20140226 TZHC Dar es Salaam

.. ·.:·.. ·. ·, AT DAR ES .SALAAM ) MISC. CIVIL APPLICATION NO. 308 OF 2013 / / ALAWI ABDALLAH GONZA . . . . . . . . . . APPLICANT VERSUS ZAWADIABDUL . . . . . . . . . . . . . . . . . RESPONDENT Date of last order - 10/12/2013 Date of Ruling . , - 26/2/2014 RULING Lila, J.: The applicant, Allawi Abdallah Gonza, filed an application under Order XLII Rule (1) (a) of the Civil Procedure Code Cap 33 R.E. 2002 seeking for the follows orders; 1. This court be ·pleased to review its dismissal order in Misc. Civil Application No. 150 of 2013 for want of prosecution made on 01/10/2003 by· S.A. Lila, J. on account that there is a committed mistake and error apparent on face of record for overlooking the pending Page 1 of 13 - application for extension of time to file the 'written submission in chief which was not filed on time. 2. Costs of the application. The applicant, Alawi Abdallah Gonz~who enjoyed the services of Supreme Law Chambers deponed to an affidavit in support of the application. The respondent, Zawadi Abdu1/ who is represen~d by B.L. Tarimo and Company Advocates deponed to? counter affidavit. A brief background of the matter is this. The applicant, in Misc. Civil Application No.150 of 2013, filed an application seeking for leave to appeal to the Court of Appeal against this court's (Hon. Kaduri, J) decision in (PC) Civil Appeal No. 73 of 2011 delivered on the 18 th June, 2013. On 7/8/2013, with leave of the court, the parties were permitted to argue the application by way of written submissions. A schedule for filing such submission was set. The applicant was to file his submissions in chief on 26/8/2013, the respondent to file hers on 10 /9/2013 and rejoinder submissions, if any, were to be filed on or before 17 /9/2013. A date of ruling was set Page 2 of 13 to be on 1/10/2013. Came the 1/10/2013, a ruling was delivered and the application was dismissed for want of prosecution following the applicant's failure to file the submissions i~chief on 26/8/2013 as was ordered. Aggrieved bY. sufl. orders, the applicant have brought this application ~av, review on the ground stated supra. The basis of this application as indicated in paragraphs 1 to 6 is that there was already an application for extension of time to file the submissions in chief which was filed on 11/9/2013 which was to be heard and determined first. As indicated above, the applicant's basis for applying this review is that this court over/looked the applicant's already filed application for extension of time against which the respondent.had already filed a counter~davit. This ---:-.dli);.~ c fact is not contested by the responden~ Civil Application ww~ ~ No. 46 of 1999 (supra) (both of them as yet unreported). He also referred this court to page 330 of the Manual by B.D. Chipeta called CIVIL PROCEDURE - A STUDENT MANUAL. He accordingly prayed the application be rejected with costs. Page 3 of 13 In his rejoinder submission, the applicant apart from taking note that the respondent has raised a preliminary objection that the format taken to bring this application for review is wrong and has cited inapplicable old decisions without even supplying the copies, submitted that the application is proper in that the application for review must be brought by way of chamber summons supported by an affidavit as they have done. In support of his position he has cited the recent decision in KIMARO V. KIHIYO (2008) EA 202 which dealt with application for review, where it was held that the applications like that other applications made under the Civil Procedure Act, Chapter 33 (R.E. 2002) have to be made by way of a chamber summons supported by an affidavit in accordance with the provisions of Order XLIII Rule ~ unless there are circumstances bringing the application within the exceptions in proviso to that rule~ In essence, ~s rightly submitted by the applicant in his rejoinder submissions the respondent did not make any submissions in respect of the application for review. She is accordingly taken to have had nothing to argue against it. There is therefore, in respect of the application for review, Page 4 of 13 \. only the applicant's submissions to consider in determining such application. For the interest of justice, I think, it is pertinent to say a few words on what is a review and the purpose it serves. In the case of ATTILIO V. MBOWE [1970] H.C.D. n. 3, Georges C.J. (as he then was) had this to say- " The principle underlying the application for review is that the court would not have acted as it did had all the circumstances been known ... " The same position was reiterated by the Court of Appeal of Tanzania in the case of TRANSPORT EQUIPMENT Ltd VERSUS DEVRAM P. VALAMRIA, Civil Application No. 18 of 1993 (unreported) where a full bench of seven justices considered the courls power to review its decisions and held that "The courts has the inherent jurisdiction to review decisions and it will do so in any of the fallowing circumstances to wit, Page 5 of 13 ce. where there is a manifest error on the f aN of the record which resulted in miscourage of justice; or where the decision was attained by fraud; or where a party was wrongly deprived of the opportunity to be heard' The above legal position was also cited by the Court of Appeal in the case of AFRICAN MABBLE COMPANY LIMITED (AMC) versus TANZANIA SARUJI CORPORATION (TSC), Civil Application No. 132 of 2005. ~ Regarding an error on the face of the record, ~ulla, Indian Civil Procedure Code, 14 th Edition, Pages 2335 -36, states that- "An error on the face of the record must be such as can be seen by one who writes and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of on- reas#ing on points on which there may conceivably be two opinions." Page 6 of 13 The issue here now is whether or not there is an error I on the face of the record or simply stated did this court I overlook the pending applicatibn for extension of time to file written submissions in chi~f by the applicant when it delivered its ruling on 1/10 / 20~13 which culminated in the dismissal of the applicant's apblication for leave to appeal \ to the Court of Appeal (Misc. Civil Application No. 150 of 2013)? I have thoroughly perused the record and I am satisfied that the applicant filed an application for extension of time to file written submissions in chief on I 10/9/2013 as rightly submitted by the applicant. There is also on record a counter affidlvit by the respondent that I was filed on 18/9/2013. fhis is conceded by the respondent. All this was done long before this court delivered its ruling on 1/ 10ho 13. In such ruling I I indicated that I had perused the record and realized that applicant failed to argue his aJplication for leave to appeal I to the Court of Appeal. There is no note in it that there I was a pending application by the applicant for extension of time within which to file ~ w~itten submissions in chief. This was clearly an overlook b~ this court. For this reason Page 7 of 13 and on the above cited autTuorities this application is justified. fI;- tvf ~~ ~ 17~ ~ dflh/~,., ftzt< l"f7,''11-1~f-- r1'\? be__ /4.iVvftY- Ok_ ~ ~i-- ; ~"-'1>11~ o· ~owever, the respondent have raised the issue of competence of the application itself. It is to this issue I now resort. It is the respondents sub issions in brief, that Under I Rule 3 of Order XLII of the CP8, the application for review should be in the form used in Jreferring an appeal. To the contrary, she submitted, that this application have been brought by way of a chamber summons supported by an affidavit. To bolster her submiJsions she cited the Court of ) Appeal decisions in Chiku Hussein Lugonzo V. Brunnis I Lugonzo (supra), Ramadtani Mbegu's case (supra) and also referred this court to the/ook J B.D. Chipeta (Supra). The l copies of such cited deci~i!)n~~ve not been supplied but ~--l ;J I~ '-iyw\)1.11~ they are well discussed in Chipeta's Manual. ,A For his part, the applicant, in his rejoinder ' submissions, insisted that application for review must be I brought by way of a chamber summons supported by an affidavit. To strengthen his pJsition he cited the decision I Page 8 of 13 . \ ' in Kimaro V. Kihiyo (supra). He supplied the court with a copy of such decision. It is worth stating here that preliminary points of objection need he raised at the earliest possible opportunity and courts are supposed to .hear and determine them before embarking on the merits of the suit or application. Elaborating on what is a preliminary objection, the Court of Appeal of Tanzania in the case SHAHIDA