20171124 TZHC Dar es Salaam

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL REVISION NO. 21 OF 2014 (From the Proceedings, Ruling and Order of the Kisutu Resident Magistrate Court issued by Hon. Mchauru, PRM in Misc. Civil Application No. 85 of 2004, dated !111 June 2014). FURAHA SELENGIA MLAWI {As Administratrix _ of the Estate of Christopher Kimisha) ••••••••••••••••••••••••••••••••••••••••• •APPLICANT VERSUS 1. SALUM ABDALLAH } 2. RICHARD PAUL . . ............ RESPONDENTS 3. ERIC AUCTION MART AND COURT BROKERS RULING Date of the last Order 1:fh October 2017 Date of Judgement 2,fh November 2017 R. SAMEJI, J. The applicant FURAHA SELENGIA MLAWI, (an Administratrix of the Estate of the late Christopher Kimisha) had moved this Court under section 44 (1) (b) of the Magistrates Courts' Act, [Cap. 11 R.E.2002] read together with Section. 79(1)(c) and Order XLII Rule 7 of the Civil Procedure Code, Cap. 33 [R.E.2002] praying the Court to call for and examine the record of the proceedings, ruling and order of the Kisutu Resident Magistrate Court Sign: R. Kerefu. Someji, I Civil Revision No.21/2014 1 . ' . ~~..;:.·,•. -~-- . - .. ~ -- -=·.;~- - ;;.:. ---._-• .;:.:· - ~ - -- - - · ' . . ~ ~- _---~H~-- : ·•- -. e-·• .......... - · .• •• _: ~--::._::_ ___ - _._, __\ . • • >-'~.4 ---- --=--~ -----• ---- ---- ~- ,_-_- :- -:- lf::~: :':·: ~.: : ~~::_:=:_~~: ::~f~~~$Y5~;;~:~~ -~: _. :. ~:--~~~~~:?- ~.:. ••w ~ _..,_ • .. - ~--· •~ • ••••' •• I issued by Hon. Mchauru, PRM in Misc. Civil Application No. 85 of 200~ dated 9th June 2014 and determine its legality, regularity,· correctness, propriety or otherwise of the execution proceedings and revise them or otherwise make any decision thereon as it deems just. On the other side the 1st respondent has filed a Counter Affidavit accompanied· with two points of preliminary objection couched in the following manner that:- (a} The Court lacks Jurisdiction to entertain this Application; and (b} The Application is time barred. At the hearing of this Application the applicant was represented by Mr. Herbert H. H. Nyange, the learned Counsel, while Mr. Wilson Edward Ogunde, the learned Counsel represented the respondent. It is important to point at the outset that on 04th September 2017, the Court, upon prayer by Mr. Ogunde agreed that the preliminary objection raised by the 1st respondent should be argued by way of written _submission. Subsequently, a scheduled order for filling the said written submission was issued by the Court. In the said scheduled order the 1st Civtl Revision No.21/2014 Sign: R. Kerefu. Sameji, J 2 . - . . .. . . . -- . - - -- ----- -- • · ~- · :.~·::,·;-. --...:.:.:.....:. ---- _- -- .......--.-.]'.~:---- ... - . '.• .·:-~,-- --- - . . ~--:----_ --_-_-_~.,---------~--- --. . - ------------ ·-·-- -- ----~--- ;_·~ ·. -~------~~--'•00~---~ ~~t--~~~~_:.·~~-~;~,~~-~~-~~~~~-- ·:-~#.-~~-.}_;;;-_.-_- . - . . .:. -~--_:: :._·_:__;-_~;_:_-=--_~---;_, - - ___ ·~-~:_;. ·:-_-_-. ~~-- ~:- ~- ~---~- ,; - - - -- -- -- ·--- --~-_:- :·~=-- "_,_.~_-; :.-:-: --· -·-t-:·~·-:-<- - .. _:~_; - ~ ~ - - ---- - ~ - - --~ --·. -~- ··-~----~·-- ..•• --=--<=...-,-.,... . -~-- - ~ - ~ - -- .:....:..:::___ _ _ • _-- . - - -·---- . ~ - - - · . -~""'-.,.. -~~ - . - J~ ;. respondent was required to file his submission on 11th September 2017, while the applicant was to file the reply submission on 18th September 2017 and the respondent's rejoinder, if any on 25 th September 2017. The Ruling was set on 06th October 2017. However, on 06th October 2017 the Court failed to make the· Ruling, as it was only the 1st respondent who had since submitted his submission and it was not clear as what happened to the applicant. On 13th October 2017, when the matter was called for mention, the applicant informed the Court that he failed to file a reply as ordered by the Court, because he was not served due to the fact that his address was changed. He said initially he was represented by Mr. Nyange, the learned Counsel, but currently he is under the services of Mr. Lugaiya, the learned Counsel and he is thus prayed to be served with the 1st respondent's submission and be allowed to file his reply out of time. For the interest of justice the Court granted the prayer outright and gave the applicant fourteen (14) days to file his reply. It was as well agreed that the Ruling will be issued on 24th November . 2017. Now till today when. I am crafting this Ruling, for no apparent Civil Revision No.21/2014 Sign: R. Kerefu. Sameji, J 3 _-:_· - _... __ ·: . ---- -· -_ :: - ·_-;:;_~~ ···- .:.