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

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 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 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); 

(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.

Case Information

Application dismissed.

Rahim, for the applicant.

Kisusi, for the respondent.

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 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 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 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 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 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  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. 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 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  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 favor of the 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 from a Primary Court to a District Court or that proceedings commence in a court other 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. In the circumstances, the order to transfer to or commence proceedings in the District Court applied by the applicant is refused.

Application dismissed.

1989 TLR p148