Bazila MushiSued as administritix of the estate of the late Deusdedith R

IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY AT IJC MOROGORO CIVIL REVISION NO. 08 OF 2023 (Originating from the Decision of the District Court of Kilombero in Civil Case No. 02/2023.) BAZILA MUSHI.………………………………………..…1ST APPLICANT (Suing as the administratrix of estate of late Deusdedith R. Mushi) SHEKEMU CONSTRUCTION CO.LTD……………………………………….…………….2ND APPLICANT VERSUS BEATUS FONGA SOKA t/a VUNJA BEI INVESTMENTS CO……..……………..…... RESPONDENT RULING 30th April, 2024. MANSOOR, J. In the District Court of Kilombero herein ‘The Trial Court, the respondent herein sued the applicants vide Civil Case No. 02 of 2023 demanding among other things payment of Tshs. 37,704,900/= being the outstanding debt for supply of building materials. The applicants resisted Page 1 of 13 the claims by filling their written statement of defence coupled with the notice of preliminary of objection on the following points of laws; 1. The suit is incompetent for being filed out of the prescribed time by the law and therefore time barred. 2. That the suit is incompetent against the 1st defendant for suing a non-legal entity. 3. That the suit is incompetent for not disclosing cause of action against the 1st and 2nd Defendants. The trial court disposed of the preliminary objection by way of written submission and at the conclusion of the hearing, it entered the decision in favor of the respondent and ordered the suit (Civil Case No. 02 of 2023) to be stricken out however in the same decision, the trial court determined other points of objection which were not risen by the applicants herein and dismissed the same. Disgruntled, the applicants Bazila Mushi (Suing as administritix of the estate of the late Deusdedith R. Mushi and Shekemu Construction Co. Ltd, through the legal representation of Mr. Bartalomew L. Tarimo, the advocate from B.L Tarimo and Co. Advocates based in Morogoro, preferred the instant revision by way of chamber summons made under Section 79(1)(c),Order XLIII Rule (2) of Civil Procedure Code, Cap 33 R.E Page 2 of 13 2019,section 43(2),44(1)(b) of the Magistrate Courts Act, Cap 11 R.E 2019 and any other enabling provision of the law seeking orders as hereunder: 1. That the honourable court be pleased to call for examine the records and proceeding so as to satisfy itself as to the correctness, legality or propriety of the decision of District Court of Kilombero at Ifakara, Civil Case No.2 of 2023 dated 04/10/2023. 2. That, this honourable High Court be pleased to order the Preliminary Objection raised by Defendants and filed in that Court on the 8th of March 2023, be properly addressed and determined. 3. That, cost be provided for. 4. Any other relief that this Honourable Court may deem just to grant. Upon being served with the chamber summon and the affidavit in support of the application, the respondent resisted the application by filing the counter affidavit coupled with the notice of preliminary objection on the following points of law to wit: - i. That, this honourable court lacks jurisdiction to entertain and determine this matter. ii. That, this application is incompetent as it contravenes prescribed procedure of law. Page 3 of 13 As court's practice has it, I had to determine first the preliminary objections before embarking into the merits of the application. With the leave of the Court, the hearing of the points of objections was canvassed by way of written submission by the order of this Court dated 13/03/2024 The applicants were represented by Mr. Bartalomew L. Tarimo, the learned advocate whereas on his part, the respondent had the services of Ms. Donatila Teendwa, the learned counsel. Ms. Teendwa was the first one to move the discussion on the go. She started by abandoning the first limb of objection amplifying that it will be covered on discussion of the second limb. Submitting on support of the second limb of objection the learned counsel’s argument was predicated under section 79 (2) of the Civil Procedure Code (Cap 33 R.E 2022) which prohibit application for revision in respect of any preliminary or interlocutory decision or order of the Court unless such decision or order has the effect of finally determining the suit. Expounding her argument Ms. Teendwa referred this court to the meaning of an interlocutory order as it has been offered in Black Laws Dictionary and she was also fortified by the case of Seif Sharrif Hamad vs S.M.Z (1992) TLR 43. Page 4 of 13 Expounding further on the applications for revision in our jurisprudence she was of the view that, an order for the application for revision to be successful it must meet "the nature of order test". To cement her stance, she was armed with the decision of the case of Bazson v Attrinchan Urban District Council (1903, 1KB 948) which explained the modality of using the test, by stating that; one has to ask himself "does the judgment or order as made, finally dispose of the rights of the parties? If it does then it ought to be treated as a final order, but if it does not it is then an interlocutory order". She demonstrated further that the test has been applied in various cases in the common law system including a case of Celestine Samora & Twelve Others v Tanzania Social Action Fund & Other, Civil Appeal No. 318 of 2019), Peter Noel Kingamkono v. Tropical Pesticides Research, Civil Application No. 2 of 2009 in which the