CIVIL REVISION NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL REVISION NO. 14 OF 2023 (Arising from the Kibaha District Court in Misc Civil Application No. 07 of 2023; Civil Appeal No. 11 of 2022; Bill of Costs No. 03 of 2023; and Civil Case No. 56 of 2022) AMAFINA MICROCREDIT ……………..……………………. …..……. APPLICANT VERSUS CHRISTINA COSMAS MHINA ...................................... ………. RESPONDENT RULING 21st September & 30th November, 2023 BWEGOGE, J. The above-named applicant instituted an application herein praying this court to call for, examine and revise the decisions of the District Court of Kibaha in Misc. Civil Application No. 7 of 2023, Bill of Cost No. 3 of 2023, Civil Appeal No. 11 of 2022 and Civil Case No. 56 of 2022 of Maili Moja Primary Court, among others. The application is brought under the provision of sections 79,93 and 95 of the Civil Procedure Code [Cap. 33 R: E 2019] and section 31 of the Magistrates’ Courts Act [Cap. 11 R. E. 2019]; and supported by the affidavit of one Rebecca Allen Mwakanjila 1 the principal officer of the applicant. In tandem with filling the counter affidavit, the respondent raised three preliminary objections on points of law as thus: - 1. The application for revision is not maintainable in law for being preferred as an alternative to appeal. 2. That the court has not been properly moved for revision of four cases at once. 3. That the chamber application and affidavits are fatally defective. Briefly, the background of this case as depicted from the pleading filed herein bears facts that: The respondent sought and obtained a loan of TZS 500,000/= from the applicant. The respondent failed to repay the loan within the contractual period. The applicant decided to exercise her recovery right by seizing the mortgaged properties as covenanted in the loan agreement. The respondent was not amused. She sued the applicant herein in Civil Case No 56 of 2022 in the Maili Moja Primary Court at Kibaha. The judgment was entered in favour of the respondent herein. The applicant was ordered to pay the respondent TZS 2,000,000/= as specific damages and TZS 3,000,000/= as general damages. The applicant was aggrieved by the decision of the trial court and instituted Civil Appeal No. 11 of 2022 in the District Court of Kibaha. The appeal was struck out on technical ground. Undaunted, the applicant filed Misc. Civil Application No. 7 of 2023 in the first appellate court seeking 2 the order for setting aside the dismissal order. However, the applicant failed to file her written submission as scheduled; hence, the application was dismissed as well. Following the dismissal of the appeal preferred by the applicant, the respondent herein initiated execution proceedings in respect of the decree entered by the trial court in Civil Case No. 56 of 2022. Hence, this application. The applicant was represented by Mr. Mkwikwini Robert, learned advocate and the respondent was represented by Messrs Henry Njowoka and Ally Kimweri, the learned advocates. The matter was argued by written submissions. Mr. Kimweri preferred to commence his submission with the 2nd limb of the preliminary objections raised herein. He submitted that it is legally impossible to move the Court to revise four cases in a single application namely, Misc. Civil Application No. 7/2022, Bill of Costs No. 3/2023, Civil Appeal No. 11/2022 of the District Court of Kibaha and Civil Case No. 56/2022 of Maili Moja Primary Court. That the court may entertain an omnibus application in the circumstances where common relief is sought in a single application which is not the case in the matter at hand. The counsel charged that the application herein contravenes Order XLIII, rule 3 2 of the Civil Procedure Code which requires each distinctive application to be instituted by way of chamber application supported by an affidavit. Further, the counsel argued that the application for revision in respect of the Civil Case No. 56 of 2022 decided by the court of first instance and Civil Appeal No. 11 of 2022 decided by the 1st appellate court is time- barred. That the earlier case was decided on 27th September, 2022 and the latter case was decided on 13th January, 2023. Thus, in terms of item 21 of Part III of the Schedule to the Law of Limitation Act [CAP. 89 R.E 2019] the time frame to file revision herein is 60 days. Hence, the counsel concluded that this application is time-barred in respect of the above- mentioned cases. In the same vein, the counsel charged that the case; Miscellaneous Civil Application No. 7 of 2023 was dismissed for want of prosecution. Hence, there are no proceedings to be revised. And, in respect of the Bill of Costs No. 3 of 2023, the law (The Advocates Remuneration Order, 2015) provides that a party who is aggrieved by a decision of the Taxing Officer is required to file reference to the High Court. The counsel cited the case of Alisum Properties Limited vs. Salum Selenda Msangi (Civil Appeal 39 of 2018) [2022] TZCA 389 to reinforce his point. 4 Regarding the 1st limb of the objections, the counsel argued that the Civil Appeal No. 11 of 2022 which emanated from the Civil Case No. 56 of 2022 was struck out for being incompetent. Then the applicant filed the application (Misc. Civil Application No. 7/2023) seeking an order for restoration of the case which was likewise dismissed. Therefore, the avenue for appealing in the 1st appellate court against the original case (Civil Case No. 56 of 2022) is still available; hence, there is no need for revision The case of Hassan Ng'anzi Khalfan vs. Njama Juma Mbega (legal Representative of the Late Mwanahamisi Njama) & Another (Civil Application 218 of 2018) [2020] TZCA 32 was cited to buttress the point. Lastly, with respect to the 3rd limb of the objection, the counsel argued that the proceedings of the lower Court indicate the name of the applicant as AMAFAINA MICROCREDIT but in this application, the same is described as AMAFINA. This anomally, in the opinion of the respondent’s counsel creates confusion in the record of this case. Likewise, the counsel charged that the deponent in the affidavit supported this application is identified as REBECCA ALLEN MWAKANJILA t/a AMAFINA MICROCREDIT which further creates confusion as to who deposed the facts thereof. 