ZABRON PANGAMALEZA v JOACHIM KIWARAKA & ANOTHER 1987 TLR 140 (CA)

 

ZABRON PANGAMALEZA v JOACHIM KIWARAKA & ANOTHER 1987 TLR 140 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Omar JA, Mfalila Ag JJA & Mapigano Ag JJA

28th October, 1987 

Flynote

Civil Practice and Procedure - Lack of confidence in trial magistrate - Application to have case transferred to another magistrate - Refusal by trial magistrate to transfer case on ground that no sufficient reasons have been given - Magistrate proceeds to hear case - Whether proper.

Civil Practice and Procedure - Lack of confidence in trial magistrate - Refusal by magistrate  to transfer case to another magistrate - Party refuses to prosecute his case - Magistrate dismisses suit under O.XVII Rule 3 of the A Civil Procedure Code - Whether the Rule applies in such a situation.

Civil Practice and Procedure - Revision - Provisions under which High Court may exercise revisional jurisdiction. B

-Headnote

The appellant, original plaintiff, in the Resident Magistrate's court made the following applications. First that he wished to proceed without counsel. Secondly, he wanted the case to be heard before another magistrate. The magistrate granted the first application C but refused the second on the grounds that there were no sufficient reasons as to why he should not hear the case. The plaintiff refused to give testimony.

The magistrate dismissed the case under Order XVII rule 3 of the CPC. The appellant filed an application in the High Court under section 79(1)(c) of the CPC, section 44(1) of the MCA and any other enabling legal provisions, asking it to revise the proceedings of the Resident Magistrate's Court. The High Court dismissed the application on grounds that section 79(1)(c) of the CPC did not apply to this case amongst other reasons. The High Court did not consider the other provisions under which the application was made. The appellant applied for leave to appeal to the Court of Appeal which was duly granted.

Held: (i) Justice must not merely be done, but must be seen to have been done. The safest thing to do for a judicial officer who finds his integrity questioned by litigants or accused persons before him, is to give the benefit of doubt to his irrational accusers and retire from the case unless it is quite clear from the surrounding circumstances and the history of the case that the accused is employing delaying tactics;

(ii) order XVII rule 3 is not applicable to the circumstances of the present case. This rule is meant to deal with a situation where a party for one reason or another has asked the court on a previous occasion to give him more time in order to complete something in the case and fails to do this within the time given:

(iii) unlike section 79(1)(c) of the CPC, section 44(1) Magistrates Courts Act goes beyond jurisdictional issues and covers all situations where it appears that there has been an error material to the merits of the case involving injustice;

(iv) by insisting to hear the case against strong opposition of the appellant and proceeding to dismiss it, the magistrate not only confirmed appellant's worst fears of his having a personal interest in the matter, but also A amounted to an error material to the merits of the case involving injustice to the appellant.

Case Information

Appeal allowed. B

Cases referred to.

1. Matemba v Yanulinga [1968] E.A 643

2. Balakrishna v Basudeva (1917) 44 I.A 261

Judgment

Mfalila and Mapigano, Ag. JJ.A. and Omar, J.A.: The appellant Zabron C Pangamaleza was the plaintiff in Iringa Resident Magistrate's Court Civil Case No. 9 of 1986 in which he sued the two respondents claiming special damages amounting to shs. 100,000/= and general damages for wrongful arrest, beating, charges and convictions as a result of which he was injured in his credit, character and reputation.

He also alleged to have lost in the process working implements worth shs. 58,000/= and 640 bags of charcoal worth shs. 89,600/=. After the pleadings were completed or at least the court thought they were, the trial opened before the Senior Resident Magistrate Mr. S J Kanyama on 29th January, 1987. The appellant made the following two applications before the trial got under way. First he told the court that he wished the case to proceed without his counsel in whom he no longer had confidence. Secondly he informed the presiding Senior Resident Magistrate that he wanted the case to proceed before another magistrate because he said he did not have confidence in him as he did not trust him. The learned Senior Resident Magistrate made the following ruling:

