managing director bunda bus services vs yasin h ngochoge 2006 tzhc 268 19 april 2006

IN THE HIGH COURT OF TANZANIA AT MWANZA HC.CIVIL REVISION NO. 04 OF 2005 (Originating from the District Court o f Bunda District a t Bunda. Original Civil Case No. 9/2004) MANAGING DIRECTOR BUNDA BUS SERVICE................. APPLICANT Versus YASIN H. NGOCHOGE................................................... RESPONDENT 8/12/2005 & 19/04/2006 RULING RWEYEMAMU. J : The applicant has vide his counsel Mr.v Nasimire brought this surprising application under s. 44 (1) of the Magistrate's Court Act (MCA). This court is being asked to revise the following District Court order (DC) which I proceed to quote in full: "Date: 21/03/2005 Coram: M.P. Ndagije - DM Applicant: Present Respondent: Present - represented by the j l dvocate -- Nasimire Interp: S. Mnaga Court: Leave for the execution o f decree allowed i till the outcome o f the appeal vide Miscellaneous Civil Application No. 15/2004. \ I Sgd: M.P. Ndagije - DM 21/3/2005 " i I find the application surprising jn light the following facts: x ! The respondent successfully filed Civil Case 9/2004 in Bunda District Court against his employer the present applicant. That case proceeded exparte after the applicant/defendant who was duly served, failed to appear on several occasions and judgment* was entered for the plaintiff/respondent on 10/11/2004. Following that, the applicant filed Misc. Application 15/2004 to set aside that judgment. That application was later withdrawn by the applicant on his own volition for reasons now described in paragraph 4 of the affidavit accompanying the current application as; "----- 1 was tricked by the Respondent to withdraw the said application and Criminal Case No. 208 o f2004 which he was facing on the understanding that he was withdrawing the main suit and all claims against the Applicant something which he did not". After some months of that withdrawal i.e. on 1/3/2005 according to the court record; the respondent prayed for execution of the decree of the November exparte judgment. As usual a notice to show cause was issued. On 24/4/2005 after a month, the respondent applied for execution of decree and the court ordered that: "Date: 25/4/2005 Coram: M.P. Ndagija Plaintiff: Defendant: Interp: M. Mgabo - B/C The Plaintiff: I am a decree holder. On 10/11^2004 the exparted judgment was delivered for the judgment debtor to failed to write his written statement o f defense. After the delivery o f the exparte judgment the judgment debtor filed a miscellaneous application No. 15/2004 to set aside an exparte judgment. On 5/1/2005 the judgment debtor decided the application to be dismissed in my present On 17/2/2005 I then presented my application for execution o f decree. On 1/3/2005 the Magistrate i/c issued on notice o f 21 days to the judgment debtor as to why the execution should not be carried out to pay the decree holder. The judgment debtor refused to sign it I there returned the notice to this court. On 21/3/20051 and the judgment debtor met to this court, and judgment debtor presented to this court objections which were not accepted by this court. I therefore pray for issue o f the warrant o f attachment. Sgd: M.P. Ndagije - DM 25/4/2005 Order: The facts on above record o f the decree holder admitted. The warrant o f attachment to be issued with immediate effect. Sgd: M.P. Ndagije - DM 25/4/2005 " * That is the background to this application for revision filed in this court on 11/5/2005 (as per court fees receipt). Clearly, the application is aimed at frustrating the DC's order of 25/4/2005. Basically the applicant is asking this court to use its powers of i revision to correct a situation caused by carelessness on its part; and to correct the same after expiry of reasonable time. I call this application surprising because: One, the order attached to the application which is sought to be revised, as it reads above, does not state what: is claimed. It is not a refusal order by the DC to set aside an exparte judgment as indicated by applicant's affidavit. | Two, the application even if found^ was brought out of time. Apart from that the court's powers for revision are exercisable where '! . 44(1)(s) "....it appears that there haJbeen an error material to the •v I merits o f the case in voiving injustice. i It can not be resorted to; as per number of authorities where an * alternative remedy exists. The court will not use its powers where the right to appeal is a remedy available to an aggrieved party, 'and even where the appeal period has lapsed' it can not be used because a remedy for appealing out of time is available. See Israel Mwakalabeya Vs Ibrahim Mwaijumba He. Misc. Civil App. 21/1991 (Mbeya registry) and Asha Chileko & 91 others Vs Mwanza City Council (HC) Civil Revision 10/2003, Mwanza registry (unreported), among others. If indeed there~was another application to set aside the ex- . parte judgment after the earlier one had been withdraw (of which there is no evidence on record), the applicant had a remedy to seek to appeal it or appeal it out of time. A mistake of law is not an error envisaged by section 44 of the MCA. See among others, Awaki Shauri Vs Christopher Gwandu Civil Revision 9/98 (Arusha Registry unreported) cited with approval in HC. Civil Revision 16/2001, Samwel Gesase Vs The Manager Tardeco Tarime (MZA registry - unreported). Clearly the applicant acted; foolishly by taking the respondent's word that he had withdrawn the plaint, (If indeed that was the reason application 15/2004 was withdrawn); and carelessly when they made no follow up of the case and only surfaced to thwart the respondent's efforts to execute the DC decree. The applicant states in ground 9 of the affidavit that "it would be in the interest ofjustice to grant this application" in my opinion the opposite is true. In light i. ; of the background above, it is in th£ interest of justice that this application be refused, to do otherwise would be condoning abuse of court processes. I accordingly dismiss this application with Costs and order that the file be remitted to the lower court, to enable due processes to follow according to law. "It is so ordered". R. M. RWE' JUD< 19/04/2006 Date: 19/4/2006 Coram: Hon. R. M. Rweyemamu, J For Applicant: Mr. Nasimire Adv. Respondent: Yasini H. Ngochoge ! B/Clerk: J. Lwiza \ ( Court: Ruling delivered this 19th day of April 2006 as per coram above. JUDGE 19/04/2006