20190326 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL REVISION NO 39 OF 2016 OSMAN GAO HOZA ................................................... .-.. APPLICANT

VERSUS MOHAMED SHABANI ............................................. 1 st RESPONDENT RICHARD GODFREY ............................................. 2 nd RESPONDENT MWAJUMA SHABAN! SALUM (As administratrix of the estate of the late Mwajuma Salum) .................................... 3 rd RESPONDENT G & B TRADES CO.LTD .........................................4 th RESPONDENT UNYANGALA AUCTION MART ............................... Sth RESPONDENT {Application for revision of the decisions, etc of the District Court of Ilala in Misc. Civil Application No 133 of 2015 and in Misc. Civil Application No 294 of 2015}

RULING MGETTA, J: This ruling is in respect of the preliminary objections raised by the 4th respondent, M/s G & B Traders Co. LTD, the notice of which was filed herein on 11/9/2018. In the notice of preliminary objections, the 4th respondent complained that: 1. The application for revision is hopelessly time barred; 2. The application for revision is incompetent before this Court for offending the provision of section 79 (2) of the Civil Procedure Code Act, CAP.33; 1 3. The application for review is incompetent for containing extraneous documents which were not part of the proceedings of the trial Court; 4. The affidavit supporting the application is incurably defective for being argumentative; and, 5. Counter affidavits of one Mariam Mayalla and Richard Godfrey are incompetent for lack of a requisite leave of the Court. On 12/9/2018 when the application was called on for hearing of the raised preliminary objections, Mr. Sylvester Korosso, the learned advocate holding a brief for Mr. Wilson Ogunde, the learned advocate appeared for the applicant, Osman Gao Haza; while, the 1st respondent Mohamed Shabani was represented by Mr. Robert Ruben, the learned advocate holding a brief for Mr. Godwin Nyaisa, the learned advocate. At the same time, Mr. Robert Ruben himself appeared for the 4th respondent; while, the 3rd respondent, Mwajuma Shaban Salum, an administratrix of the

late Mwajuma Salum appeared in person, unrepresented. The 2nd and 5th respondents were absent for reasons known to themselves. On that day, it was agreed that the raised preliminary objections be argued by way of written submissions, which were indeed filed as scheduled by parties involved. 2 I have chosen to straightway begin with whether the application at hand is hopelessly time barred. It is not in dispute that earlier on -the applicant, Osman Gao Haza, preferred this application by way of a Chamber Summons which is made under section 44 (1) (b) of the Magistrates Courts Act, 1984, CAP. 11 and sections 79 (1) (c) and 95 of the Civil Procedure Code Act, 1966 CAP.33. It is supported by an affidavit affirmed by the applicant. In the Chamber summons which was lodged on 25/11/2016, he prayed for the following orders: 1. That the Court be pleased to call for and examine the records of the proceedings of the District Court of Ilala at Samora Avenue (henceforth the trial Court) in Miscellaneous Civil Application No. 294 of 2015 as there exist serious irregularities that amount to exceptional circumstances in the conduct of District Court proceedings which call for the immediate intervention of the High Court before justice is irretrievably hijacked; 2. That the Court be pleased to call for and examine the records of proceedings of the trial Court in Miscellaneous Civil Application

No. 133 of 2015 so as to satisfy itself as to the legality, propriety and correctness of the decision of 21/10/2016 and revise the same; 3. Costs be provided for; and, 3 4. Any other reliefs that the Court will deem fit and just to grant. Before proceeding further let me explain briefly about the two Miscellaneous Civil Applications filed and decided on different dates by the trial Court. The impugned ruling in Miscellaneous Civil Application No. 294 of 2015 (henceforth Application No. 294 of 2015) involved the following parties: Mohamed Shabani as applicant; while, respondents were Mwajuma Salum (1 st respondent), Richard Godfrey (2 nd respondent); and, G & B Traders Co. LTD (3 rd respondent). The main prayer sought by the applicant in that application was: " to set aside an expert order dated 1st March 201 0 and order service to the Applicant and hearing inter-parties of the application for review filed by the second respondent'~ (sic) In his ruling delivered on 17/8/2016, the trial Court magistrate (S.A.Mkasiwa, SRM) agreed with the applicant's prayer and he proceeded to order that: ''I hereby order that an exparte order dated 1st March 2010 is hereby set aside the matter to be heard inter parties upon service to the application? (Sic) 4 While, the impugned ruling in Miscellaneous Civil Application No. 133 of 2015 (henceforth Application No. 133 of 2015), parties involved were G & B Traders CO.LTD as applicant; while, the respondents were Mwajuma Salum (1 st respondent), Richard Godfrey (2 nd respondent), and Unyangala Auction Mart (the 3rd respondent). The main prayer sought in that application was that the trial Court: ''be pleased to investigate4 the claims and objection proceedings instituted by the applicant herein and make an order releasing plot No.