court made a very clear precedent by holding that: "In view of the above authorities, it is therefore apparent that in order to know whether the order is interlocutory or not, one has to apply the nature of order test'. That is, to ask oneself whether the decision or order complained officially disposes of the rights of the parties. If the answer is in affirmative, then Page 5 of 13 it must be treated a final order. However, if it does not, it is then interlocutory order’. Insisting on the point she also referred this court to decision of the Court of Appeal of Tanzania in the case of Murtaza Ally Mangungu vs The Returning Officer for Kilwa North Constituency & Two Others, Civil Application No. 80 of 2016, where it had the following to say: "it is our view that an order or decision is final only when it finally disposes of the rights of the parties. That means that the order or decision must be such that it could not bring back the matter to the same court" Substantiating impropriety of revision on the interlocutory order, the learned counsel was guided by decision of the Court of Appeal of Tanzania in the case of Total Tanzania Limited v Mexon Sanga, Civil Application No. 488/16 OF 2019 (CAT) DSM Unreported where the Court instructively held that; ‘It is, we think, automatic that the applicant ought to have taken a totally different route or approach instead of lodging the instant application for revision. In our considered opinion is undeniably right to argue that the application before us is misconceived" Linking the instant application with the above authority Ms. Teendwa opined that the applicant's application does not meet the 'the nature of Page 6 of 13 order test' as the order sought to be revised does not dispose of the rights of the parties rather dispense only intervening matters. Reverting back to Civil Case No. 02 of 2023 Ms. Teendwa submitted that the case is still pending in the District Court of Kilombero as a result of the interlocutory order issued. She added further that the final judgement will emanate from it as the rights and remedies of the parties will be disposed. Criticizing the instant application for revision, she was of the view that it is prematurely brought in this court since the decision which is sought to be revised falls under interlocutory orders which does not have a conclusive effect as the case (Civil case No. 02/2023) is pending in Kilombero District Court for final determination. Ms. Teendwa was of the view that, the applicants still have a good time for pursue a similar cause just in case any final decision will be issued in the said case but not now. She maintained further that, seeking revision in the circumstances of an interlocutory order is pre-empting the proceedings of the main suit which is contrary to our jurisprudence. Insisting on the propriety of the raised preliminary objection she was of the view that it is compatible to the guidelines enshrined in the landmark case of the Court of Appeal for East Africa in Mukisa Biscuit Page 7 of 13 Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A. At the end she beseeched this court to struck out the applicants’ application with costs armed with the cited precedents and Section 79(2) of the Civil Procedure Code [CAP 33 R.E 2019]. Responding to the applicants’ submissions, Mr. Tarimo started by reproducing the historical background of the instant matter which I find unnecessary at this stage to reproduce it here under. Submitting against the raised point of preliminary objection the learned counsel at the onset faulted the impugned ruling reasoning that the same contains decisions of two civil cases. To add weight on his assertion he referred this court to pages 5, 11 and 12 of the impugned ruling dated 26/07/2023. The learned counsel reproduced what is stated on page 05 of the impugned ruling where the trial court stated as follows-; "As per argument advanced by the learned counsel for the Defendant, it is crystal clear that the suit had been instituted out of time prescribed of law of limitation stated above, action is statute barred, there is no any reason stated or leave of the court sought, hereby struck the case with costs”. He similarly quoted pages 11 & 12 of the impugned ruling where the trial magistrate states that; Page 8 of 13 "I am of the consideration view that, since this matter at hand involves commercial issues so this court has jurisdiction to entertain it and primary court has no jurisdiction to entertain this matter. I hereby dismiss the Preliminary Objection, each party to bear its own costs." Commenting on the propriety of the instant application the learned counsel submitted that, the applicants could not opt for an appeal in this circumstance due to the nature of irregularity and illegality occasioned in the impugned ruling. Demonstrating the irregularities on the impugned ruling he stated that, the heading of the ruling belongs to the applicants' case however the last seven (7) pages of the said ruling does not match or belong to them (Civil Case No. 2 of 2023). Highlighting on the meaning of judgment, the learned counsel referred this court to section 3 of the Civil Procedure Code (Cap 33 R.E 2019) which offer the definition of the judgment to mean, the statement given by a Judge or a magistrate of the grounds for a decree or order. To add weight on his submission he also cited Order XX Rule 3 of the Civil Procedure Code (supra) which