As regard to the 1st request by the plaintiff to reject the services of his advocate, the application is readily granted by the court, because he has the right and is completely free to employ or reject the services of an advocate. Since he now tells the court that he no longer wishes to employ the services of his advocate Mr. Mwakasungula, his application is granted. H The plaintiff will henceforth conduct his own case. As regard to his second limb of application, in which he applies that  should not try his case because in his own words "sikuamini" when pressed further on why he does not trust me as a trial magistrate, he says I "sikuamini hivi hivi", owing to this I think that it would be a total abdication of my duties as a magistrate, if I were to grant the plaintiff's application on such flimsy excuses. (sic.) I do not know either of A the parties to this case outside the walls of this court, and wish to state that my conscience is quite clear. Unless therefore there are any other reasons, I will hear this case because it is my duty to do so generally since one of the defendants has travelled all the way from Mbeya.

The plaintiff than told the magistrate: Since you still insist to hear this case and I do not want you to hear it, then I will not say anything. Thereupon the Senior Resident Magistrate made the following order:

The plaintiff's refusal to testify in proof of his suit, is tantamount to a refusal to prove his suit, D and this being the case I take it as a withdrawal of his right to prove the suit before the court. For these reasons, since both the defendants are before the court and have travelled all the way from Makete and Mbeya respectively in defence of the suit which the plaintiff does not wish E to prosecute, I hereby see no alternative except to dismiss the suit. The suit dismissed for want of prosecution and the plaintiff is condemned to pay all costs.

The appellant filed an application in the High Court at Mbeya under section 79 (1) (c) of F the Civil Procedure Code, Section 44 (1) of the Magistrates' Courts' Act "and any other enabling provision of the law" asking that court to revise the proceedings of the Resident Magistrate's Court at Iringa in this case and set aside the order dismissing his claim for want of prosecution.

The application came before Mtenga J., who dismissed it holding that the allegations against the trial Magistrate by the appellant were baseless and improper and that in any case section 79 (1) of the Civil Procedure Code on which the application was based applied to jurisdiction alone and that once it is settled that a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even law. The learned judge gave another reason for dismissing the application.

He said that since the appellant was present in court and when called upon to present his A case he declined to do so without any justifiable reasons, the Senior Resident Magistrate was right in dismissing the suit as he was entitled to do under the provisions of order XVII Rule 3 of the Civil Procedure Code which provides:  Where any party to a suit to whom time has been granted fails to produce his evidence, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith.

This, the learned judge said, was the position in this case hence there was no room for the High Court to exercise its revisional powers in the matter. The appellant applied for leave to appeal to this court against this order and the High Court (Mwaikasu, J.) in a very elaborate ruling allowed the application and granted leave to appeal.

I think Mtenga, J. was right in refusing to exercise his revisional powers under the provisions of section 79(1) of the Civil Procedure Code. For as the earlier decisions in Matemba v Yanulinga [1968] E.A. 643 and Balakrishina v Vasudeva (1917) 44 quoted by the learned judge rightly state, this section is primarily if not wholly concerned with jurisdiction and it cannot be said that in this case the Senior Resident Magistrate irregularly or illegally assumed jurisdiction or did not exercise it. As far as the jurisdiction of the Magistrate and the court is concerned I can find nothing wrong with the way it was exercised. Hence if this had been the only provision under which the High Court could assume revisional jurisdiction, I would have had no difficulty with Mtenga, J.'s decision dismissing the application. But not only are there other provisions under which matters, but they had actually been cited in the application. The applicant had cast his net as widely as possible. He cited section 44(1) (b) of the Magistrates' Courts Act 1984 which provides:

44 (1) In addition to any other powers in that behalf, conferred upon the High Court, the High H Court

(a) ....

(b) May, in any proceeding of a civil nature determined in a District Court or Court of a I Resident Magistrate, on application being made in that behalf by any party or of its own motion, if it appears that there has been error material to the merit of the case, A involving injustice, revise the proceedings and make such decision or order.