46. Block 'O' Congo street at Kariakoo from attachment and/or sale as the said property does not belong to the Judgment debtor/1st respondent herein above mentioned" (Sic) In his ruling delivered on 21/10/2016, the trial Court Magistrate (S. A. Mkasiwa, SRM) ruled that: ''I therefore grant an order for releasing the plot No. 46 block 'O' Congo Street at Kariakoo from attachment and sale till when the matter is determined enterpartes as ordered by the Court " (Sic) 5 From the above brief background and upon a careful reading of the records of these revision proceedings, it is not in dispute that the two Miscellaneous Applications ended when the respective rulings were handed down on different dates as indicated herein by the same trial court magistrate, Hon. S.A. Mkasiwa, (SRM) The applicant had now come before this Court equipped with a Chamber Summons that he field on 25/11/2016 requesting this Court to revise the proceedings of the trial Court in both Applications No. 294 of 2015 and No. 133 of 2015 which were handed down on 17/8/2016 and 21/10/2016 respectively. Now, let me consider and determine the first preliminary objection. Here, the time limit is of essence. In his written submission, Mr. Ruben the learned advocate for the 4th respondent stated that by filing the Chamber summons on 25/11/2016, the applicant was late for 31 days after the expiry of the statutory

provided sixty (60) days. It is not in dispute that . both the Civil Procedure Code Act, 1966 (henceforth CAP.33) and Magistrates Courts' Act, 1984, (henceforth CAP.11) do not provide for time limit within which an application for revision could be preferred to this Court by an aggrieved person by a decision or order or proceedings of the District Court. A resort should therefore be taken to the Law of 6 Limitation Act, 1971 (henceforth CAP.89). As far as the application at hand is concerned, the relevant provision of the law is item 21 of Part Ill of the Schedule to CAP.89 which for ease of reference is quoted as hereunder: "21. Application under the Civil Procedure Code, 1966, the Magistrates' Courts Act, 1984 or other written law for which no period of Limitation is provided in this Act or any other written law ........................... sixty days" From the foregoing, it is a trite law that if an aggrieved person wishing to file an application for revision against a particular decision, order or proceeding made by a district court in the exercise of its original jurisdiction should, within sixty days from the date the decision or order or proceeding complained of, file a Chamber summons supported by a sworn/affirmed affidavit. As submitted by Mr. Reuben, counting from 17/8/2016 when the impugned ruling in Misc. Civil Application No. 294 of 2015 was delivered up to

25/11/2016 when the Chamber summons was filed, is equal to one hundred (100) days. This shows that he was late by 40 days. Counting from 21/10/2016 when the impugned ruling in Misc. Civil Application No. 133 of 2015 was delivered up to 25/11/2016 when the 7 same Chamber summons was filed, is equal to thirty five (35) days. In this one, the applicant was within the time limit. Now, I have asked a question what I should do with the entire chamber summons in such situation where one prayer is found to be timely brought and the other prayer, lately brought. It follows therefore that prayer (a) in the Chamber summons was sought while time required by the law to seek it had already elapsed. I am of the view that the chamber summons should be struck out. If that is done, should I proceed in determining the remaining prayer (b) in the same chamber summons that is found to have been sought before the expiry of 60 days provided for by the law? I must admit that I can't proceed further in such a situation. I am afraid to proceed further in giving a verdict as my decision might create further problem to the parties. I am of the view that the two prayers were not supposed to be consolidated in one and same Chamber Summons. In a similar vein, as the two prayers emanate from different rulings in different Misc. Civil Applications at the trial court, but are now combined and sought in one and

same chamber summons, to me that combination amounts to omnibus prayers. And, since one is found to be time barred, the other found to be within time limit, the entire chamber summons is vitiated. 8 In my -considered view if I proceed with the prayer that is found within the time limit and struck out that is found to be time barred, it will not only bring uncertainty but also ambiguity in the course of execution. Hence, complicate the matter. As the two Misc. Civil Applications subject to this revision were pronounced on different dates, involving different subject matters, they were not supposed to be consolidated in one and same chamber summons by the advocate for the applicant. The option in my view was to bring two Chamber Summons each one containing application for revision from each ruling of the two distinct Misc. Civil Applications. For the above reasons, I find that the entire application is incompetent before this Court. I thus proceed to strike out this incompetent application with costs. As this finding completely dispose of the application, I will therefore not proceed to ponder the remaining raised preliminary objections. It is so ordered. <:::::::: J ;: 1/ J.S.MGETIA

JUDGE 26/3/2019 COURT: This Ruling is delivered today this 26th day of March, 2019 in the 9