5 In his brief reply, Mr. Mkwikwini contended that the 1st limb of the objections herein does not qualify to be the preliminary objection as it needs facts and evidence to be resolved. He cited tha case of Mukisa Biscuits vs. West End Distributors Ltd [1969] EA 696 to bolster his assertion. Concerning the 2nd limb of the preliminary objections, the counsel contended that the provisions of section 79(1)(3) and 95 of the Civil Procedure Code coupled with the provisions under section 31 of the Magistrate Court Act [Cap. 11 R.E 2019] enjoins this court with power to call for and revise the cases commenced in the lower courts. And, in respect of the 3rd limb of the objections, the counsel responded that the relevant objection is patently misconceived. In rejoinder, Mr. Njowoka maintained his previous stance and invited this court to sustain the prelimainary objections preferred herein. The point of determination is whether the preliminary objections raised herein have substance in law to be sustained. Primarily, I subscribe to the assertion made by the applicant’s counsel in that a preliminary objection is expected to raise a pure point of law based on ascertained facts from the pleadings which, if argued, should be 6 capable of disposing of the case. It is a law that a preliminary objection cannot also be raised if what is sought is the exercise of judicial discretion. See the cases of Attorney General vs. The Board of Trustees of the Cashewnut Industry Development Trust Fund (Civil Appeal 72 of 2015) [2015] TZCA and Mukisa Biscuits vs. West End Distributors Ltd [1969] EA 696, among others. I find it pertinent to restate that it is the law that a preliminary objection has to raise a pure point of law based on material facts from the pleadings which have the capacity of disposing of the case. See the case of Mukisa Biscuits vs. West end Distributors Ltd (supra), among others. Now, I proceed to determine whether the preliminary objections raised herein pass the legal test mentioned above, commencing with the 1st limb. It has been charged that the application for revision herein is not maintainable in law for being preferred as an alternative to appeal. It was the argument of the respondent’s counsel in that the applicant has an avenue to appeal against the original case i.e. Civil Case No. 56 of 2022. Hence, the same cannot invoke revision proceedings as an alternative to appeal. Contrarywise, the applicant deponed in her affidavit that the only avenue left for her to obtain justice by way of revision. That unless this application is granted, she stands to suffer a loss compared to the 7 respondent. Admittedly, as aforementioned, the record of this case entails that the respondents successfully sued the applicant in Civil Case No 56 of 2022 in the court of first instance. The applicant appealed in the District Court of Kibaha in Civil Appeal No. 11 of 2022. The appeal was struck out on technical ground. Likewise, her application to set aside the dismissal order was dismissed on technical ground. Based on these factual grounds, I purchase whole sale the assertions made by the respondent’s counsel in that the applicant has the right to appeal against the impugned decisions if at all she finds justice was not well served. No convincing ground was deponed why the applicant preferred the revision proceedings herein apart from the empty statement in that revision is the only avenue to her. In this respect, the Apex Court in the case of Hassan Ng'anzi Khalfan vs. Njama Juma Mbega (legal Representative of the Late Mwanahamisi Njama) & Another (Civil Application 218 of 2018) [2020] TZCA 32, clarified thus: “We hasten to remark at the very outset of our determination that the point raised .... on the propriety of this application before us is of paramount importance worth of determination before going into the nitty-gritty of the application. We say so because we are positive that 8 the law is now settled that revisional pow ers of the Court are not an alternative to its appellate jurisdiction .” [Emphasis mine]. Further, citing the case of Halais Pro-Chemie v. Wella A.G. [1996] TLR 269, the court restated: "Except under exceptional circumstances, a party to proceedings in the High Court cannot invoke the revisional jurisdiction of the Court as an alternative to the appellate jurisdiction of the Court." [Emphasis mine]. See also the same stance in cases: Moses Mwakibete vs. The Editor, Uhuru and two others [1995] TLR 134 and Transport Equipment Ltd vs. Devram P. Valambhia [1995] TLR 161; Kempinski Hotels S.A vs. Zamani Resorts Limited & Another, Civil Application No. 94/14 of 2018, CA (unreported) and Yara Tanzania Limited vs. DP Shapriya & Company Limited, Civil Application No. 345/16 of 2017 CA (unreported). It suffices to point out that it is settled law that unless there are exceptional circumstances, the revisional jurisdiction of the Court should not be resorted to as an alternative to its appellate jurisdiction. I would reiterate that the applicant opted the challenge the striking out order entered by the 1st appellate court by filing an application to set