20130213 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAJlM ' CIVIL REVISION NO. 15 10F 2012 ALLIANCE ONE TOBACCO (TANZANIA) LIMITED . . . . . . . . . . . . . . . . . . . . . . . APPLICANT Vs. MOROGORO DISTRICT COUNCIL . . . . . . . . . . . . RESPONDENT Date of last order- 29/11/2012 Date of Ruling- 13/2/2013 RULING ~,,.,. 1 Shangwa, J. t This . is a preliminary objection against the hearing of the application for revision of the ruling and orders of Morogoro Resident Magistrates ~ourt made on 27 th March, 2012 in Miscellaneous Civil Application No. 28 of 2011 which originated from Civil Case No. 10 of 2011. 2 The ruling and orders of th~ Morogoro Resident I Magistrates Court Kabate, SRM which the Applicant wishes this court to revise is the ruling and orders in which the Applicant was required to deposit a sum of TZS Ninety Million 90,000,000/= on or before 10 th April, 2012 so as to appear and defend Civil Suit No. 10 of 2011 filed by the Respondent, failure to which the court will rule that the Applicant is not interested to appear and defend the suit. The preliminary objection againi-,t the hearing of the application for revision of the afore said ruling and orders is based on two points namely:- 1. That the application is incompetent and untenable in law for the same has been brought in contravention of the law. I 2. That the application has been brought under an inapplicable provision of the law. 3 I On 3 rd September, 2012, I ordei;·ed that the points of preliminary objection should be argued by way of written submissions. Counsel for the Respondent Mr. Mtanga filed lengthy submissions and counsel for the Applicant Mr. Fred Ringo filed lengthier submissions in reply. On my part, I will be very brief in considering the two points of preliminary objection raised by the Respondent. On the first point of preliminary bbjection, Mr. Mtanga i submitted inter-alia that S.43 (2) of the Magistrates Courts Act as amended by Act No. 25 of 2004 and S. 79 (2) of the Civil Procedure Code prohibits revisional proceedings against interlocutory decisions of lower courts unless the same has the effect of finally determining the suit. He contended that as the decision of the lower court does not , finalize the suit i.e. Civil Case No. 10 of 2011, then the application is premature. 4 I ·\ On the 2 nd point of preliminary objection, Mr. Mtanga submitted that the application has b~en brought under an inapplicable provisions of law that is S.79 of the Civil Procedure Code. In my op1n1on, the decision which was made by Kabate, SRM in Misc. Civil Application No. 28 of 2011 is not interlocutory in nature. It was final in so far as the I I application for leave to appear and ~ defend the suit was ' concerned. The magistrate categorically ruled that the Applicant should deposit a sum of TZS 90,000,000/= on or before 10 th April, 2012 so as to appear and defend Civil Suit No. 10 of 2011 failure to which judgment would be entered in favour of the Respondent.. It means therefore that S.43 (2) of the Magistrates Cour~s Act as amended by Act No. 25 of 2004 is inapplicable in !the circumstances of 5 i this case. Thus, I overrule the first point of objection which -fails. On the second point of objection Mr. Mtanga contended that S. 79 of the Civil Procedure Code is applicable in the following situations:- 1. Where the subordinate court has exercised jurisdiction not vested. j 2. Where if jurisdiction is vested, the subordinate court has failed to exercise the same. 3. Where in the exercise of its jurisdiction, the subordinate court has acted illegally or with material irregularity. Mr. Mtanga further contended that u;nder S. 79 (1) of the ) Civil Procedure Code, the revisional .powers of this court are limited to cases where no appeal lies. ---------- 6 In my op1n1on, the prov1s1on of law under which the application for revision was brought namely S. 79 ( 1) of the Civil Procedure Code Cap. 33 R.E. 2002 is applicable. It is applicable because it covers situations like this one in which the Applicant was required by the Court of the Resident Magistrate at Morogoro to deposit a sum of TZS 90,000,00/= as a condition for hearing of its application to l appear and defend the suit. Indeed, on the face of it, the Magistrate's order of requiring the Applicant to make the said deposit involves some material irregularity and an abuse of discretion as the amount the Applicant was required to deposit is the exact amount which is being contested in Civil Case No. 10 of 2011. Also, I am of the op1n1on that S. 79 (1) of the Civil Procedure code Cap. 33 R.E. is applicable in this case as the Applicant is applying for revision and not appeal. 7 In the final analysis, I overrule the preliminary objection against the application for revision in its entirety. 13/2/2013! Delivered 1n open court this 13 th February,2013 1n the presence or· Mr. Laswai for the Applicant and 1n the absence of the Respondent. A.Shangwa JUDGE i 13/2/2013: