20110609 TZHC Dar es Salaam

1 IN HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL REVISION NO. 38 OF 2009 JUMANNE RAMADHANI KIPONZA... ... ...... APPLICANT VERSUS TABU JOHN MWAIPOPO LEGAL REPRESENTATIVE OF REHEMA MWAIPOPO •••••••••••••••••• RESPONDENT Date of last Order .. 8/6/2011 Date of Ruling .. 9/6/2011 RULING Shangwa, J. On 7th August, 2009, the Applicant Jumanne Ramadhani Kiponza filed an application for enlargement of time to apply for revision of the Ruling and order given by the Court of the 2 Resident Magistrate at Kisutu in Civil Case No. 8 of 1~86 dated 19th November, 2006 but delivered on 26th February, ~007 and the Rulings and orders which were given by the same court on 3rd April, 2007 and 22 nd October, 2007. Also, to revise the same. On 20 th October, 2009, counsel for the Respondent, Mr. Magesa filed a Notice of Preliminary objection that the application is incompetently before this court. That it is res-judicata and that it is an abuse of legal process. On 18th October, 2010, counsel for the parties prayed for an order to argue the Preliminary objection by way of written submissions. I granted their prayer and ordered that the Preliminary objection should be argued by way of written submissions. Both counsel filed their written submissions in a ' manner scheduled by the court. The matter came for mention on 3 1st December, 2010 and on that date, I ordered that the matter should come for ruling on 22 nd February, 2011. On that date, the ruling was not yet ready. I adjourned for ruling on 8th April, 2011. On that date, the Respondent Tabu Mwaipopo legal representative of Rehema Mwaipopo deceased appeared in person and addressed the court that she had written a letter to the District Registrar saying that she does not like me to deal with this matter and that she has no confidence in me as on 8th April, 2011 when the matter came for ruling in respect of her Preliminary objection to this application, I asked her about the history of the case between her and the Applicant and that after relating to me the said history, I said that as a judge in this matter, I do not think that justice is in her favour and t,hat like a Chinese Doctor, I am always open and transparent to what will be the fate of one's case. Upon her address, I did not want to waste 4 my energy with this matter and I disqualified myself from giving the ruling as scheduled and I ordered that the matter should be forwarded to the Hon. Judge in charge for re-assignment. After forwarding it to him, it was re-assigned to Hon. Mgaya, J. who declined and suggested to the Hon. Acting judge in-charge to return the case file to me for delivering the ruling which she I believed was ready for delivery. The Hon. Acting judge in-charge returned the case file to me with the following remark and I quote: " Hon. Shangwa, J would you kindly attend to the Ruling and deliver it. Any one aggrieved will have a right of appeal. Mwaikugile, J. Acting Judge- in charge 29/4/2011" 5 I complied. I now proceed to determine the points of Preliminary objection raised by counsel for the Respondent in this case. The first one is whether or not the application is incompetently before this court. The second one is whether or not the application is res-judicata. The third one is whether or not the application is an abuse of legal process. Learned counsel for the Respondent spent much time and energy in submitting adversely on the application for revision of the relevant rulings and orders of the court of the Resident Magistrate at Kisutu in Civil Case No. 8 of 1986 which he says are interlocutory in nature and that the court is barred by law i.e. Act No. 25 of 2002 from revising the same. He also spent much time and energy in submitting that the application is res-judicata as 6 per this court's ruling Massati, J as he then was in Civi! Revision No. 31 of 2004 and in submitting that the application is an abuse of the legal process in view of what was stated by this court at pages 4 and 5 of its typed ruling in Civil Revision No. 31 of 2004 that the appointment of the Respondent is valid as it was not challenged through a proper forum. I am sorry to say at this juncture that Mr. Magesa's submissions in respect of the application for revision are pre- mature. Although in his chamber summons, Mr. Rutabingwa for the applicant applied for revision of the Rulings and orders of the Court of the Resident Magistrate in Civil Case No. 8 of 1989 dated 19th November, 2006, 3rd April, 2007 and 22 nd October, 2007, his Primary application in the same summons is for extension of time to enable the applicant apply for revision of the said Rulings and orders. 7 In my considered opinion, the court cannot consider an application for revision of the said Rulings and Orders before granting the applicant an order for extension of time to apply for revision of those orders. Considering an application for revision of certain proceedings before considering an application for extension of time to apply for revision of those proceedings is to put the cart before the horse. In his written submissions, counsel for the Applicant, Mr. Rutabingwa submitted that the cause of the delay in filing an application for revision of the relevant orders is that Msuya, RM did sit on the court record for so long and refused to release it to the typing pool for typing the ruling and orders until ~hen she left the station. He said that the first ruling was depvered in November, 2006 but it was certified in July, 2009. In his rejoinder 8 submissions, Mr. Magesa rebutted Mr. Rutabingwa's submission by saying that it is a pure lie for him to say that Mr. Msuya, RM sat on the court record for a long time without releasing it for typing. He submitted that it is the applicant and his Advocate Mr. Rutabingwa who did not make a follow up to make sure that the ruling is typed. He contended that the applicant is employing delaying tactics so that he may continue to occupy the house which he obtained through an exparte judgment. The question which follows now is whether or not Mr. Rutabingwa, Advocate told a lie in his submission when he said that Msuya, RM did not release the court record for a long time to the court typist for typing the ruling which is intended to be revised and whether or not he did not make a follow up of that ruling. 9 In his affidavit in support of the application, Mr. Rutabingwa averred that he applied for copies of the rulings and drawn orders timely but the same were belatedly supplied to them on 23/7/2009. In order to show that he did so, Mr. Rutabingwa attached copies of letters in which he applied for a copy of the Ruling by Msuya, RM in Civil Case No. 8 of 1986 and marked them as annexture JRKl. These letters are dated 26/2/2007, 3/4/2007 and 26/10/2007. A copy of these letters was supplied to Mr. Magesa, Advocate. A copy of the ruling by Msuya RM dated 19/11/2006 was also attached to his affidavit and it shows that it was certified on 23/7/2009. A copy of the drawn order was as well attached to his affidavit and it shows that it was issued on 23/7/2009. Upon such clear evidence, I hold that Mr. Rutabingwa did not tell a lie against Msuya, RM. Although Mr. Magesa contends 10 that it is unfair to complain against Msuya, RM that he sat on the ' court file for a long time, he concedes at page 2 of his rejoinder submission that before Msuya, RM was transferred to Morogoro there was a delay to have his ruling typed and that such delay continued even after his transfer to Morogoro when the case was being dealt with by Nongwa, RM. In addition to that, I hold that Mr. Rutabingwa made a follow up of the relevant ruling and drawn order but the Court of the Resident Magistrate at Kisutu did not supply the same to him timely for his necessary action. For these reasons, I ~rant this application for extension of time to apply for revision of the rulings and orders with ~hich the applicant is aggrieved in this case. The Applicant should file his • •' ' 11 application for revision within a month from today. It is so ordered. Applicant and the Respondent appearing in person this 9th June, 2011. ~ A.Shangwa JUDGE 9/6/2011.