··- .-., _, ~ -::::c-•• ~- ' . ·- . . -- - - __ · --·-•---- .. •-' ---- . ______ _-•-•--_ ... :~~~~:. - ----. ------~-- . - -- ·-_.- ...,. __ . ___ , ·---- ~ -~~- -----------~ - _.· .. -- - :':'.""-.:,.;.....,_-__ _ :';:_-t-,......-_ ---- ·--- --- -·-·· . . -- ~ ---~-- ~ ~ - -~ _ _ _•....,.., .... ~,..,,_ . . . . , __ ..,.___..., __ ,-. . . ~. . . ,-,._ ...... ,.~ --~~ - . . ~~~.,--- ___ :::;,,,..~""~ _- . __ - .. -·-.::.:::;.,.~.,,-;:;-:;:._ -- -~--:-:--.·----.-.- -·- ---~____::.,.__._ --~------=--==--------------:-: - ~~---: .. ·.::-:.--··- ·•-<>,;-,- ....• -·· --· ..•..~-~-- . . -·- ·•·····-- --- .• __....;._~---- - - - - - - - - - - - - - · · - ... ·•--·-----·-· st reasons the applicant has not filed his reply to the 1 respondent's submission as directed by the Court. In the circumstance, I need to emphasize that, court's orders are made to th be respected and complied with. The order of this Court dated 4 September 2017 was made with the purpose of regulating. the hearing proceedings of the Application and specifically the preliminary objection by way of written submissions within a prescribed time. In Mankobrand Versus Miroslav Katik and another (HC) Civil Case No. 321 of 1997, Dar-es-Salaam Registry ( unreported), the Court when faced with a similar situation made a remarkable observation about the orders of the Court that; '~ .. they are meant to command parties to act within a time frame fixed by the court. If the parties are to act in total disregard to those orders then court business will be rendered uncertain; and that will not be good for the efficient administration ofJustice ... " Sign: R. Kerefu. Sameji,J Civil Revision No.21/2014 4 ----··- __ ....:::.:: ... In the case at hand, despite the fact that the applicant did not comply with the first order of the Court he was given another chance after being served with the submission of the first respondent, but in total disregard of the court's order, to-date has not filed his reply. He did not even come back to Court to explained what transpired or even initiate any steps to apply for extension of time, when his time to file written submission expired. He decided to stay aloof to-date, when the Court is expected to craft the Ruling. It must be noted that, the practice of filing written submissions is tantamount to a hearing of the case and therefore failure to comply with the order of filing written submission without lawful cause amounts to non- appearance or want of prosecution - See cases of Hiday Zuberi Vs. Bogwe Mbwana, (PC) Civil Appeal No. 98 of 2003, Dar-es-Salaam . (unreported); Buyamba John Vs. Adili Bank Corporation Ltd & Another, Civil Case No. 146 of 2000 Dar-es-Salaam Registry (Unreported) and Fatuma Khassim Vs. Tahu Proper (PC) Criminal Appeal No. 12/20 02 High Court Dar es Salaam, Registry (Unreported). Sign: R. Kerefu. Sameji, J Civil Revision No.21/2014 5 . . . - ~T••~. - _ _ _ ;:- -•- ~: •,~--;-~. '•~ :•• .R • : ,.,.~:_-•• , ~-~;a;-.::•."-••'=.:•.:-:-_ • • •-••-••.~~~~- -;---~~:~~:; ---~--~--~ It is therefore my considered view that, the applicant is not serious in pursuing this matter and has only himself to blame for his inaction attitude coupled with laxness and failure to adhere to the Court's order. I will therefore consider only the submission of the 1st respondent submitted before this Court. Submitting in support of the 1st point of objection Mr. Ogunde argued that the applicant's prayer for revision has not targeted a specific Order or Proceedings of the Kisutu Resident Magistrate Court in Misc. Civil Application No. 85 of 2004. He said, the Court has been invited to revise the entire execution proceedings, which contain several and separate proceedings and orders. He argued that, in the process of executing the decree, the 2nd respondent/decree holder had since attached the judgement debtor's house. Following the said attachment one Yunis Masitala being the judgement debtor's wife, preferred objection proceedings contending that the attached property belonged tq her and is " th not liable for attachment. However, on 28 August 2007 the said objection proceedings were dismissed by Hon. Mwangesi (PRM) as he then was. Civtl Re-vision No.21/2014 Sign: R. Kerefu. Sameji, J 6 • J Following the said dismissal, another objection proceedings was filed by one Nyaulumbi Christopher Kimisha, the judgement debtor's daughter claiming as well that the attached house _is hers. Again