ABDU HASSAN v MOHAMED AHMED 1989 TLR 181 (HC)

 

ABDU HASSAN v MOHAMED AHMED 1989 TLR 181 (HC)

Court High Court of Tanzania- Mwanza

Judge Katiti J

7 October, 1989

Flynote

Civil Practice and Procedure - Revision - Limitation to revisional powers - Section

79(1) Civil Procedure Code, 1966. B

-Headnote

The plaintiff filed a civil suit in Bunda District Court claiming shs. 280,460/00 being

the value of diverse merchandise allegedly delivered to the respondent upon contract.

The C district magistrate heard the suit and decided it. The resident magistrate, on

noting the case, forwarded it with recommendations for revision to the High Court.

Held: (i) The High Court revisional powers under section 79(1) of the Civil Procedure

D Code of 1966 are limited to cases where no appeal lies and issues such as whether

the subordinate court has exercised jurisdiction not vested or, if vested, whether it has

failed to exercise the same or has acted illegally or with material irregularity; E

(ii) revision taken under the magistrates court act of 1984 has no limitation;

(iii) the trial magistrate lacked pecuniary jurisdiction to entertain the matter

and the proceedings are a nullity. F

Case Information

Order accordingly.

[zJDz]Judgment

Katiti, J.: In the most inelegant, if not also unintelligible plaint, one Mohamed

Ahmed, herein to be called the plaintiff filed a civil action in Bunda District Court,

claiming G shs.280,460/=, the value of diverse merchandise claimedly delivered to

Abdu Hassan, at the latter's instance, and promise to pay, and that no payment has

not been effected. The trial Magistrate Mr. C.A. Kayaga the Senior District Magistrate,

and District Magistrate-in-charge of Bunda District, seised the case and went ahead to

try the same, H and so did to finality. The Principal Resident Magistrate, and

Resident Magistrate-in-charge Mara Region, has under the provisions of Section 44(2)

of the Magistrates Court Act 1984, referred and forwarded the record to the High

Court, questioning the trial Magistrates pecuniary jurisdiction, in the matter and

recommending revision, if it is so befitting. I

1989 TLR p182

KATITI J

To be settled first, is the propriety of the Resident Magistrate-in-charge's action, of A

forwarding the record to the High Court, with proposition as to the possible exercise

of revisional powers by the High Court. There is no beating about the bush. Indeed

the provisions under Section 44(2) of the Magistrates Courts Act 1984, hereafter to be

B called the act, does confer statutory powers, upon the Resident Magistrate-incharge,

so pointed by the Honourable Chief Justice, to call for, or inspect, any

proceedings, for purposes of satisfying himself, as to the correctness, legality, or

propriety of any decision, or order, and as to the regularity of the proceedings therein,

and may where he C thinks the decision, or order, is illegal, forward the record with

a report to the High Court in order that, it may consider whether, or not to exercise

its powers of revision.

In this case the Mara Resident Magistrate-in-charge, did indeed forward the record to

us, with attendant report, within the letter and spirit of the above statutory

provisions, D and there is no way that action, can be impugned in law.

The proposition here, is that this court exercise revisional jurisdiction, if the record is

good material for the same. It would however in prospect appear to me, that, a

decision E by any court subordinate, to the High Court may be susceptible to

revision, either under the provisions of 43(2) of the Act 1984, or under the Provisions

of Section 79 of the Civil Procedure Code 1966. That is the High Court may under

Section 79 of the Civil Procedure Code 1966, straight call for the record, for revision,

or act in revision F after the Resident Magistrate-in-charge has under the provisions

of Section 44(2) of the Act 1984, forwarded the record, and the attendant report on

the same to the High Court.

I am however verily anxious, to see how these provisions differ if at all, and which

section is my vehicle of transport in this case. The revision section 79 of the Civil G

Procedure Code 1966 provides:

79 (1) the High Court may call for the record, of any case which has been

decided by any court subordinate to the High Court, and in which no appeal lies

thereto, and if such H subordinate court appears:

(a) to have exercised a jurisdiction not vested in it by law, or I

1989 TLR p183

KATITI J

(b) to have failed to exercise a jurisdiction so vested or A

(c) To have acted in the exercise of its jurisdiction illegally, or with

material irregularity, the High Court may make such order in the case as it thinks fit.

