juma rajabu vs tausi ally another 1999 tzhc 40 21 september 1999

IN THE HIGH COURT OF TANZANIA AT 'TABORA CIVIL REVISION NO* 2 OF 1998 (Being Application to Revise, Tabora District Court Civil Appeal No* 9 of 1996) JUMA RAJABU „. c* *«> *.......... - APPLICANT V E R S U S lc TAUSI ALLY ) RESPONDENT 20 MOHAMED MASONGEZI) R U L I N G MASANCHE, J« : This matter was before me early this year and I thought the directions in the Judgment delivered on 16th February, 1999, were complied with. The directions were not complied withc The matter has come back to me m d I am being asked to review my ruling dated 16th February, 1999• For better appreciation of the unusual matters in this case, I reproduce the ruling of this Court dated 15th February, 1999: It reads’: "In the High Court of Tanzania At Tabora Civil Revision No. 2 of 1998 (Being Application to Revise Tabors District Court Civil Appeal No, 9 of 1996) JUMA RAJABU oo - APPLICANT V E R S U S 1. TAUSI ALLY ) 2o MOHAHED MASONGEZI) *°° RESPONDENTS R U L I N G MASANCHSy O'.: Civil Appeal No. 0/96 of the Court of Resident M a g i s t r a t e Tabora which originated from Civil Case No. 55/96 of the Urban Court of Tabora was or is between Tausi Ally and ]VIohamed Msongezi. It was, to be exact, a probate matter. Mohamed Masongezi was declared an Administrator and heir. An objection was raised by a person called Juma Rajabu, but the objection was thrown has overboard. Now, Juma Rajabu/&&$& to this Court (High Court) asking for a revision of an order of the Court of Resident Magistrate confirming Mohamed Masongezi to be an Administrator of the estate of the late Masongezi* The application for a revision is purpotcdly being made under So 44(1)(11) of the Magistrates Courts Act. I have gone through the record, I do not see what can be revised. I do not see any error apparent on tie face of the record* And the matter is not coming here by way of appepl, although it looks like an appeal in disguise. The application is incompetent and it is struck out; -with asoHts. If there is any ^grievance with any order or £ ruling of the Court of Resident M a g i s t r a t e * it should come here.'^y way of appeal, J. E. C. Masanche, Judge y At Tabora* 16th February, 1999• Present: Tausi Alii - respondent Juma Rajabu - applicant Mohamed Msongezi - respondent." That was the ruling: Now, before me now is an application taken by Mr. fewikima, leamddaadvocate for the applicants, this time asking me not to revise the proceedings but review them. No provision of any law has been cited to back up the application. The application taken by Mr, Kwikima, is, again, not signed by the District Registrar. It however, was i)resented for:: filing on 18/3/1999? well over the statutory limitation period for such applications. The application reads: "Chamber Summons LET PARTIES CONCERNED attend his lordship the Judge in chambers on the ........ . day of .... 1999 at 9o00 o ’clock in the forenoog. as soon thereafter as practicable^ UPON the hearing og application for the following orders: (i) the order dismissing the objection be reviewed. (ii) the applicant’s house be reinstated to him. (iii) the respondent pay costs of the review. The affidavit of JUMA RAJA'BU attached hereto as well S-S facos and reasons to be adduced at tho hearing shall be relied upon by Counsel. Issued under my hnnd this ,<>»•*» d~y of 1999. DISTRICT REGISTRAR This chpjnber summons .and application has be-, n taken out by Mo He A. Kwikima Advocate P.O. Box 280, Tab ora, Counsel for applicant.11 "REASONS FOR REVIEW The applicant, whose objection to the alienation of his house in a suit to which he was n o t p ~ p a r t y a g g r i e v e d with the Court order i»yfcto consider his objection and to order him to lodge appeal, instead, seek the review of the order on the following grounds; that:- 1, The applicant could hot appeal as he was not party to the origin-il case. Indeed he was puzzled to receive a Court direction calling upon him to surrender his tittle deed.* . 2* The objection lodged by the appellant was due to the fact that his house was to be seized, on a decree which does not name him the judgment-debtor. The direction ordering him to surrender his house was made without giving him opportunity to be heard. INHERE?OR: The applicant prays thet the order dismissing his objection be reviewed so that he retains the house deprived without sixy or any just cause« Sgd„: APPLICANT VERIFICATION; What is stated above is true to the best of my knowledge* Dated at Tabora this 18th d?y of February 1999.. APPLICANT Presented for filing this clsy of February, 1999. REGISTRY OFFICER11 That application is supported by an affidavit, of one Juma P.ajabu which reads, and I quote it in full: 11A F F I D A V I T I, JUMA RAJABU, Tanzanian citizen of the Moslem faith, of Ng’ambo Road Taborn Municipality solemnly affirm and state that:- 1. I was not party to Tabora Urban Primary Court Deceased Estates Cause No, 9/96*. I only cajne to know of it when I was served with a Court order directing me to surrender my tittle deed to the respondent :-c Tausi Alii. 2m I then lodged objection in the District Court where the presiding Magistrate dismissed it despite my holding v^lid tittle and &aid rent receipts. 