The learned judge did not even address himself to this provision to see whether it  widened the High Court's civil revision jurisdictional powers. Unlike section 79(1) of the Civil Procedure Code, this section goes beyond jurisdictional considerations. It covers merits of the case, that is to say the High Court can assume revisional jurisdiction in any case where it appears that there has been an error material to the merits of the C case involving injustice. In the present case the appellant had challenged the impartiality of the presiding Magistrate and therefore felt that he would not receive fair treatment in his court. Accordingly he applied for the case to be tried by another magistrate. The magistrate brushed aside these objections holding that it would be a total abdication of his duties as a Magistrate were he to grant the application on such flimsy excuses and declared that his conscience was clear. I have no doubt at all that it was, but that was not the point. 

The point was the state of mind of the plaintiff before him. So while I am certain that the magistrate would have ensured that justice was done had he tried the E case, the plaintiff before him would not have seen that it was actually done. By insisting to hear the case against such strong opposition and proceeding to dismiss it, the magistrate not only confirmed the appellant's worst fears of his having a personal interest in the matter, but also amounted to an error material to the merits of the case involving injustice to the appellant. It is for this reason that the approach of the learned judge was wrong. He approached the whole case as if he were trying the merits and truthfulness of the appellant's allegations against the presiding magistrate. He said at page 23 of the record:

I must say without hesitation that the allegations levelled against the learned trial Senior Resident Magistrate by the applicant are baseless and they are unwise as well as improper and they are lacking in respect to the learned trial Senior Resident Magistrate as well as to the H court....

As indicated, this was straying into wrong ground. First of all, there was no evidence before the learned judge which enabled him to conclude that the allegations against the I Resident Magistrate were baseless unwise and improper. Secondly, as to lack of respect, I thought that judicial officers should earn not demand the respect of members of the public.

The safest thing to do for a judicial officer who finds his integrity questioned by litigants or accused persons before him, is to give the benefit of doubt to his irrational accusers and retire from the case unless it is quite clear from the surrounding circumstances and the history of the case that the accused is employing delaying tactics. Apart from ensuring that justice is seen to be done, he saves himself from unnecessary embarrassment. This can easily be done at a court like Iringa where there are several Magistrates.

Lastly I will deal with the last ground of appeal which was also raised by Mwaikasu, J. in his ruling, namely, whether the learned judge was correct in law and in fact in holding that the trial magistrate acted properly when he dismissed the suit as Order XVII Rule 3 of the Civil Procedure entitled him to do so.

This Order and Rule which has already been quoted but which for ease of reference I will reproduce again provides as follows:

Where any part to a suit to whom time has been granted fails to produce his evidence, or to perform any other act necessary to the progress of the suit, for which time has been allowed, E the court may, notwithstanding such default proceed to decide the suit forthwith.

As was indicated earlier in this judgement, the learned judge stated that the trial magistrate rightly dismissed the suit because this section allowed him to do so after the plaintiff deliberately refused to lead evidence in proof of his case. But the wording of this rule is such that it cannot be applicable to the circumstances of the present case. This rule is meant to deal with a situation where a party for one reason or another has asked G the court on a previous occasion to give him more time or order to do or complete something in the case and fails to do this within the time given. In the present case the appellant had not asked for more time to do anything and failed to do so and was thus asking for more time. He was simply asking the court to transfer his case to another magistrate and the reasons he gave were not flimsy.

The learned judge was therefore in error in thinking that the Magistrate could dismiss the appellant's suit under this rule. Perhaps I should mention a further point which is not necessary for the determination of this appeal but important for the future conduct of the case. At the time the trial started, I the pleadings do not appear to have been completed.

There are two defendants, yet only one of them had filed a written statement of defence by 29th January when the trial opened. The second defendant had not, so. I do not understand how the case could have proceeded in respect of him had the hearing taken off.

For all these reasons I am satisfied that the Resident Magistrate was wrong in dismissing the appellant's suit. He should have stepped down from hearing the case after one of the parties has recused him.

Accordingly I would allow the appeal, set aside the orders of both the Resident Magistrate's Court and the High Court with an order remitting the case to the court of the Resident Magistrate at Iringa for hearing de novo before another magistrate.

I would also award the appellant his costs both in this court and in the High Court. As the other members of the court agree, it is so ordered.

Appeal allowed.

1987 TLR p147