MAGESA BYARO v MUSOMA TOWN COUNCIL 1997 TLR 307 (HC)

 

MAGESA BYARO v MUSOMA TOWN COUNCIL 1997 TLR 307 (HC)

Court High Court of Tanzania - Mwanza

Judge Lugakingira J

CIVIL REFERENCE 4 OF 1997 E

25 November 1997

Flynote

Civil Practice and Procedure - Court - Jurisdiction - Reference to High Court -

Academic and unncessary references - After dimissal of petition - Order XLI rule 1 F

-Headnote

The applicant presented an election petition to the Resident Magistrate's Court of

Musoma which dismissed the petition on a preliminary issue of competence, the court

holding that it was misconceived. The court however entertained doubt as to its

jurisdiction in the matter and ordered that the matter be referred to the High Court

under Ord. XLI of the Civil Procedure Code No 49 of G 1966.

Held:

It was evident from the provisions of Ord. XLI that there should be a matter pending

in Court, either a trial or execution in order for a reference to be made to the High

Court. In the present matter the trial Court had finalised the matter, leaving nothing

to be concluded by an opinion of the court. The H reference was therefore

improperly made.

Case Information

No order made.

[zJDz]Judgment

Lugakingira J:

The applicant first presented an application, then a petition, before I

1997 TLR p308

LUGAKINGIRA J

A the Resident Magistrate's Court of Musoma challenging his removal as chairman

of the respondent council at a sitting of the respondent's councillors. He was seeking a

declaration that his removal was void and ineffective and an injunction to prevent a

similar decision in future. He B purported to bring the petition under s 27(1)(d) of

the Local Government (Urban Authorities) Act 1982, the Local Authorities

(Elections) Act 1979 and the Elections (Local Authorities) (Election Petitions) Rules,

1984. The petition was dismissed with costs on a preliminary issue of competence, the

court holding that it was misconceived. That done, the Court made the following C

further orders:

`Order: Whereas the Court is sure the Petition was misconceived and was

brought under the wrong provisions, the Court however entertains some doubt as to

whether the declaration sought can be granted in this Court. On that D point of

jurisdiction, the Court now would seek clarification from the High Court. The file

thus is referred to the High Court under s 71 (sic) and Ord XLI of the Civil Procedure

Code No 49 of 1966.'

E I think, with respect, this reference was unnecessary and academic in view of the

decision already reached by the Court. The decision of the Court dismissing the

petition for being incompetent and misconceived finally disposed of the matter before

that Court and was not contingent upon the decision of the High Court. To put it

differently, the opinion of this court, if any were to be given, would not influence the

outcome of the petition one way or the other, and no-one I F can think of is

anxiously waiting for it, for there is no petition still pending in the lower court.

Section 77 (not 71 cited in the trial court's order) and Order XLI of the Civil

Procedure Code are designed for practical but not academic purposes. To cite part of

Ord XLI, Rule 1, these provisions may be resorted to --

G `Where, before or on the hearing of a suit in which the decree is not subject to

appeal, or where in the execution of any such decree, on which the court trying the

suit or appeal, or executing the decree, entertains reasonable doubt ...' (my emphasis)

H It is evident from the words and phrases emphasized that there should be a

matter pending in Court, either a trial or an execution, in order for a reference to be

made to the High Court. To that end the Court seized of the matter may stay the

proceedings pending the decision of the High Court or may, notwithstanding the

reference, proceed and pass a decree or make an order contingent I upon the

1997 TLR p309

LUGAKINGIRA J

decision of the High Court (Rule 2). In the reference before me, however, the trial

court finalised the A matter, leaving nothing to be concluded by any opinion of this

Court. I am therefore of the view that the reference was improperly made and cannot

be answered the way it was intended.

This reference is important in one aspect: the lower court doubted the nature of the

case and its B own jurisdiction, yet it went ahead and disposed of it. With respect,

that was improper. Instead of proceeding to dismiss the petition, the court should

have complied with the provisions of Ord XLI, Rule 6(1) which reads:

`6(1) -- Where at any time before judgment a court in which a suit has been

instituted doubts whether the suit is C cognizable by that court or is not so

cognizable, it may submit the record to the High Court with a statement of its reasons

for the doubts as to the nature of the suit.'

There was every reason to doubt whether the proceeding in question was properly

presented and D whether it was presented in the proper court. The applicant's

prayer actually turned on the prerogative orders of certiorari and prohibition and

these are grantable only by the High Court and attract a special procedure. Had the

matter been brought to the attention of this Court at the appropriate stage, I have no

doubt that appropriate orders would have been made under sub-Rule E (2).

Admittedly, the provisions of sub-Rule (1) are permissive but I think in order to

ensure that justice is not only done but is also seen to be done a court entertaining

doubt as to its jurisdiction F would well be advised to seek the opinion of the High

Court instead of pressing ahead with its decision. It is ironical, indeed, that in this

case the lower court could press ahead with its decision and still turn around to

inquire about its jurisdiction. The inquiry was no longer of any value to the parties

but was once again merely academic. G

Apart from these observations, I make no order.

1997 TLR p310

A