20060419 TZHC Mwanza

) '---..\ '6 ~ - \+C . YV\ W.1\-5- .,,,i IN THE HIGH COURT OF TANZANIA ATMWANZA HC.CIVIL REVISION NO. 04 OF 2.005 {Originating from the District Court of Bunda District at Bunda. Original Civil Case No. 9/2004} MANAGING DIRECTOR BUNDA BUS SERVICE ................ APPLICANT Versus YASIN H. NGOCHOGE ...........................................•.. 8 ■■ • RESPONDENT 8/12/2005 & 19/04/2006 RULING - RWEYEMAMU, J: The applicant has vide his counsel Mr.v Nasimire brought this I I surprising application under s. 44 (1) of the I Magistrate's Court Act I (MCA). This court is being asked to revise the following District Court I . order (DC) which I proceed to quote in full: i "Date: 21/03/2005 Coram: M.P. Ndagije-DM Applicant: Present Respondent: Present - represented by the dvocate - Nasimire Interp: S. Mnaga ] Court: Leave for the execution of decree a rowed till the outcome . of the appeal vide Miscellaneous Civil ApplicaAon No. 15/2004. Sgd: M.P. Ndagije - D 21/3/2005" I find the application surprising lr-~ ligh the following facts: .I '-,,., The respondent successfully filed Civ I Case 9/2004 in Bunda ., ~- _ ~ District Court against his employer the pre: ent applicant. Jhat case >~-~ ~ ~ ,' proceeded exparte after the applicant/defendant who was duly served, failed to appear on several occasions and judgmentt was entered for the plaintiff/respondent on 10/11/2004. Following that, the applicant filed Misc. Application 15/2004 to set aside thaf ,. 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 That application was later withdrawn by the applicant on his own volition for reasons now described in paragraph 4 of the affidavit accompanying the current application as; "-----! was tricked by the Respondent to withdraw the said application and Criminal Case No. 208 of 2004 which he was facing on the understanding that he was withdr.awfng the main suit and all claims against the Applicant something which he did nor~ After some months of that withdrawal i.e. on 1/3/2005 i according to the court record; the respondent prayed for execution of I the decree of the November exparte judgme1t. 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 drdered that: "Date: 25/4/2005 Coram: M.P. Ndagija Plaintiff: Defendant: Interp: M. Mgabo - B/C The Plaintiff: I am a decree holder. On 10/11fi2004 the exparted Judgment was delivered for the Judgment debt0( to failed to write his written statement of defense. After the deliJery of the exparte judgment the judgment debtor filed a miscellaneI:us application No. 15/2004 to set aside an exparte judgment. On 5/1/2005 the Judgment debtor decided the application to b dismissed in my present On 17/2/2005 I then presrted y application for execution of decree. On 1/3/2005 the~Magisrate i/c issued on 'I' I notice of 21 days to the Judgment debtor as to why the execution 2 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 21/3/2005 I 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 of the warrant of attachment. Sgd: M.P. Ndagij~ - OM 25/4/2005 Order: The facts on above record of the decree holder admitted. The Warrant of attachment to be issued with immediate effect Sgd: M.P. Ndagije - OM 25/4/2005" - That is the background to this application for revision filed in I this court on 11/5/2005 (as per court fees receipt). Clearly, t~e 1 application is aimed at frustrating the/ DC's order of 25/4/2005. Basically the applicant is asking this tjourt to use its powers of I revision to correc~ a situation caused by d:arelessness on its part; and I "I I I to correct the same after expiry of r asonable time. I call this application surprising because: One, the order attached to the ap lication which is sought to be revised, as it reads above, does not st te what: is claimed. It is not a refusal order by the DC to set an exparte judgment as indicated by applicant's affidavit. Two, the application even if found[ was brought out of tim-e. Apart from that the court's powers fo\revlsion are exercisable where 44{1)(s) •~ ....it appears that there halbee .., an error material to the '>· merits of the case involving injustice.... : ✓/ 3 It can not be resorted to; as per number of authorities where an t 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 f . 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 I envisaged by section 44 of the MCA. See am6ng others, Awaki Shauri I Vs Christopher Gwandu Civil Revision ~/98 (Arusha Registry I unreported) cited with approval in HC. ~ivil Revision 16/2001, Sam_wel Gesase Vs The Manager Tardeco arime (MZA registry - unreported) .. Clearly the applicant acted; foolishly by taking the respondent's word that he had withdrawn the plaint, ( f indeed that was the reason application 15/2004 was withdrawn ; and carelessly when they made no follow up of the case and onll surfaced to thwart the respondent's efforts to execute the DC deer e. 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 pposite is true. In light of the background above, it is in uf'•'sa ~- inte~est of justice that this \ 4 - -- ........ ,; • l, 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". JUDGE 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 th Court: Ruling delivered this 19 day of A ril 2006 as per coram above. ~.RWEYEMA JUDGE 19/04/2006 5 \ . .,:.·- ..._