20120328 TZHC Dar es Salaam

1' 1 IN THE HIGH COURT OF TANZANIA AT DAR.ES SALAAM CIVIL REVISION NO. 10 OF 2010 (Originating from Resident Magistrate Court of Dar es Salaam at Kisutu in Matrimonial Cause No. 56 of 1997) · DELNEVA SHAYO . . . . . . · . . . . . . . . . . . . . APPLICANT Versus 1. ADORNSON MOSHI l 2. OLIVER SHIRIMA . . . . . . . . . . . . . . . . . RESPONDENTS Date of last order - 16/ 12/ 2011 Date of Ruling-28/ 3/2012 J RULING Shangwa, J. This is an application for revision of an order of the Senior Resident Magistrate in charge at Kisutu made on 20 th January, 2010 in Matrimonial Cause. No. 56 of 1997. On the said date the Senior Resident Magistrate incharge Mr. Mugeta refused to admit the Applicant's application for review of the decision passed by the same court Katemana, Ii i: I ,, i, 11 n i ll ,I 11 ! i;r 1 I I 'I I 'I I ';ii 11\ I ;I i I i l Ii '· I; :l i ~ Il r) !1 '.1J ll l ,I ,1 I I I: ,) I 11 ! j I'. :1 I, I I- t' • l I• i !: I I I 1 ,1 I, i: I: ii f 1: I l \i I: i. I' I: ~- [1 l ,,I l: I' I ,, ' i,:t . 1' I! ... . r,' :i I :I., i, l .,'! \ \,' .. , I '- I I' I I ti ~ .c \i ij II ., ' i \1\_j L ,\ 2 RM rejecting an application to set aside the order in which the Applicant's Petition for divorce was dismissed for lack of prosecution. The Applicant was aggrieved by the order . of refusal to admit her application for review. Hence this application for its revision. f' ' The reason which was given by the Senior Resident Magistrate for refusing to admit the Applicant's application for review is that the application was an abuse of the court's process in the sense that the Memorandum of Review did not disclose what the Applicant had discovered to be something new which was not put before the Magistrate who passed the order sought to be reviewed and that the Applicant was legally supposed to appeal against the dismissal order. Dr. Lamwai for the Applicant faulted the Senior ' Resident Magistrate's refusal to admit her application for review. First, he submitted that the grounds upon which l'. n f' ,1 ! 1, ' ' I' ,. 'I ,i' ,! ,1 I I. iJ t 3 the Application for review was made are based on errors on the face of the record but not on the discovery of evidence. He contended that it was wrong for the Senior Resid_ent Magistrate to refuse to admit the Application for review on grounds that there was no discovery of new evidence because the question of evidence is only one of the grounds of review. Second, he submitted· that the Senior Resident Magistrate had no Jurisdiction to reject the application for review because he is not the one who made the dismissal order and that the one who did so is Katemana, RM to whom the application was made. He referred the court to the Provision of O.XLII r. 2 of the Civil Procedure Code which provides inter-ali8: that an application for review of an order of the court other than the High Court shall be made only to the Magistrate who passed the decree or made the order sought to be reviewed. ( 11 !' ' n :! i ;! \i I; i I: I, f ' ;i I, I !!' ,i \1 '1 '.I 1; l~ ~ '! \ 1 ll I 1~ ;l !; I l H I ', I, I: I ~ tI' I I: ,( ; ~- .i n 1 lr I·' ij ,i l I !/ i I 11 1t 11 I ;I j 1, ·I lj I; \; b ( j 1 il ;, i,i 1: I, il I I: l , .