aside the impugned order which was struck out on technical ground. Thus, she 9 abandoned to pursue such avenue and opted to challenge both decisions by revision. As I said earlier, no cogent grounds have been advanced as to why she opted to challenge the impugned decisions by way of revisions instead of appeal. No fact has been deposed in that the appeal process has been blocked. In the case of Moses Mwakibete vs. The Editor, Uhuru & 2 Others [1995] TLR 134, the Apex Court emphasized that: "Before proceeding to hear such an application on merits, this court must satisfy itself whether it is being properly moved to exercise its revisional jurisdiction. The revisional pow ers ....... w ere not m eant to be used as an alternative to the appellate jurisdiction of this court. In the circumstances, this court, unless it is acting on its ow n m otion, cannot properly be m oved to use its revisional pow ers .....in cases w here the applicant has the right of appeal with or without leave and has not exercised that option ... " [Emphasis mine]. Given the foregoing reasons, I find the 1st limb of the objections preferred by the respondent with substance. The 2nd limb of the objections alleges that the court has not been properly moved for the revision of four cases at once. In substance, it is alleged that the revision proceedings herein are bad in law for being omnibus applications. Admittedly, it is the rule of law that omnibus applications renders the application incompetent. See in this respect the cases; Bibie Hamad Khalid vs. Mohamed Enterprises (T) Ltd & Another, Civil 10 Application No. 06 of 2011, CA (unreported); Rutagatina C.L. vs. The Advocates Committee & Another, Civil Application No. 98 of 2010 [2011] TZCA 134; and Mohamed Salmin vs. Jumanne Omary Mapesa, Civil Application No. 103 of 2014, CA (unreported). However, this rule applies where the application combines two or more unrelated applications. In the matter at hand, the applicant has one prayer for revisions of impugned decisions rendered in several cases mentioned above. Thus, the fact that the application herein involves several cases with different subject matters alone, doesn’t render the application herein omnibus. However, I would agree with the respondent’s counsel in that the case namely, Bill of Costs No. 3 of 2023, could only be brought by way of reference, not revision, in terms of Order 7(1) of the Advocates Remuneration Order (G.N. NO. 263), 2015. No ground has been advanced in that the option to file reference in this court has been barred. In the same vein, an application for revision of the case presided by the court of the trial court (Maili Moja Primary Court) should, at first instance, lie to the 1st appellate court. And, I would add that the applicant still have a chance to appeal in the 1st appellate court against the decision of the trial court in Civil Case No. 56 of 2022 as the 1st appellate court merely struck 11 out the appeal (Civil Appeal No. 11 of 2022) and no application for extension of time to file appeal has been taken and refused. In tandem to above, I subscribe to the assertion made by the respondent’s counsel in that even if the matter herein would have been properly instituted, yet the purported application for revision in repect of Civil Case No. 56 of 2022 decided by the trial court on 27/09/2022 and Civil Appeal No. 11 of 2022 decided by the 1st appellate court on 13/ 01/2023 would be out of statutory period. Thus, I find substance in the charges made by the respondent’s counsel herein. Lastly, it is alleged in the 3rd limb of the preliminary objection that the chamber application and affidavits are fatally defective for confusion arising in the description of the applicant in both the record of this case and the pleading of this case. This ground need not detain me. It is my considered opinion that the alleged confusion in the names of the applicant amounts to misdescription of a party in law which is not fatal to the case. See the cases; Tanzania Leaf Tobacco Co. Ltd vs The District Labour Officer Kahama, on Behalf of Mohamed Cherwa, DC Civil Appeal No. 18 of 2001 & 19 of 2001, HC Tabora, (unreported); JB Kohl and Others vs. Bachulat Popatlal [1964] EA 219; Gaffoor 12 vs. Silntlal [1973] EA 485 and Christian Mrimi vs Coca-Cola Kwanza Bottlers Ltd, Civil Application No. 113 of 2011, CA (unreported). Particularly, in the case of JB Kohl and Others vs Bachulat Popatlal (supra) the Court clarified that misdescription is one of mere misnomer for which the court could allow an amendment. In the same vein, in the case of Christian Mrimi vs Coca-Cola Kwanza Bottlers Ltd (supra) where the respondent was impleaded by the name “Coca-Cola Kwanza Bottlers Ltd.,” instead of “Coca-Cola Kwanza Ltd.,” the Apex Court was of the opinion that the confusion of the name of the respondent was not a fatal irregularity and it was curable by deleting the word “Bottlers.” The Court allowed the applicant to correct the name of the Respondent from “Coca-Cola Kwanza Bottlers Ltd.,” to “Coca-Cola Kwanza Ltd.” I, therefore, agree with the assertion made by the applicant’s counsel in that the 3rd limb of the preliminary objections is patently misconceived. In fine, I find that the applicant has not established the exceptional circumstances which would move this court to exercise its revision powers on the impugned decisions, among other procedural sins. Thus, I would sustain the preliminary objections on points of law raised by the respondent herein, save the 3rd limb. 13 Consequently, the application herein is hereby dismissed. The respondent shall have her costs. So ordered. DATED at DAR ES SALAAM this 30th day of November, 2023. O. F. BWEGOGE JUDGE 14