Gershon Abayo vs Utegi Dairy Farm (PC Civil Appeal No 133 of 1997) [1999] TZHC 422 (30 November 1999)

NC.IIALLAI J,_~ IN THE HIGH COURT OF TANZANIA AT MWANZA PC CIVTI., APPEAL NO. 133 OF 1997 m THE DIS'IRICT COURT OF TARIME DISTRICT AT TARIME crvn. APPEAL NO. 31 OF 1996 FROM ORIGINAL CIVIL CASE NO. 102/93 OF TAR:cME; DISTRICT CO:tJRT AT TARIME GERSHON ABAYO • 0 • o • • • • o • • • APPELI.ANT Versus UTEG I DAIRY FARM o o 0 0 0 • 0 JUDGMENT

• • • 
o RESPONDENT 
This appeal is one of those rare and peculiar appeals which one 
does not normally have the occasion to come by in ones life time 
•n the Bench. It is an appeal against an order in a review appli- 
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,, ) cation which the appellant/plaintiff filed in 'the District Court 
at Tarime. In his r,eview application, the appellant/pJ.aintiff 
asked the appellate District Court at Tarime to review its judgment 
in its Civil Appeal No.31/96 which was against him. 
In order to understand better this oblique appeal, it is 
necessary for me to give a brief history of this 'matter. It is this: 
The appellant Gershon Abayo filed a suit No.102/95 in Tarime Urban 
primary court against the respondent Utegi Dairy Farm. Th,e suit was 
for recovery of shs. 1,040iOOO/: being the price of 52,000 baked 
bricks which the appellant/plaintiff sold to the respondent/d~fendant 
Dairy Farm in 1976, about 20 years past. The appellant won the .suit. 
However, on appeal to the District court, the decision of the trial- 
Primary court was reversed for two main reasonso Firstly-that the 
legal status or personality of the respondent/defendant Dairy Farm

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had changed from Koryo Farm to ut·egi Dairy Farmo For this reason the 
actual defendant to whom the appellant/plaintiff alleged to have 
supplied bricks was no longer in existence in 1995 when he filed his claim 
to recovery the money the price of the said baked brickso And there 
was no evidence adduced at the trial to prove that the liabilities and 
assets of Koryo Farm had devolved to Utegi Dairy Farm by any known arra- 
ngement or operatation of any known law. Secondly, the appellantJs claim 
which was founded in contract, had long expired in 1995, so the suit WaJ3 
timebarred. So, the District court allowed the appeal by Utegi Dairy 
Farm for these two reasons. 
Now, instead of appealing against that decision, the appel.lant/plaintlif 
-filed a: revi-ew· applicat-ion i-n the same appell.ate D:iJ3tr?-ot __ court at Tarime •. 
The said review application whicn J>urpor't~tl ·to have- been f-i-led- under 
Order 42 Rule 1(1)(b) CPC, 66 was heard and determined by Mr. Nyamboga, 
learned Honorary District Magistrate, who did not however, hear and 
-determine the appeal whose judgment the appellant applied to be reviewed. 
No reason was given on record by Mro Nyamboga why Mr. MaJ.amsha learned 
District Magistrate who had given the judgment that was so.ught to be 
reviewed did not sit and hear and determine the review himself as the law 
requires. Order 42 Rule 2 CPC, 66 is explicit on this point'.' Be that 
as it may, Mr. Nyamboga heard and dismissed the re_view application for 
two reasons. Firstly that the memorandum of review was not dated. 
Secondly, the applicant/appellant'had not cited the procedural law which 
empowered him to file a review application in the District court to 
review its judgment in appeal. 
While admitting this appeal, my learned brother Judge Lugakingira 
----------':-as-h-e-then-Was_)~ised two legal issues in his admission minute thus: 
"(1) Did the "Memorandum of Reviewn answer to Oo42 
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r.1 
(1)(b)? 
(2) Can District Courts actually review their judgments 
•.•• /3.

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given an. appeal? 
Sgd: K.S-.K~ Lugakingira, J. 
8/12/97-" 
.... - .. 
In deciding this appeal I have to consider and decide the two 
basic issues raised by my learned brother Judge Lugakingira in his. 
admission minute. These are legal points which go to the jurisdi-- 
ction of the District Court which entertained the review application- 
and made the order which is the subject matter of the instant appeal. 
In deciding the first legal ~sue raised by my fellow judge in 
admission, I have to 'revisit Order 42 Rule 1 (1)(b) CPC, 66 which 
provides_and_I _q:i!_oj;e~:__ __ --~ 
(b) by a dec~e or order from which no appeal is 
all.owed, L.. .i _n 
Obviously• the decree and order in appeal which the Diet~ict 
Cow-t at Ta!rime made in its Civil .Appeal No.31/19964 which aggrieved 
the appellant, was appe_llable to the High Court. There was no 
reason why the appellant preferred a review application instead of 
an appeal. to which he was entitled. So, I fmd that the review 
application which the appellant filed in the District court for 
purposes of reviewing its decision and decree m its civil appeal 
Noo31/96, was legally incompetent, the same did not meet the 
requirement of Order 42 Rule 1(1)(b) CPC, 660 Further, it is my 
fmdmg that Mro Nyamboga, learned Honorary Magistrate, who had not 
given the judgment which was sought to be reviewed, had no jurisdi- 
ction to sit and decide the review application which was filed in 
respect or' the judgment which was given by a different magistrate, 
' 
that is, Mr. Malamsha, learned District Magistrate. Accordmglyt 
the review application in question and the p:-oceedings that were 
conducted in that review application by Mr. Nyamboga are null. and

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void, the same are hereby quashed and the orders therein are set aside. 
Having made this finding ••n the first ii.sue that was raised in 
admission of this appeal by Mr. Jus~ice Lu.c;akingira {as he then was), 
I find it not necessary to decide the secend issue whether District 
courts can J.egal.l.y review. their judgments given in appealo I will have 
a better occasion to decide on this legal iss.ue later when the occasion 
. ari..ses-.and .on .a. tho.rough. and pro-per research on that legal p•int. 
New, what is the effect of rrry finding and decision-which I b.6Ve __ j-w,,f; ______ ... 
~ .. .mad.a, that is, the effect to this appeal? The J.ega1 effect is that· 
tb.i.s .appaa1. .is leg~y-:i.nco~tent b0Cause .. it is a1i appeal. in respect 
of an invalid order and proceedings in a review application which I have 
qua.shed and set a.side as the case may be. This appeal is· struck out as 
:0,gally. ~.te~t~. :r;n th~-:~iso~~&s~whi~h. gava risQ. to. th:i.s af>:E»~ ...... -. __ _ 
I make no order for eests, each party bear its costs in this c•urt and . 
I . 
30/11/99 
Coram : M. D. NchaJ..la, J. 
Appellant: Absent·duly notified 
Respondent: Absent - exparte 
CoC Restituta 
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MoDo NCHAtIA 
JUDGE 
-;-•~ 
14/11/99 
Court: 
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Judgment delivered in court at Mwanaa in the absence •f the 
parties who had due notice of ,the date of delivery of judgment, this 
· 
th 
e 30th day of ~ovember, 1999. Right of appeal is accordingly to 1aw. 
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----t_ ~-----------------M.D. N - \\-. ----------------- 
JUDGE 
AT M11JANZA 
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30/11/99