(2) Nothing in this section shall be construed as limiting the High Court's

powers to B exercise revisional jurisdiction under the Magistrates Courts Act (1963)

now (1984).

It does from the above seem to me, that, first, the power for revision under section 79

of C the Civil Procedure Code 1966, is discretionary, second, it is applicable in the

case in which no appeal lies, and this where, the subordinate court appears.

(1) To have exercised jurisdiction not versed in it by law, or

(2) To have failed to exercise a Jurisdiction versed in it by law or D

(3) To have acted in the exercise of its jurisdiction illegally, or with

material irregularity.

The above mean, that the High Court has no power to interfere in revision under this

E section, except in particular in the three cases mentioned above. Vindicating the

above view, is the case of Privy Council Case Venka Tagiri v Mindu Religious

Endowments Board 76 I.A. 67, [1949] APC 156, that commented on Section 115 of

the Indian Civil Procedure Code, - the equivalent of section 79(1) of our Civil F

Procedure Code 1966 thus:

Section 115 applied only to cases in which no appeal lies and where the

legislature has provided no right of appeal ... The section empowers the High Court to

satisfy itself on three G matters, (a) that the order of the subordinate court is within

its jurisdiction, (b) that the case is one in which the Court ought to exercise

jurisdiction, and (c) that in exercising jurisdiction, the court has not acted illegally,

that is, in breach of some provisions of law, or with material irregularity, that is by

committing some error of procedure in the course of the trial which is H material, in

that it may have effected the ultimate decision. If the High Court is satisfied on these

three matters, it has no power to interfere, because it differs however profoundly

from I the conclusions of the subordinate court on questions of fact or law.

1989 TLR p184

KATITI J

It is obvious from the above that the High Court revisional powers under section

79(1) A of the Civil Procedure Code 1966 are circumscribed, for while discretionary,

they are limited to cases where no appeal lies, and issues whether, the subordinate

court has exercised jurisdiction not vested, or if vested whether has failed to exercise

the same or B has in the exercise of such jurisdiction acted illegally or with material

irregularity - and that is all. But revision under, or taken as a result of exercise of

powers of under section 44(2) of the Magistrates Court Act 1984 and therefore under

section 43 (2) and 44(1) C of the same Act 1984, sufffers no such limitation, other

than that, "it should appear that there has been an error material to the merits of the

case involving injustice." It therefore seems to me, that, revision provisions under the

Magistrates Court Act 1984 - see section 43(2) and 44(1)(b), unprejudiced as they are,

as per statutory declaration in section 79(2) of the Civil Procedure Code 1966, are

wider and liberal, and it is under D the same provisions that, this revision is

undertaken.

In this case, the trial magistrate was appointed and vested with relative civil

jurisdiction vide G.N.212 of 1984 to have power in respect of: E

2 (b) other proceedings where the subject matter is capable of being

estimated in monetary valve, in which the value of the subject matter does not exceed

one hundred thousand shillings. F

But as above pointed out, the claim in this case, was valued at shs.280,460/=, and yet

the trial magistrate purported of try the case. But obviously the figure went beyond

the pecuniary jurisdiction vested on to him, therefore the trial magistrate acted

without G jurisdiction. It may therefore be posed, whether this "was an error

material to the merits of the case involving injustice", as posed by section 44(b) of the

Magistrate's Court Act 1984. I would like to argue, that whatever merits of any case

must have a jurisdictional foundation upon which they are built, and merits cannot in

my view, emanate from a H jurisdictional nullity. The trial Magistrate had no

pecuniary jurisdiction and absence of jurisdiction not only automatically affected

merits but also justice. The proceedings are hereby declared null and void. The

plaintiff is advised, to file his action in the appropriate court, if he is still so minded.

Costs to fall upon the plaintiff. I

Order accordingly.

1989 TLR p185

A