amani mashaka vs mazoea amani mashaka others 2016 tzca 754 18 march 2016

IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM (CORAM; MASSATI, J,A„ ORIYQ, 3.A. And MUGASHA. J.A.l CIVIL APPLICATION NO 124 OF 2015 AMANI MASHAKA (applying as the Administrator of the estate of MWAMVITA AHMED deceased)................................ APPLICANT VERSUS 1. MAZOEA AMANI MASHAKA 2. MWAMVITA MOHAMED MATUWILA 3. SALEH MOHAMED A B O U D ......................................................RESPONDENTS (Application for revision of the ruling and order of the High Court Land Division, at Dar-es-salaam) f Ndika, 3 dated the 24th day of April, 2015 in Land Case No. 198 of 2010 RULING OF THE COURT 23rd February & 18th M arch, 2016 MUGASHA, J.A.: This is an application for revision by notice of motion brought under section 4 (3) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002. The applicant is seeking revision on two grounds of motion as follows:- i a) That, the decision of the High Court refusing to correct errors In the ruling was not justified taking into account that the suit was dismissed well informed that the plaintiff was dead. b) That, the Ruling complained of was preceded by other rulings were problematic that is to say the purported review made on 21st June, 2013. The affidavit of a m a n i m a sh a k a is in support of the application. To buttress the motion the applicant has filed written submissions. The application has been challenged by the respondents through the joint affidavit of the 1st and 2nd respondents. The applicant was represented by Mr. Jethro Turyamwesiga learned counsel and the respondent was represented by Mr. Francis Mgare learned counsel. The respondents have raised preliminary points of objection on the following:- (a) The applicant has no locus standi to apply for revision of the trial decision dated 24.4.2015. (b) There is nothing to revise as far as the 21.6.2013 decision Is concerned. (c) The notice of motion contravenes rule 48 (2) of the Tanzania Court of Appeal Rules, 2009. At the hearing of the preliminary objection, the respondent abandoned the two grounds (b) and (c) and argued only ground (a). He adopted the written submission filed and urged the Court to dismiss the application because the suit which is a subject of the application has abated. On the other hand, Mr. Turyamwesiga for the applicant, asked the Court to dismiss the preliminary objection arguing that, it is illogical to say that the Administrator of estate has no locus standi in the case which involved the deceased m w a m vita m oham ed m a t u w ila who was a party in Land Case 198 of 2010. Moreover, in the event the trial court dismissed the case for want of prosecution with costs, such costs are on deceased's estate under the applicant's administration. He reiterated that the applicant has locus stan di in the application and urged us to dismiss the preliminary objection with costs. In rejoinder, Mr. Mgare argued that, mere appointment of the applicant as an administrator did not give him an automatic right as a party in Land Case No. 198 of 2010 which was pending. He added that, the applicant must have applied to be joined as party In terms of Order XXII rule 3 (1) of the Civil Procedure Code Act, [CAP 33 R.E. 2002]. As the applicant was not joined as a party in Land Case No. 198/2010, he does not qualify to seek revision in the application at hand. He further added that, there is nothing to be revised because the suit abated following applicant's failure to be joined as legal representative. The question to be answered is, does the applicant who was not a party in the trial has locus standi in this application. There is a chain of case law in which the Court has reiterated on how a third party can invoke the revisional jurisdiction of the Court. In m g eni s e i f v s m oham ed YAHAYA KHALIFANI, CIVIL APPLICATION N0.104 OF 2008 (Unreported), the court held:- "... because she was not a party to the said suit, but is contesting ow nership o f the house in dispute, not having a right o f appeal, the only venue fo r the applicant would be revision." Furthermore, in d o m in ic n k ya a n d a n o t h e r v s c e c i l i a m v u n g i a n d o t h e r s , Civil Application No. 3 "A" of 2006, this Court adopted what was decided in the cases of a u g u s t in o ly a t o n g a m rem a v s r , Criminal Appeal No. 61 of 1999 and h a lim a h a s s a n m a r e a lle v s p a r a s t a t a l s e c t o r r e f o r m c o m m is s io n a n d a n o t h e r , Civil Application No. 84 of 1999 (Unreported). The Court stated:- "It is apparent that the provision o f section 4 (3) o f AJA, seeks to ensure that this court has pow er to rectify any errors, illegalities or im proprieties in decisions o r proceedings o f the High Court which come, or are brought to its attention. Thus, this court m ay be m oved in revision by a third