provides on the modality of writing judgement and making alteration on it and referred this court to the case of Rugaba Page 9 of 13 Kasusura and the Attorney General v. Phares Kartiye (1982) TLR 338 where the Court of Appeal categorically stated that; “The Judgment is fatally defective: it leaves contested material issue of facts unresolved. It not really a judgment because it decided nothing, in so far as material facts are concerned. It is not a judgment which can be up-held or up- set It can only be rejected." Reverting back to the instant application the learned counsel submitted that, the application is filed under the provision of Section 79(1) (c) and Order XLIII rule (2) of the Civil Procedure Code (supra), section 43(2) and 44(1)(b) of the Magistrates Courts Act (Cap 11 R.E 2019). Linking section 79 (1)(c) of the Civil Procedure Code to the instant application the learned counsel contended that the impugned ruling dated 26/07/2023 together with the one which corrected its clerical and arthimetic mistakes dated 04/10/2023 contains serious material irregularity apparently on face of it, which requires the attention of this High Court under the above section so as to rectify the errors. At the end the learned advocate urged this court to find the raised preliminary objection unfounded and be dismissed with cost. On my part, having summarized the contending arguments, and upon overviewing the entire application, parties’ submissions and the Page 10 of 13 authorities cited by the Counsel for the parties in a bid to convince this Court to believe their versions, the pertinent issue calling for consideration, determination and decision thereof is, whether the present application is competent before this Court. My starting point will be to consider and deliberate on the point as whether the instant application offends section 79(2) of the Civil Procedure Code, in that it arises from a decision that did not conclude the matter before the District Court, an interlocutory decision. Section 79(2) of CPC under which the preliminary objection is predicated states thus: - 79.Revision (2) Notwithstanding the provisions of subsection (1), no application for revision shall lie or be made in respect of any preliminary or interlocutory decision or order of the Court unless such decision or order has the effect of finally determining the suit. In the case of Pardeep Singh Hans Vs Merey Ally Saleh, Civil Application no. 422/01 of 2018 (Unreported), the Court of Appeal in underlining the test to be applied in resolving as to whether the interlocutory order qualifies for revision or not had the following to state; “It is therefore trite law that no appeal lies to the Court against any preliminary or interlocutory order of the High Court unless such decision or order has the effect of finally determining the suit. The Page 11 of 13 right of appeal or revision in respect of preliminary or interlocutory decisions or orders of the High Court where such decisions or orders have the effect of finally determining the suits is therefore statutory. The phrase 'finally determining the suit has been defined to mean a decision or order which has an effect of finally determining the rights and liabilities of the parties.” My scrutiny of the impugned ruling of the District Court dated 26/07/2023 in Civil Case No. 02 of 2023 in line with the above cited provision clearly shows that the matter was struck out before the reliefs sought were fully determined. It is clear on page 5 of the ruling of the court as clearly quoted by both learned counsels on their submission that the District Court rendered one reason as demonstrated herein; that the suit has been instituted out of time prescribed of law of limitation. Indeed, the impugned ruling doesn’t address any of the reliefs sought in the Civil Case No.02 of 2023. I am thus of the view that the impugned decision was interlocutory and the instant application is premature. With no prejudice to what is stated above, I have also considered the applicant's argument that the present application is justifiable as the District Court rendered two different decisions on the same case; the first one being in relation to the matter before it Civil Case No.02/2023 while the other one was not concerned with the case. Without hesitation, I have found the issue inviting discussion that has to be covered on finalization Page 12 of 13 of the impugned suit when the applicants will find themselves dissatisfied, owing to reason that the alleged irregularities emanated from the interlocutory order. I am fortified by the decision rendered in the case of Mahindra Kumar Govindji Monani t/a Anchor Enterprises v. Tata Holdings (Tanzania) Ltd and Another, Civil Application No. 50 of 2002 (unreported), where the Court stated as follows; ‘an interlocutory or preliminary decision or order is not appealable (or subject to revision) and that a party aggrieved by such decision has to wait until the outcome of the case and if dissatisfied to proceed accordingly in an appeal (or revision) with points of dissatisfaction including those arising from the interlocutory decision or order’. In the final analysis, my holding above on the point of objection renders the application before me, incompetent. Consequently, I strike out the application with costs. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 30th DAY OF APRIL 2024. L. MANSOOR JUDGE 30/04/2024 Page 13 of 13