20071106 TZHC Dar es Salaam

.. ... .. \_J' <'\:{:I(\.~.\·-~·-/~\·.·_;.··.. ·. \ · · .:_:.: .·._ .·;·.~.,;~--:.. ~ IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL REVISION NO. 25 OF 2005 ATHUMANI MBWANA MAPEPE . . . . . . . . . APPLICANT VERSUS 1. HUSSEIN ATHUMANI MAPEPE . . . . . RESPONDENT - 2. KITWANA ATHUMANI MAPEPE . . . . RESPONDENT/ (DECEASED) Date of last order - 5/9/2007 Date of Ruling - 6/11/2007 RULING Oriyo, l. On 30/3/2007, this court dismissed the applicant's application for revision for lack of merit. Apparently dissatisfied, the applicant filed the instant application on 4/4/2007 for a Review of the decision of 30/3/2007. The application was made under Section 78 (b) of the Civil Procedure Act, [Cap. 33, R.E. 2002]. The surviving respondent, Hussein Athumani Mapepe, filed a Notice of Preliminary Objection on 7 points of law; each of which allegedly renders the application incompetent. .The brief background of the dispute is contained in the ruling complained of. It is not in dispute that one ATHUMANI HASSAN MAPEPE, now deceased; was the father of MBWANA, HUSSEIN, KITWANA and TATU MAPEPE. Apparently, Hussein is the only child surviving; the rest having died at different periods; (Mbwana, Tatu and Kitwana). The dispute arose between the applicant on one side and Hussein, Kitwana and Tatu on the other side. The applicant contends that he is the biological son of the late Mbwana Mapepe. But Hussein, Kitwana and Tatu contended that he is only a stepson of the deceased Mbwana, simply because the applicant's mother got married to the late Mbwana Mapepe, and she brought the applicant along. The dispute arose from on the applicants moves to be granted letters of administration over Mbwana Mapepe's Estate. The applicant is relentless. In the Review proceedings, the respondent is represented by Mr. Mhenga, learned counsel from M/S Msemwa and Co. Advocates. 2 The applicant had no legal representation and he appeared in person. At the beginning, he applied for and was granted a 2 months adjournment to enable him engage the services of an advocate. But going by the submissions he filed in court and his continued appearance in person; it is apparent that he had no legal assistance. With leave of court, the parties made written submissions on the competency of the application for Review. Order XLII rule 3 of the Civil Procedure Act, provides for the format of an application for Review in the following language:- ''3. The provisions as to the form of preferring appeal shall apply mutatis mutandis to application for Review" ( emphasis supplied) In terms of Order XXXIX rule 1(1) of the Civil Procedure Act, every appeal shall be presented in the form of a Memorandum of Appeal accompanied by copies of a decree and judgment to be appealed against. Sub rule 2 provides that the grounds of objection are to be numbered consecutively and under distinct heads. 3 r The instant Review is initiated by way of Chamber Summons supported by an affidavit and is not accompanied by copies of the decree and judgment. In the interest of justice, one may wish to overlook the absence of copies of judgment and decree because after all, the application for Review is in the same file as the decision complained against and can easily be seen and referred to. However, it is mandatory that the format of the Review is to be titled a Memorandum of Review and not a Chamber Summons. It is also a mandatory requirement that the grounds of objection be set out in consecutive numbers in the Memorandum of Review. From the foregoing it is obvious here that the format of the Review at hand contravenes the mandatory requirements of Order XLII rule 3, thereof. The instant Review presented by way of Chamber Summons therefore is incompetent. Having presented the Review in the form of a Chamber Summons, the applicant's grounds for the review are stated in the supporting affidavit. The sole reason advanced can be gauged from the contents of paragraph 4 of the affidavit which is couched in the following language:- 4 "That the appeal No. 68/2002 in the District Court of I/ala was to challenge applicant to be the administrator of Probate and Administration Cause 92/1999 Kariakoo Primary Court not to challenge the applicant to be legal child of the late MBWANA ATHUMANI MAPEPE. The trial magistrate erred in law to hear and determine the matter which was in the Probate Administration No. 92/999 of Kaiakoo Primary Court'~ SECTION 78 of the Civil Procedure Act is the enabling law on Reviews. It states:- "78. Subject to any conditions and limitations prescribed under Section 77, any person considering himself aggrieved - (a) by decree or order from which an appeal is allowed by this code but from which no appeal has been preferred; or 5 (b) by a decree or order from which no appeal is allowed by this code. may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit". ( emphasis supplied) Order XLII rule 1(1) of the Civil Procedure Act provides reasons which make a Review to be tenable in law. It states the reasons as:- " . . . . from he discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on he facE of the ,, recorid ... Are the reasons for review stated in paragraph 4 of the applicants affidavit in line with the legal provision above? In my view, it is not. There are neither new and important facts mentioned 6 nor is there a mention of a mistake or error apparent on the face of the record. Actually, in my opinion, the complaint in paragraph 4 of the affidavit is a complaint against the decision of the District Court of Ilala and not against the order of this court given on 30/3/2007. In that case, the application for Review should have been lodged in the District Court before coming to the High Court; and not in this court. The applicant does not state valid reasons why this court should review its decision of 30/3/2007 in his favour. As it was correctly submitted by the learned counsel for the respondent, dealing with the application on the basis of paragraph 4 of the affidavit would be wrong. It is sated that doing so would amount to reopening of the revision proceedings. After the decision of 30/3/2007, this court became functus officio on the matter raised in paragraph 4. I think the two grounds stated above are sufficient to dispose the application. 7 In the result, the application for Review is baseless. It is . accordingly rejected with costs. K. K. Oriya JUDGE 6/11/2007 6/11/2007 Coram: Oriya, J. For the applicant - In person st For the 1 respondent } For the 2nd respondent Muhenga, Advocate C.C. Emmy Court: Ruling delivered in Chambers today in the presence of parties. Order: Application for Review rejected with costs. K. K. Oriya JUDGE 6/11/2007 8