the same was dismissed on 11th January 2010 and 29th April 2010 by Hon. Sanga, RM. Mr. Ogunde referred to Order XXI Rule 62. of the Civil Procedure . Code, Cap. 33 [R.E.2002] and argued that after the dismissal of the first objection proceedings the wife of the judgement debtor did not filed a suit, but the daughter had since filed a Land Case No. 117 of 2010 which was later decided by the court. So, Mr. Ogunde was wondering, when the Court is invited to-day to revise the execution proceedings, which specific proceedings is to be revised? He also posed that, the issue is whether the Court has jurisdiction to revise orders dismissing objection proceedings. Mr. Ogunde referred to the case of Asila Ally Said Vs Theodila Msele and Others, Civil Revision No. 5 of 2009, (unreported), where Rugazia J when faced with similar situation he cited the authority of the Court of Appeal in Bank of Tanzania Vs Devram P. Valambia, Civil Application No. 15 of 2002 (unreported) and held that:- Ctvtl Reutsion No.21/2014 Sign: R. Kerefu. Sameji,J 7 ~~. . - <. ::_~;: ·:-:~. ~ :··· ~ -> :.:=:-:p~~~....,~~:'. -:',it:,,,.:.. ~~-:::. :=~ ~·-•:.-:,;~~·~"?:~ _:.-:c:· : . - .,. -~-- . ___,._ ---•---•-• - ~ - R • "I think the provisions of Rule 62 of Order XXI of the Civil Procedure Code are ve,y clear. As rightly submitted by the learned Counsel for the respondents the word adjudication is not used under that provision. All what is provided is "the party against whom an order is made'~ In the instant case an order was made against the applicant that is why he knocked on the doors of this Court Much as the applicant's counsel submitted that Rule 62 does not abrogate qr limit revisional powers of this Court I think that is over stretching the import of the provision. The said provision cannot be said to give room to revision while it talks of a suit'~ Mr. Ogunde, while noted that the above decision is only persuasive and not binding on this Court, he referred to the decision of the Court of Appeal in Mohamed Enterprises (T) Ltd Vs Tanzania Investment Bank & Others, (Unreported) where it was held that:- "As the objection was dismissed for want of prosecution the remedy available was to file a suit and not to challenge by way of revision as per .the decision of the case cited" Civil Re-:aJision No.21/2014 Sign: R. Kerefu. Sameji, J 8 .. . Mr. Ogunde concluded on this point by arguing that, since in this case the objection proceedings were dismissed then this Court has no jurisdiction to undertake the revision. As for the 2nd point of objection Mr. Ogunde argued that, pursuant to item 21 Part III of the First Schedule to the Law of Limitation Act, Cap. 89 [R.E. 2002], an Application for revision shall be filed within sixty (60) days from the date of the decision. He said in the case at hand the applicant has invited this Court to revise the execution proceedings and orders of the th subordinate court issued from 2004 to the last order dated 18 January 2016. He said since the applicant has not specified which specific order to be revised, therefore the time should be computed from 2004 when the first order in the respect of the case was made. He gave an account of th orders issued on this matter starting with the first order issued on 28 August 2007 and noted that the revision is time barred. He further argued that since the case has passed through different applications and orders the same should be considered as separate proceedings. To support his position he cited the authority of the Court of Appeal issued in Kaimali Si9n: R. Kerefu. Sameji, J Civtl Revision No.21/2014 9 :..;.::;_. --.--:- . - .. ~ ...... - - -~~-~: ---_: ~ ,__:_:_ ----·· ?~\?•------------ ----- . -~ . - . - . . -•,c,.~ . . . . :._,,,____, _____ :.·.· ___ - -·-- • Essaji & Another Vs Mansoor Daya Chemicals Ltd, Civil Appeal No. 66 of 2003; (unreported), when the Court of Appeal held that:- " The crucial issue is whethe~ for purposes of limitation/ the proceedings before Nchimbl RM and Kimaro/ SRM were one and the sa0e proceedings. With respect we think the above proceedings were different. We say so because as far as the Court was concerned the order of Nchimbl RM conclusively determined the application. In other words/ if the respondent had not filed the application for setting aside the order of Nchimbl R~ that would have been the end of the matter. Therefore/ when the application for setting aside the order was filed it was in essence another proceedings so to speak... Having said so/ it is evident that the application to the High Court ought to have been filed within a period of sixty days from the decision of Nchimbi RM. Since it was filed beyond that period it was time barred'~ [Emphasis supplied]. Relying on the above a.uthorities, Mr. Ogunde prayed the Court to dismiss . - .. .. ,.., .