tan clean co ltd another vs propriator of la dolce vita 2001 tzhc 19 23 february 2001

1 IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL REVISION NO .8 OF 2001 TAN CLEAN CO. LTD...................................................1ST APPLICANT NATIONAL DEVELOPMENT CORPORATION... 2ND APPLICANT VERSUS THE PROPRIATOR OF LA DOLCE V ITA........ RESPONDENT RULING HIEMA, J : On 31st January 2001 Nyange & Co. A dvocates filed on behalf o f TAN CLEAN CO. LTD and NATIONAL DEVELOPM ENT CORPORATION a cham ber summons for the following orders: (I) to call the record and satisfy itself o f the correctness or otherwise o f the ruling o f Hon. Makwandi, RM delivered on 29th January 2001 in RM Civil Case N o.3/2001. (ii) to revise the ruling o f Hon. Makwandi, RM dated 29.01.2001 and redress the injustice caused thereby. 2 The application brought under certificate o f urgency and accompanied by the affidavit o f Herbert Herme Hezekia Nyange invokes the provisions o f Section 44(1 )(b) o f the M agistrates Court Act 1984 Sections 79 and 95 o f the civil Procedure Code 1966. Besides the application, the applicants also filed a Notice to Produce in terms o f Orders XI rule 12, XVI rule 6 o f the Civil Procedure Code 1966. Ms Mbuna & co. (Advocates acting on behalf o f the Proprietor of La Dolce V ita have countered the application in their counter-affidavit filed on 9.02.2001 and have raised prelim inary objection thereto; the subject o f this ruling. It is contended by Mr Mchome learned advocate who appeared for Ms M buna & Co. Advocates that the revisional powers o f this court cannot be exercised in terms o f Sections 44(1 )(b) o f the Magistrates Courts Act, and Section 79(1) o f the civil Procedure Code on the premise that the ruling o f the lower court did not finally determine the matter before it and it contained no error material to the merits o f the case resulting into injustice. On the notice to produce, Mr M chom e argued that this court had no jurisdiction or pow er to order production o f documents which were not part o f the record of the lower court the author o f the ruling which has given rise to the application for revision. On his part Mr Nyange learned Advocate while conceding the inapplicability o f sections 79(1) and 95 o f the Civil procedure Code to the 3 application at hand, contends that the provisions o f Section 44(1 )(b) o f the m agistrates Courts Act 1984 are applicable. Section 44(1 )(b) o f the M agistrates C ourts Act reads and I quote: “In addition to any other powers in that behalf conferred upon the High Court, the High Court...; (b) may, in any proceeding o f a civil nature determined in a district court or a court of a resident. On application being made in that, behalf by any party or o f its own motion, if it appears that there has been an eiTor material to the merits o f the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit”... In order to appreciate the import o f the above provisions there is need to look at the definition o f the word “proceeding” in the Act. The word proceeding is defined to include “any application, reference, cause, matter, suit, trial, appeal or revision, whether final or interlocutory, and whether or not between parties” . It is therefore clear in my view that Section 44(1 )(b) would cover the proceeding in the R esident magistrate court whose ruling is intended to be im pugned in this Court. Accordingly the preliminary objection raised by the respondents fails and is dism issed with costs in the cause. W ith regard to the notice o f preliminary objection against the notice to produce. I find the objection to be without merit and in terms o f both Orders XI rule 12 and XVI rule 6 I find the notice to produce sustainable. 1 order that the respondents to produce all the documents listed in the Notice dated and filed on 13th February 2001 on or before 26.02.2001. R uling delivered before Mr Ringia and Katemi learned Advocates for the parties. _______ __ ______ ________ S.E. Ihema 1 ccrti’\ .h«)f *>->;. r, a h v e Cr.»rect- JU D G E . 23.02.2001