party who say, has an interest in the m atter..." There is no dispute that the applicant is the administrator of the estate of m w a m v ita MOHAMED m a tu w ila . If he was not a party in the original suit contended Mr. Mgare, therefore, the applicant has no other remedy rather than seeking a revision against the decision of the trial court because the applicant, has interest in the matter being the administrator of estate of Mwamvita who was a party in Land Case No. 198/2010. Moreover, since the respondent is contending that the applicant was not a party in the suit which is a subject of this application, he has no right of appeal, so he can seek revision as a third party to challenge Land Case No. 198 of 2010. In the premises, the applicant has locus standi in this application and the preliminary objection is without merit and it is hereby dismissed. Arguing the main application, Mr. Turyamwesiga started by addressing the first ground of motion regarding the refusal by the judge to correct the Ruling dated 7/9/2013 pursuant to the application sought under section 96 of the Civil Procedure Code. According to Mr. Turyamwesiga, the application was sought moving the judge to correct the dismissal of the ruling and replace it with the striking it out. However, Judge Ndika's (the successor Judge) refusal was proceeded by a review and reversal of a decision by Judge Ngwala (the predecessor judge), who had earlier on entertained an oral application to join SAID HASSAN AMANZI as the administrator of estate of the plaintiff. Mr. Turyamwesiga submitted that, the successor Judge should not have reviewed the decision of predecessor Judge because: One, the application for review was not before the court and Two, if it was an application for review, in any case it was delayed because a year had expired ever since the predecessor Judge made the order. Mr. Turyamwesiga also submitted that, the application for leave and notice to appeal were blocked by the judicial process, thus necessitating this application. He urged the court to find that there is plenty on record constituting good ground to revise the proceedings of the High Court and accordingly allow the application. When asked by the Court on the limitation of section 96 of the Civil Procedure Code Cap 33 [RE: 2002] vis a vis the propriety of correction order sought before the successor Judge, on reflection Mr. Turyamwesiga 7 conceded that, the respective application was not proper before the High Court. On the other hand, Mr. Mgare challenged the application arguing that the applicant has not advanced good grounds. He submitted that the High Court was justified to refuse correcting the dismissal order which was proper as there was no plaintiff. When asked by the court on justification of the reversal of the predecessor Judge's order by the successor Judge, he replied that it was appropriate in the circumstances because the case was assigned to a successor Judge who had inherent powers under section 95 read together with Order XLII rule 5 (1) of the CPC read together with section 2 (2) of the Judicature and Application of Laws Act [cap 358 re , 2002 ]. He added that, seeking revision is an afterthought because the applicant was not blocked to pursue an appeal. In rejoinder, Mr. Turyamwesiga reiterated that, the application for leave was struck out after the notice of appeal was withdrawn. He added that, because review is made under Order XLII, then section 95 of the CPC and section 2(2) of JALA are not applicable. He reiterated that, the successor Judge did not cite any law which he invoked in reversing the decision of predecessor Judge. It is settled that, the applicant could not have pursued an appeal because he was not a party at the trial which addresses the concern by Mr. Mgare who argued that, seeking revision is an afterthought because the applicant was not blocked to pursue an appeal. We also wish to point out that, a dismissal order of the suit could not be replaced by striking out pursuant to an application for correction because section 96 categorically states as follows: "C lerical o r arithm etical m istakes in judgm ents, decrees or orders o r errors arising therein from any accidental slip or om ission may, at any time, be corrected by the court either o f its own m otion or on the application by any o f the p arties" The cited provision is based on two important principles: (i) an act of court should not prejudice any party ( b is h n u c h a r a n d a s v d h a n i BISWAL, a i r 1977 o r i 68 (69) and (ii) it is the duty of courts to see that their records are true and they represent a correct state of affairs (SAMARENDRA V KRISHNA KUMAR, AIR (1967) 2 SCR 18. Therefore, the scope of application of section 96 of the Civil Procedure is strictly limited to correction of arithmetic and clerical errors In any decision. A dismissal of a suit is not by any