Court name
Court of Appeal of Tanzania

Sanai Murumbe& Another vs Muhere Chacha () [1990] TZCA 10 (22 June 1990);

Law report citations
1990 TLR 54 (TZCA)
Media neutral citation
[1990] TZCA 10

Ramadhani, J.A.: An inquiry was instituted in the District Court of Mugumu, Serengeti District, under section 15 E of the Stock Theft Ordinance, Cap. 422. The inquiry was erroneously treated as Criminal Case No 295/86. Briefly the facts were that some 145 head of cattle belonging to the present respondent, Muhere Chacha, and another F person, who was P.W.3 in the District Court, disappeared at Singisi Village, Serengeti District. The cattle were being moved from Mugumu to Mugeta Village in Bunda District. It was sought to order the Singisi Villagers to compensate the respondent. The villagers were represented in the proceedings by Sanai Mrumbe, the Village G Chairman, and Joseph Mimberera the Secretary, who are now 1st and 2nd appellants respectively. The District Court, being dissatisfied with the proof of the claim, dismissed it. As that decision was not appealable, the aggrieved party applied for and was granted on order of certiorari by the High Court of Tanzania (Munyera, J.). The learned judge after quashing the proceedings went further and ordered the villagers to compensate the respondent. This H appeal is against that order.
Before us and on behalf of the appellants was Mr. Kahangwa, learned counsel, while the respondent appeared in person. Two grounds of appeal were filed. One, it was submitted that the learned judge misdirected himself in law I in treating the matter as if it were an appeal.

NYALALI CJ, MAKAME JJA and RAMADHANI JJA
A Two, it was contended that in certiorari the most the superior court could do was to quash the decision complained of thereby reinstating the status quo. Mr. Kahangwa pointed out that in the present case the learned judge, after compensation, which had been denied, as if this was an appeal. He referred us to a number of B authorities which we shall touch upon in due course. The respondent, on the other hand, merely expressed the difficulty he would encounter in summoning his witnesses if he were to institute a fresh inquiry.
An order of certiorari is one issued by the High Court to quash the proceedings and the decision of a subordinate C court or a tribunal or a public authority where, among others, there is no right of appeal. The High Court is entitled to investigate the proceedings of a lower court or tribunal or a public authority on any of the following grounds, apparent on the record. One, that the subordinate court or tribunal or public authority has taken into account D matters which in ought not to have taken into account. Two, that the court or tribunal or public authority has not taken into account matters which it ought to have taken into account. Three, lack or excess of jurisdiction by the lower court. Four, that the conclusion arrived at is so unreasonable that no reasonable authority could ever come to E it. Five, rules of natural justice have been violated. Six, illegality of procedure or decision. (Associated Provincial Picture Houses, Ltd. v Wednesbury Corp. [1947] 2 All E.R. 680 and Council of Civil Service Unions v Minister for the Civil Service[1984] 3 All E.R.935).
In Tanzania certiorari is provided for in Sections 17,18 and 19 of the Law Reform (Fatal Accidents and F Miscellaneous Provisions) Ordinance Cap.360.
In the exercise of such investigation the High Court is not entertaining an appeal. If any of the above six grounds has been offended the proper action of the High Court is to quash the decision and the proceedings. On that principle of G law Mr. Kahangwa has referred us to R.v Northumberland Compensation Appeal Tribunal ex parte Show [1952] 1 All E.R. 122, R.v Net Bell Liquors [1922] A.C. 126; Associated Provincial Picture Houses Ltd., v Wednesbury Corp. [1947] 2 All E.R. 680 and Anisminic Ltd. v Foreign Compensation Commission [1969] 1 H All E.R. 208. Thus for instance Lord Green, M.R. has said in Associated Provincial Picture Houses (already cited above at p.685) that:
The power of the court to interfere in each case is not that an appellate authority to averred a decision of the local I authority,

NYALALI CJ, MAKAME JJA and RAMADHANI JJA
but is that of a judicial authority which is concerned, and concerned only, to see whether the local authority have A contravened the law.
Munyera, J. in the present case, was well aware of the above outlined legal position for he said: B
Finally the question is what should this court do. Normally an order of certiorari is to quash the decision complained against. But in this case mere quashing of the Magistrate's order will not afford the justice desired. Moreover, subordinate to the High Court and the matter is properly before the later. I think I can correct what I believe to be an error. C
After that the learned judge went ahead to order the compensation for the 145 head of cattle. With due respect, and though the learned judge had the best of intentions, that was contrary to the existing law. D
The learned judge granted the order of certiorari because the decision of the learned magistrate was contrary to the evidence before him and he concluded that the magistrate was biased against the present respondent. However, there was another reason why the order should have been granted. Again the learned judge touched on it but discarded it. E
Under section 15 of the Stock Theft Ordinance, Cap. 422, an authorized officer is required to seize cattle, from the village suspected of cattle rustling, equal to the number of cattle stolen and then to apply for an inquiry. That was not done in this case. According to the learned judge experience has shown that if some cattle are seized as required by F law, by the time the inquiry is over the seized cattle are no where to be found and the court order becomes impossible to execute. So in practice inquiry is done first and then cattle are seized only if there is an order to compensate the applicant. The learned judge was of the view that "instituting enquiry before seizing the cattle did not offend the law". With due respect again the law was offended and an order of certiorari had to issue for the G procedural defect.
We sympathize with the respondent. But that is the inconvenience brought about by legislation which seek to oust the power of the High Court by denying appeals to it. H
So the order of certiorari quashing the proceedings of the District Court is upheld. The order of High Court for compensation to the respondent is set aside and any stock attached in execution of the decision of the High Court is directed to be released and restored to the owners. I
Order accordingly.

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