seized cattle are no

where to be found and the court order becomes impossible to execute. So in practice

inquiry is done first and then cattle are seized only if there is an order to compensate

the applicant. The learned judge was of the view that "instituting enquiry before

seizing the cattle did not offend the law". With due respect again the law was

offended and an order of certiorari had to issue for the G procedural defect.

We sympathize with the respondent. But that is the inconvenience brought about by

legislation which seek to oust the power of the High Court by denying appeals to it.

H

So the order of certiorari quashing the proceedings of the District Court is upheld.

The order of High Court for compensation to the respondent is set aside and any stock

attached in execution of the decision of the High Court is directed to be released and

restored to the owners. I

Order accordingly.

1990 TLR p58

A