3* I stand to lose my house- for no reason at all ond the order dismissing my objection should be reviewed so that I retain ownership of my house« What I have stated herein is true to the best of my knowledge. Sgd . • • • • o v a o o o o t f v e v o o * DEPONENT. Affirmed at Tabora before me in my presence this 23rd day of February, 19992 Signa ture Postal Address.oo...oo. Q U a l l f l C p t l O X l • « o o o c o o o * * o o w O o Nov/, several matters can be said about this application, or purpoted application: Firstly, the application as I have hinted earlier is time - barred. Period for making applications to review matters is 30 days (see Limitation Act 1971 Part 111 Item 3*): The ruling of this Court was givc-n on 16th February 1999 and the application was received for filing, here at the registry, on 18th March, 1999* 'The application was, therefore two days late. Secondly, the applicant, as the reasons for review suggest, is a stranger to the case that was adjudicated upon in the District Court. The case in the District Court was between Tausi Ally and Others and Mohhmed Hasongezi» The present applicant, Juma Rajabu, became an objector and his objection was dismissed by Mwandu Resident Magistrate on 5/5/1998. No appeal was preferred by anyone aggrieved at the decision of Mwandu, R.M, Instead, an application for revision, to the High Court was made by Hr. Kwikima, learned advocate on 17/6/98 well over the limitation period of one month. ctually, what it means is that the High Court could have rejected the application on this ground alone, of limitation. Thirdly, even assuming that the application by Mr. Kwikima, for a review of the ruling of this Court, dated 16/2/1999? was in time, what would review be for. Here, may I give what an author, R. D. Aj^arwaia, says in The Civil FroceddycyL Code 3rd edition on reviews * He says: "It is well settled that the power of review is not an inherent power of a judicial offioer but such a right can only be oonferred by statute". "A review is practically the hearing of an appeal by the same officer who decided :"ir the case." "A right to review is not an inherent power. " "One jftldge cannot set aside an order mo.de by another Judge of the same Court, although it may be wrong." "A Court is not entitled to review its order without notice of the other side". "Discovery of fresh evidence is not ground for review in second appeal". "An error of law is not sufficient reason for grnnting review"® "The person who wants review should at least prove strictly the diligence he claims, to have exercised and also th-^t the matter or evidence which he wishes to have access to is, if not absolutely conducive, yearly conclusive of the matter. The application for review cannot succeed on the ground of discovery of new and important matter or evidence which after exercise of due diligence could not be produced at the time of passing the decree". "A Court has Jurisdiction to decide wrongly". "Incorrect interpretation of law is not an apparent mistake on the face of the record". "An error of l?w is not sufficient reason for granting review". "When appeal is preferred review is out of question,, and the party*s procedure is to apply to the appellate Court to admit additional evidence." A review, therefore, will lie, and it is encouraged to lie, when there is a mistake jpr _error apparent on the face of SJl0, recordo Errors or mistakes apparent on the face of the record, could be many, but could include, a mixture in naming the parties, say where a defendant has been referred to as a plaintiff. Or, where there was a wrong dote.- Or, where there has been an obvious over sight over a matter in either the proceedings or the Judgment0 In short, it must be an obvious error which anyone will detect on a mere glance. So, the purpoted'..'. application before me, even assuming was within time, does not point out what error there is on the face of the record, which Beads rectification. 1For, as I pointed out earlier, a Court has Jurisdiction to decide wrongly. One last point: Hr. Kwikima was to cppear to prosecute the "application for a review" before me* He did not turn up* Instead the party hims.lf informed me that he (the party) had abandoned the services of Mr* Kwikima, and thnt he would conduc the case himself» It would therefore appear to me that gone are the days when Counsels wishing to withdraw from cases would come before the same Court for leave to withdraw* This courteous practice seems to have been abandoned. No Court will compel an advocate continue defending his clientf But, certainly, I had thought courtesy ?nd professional etiquette demanded that leave to withdraw from a case should be sought. This purpoted application for review is struck out, as incompetent in law. It is struck out with costs. J. Ee C. MASANCHE, JUDGE. At Tabora. 21st September, 1999* Appli cant: pres ent. Respondent: (Both present).