ABUBAKAR MOHAMED MLENDA v JUMA MFAUME 1989 TLR 145 (HC)

 

ABUBAKAR MOHAMED MLENDA v JUMA MFAUME 1989 TLR 145 (HC)

Court High Court of Tanzania- Dar Es Salaam

Judge Nchalla J

29 August, 1989 C

Flynote

Civil Practice and Procedure - Transfer of cases - From Primary Court to District

Court - Whether wish to engage advocate is a sufficient cause.

Civil Practice and Procedure - Chamber summons - Effects of citing wrong provision

of law D in chamber summons.

-Headnote

The Applicant applied for leave of the High Court to transfer a suit already filed in

Primary Court to the District Court on the single ground that the Applicant based on

E section 63(1) of the Magistrates' Courts Act No. 2 of 1984.

Held: (i) It was improper to base the application on section 63(1) of the Magistrates'

Courts Act 1984 above. This application should have been filed under both sections

63(1) and 47(1)(c); F

(ii) omission to cite a proper provision of law in chamber summons is not fatal

to the application;

(iii) wish and ability to engage an advocate alone does not amount to good and

sufficient cause to grant an application to transfer a case from Primary Court to any

other court. G

Case Information

Application dismissed.

Rahim, for the applicant.

Kisusi, for the respondent. H

[zJDz]Judgment

Nchalla, J.: Mr. Rahim, learned advocate, acting for the appellant had filed this

application for an order and leave of the High Court to transfer a case from the

Primary Court to the District Court. The case for which leave and order of this court

is sought to I transfer it to the District Court has already been registered at

1989 TLR p146

NCHALLA J

Magomeni Primary Court, Kinondoni District. Mr. Rahim has sworn an affidavit in A

support of his application. In his affidavit Mr. Rahim avers only one ground to back

up his application, namely that he wishes to represent the applicant in the case in

question in which the applicant has been sued by the respondent in this application.

Mr. Rahim has B brought up this application under s.63 (1) of the Magistrates'

Courts Act No. 2 of 1984. At the hearing of this application Mr. Rahim relied on the

single ground averred in his affidavit.

In reply, Mr. Kisusi objected to the application stating that the same is misconceived.

He C submitted that s.63(1)MCA, 84 is irrelevant for purposes of the applicant's

application who is seeking for transfer of proceedings already instituted in a Primary

Court. He pointed out that the relevant provision of law applicable to this application

is section 47(1)(c) of the MCA, 1984. And the reasons for which transfer of a case

from a D Primary Court can be made are enlisted under that section and no other.

The reason that the defendant wishes to be represented by an advocate is not one of

the reasons envisaged by s.47(1)(c)(i-iv) for which transfer of a case from a Primary

Court can be made. Mr. Kisusi submitted that transfer of the case in question cannot

be exercised E under section 47(1)(c) of the MCA because the subject matter of the

case is land held under customary law. The matter has invariably to commence in a

Primary Court in view of s.63(1) of the MCA, 1984. And if leave of the High Court is

sought that the matter F commence in a court other than a Primary Court, then it is

only the plaintiff, not the defendant who has the right to seek for such leave. He

submitted that on the A contrary the defendant is applying for such leave when the

plaintiff is against such leave being given. So, Mr Kisuri urged, the application, in

whichever way you tilt it, appears to be G askew, and is misconceived. He prayed

that the application be dismissed with costs, and that the case already instituted in the

Primary Court proceed to hearing and determination therein.

At last Mr. Rahim conceded that he had preferred this application under the wrong

section of the relevant law. He admitted that the proper section should have been H

s.47(1)(c)MC Act, 1984 as pointed out by Mr. Kisusi. However, Mr. Rahim submitted

that the omission is not fatal to the application as the substance thereof remains the

same. I agree that the mere omission by a party to indicate the appropriate section of

the law under which the matter is preferred is curable, particularly so where the

omission, as in I this case is inadvertent, that is, not intentional or negligent. But I

would

1989 TLR p147

KOROSSO J

add that on the circumstances of this application, it was incumbent that the

application be A preferred both under section 47(1)(c) and 63(1)of the Magistrates'

Courts Act, 1984. This is so because the case in point has already been instituted in

the Primary Court. So, the direct act is transfer of that case from the Primary Court to

the District Court. Transfer of cases generally are dealt with under section 47 of the

Magistrates' Courts B Act, 1984. But the transfer of the instant case which is about

immovable property held under customary law cannot be had under s. 47 alone in

view of the express provisions of s.47(1)(c) proviso (a)(b). So, recourse must be had to

s.63(1) Magistrates' Courts Act, 1984 to be applied in conjunction with s.47(1)(c) to

facilitate the intended transfer. C This is the only way out as I see it. But as I have

already found, the omission by Mr. Rahim to indicate s.47(1)(c) in his chamber

application is not fatal, as the substance of the application remains the same, and in no

way has the respondent been embarrassed by the omission. D

Having reviewed the law and the submissions by counsel for both parties, I now

consider whether this application is sustainable. Section 63(1) M.C. Act, 1984 does

not lay specific conditions under which leave may be given by the High Court for

proceedings to commence in a court other than a Primary Court. So, it appears leave

E here is discretionary to the court. But it is well established law that where a right is

to be exercised by a court on discretion, then the same must be exercised judicially.

Judicial exercise of discretion must be backed up by good cause. Is the mere fact that

the defendant wishes to engage an advocate good and sufficient cause to grant the

leave F applied for? After all the case has already been instituted in the Primary

Court as Civil Case No. 84/1988. So, the immediate action sought is transfer of the

proceedings already commenced in the Primary Court. This necessarily brings us to

the dictates of s.47(1)(a)(b)(c)(i) (ii)(iii)(iv) of the Magistrates' Courts Act, 1984. The

reason advanced G by Mr. Rahim in support of his application for transfer of the case

from the Primary Court does not tally with any of the conditions set by the section.

So, transfer of the case in question cannot be ordered under any of the provisions of

s.47(1) Magistrates' Courts Act, 1984 since none of the conditions therein have been

proved in favour of the H applicant. I am not also quite settled whether the mere

fact that a party wishes to engage an advocate without any qualification will per se

entitle a party to be granted leave to commence proceedings in another court which

proceedings would otherwise have legally I commenced in a Primary Court. I am of

the view that a party seeking for transfer of a case

1989 TLR p148

from a Primary Court to a District Court or that proceedings commence in a court

other A than a Primary Court should show good or sufficient reasons which are

qualified and which the court will consider whether or not to grant the application.

Mere financial ability to engage an advocate without any qualification therefor will

not, I think, merit for grant of leave under s.63(1) or transfer under s.47 both of the

Magistrates' Courts Act, 1984. B

In the circumstances, the order to transfer to or commence proceedings in the District

Court applied by the applicant is refused.

C Application dismissed.

1989 TLR p148

D