administratopr of the estate of josinga bal vs christina josinga 2011 tzhc 2014 19 july 2011

IN THE HIGH COURT OF TANZANIA A T D AR ES S A LA A M Civil Revision No 47 of 2010 (From Kisutu RM s Court-Probate and Administration Cause Number 130/97) ADMINISTRATOR OF THE ESTATE OFJOSINGA BAL.................... APPLICANT VS CHRISTINA JOSINGA.................... RESPONDENT RULING Date of last Order: 28-06-2011 Date of Ruling: 19-07-2011 JUMA, J.: On 4 October 2010 the Applicant (The Administrator of the Estate of Josinga Bal) filed a Chamber Summons seeking the revision power of this court. The applicant would like this court to- i) revise and set aside the decision and orders o f Kisutu Resident Magistrate's Court made on 2nd July 2010 in probate and administration cause number 130 o f 1997; ii) order the hearing o f the objection on point of law before another Magistrate; and to iii) grant him the costs of this application..." The applicant is moving this court to apply its power under Order XLIII Rule 2, sections 79 and 95 of the Civil Procedure Code, Cap. 33. This application is supported by a sixteen paragraphs affidavit sworn by Mr. Emmanuel Safari, the learned Advocate representing the applicant. This application for revision is opposed by the Respondent Christina Josinga who on 23rd February 2011 filed her Counter affidavit together with a Notice of Preliminary Objection contending that (i) the application for revision is time barred; (ii) the application for revision is bad in law because it fails to disclose the names of the administrator of the estate of Josinga Bal who is seeking reliefs. Should the preliminary points of objection succeed, the respondent would invite this court to dismiss the applicant s application for revision. At the oral hearing of the Preliminary Point of Objection on 6th June 2011 the applicant was represented by Mr. Emmanuel Safari, the learned counsel. Ms Monica Mushi, learned counsel represented the respondent. Apart from addressing themselves to the two points respondent had raised in her Notice of Preliminary Objection, the two learned counsel additionally addressed their submissions on the issue whether the applicant has through his Chamber Summons adequately identified the decision against which a revision is sought from this Court. I will in my Ruling make a decision on this additional matter whether there is a decision for purposes of revision. Submitting as to why the respondent thinks the application for revision is barred by the prescribed period of limitation, Ms Mushi contended that applications for revision must be filed within 60 days of the decision sought to be revised as prescribed by the Law of Limitation Act, Cap. 89. The learned counsel pointed out that the applicant filed his application in this court on 4th October 2010, seeking to revise the decision of the Resident Magistrate's Court that was made on 2nd July 2010 (Probate Cause No. 130 of 1997). According to Ms Mushi it has taken the applicant 92 days to lodge this present application for revision. Ms Mushi referred this court to Part III of the Schedule to the Law of Limitation Act governing limitation period prescribed for applications. Item number 21 of this Part III prescribes 60-day limitation period for applications under the Civil Procedure Code, the Magistrates' Courts Act or other written law for which no period of limitation is provided in the Law of Limitation Act or any other written law. Ms Mushi completed her submission on this first point of objection by reiterating that the applicant should have applied for an extension of time before filing his application for revision out of time. Ms Mushi then submitted on alleged fatal defect arising from failure of the applicant to enclose in the supporting affidavit the decision/Ruling dated 2nd July 2010 of the subordinate court which the applicant mentions in his Chamber Summons. Ms Mushi pointed out that the Ruling which the applicant attached to his supporting affidavit was delivered on 20th August 2010 even though the Chamber Summons actually craves for the revision of a Ruling/decision that is dated 2nd July 2010. Ms Mushi considered the failure to attach the Ruling/Decision mentioned in the Chamber Summons to be fatal to the whole application for revision. In his replying submissions regarding the filing of revision application out of prescribed period, Mr. Safari the learned counsel conceded that the time within which the applicant should have filed his application for revision is within 60 days of the decision of the subordinate court sought to be revised. According to the learned counsel, the applicant had requested to be supplied with copies of the Ruling and this period which the applicant was waiting for a copy of the Ruling should be excluded from the computation of time. According to Mr. Safari, the Ruling he was waiting for, was certified ready for collection on 1st October 2010 and he filed this application for revision on 4th October 2010. On the missing Ruling of the trial court (of 2nd July 2010), Mr. Safari conceded that Chamber Summons had what he described as "an error because the applicant wanted this Court to look at the orders of the subordinate court issued after 8th July 2010". I have carefully considered the submissions made by the two learned counsel on the issue of limitation period. Having particularly perused the documents forming part of the records of this application, it is clear to me that the application has inherent errors grave enough to warrant the dismissal of the application for revision. Ms Mushi is with respect correct in her observation that according to the Chamber Summons the Ruling which the applicant wants this Court to revise, is dated 2nd July 2010. But the applicant attached to his application a different Ruling that was delivered on 20th August 2010 by R. Tarimo-RM. Contents of the Chamber Summons are not in harmony with the Ruling attached to the supporting affidavit. It makes no sense at all for the applicant to move this Court by a Chamber Summons to revise a decision which is different from the decision attached to the supporting affidavit. Not a single paragraph in the affidavit taken out by Mr. Emmanuel Safari (in support of the application) mentions any decision of the subordinate court that is dated 2nd July 2010. With due respect, I am not persuaded by the explanation offered by Mr. Safari that it was a slight error in the Chamber Summons to refer to a Ruling dated 2nd July 2010 instead of orders issued by the subordinate court since 8th July 2010. The Chamber Summons which the applicant filed premised the application for revision on a decision of the subordinate court that was delivered on 2nd July 2010 but it was the decision dated 20th August 2010 which he attached to his supporting affidavit. I am inclined to agree with the Ms Mushi for the respondent that the applicant has not brought to the attention of this court the decision of the subordinate court against which the applicant wants this Court to revise. Simply restated, the powers of revision of the High Court under section 79 (1) of Civil Procedure Code can only be invoked where the Chamber Summons and supporting affidavit clearly identify a particular act or decision of the subordinate court which is to be revised. The applicant seeking the revision power o f this Court has failed to identify any particular decision of the subordinate court which is to be subject of revision proceedings. Applicants seeking the revision power of this Court should not take the revision power so lightly and in a lackadaisical manner. With my foregoing finding, it serves no purpose for me to address my Ruling on the remaining points of objection. I hereby find and hold that application for revision is fatally defective. Civil Revision Number 47 of 2010 is hereby dismissed and the respondent is awarded the costs. It is ordered accordingly. I.H. Juma JUDGE 19-07-2011 Delivered in presence of Ms Wemaeli, (Advocate for the Respondent). I.H. Juma - " ll % t n T' . - 'O - ....... JUDGE 'A r 19-07-2011 -c, "V 8