winland ngisanjataa makule vs crdb bank ltd 2013 tzhc 2205 20 november 2013

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM MISC. CIVIL CAUSE NO. 109 OF 2012 WINLAND NGISANJATAA MAKULE................ APPLICANT V CRDB BANK LTD........................................ RESPONDENT RULING Shangwa. J On 14th December, 2012, my learned brother Hon. I.H. Juma, J as he then was made a ruling in Misc. Civil Cause No. 109 of 2012 in which he held that the decision of the Taxing officer in Civil Case No. 219 of 2001 of Kinondoni District Court dated 31st July, 2012 be quashed on grounds that the application for the bill of costs had been filed out of time. The Applicant Winland Ngisanjataa Makule was aggrieved by the said ruling. On 14th January, 2013, he filed the Memorandum of review of the said ruling on three grounds namely:- 1. That Miscellaneous Civil Cause No. 109 o f 2012 is a nullity. 2. That the Honourable Court did not have jurisdiction to hear and decide the case. 3. That the Honourable Court misdirected itself in law by holding that the application fo r the bill o f Costs in Civil Case No. 219 o f 2001 accrued on 21st November, 2006. On 6th March, 2013, Mr. Mpoki for the Respondent filed a notice of preliminary objection against the application for review based on two grounds namely:- 1. That the application fo r review is time barred. 2. That the application is incompetent as it is intended to ask the Court to sit as appeal Court on its decision. He prayed the Court to dismiss it with costs. In his written submissions, he abandoned the first ground of objection and concentrated on the second ground which concerns the competency of the application objected to. In support of the second ground of objection, he contended that this Court has no jurisdiction to declare its own ruling a nullity and to hold that it had no jurisdiction to hear and decide the case before it and to hold further that it misdirected itself in any way. He said that this Court is functus officio in so far as its decision made on 14th December, 2012 is concerned and that the Applicant’s case cannot be reopened by this Court. On the other side, the Applicant who is unrepresented submitted that his application for review is competent and that this Court is not functus officio to declare that its ruling made on 14th December, 2012 is void. In short, he submitted that his application is backed with sufficient reasons. Mr. Mpoki cited some cases in support of his contentions including the case of Ashok Kumar Josh and Others v. State of Rajasthan and Another, 1996 (2) WLC 140 in which the supreme Court of India held that:- “It is well settled that review does not mean to re - hear the entire matter, to allow to raise new points which were not raised earlier.,.” In Tanzania, the provisions which govern applications for review of decrees or orders by the Court are found under OXLII of the Civil Procedure Code Cap 33 R.E2002. For the purposes of this case, I will quote Rule 1- (1)(a) (b) and Rule 4 (1) of the Civil Procedure Code herein below: “ 1. - (1) Any person considering himself aggrieved - (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or Order from which no appeal is allowed, and who, from the discovery o f new and important matter or evidence which, after the exercise o f due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made on account o f some mistake or error apparent on the face o f the record or fo r any other sufficient reason, desires to obtain a review o f the decree passed or Order made against him, may apply fo r a review o f judgment to the Court which Passed the decree or made the order. ” “Rule 4 - (1) where it appears to the Court that there is no sufficient ground fo r review, it shall reject the application. ” In the light of the above provisions of law, an application for review can only succeed where the Applicant has sufficient reason for review such as discovery of new and important matter or evidence which could not be produced by him at the time of making the order intended to be reviewed or an error apparent on the face of the record be it of fact or law. In this case, the Applicant has not mentioned any matter which is new and important that could not be produced by him at the time of making the ruling intended to be reviewed and he has not mentioned any error which is apparent on the face of the record that would prompt this Court to re - examine or re - consider his case. The grounds raised by him are irrelevant to the application for review. They are only relevant to an appeal against the ruling of this Court. I agree with Mr. Mpoki therefore that this Court is functus officio and that it cannot declare its own decision as a nullity or hold that it had no jurisdiction to hear and determine the case or that it misdirected itself in any way. As correctly submitted by him at page one of his written submissions, this application is incompetent. Mr. Mpoki was quite right in his submission when he said that the application is intended to ask the Court to sit as an appeal court. I am sorry to say that this Court has no jurisdiction to sit as appeal court of its own decisions. For these reasons, I uphold the Respondent’s point of preliminary objection. The application is incompetent. I hereby rejected it with no order as to Costs. Delivered in open Court this 20th day of November, 2013 in the presence of the Applicant and Mr. Kelvin Mlawi for Mr. Mpoki for Respondent. A.Shangwa JUDGE 20/11/2013 [_