stretch of imagination a clerical or arithmetical error sufficing to be cured under section 96 of the Civil Procedure Code (Supra). As such, though conceded by the applicant, the refusal by the judge to invoke section 96 of the CPC was to such extent justified and appropriate in the circumstances. The remaining complaint hinges on the successor Judge's review and reversal of the decision of the predecessor Judge which is in our view a jurisdictional issue which requires our keen address. Before the trial court, the record shows that following the death MWAMVITA MOHAHMED m a t u w ila who was the plaintiff, on 16/2/2012, her advocate made an oral application to implead the administrator and this is what transpired: " Mr. Lebba: Madame Judge , we pray for leave to amend the p la in t so as to jo in the Adm inistrator who has been appointed one Mr. Said Hassan Am anzi." 10 The predecessor Judge allowed the oral application and ordered as follows: Order: Leave to amend the plaint in the sense that the particulars and the contents o f the plaint should rem ain the same but the name o f the legal representative o f the p la in tiff who is now the deceased should be amended to that extent" In terms of the above the predecessor Judge allowed an oral application to join the administrator as legal representative of the deceased plaintiff. Following the transfer of the predecessor Judge, the Judge In charge re-assigned the case file to the successor Judge and on 5th June, 2013 Mr. Mgare addressed the court as follows: " M y Lord, it is on record the p la in tiff was appointed to be the adm inistrator o f the deceased's estate on 29/04/2011 and m ade an o ral application to be made a party to the present proceedings on 16/02/2012. That was after the lapse o f ten months a fte r his appointm ent. In term s o f p art II O f the schedule to the Law o f Lim itation A ct Cap 89, item 16, the lim itation time in which the adm inistrator is required to be made a party to the suit is 90 days. That tim e lim itation when the adm inistrator made his application to u be joined, he was already time barred although the court granted the application. I subm it that it was a to ta l m isdirection. Consequently the p la in tiff has no locus stand! to sue defendants. Since there Is such a defect on the record, I pray fo r court's direction on the m atter because I believe that the adm inistrator has no locus to su e as representative o f the estate o f the deceased..." This complaint was objected to by advocate Manyanga learned counsel for the plaintiff on the ground that it was aimed at dragging the trial. In rejoinder, Mr. Mgare reiterated that, predecessor judge's order was based on a misdirection. The successor Judge reserved the matter for a ruling on 21/06/2013 but the gist of what he decided on the aforesaid submission is found in another Ruling dated 2nd September, 2013 as follows: "This ruling is on a m atter that has arisen follow ing this court's ruling delivered on 21st June, 2013 and a consequential order made shortly thereafter. In that ruling, I review ed and vacated this court's order made on 16th February, 2012 that allow ed Mr. Saidi Hassan Am anzi to be im pleaded by the am ended p lain t and therefore joined as the leg al representative o f the estate o f the deceased plaintiff. I d id so 12 having found that the ora! application fo r jo in in g Mr. Am anzf was made and granted in violation o f the provisions o f item 16, P art III o f the Schedule to the Lim itation A ct Cap 89 RE 2002, which enacts ninety days as the lim itation period fo r applying the C ivil Procedure Code to have legal representative o f a deceased party, w hether in a suit or on an appeal, to be made a p a rt The o ral application was made on 16>h February 2012 when the ninety days p erio d o f lim itation had elapsed on or about 2Sfh Ju ly 2011, Mr. Am anzi having been appointed by a subordinate court to be the adm inistrator o f the deceased's estate on 2 $ h A pril 2011. No prayer fo r extension o f the lim itation period had been sought and obtained prior to the presentation o f the o ral application by Mr. Am anzi....... In aforesaid portion of the ruling, the successor Judge reviewed and reversed the decision of the predecessor judge on the ground that the oral application to implead the legal representative which was granted by the predecessor Judge was in contravention of the law. The Issue which arises here is whether the successor Judge had jurisdiction to review the decision of the predecessor Judge. 