·· the application for being time barred. Sign: R. Kerefu. Sameji,J Civil Revision No.21/2014 10 ·:: -:_. - . -~-;"::;:- . : -~... . __ . :. _ -. -: -- - =--~- - - _ - _ --_. -:-· - -..~ ... ' .~ - 7 - - ·- - - ~ .. ~ - •· ·-;- • . . . '" • Jg-·.- . ~i- -, . .. • . . . ., .......... .,.,. - - . ---·- --- ---- -- -- - ---- -- - -- - ~---. - -- - .. :~~!:7-.:.~::~~~~:-~C~~-~7:J:~~~;: ~-:~: -~:~:~~-":I:~:~~---- -- --i-,---,-- ~ - - - ~ .. r • --- ..... ;...·· - ..I... • Having critically examined the record of the case, the Orders issued by the courts in different applications and the submission by Mr. Ogunde, the prime issue for my determination at this juncture is whether the Application before me is meritoriously. Pursuant to section 44 (1) (a) (b) of the Magistrate Courts' Act, (supra), this Court has power of supervision over all District Courts and may at any time call for and inspect the records of such courts and give directions as it considers necessary in the interests of justice, if it appears that, there has been an error material to the merits of the case involving injustice. It is on record that the applicant's Application is praying this ·court to call for and examine the record of the proceedings of the Kisutu Resident Magistrate Court issued by Hon. Mchauru, PRM in Misc. Civil Application No. 85 of 200i dated !fh June 2014. It is also on record that.applicant's Applicati9n was filed before the Court on 27th June 2014. As eloquently submitted by Mr. Ogunde, the Misc. Civil Application No. 85 of 2004/ proceedings has passed several phases with separate applications and orders and the applicant has not specified which specific order is he based his application. I have noted that the applicant is referring to the attached Civil Re-vision No.21/2014 Sign: R. Kerefu. Sameji,J 11 - - - - - · .------....:::.::::::::::::.·___:==:..:=-=:.:::.. . - - ~--= . jl> . ~ ...:~:..::.:..~.:;t,'?:"?":'.-:!'.~::c:::~.:-.2, : ·., -•~• •,• ••'.. ._• ~• "\ - ...,• .:..j'] • ,,• ,_..:, • • ... ,h ... ,V ~-=:;:-~~...:.,;-z:-;,~ _;,·,... •• •• ~ ~ , ,,.. .,., "-'•"1', .. , .... ,,,_ .( ," o '...-., " ,,.. ·-7.:.:;-,.:-· .· -, -~• . --~-- - ,.L•,::,,;....-· "'"""'· - ~ Ruling issued.by Hon. Mchauru, PRM in Misc. Civil Application No. _85 of 2004/ dated gh June 2014. However, going through the said Ruling it is clear that the same was on the objection proceedings. Pursuant to Order XXI Rule 62 of the Civil Procedure Code, (supra) I find this Application to be unattainable in law. For the sake of clarity I have endeavored to reproduce the said provision herein below:- 11 Where a claim or an objection is preferred, the party against whom an··order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit✓ if any the order shall be conclusive ✓, The applicability of this particular provision on revision · was clearly explained by the Court of Appeal of Tanzania in Kaimali's case cited above by Mr. Ogunde the authority which I do associate myself with. The provision of the law cited above together with the Court of Appeal authorities are very clear and therefore this matter should not detain this Court. . . In the circumstance, it is my respectful view that, there is considerable merit in Mr. Ogunde's submission, in that this Court has no jurisdiction to· Ctvtl Re-vision No.21/2014 Sign: R. Kerefu.·Sameji,J 12 ···-- 0:-.~-~ -,. ---- .,..,~ ·"'f'~--- . - .. ~-- -- - . . ~--· .. . . .- . .. -·- . - I • entertain the matter. In my vi~w, this point alone suffices to dispose of the matter and I feel that it is not necessary to dwell on discussing the remaining point of the preliminary objection. In the event and for the foregoing reasons I uphold the preliminary objection raised by the 1st respondent. and I hereby dismiss the Civil Revision No.21 of 2014 with cos for want of jurisdiction. It is so ordered. ~- Kerefu s~ JUDGE 24/11/2017 th COURT - Ruling to be delivere y the Deputy Registrar on 24 November 2017. eji JUDGE 24/11/2017 Civil Re-vision No.21/2014 Sign: R. Kerefu. Sameji,J 13 .. ----·- "::-:~-- .. __ _;_ ;~i.. .. .. -.. .:,,,·: '. --·►,,-, •• ··~-- '.".: ... ~~ ~:--:-;:; ··-"'." -:-•·• ·.·-~ .- :.\:'"?~/&,:}-f-: -