ABDUL HASSANALI KASAM V. MAHED MOHAMED GULAMALI KANJI - Civil Application No. 42 of 1999 (unreported) held that; "The aim of a preliminary objection is to save the time of the Court and the parties by not going into ~he merits of an application because there is a point of law that will dispose of the matter SU"},marily''. Indeed, the respondent, on the above authority, was required to have had filed the preliminary objection immediately after the applicant had filed this application for review so that it could be heard and determined before Page 9 of 13 a schedule for filling submissions in respect of the application was set. So, by filling a preliminary objection in her submissions in respect of the application, the respondent acted contrary to the long established practice. I, however, have not seen any law or court decision prohibiting Courts not to entertain a preliminary objection raised in the submissions in respect of the main application where both parties avail the court with the necessary submissions in respect of such objection as is the case herein. It is my firm view that such an objection can be rejected by the court where it is improperly raised and where the other party complains of being taken by surprise and therefore is not accorded opportunity to respond to the same. In the present case, the respondent did not, in his rejoinder submissions complain being taken by surprise. He, instead, responded to it as well summarised above. In the circumstances, I see no reason to reject such objection. I accordingly proceed to determine it . ..5 In the pa.ft there existed a controversy regarding the applicability of Rule 3 of Order XLII of the CPC which Page 10 of 13 11 • t provides that the provisions as to the forms of preferring appeals must apply mutatis mutandis in filing application for review. Such fact is appreciated by Chipeta in his Manual (supra). t\M'~ How~r, my thorpugh, reading of the cases cited by :!- A , ~cu, 5-eY- both sides/\ hav~ ~ that they bear some common stands. These are that; 1) Applications for review are by their nature ordinary applications. 2) Being ordinary applications, applications for review~ governed by the provisions of Rule 2 of Order XLIII of the Civil Procedure Code [Cap 33 R.E. 2002] hence they are filed in the form of a chamber summons supported by an affidavit. 3) Appeals and applications are quite distinct in that in appeals which are governed by the provisions of Order XXXIX of the CPC there are requirements of certain documents such as a decree or drawn order being accompanied while in an application for review there is no legal requirement that a certain document being Page 11 of 13 accompanied to it. A simple reason {pr not '"' W . d 1· . ::t'°rb ,-..e_v,-e_ . 1 • accompanying any ocume)nt 1n an app 1cation/\ e1ng · that the same case file in which there are all /I i documents is used as oBposed to appeal where a completely new file is openef;d by an appellate court. ,, The above being the case, ~t is now, therefore, settled I! that the format of applications for review is governed by the I provisions of Order XLIII rule 2 of the CPC which requires ,,11 the same be by way of a chamber summons supported by an affidavit. More so, the form referred to under Rule 3 of 1 (f" ! Order XLII of the CPC ~ ' as per the above cite~ authorities, only to the structure or appearance where the title, names of the parties, da~e of decree, number of the i' suit and the numbered paragraphs should be shown. It is I therefore with all due resp¢ct that I would tell the ,, ,, respondent that the cases he c(ted ~are in her disfavour. I For the above reasons, the objection raised by the ! respondent is overruled. The application for rev~ew is here by accordingly granted. Misc. Civil Applicati~n No. 150 of 2013 is hereby i Page 12 of 13 ( !1 /; i' reinstated. The pending applicat}on for extension of time to file written submissions in chief ~s to be heard first. I i I S.A. Lila Ii 1: JAJI KIONGOZI 26/2/2014 I, 11 11 Orde~ / Ruling is delivered today in ithe presence of Mr. Tarimo Advocate for the respondent ~d in the presence of the applicant and respondent in/: person as well as Flora Advocate holding brief for Mr.Ii Kyaruzi Advocate for the applicant. S.A. Uila !i JAJI KIONGOZI 26/2/~014 Page 13 of 13