Court name
High Court of Tanzania

Magesa Byaro vs Musoma Town Council () [1997] TZHC 22 (25 November 1997);

Law report citations
1997 TLR 307 (TZHC)
Media neutral citation
[1997] TZHC 22
Coram
Lugakingira, J.

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

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

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.

A