~ ! .I ,,) '1 il :1 Ii :( I! ; " I :! fl '! I ~ I 1: r :r I q ',I ti ,! :I fl '1 J l I:' !l t L ;i I ' ' I!,I i ' I ,,!t !,1 I \' 1· ;! iI:l I, ,I I Ir I! l!,, '! I, Ii II ,,:1 ~ i:-~l '1 i! !I 1 I11 :1 t I 1 !1:1 I1 1 " f 11 I i' ~ u L 4 Third, he submitted that it was up to the Applicant to choose to file an appeal or apply for review of the Senior Resident Magistrate order. He referred the court to_ O_. XLII (1) (a) of the Civil Procedure Code which allows a person to make an application for review of an order against which an appeal lies but no appeal has been preferred. Fourth, he submitted that the practice of admission applies to a new case but not to a continuing case and that the relevant Magistrate should have been the one to make any order as regards the proceedings. Basing on his submissions, Dr. Lamwai prayed the court to allow this application. In his reply submissions, the 1st Respondent submitted that Dr. Lamwai for the AppHcant missed a point in interpreting 0. XLII of the Civil Procedure Code to mean that the Senior Resident Magistrate had no jurisdiction to entertain.the matter. -He said that it is not in all cases that 5 would required the trial Magistrate to entertain reviews. The 2 nd Respondent did not make any reply to Dr. Lamwai's submissions. I have examined the order which is sought to be revised and I agree with Dr. Lamwai that it is legally . incorrect. I agree with him because an application for review of the dismissal order is one of the remedial process . ;.' provided for under O.XLII r. (1) (a) of the Civil Procedure Code in a case where a person is aggrieved by the order of the court. An application for review of such an order cannot be categorized as an abuse of the court's process. Indeed, as correctly submitted by Dr. Lamwai, the Applicant in this case had a right to chose which legal path to follow in order to solve her problem. She chose to file an application for review instead of an appeal. Again as correctly submitted by Dr. Lamwai, under 0. XLII r. 2 of the Civil Procedure Code, the Senior Resident n I; ' )' I lJ •Ii , .! Ir. 1.J l' j.. ~ I ' '' ' i! ' !j I iI 't 't I '' I I I '' I\;' t I ' i .! ;l Ii t ! f} . I I/ ·t ,,' . lj 'jI if ~ I! ,, '1 j I 1' 'l ~ I 1 1I ' t' 11 ~I 1. fi I! It q f; 'j I I' 1' '~ !1 I I"·. l I:, I., I \1 '' '' l ~ i 1· . ' t ~ 1, '.l : .j I I; JI 'I I' ii,l 'j' t 'I 1 : .l Ii i '1 f' f !l 'l l.~ f ~ .1 ' !'. il l I !I i ~ u 6 Magistrate had no jurisdiction to reject the application for review because he is not the one who made the dismissal order. The one who did so is Katemana, RM. Once again, Dr. Lamwai is correct in submitting that as a matter of fact the process of admission applies to new cases but not to continuing cases. Thus, it was wrong for the Senior Resident Magistrate to refuse to admit an · application for review of an order which was already on record. An order which is said to ·be wrong on the face of the record and which is likely to occasion_ a miscarriage of justice. For these reasons, I quash the order of Mugeta, SRM for refusing to admit the Applicant's application for review of the relevant order and I order that the application for review of the relevant order should be heard and determined on merits. Therefore, Matrimonial Cause No. l I /· f 11 :, f;' j I \i ,,·, ij I I Ii ,, ' ~ '' 1, I ,I \1 '' ,, l 1\,/ I'l I ~ f) l" I: ;i i. iJ \I I! I I >' f' j) . :,i !I I~ ',. q :!, I: ! .f I .1 i/ I! (i r i:1 '! I I I 1 ilI 11 fl l .1 ,, l: !j u l1 I! I: II '' ''' 1/ I .f i: :J >' I! ' 'i ' 1) f\ :1 J1 :1 j ' rl ,; ii,. ',) '.I i; ll I I ti :j ,( ii I j ·, •1 Ii ,I tr 11 t• \> I ,'I t I H ,, l ! II l: I j I ll '1 ! j :) j' t 'l,, I ( I I ' ~ 11 ; .l j JI J ,I d I· i• ,I I; 1 'I 'j /· !l ! ,!l I IJ ;( I I ,., I: .; ' ) if ~ 11 f I1 I I:: l ; -~ t ~ J J ., Ii IJ ' l '\ 7 56 of 1997 at Kisutu should immediately be remitted to the Court of the Resident Magistrate at Kisutu for action. ~ A.Shangwa JUDGE . 28/3/2012 Delivered in open court this 28 th March, 2012 in the presence of Mr. Alex Mwita for the Applicant and in the presence of 1st Respondent. ~ A.Shangwa JUDGE 28/3/2012 I! 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