13 Mr. Mgare tried to impress on us that he made an ora! application for review on 5/6/2013, seeking the directions of the court after realizing the shortfall. This contention is not backed by the record which Indicates that Mr. Mgare did not make an informal application for review. Besides, seeking the direction of the court was not an informal application for review as asserted by Mr. Mgare. Review is governed by the Civil Procedure Code. Order XLII (1) (a) of the Civil Procedure Code requires: "Any person considering him self aggrieved- (a) by a decree or order from which an appeal is allowed, b ut from which no appeal has been preferred;....... desires to obtain a review o f the decree passed or order made against him, m ay apply fo r a review o f judgm ent to the court which passed the decree or made the order. " The time within which a review can be sought is thirty days. This is in terms item 3 of Part III to the Schedule of the Law of Limitation Act CAP 89 RE, 2002. 14 Civil Procedure by C.K Takwanl (supra) at page 390 commenting on the Indian Civil Procedure Code which is similar to our CPC states as follows with regard to a review: "It is w ell settled that the power o f review Is not an inherent pow er. It m ust be conferred by law either expressly or by necessary im plication. I f there is no such pow er o f review , the order cannot be reviewed. In such cases, the question w hether the order is correct o r valid in law does not arise fo r consideration " Initially, we agree with Mr. Turyamwesiga that, there is a specific provision which governs review and as such, the successor Judge could not have invoked section 95 of the CPC or section 2(2) of the JALA which are provisions of general application because there is no gap in the law relating to the matter relating to a review. Secondly, the court cannot embark on a review without being moved by a party to the case. As such, a court cannot on its own motion make a review of its decision. In the case under scrutiny, the successor Judge was not moved by any of the parties to make a review on the ground that, the application to implead the administrator was time barred necessitating the 15 dismissal for want of prosecution because the plaintiff was dead. Such review was improper in terms of the requirements of the law because It was not the duty of the successor judge to determine the correctness or validity of the order of the predecessor judge. Even if it had such powers then it was time barred because it was effected beyond thirty days from the date of the decision as the record is silent as to whether time was enlarged to apply for review. We are of the view that, the successor judge should not have reviewed and reversed the decision of the predecessor judge who granted leave to the late said s a id h a s s a n i a m a n zi to be joined as a legal representative of the late m w a m v ita mohamed m a t u w ila , plaintiff. In this regard we wish to repeat what we stated in the case of m oh am ed ENTERPRISES (T) LIMITED vs. MASOUD MOHAMED NASSER, Civil Application No. 33 of 2012 (Unreported). " We do so bearing in m ind that there should be no room open to the High Court and courts subordinate whereby one judge would enter judgm ent and draw up a decree in one case (thus bring such case to a fin a lity) only to finding another judge o f the High Court soon 16 thereaftersetting aside the said judgm ent and decree and substituting therefor with a contrary judgm ent and decree in subsequent application. To do so in our considered opinion , am ounts to gross abuse o f the court process. Such abuse should n o t be allow ed to win ground in this jurisdiction. Once judgm ent and decree are issued by a given court, judges (or m agistrates) o f th at court become "functus o fficio "in so far as that m atter is concerned. Should a new fact arise which should have been brought to the attention o f the court during trial, then CAP 33 provides fo r procedures fo r Review (O rder XLIIJ and where appropriate, Revision before a higher court, i.e. this Court ( Section 4 o f Cap 141)........... " In the premises, the successor judge embarked on a nullity to review and reverse the predecessor judge's order which allowed s a id h a s s a n i am anzi to be joined as a legal representative of the late m w a m v ita m oham ed m a t u w ila , plaintiff. As such, we quash and set aside all proceedings, ruling and subsequent orders by Judge Ndika which reviewed and reversed the order by Ngwala, J. to implead h a s s a n i a m a n zi to be a legal representative of the late m w am vita m oham ed m a tu w ila , plaintiff. 17 We restore the order dated 16/2/2012 by Ngwala, J. to join the SAID HASSANI AMANZI as legal and Personal Representative in terms of the Civil Procedure Code. The applicant may now proceed to take the necessary steps to pursue the matter. The file should be remitted to the trial court and placed before another judge. The application is allowed with costs. DATED at DAR ES SALAAM this 3rd day of February, 2016. S. A. MASS ATI JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL I certify that this is a true copy of the original. P.W=-BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 18