Mussa I. Muhoja vs Mang'ondi Muhoja (HC Revision No. 25 of 1996) [1999] TZHC 253 (30 November 1999)

IN THE HIGH COURT OF TANZANIP AT MWANZA tIC; REVISION NO. 25 OF 1996 IN THE DI TRICT QOUT. OF KWIA. DISTRICT AT NU • .. S. . ' '• 'MISC 0 CIVI 1PPLO' NO. E/95 ::.. . OPIGNAL C IV IL CASE NO.93" OF THE DISTRICT COURT OF KWIBA ATNGUDU IJSSA I. MUHOJA O 0 • APPELLANT Versus MANGONDI MUHOJA 0 • , RESPONDENT • . ". .• , . _______ . . . This is an application by one Mussa I Muhoja made under • section 44(1)(.b) of the Magistrates;Courts Act* 198. in which he'séeks thefollowing order:- .. . . . . . "That the High C9t may be. p1eaed to revise 'the Puling delivered. by the Resident Magistrates Cour in Misc0 Civil Application No.6 of 1995." The supporting affidavit of the licant reads in part as follows:- "2. That., on June 17, 1996 the Resident . •.': Magistrates Court of Mwanza delivered a . ' Rlingin Misc.Civil Application No.6 of 1995 in which my residential. house at Ngudu was ordered to be sold in execution of a court decree 'issued .• toa decision in Kwimba . • •. . , ' • District Court Civil qase No.2 of 1993. ' 3. That the order to sell my residential house is illegal and the learned Resident erred by not taking 4 into consideration the reasons advanced bythe applicant in S ' arrivin' at his decisiori.c . . • S .../2...

b .2 The respondent Mang'ondi resisted the application and filed a counter-affidavit 0 A the" hearing of the application., he was represented by Mr. M6ño ...Ilèared advocate whereas the applicant appeared in pers.n and unrepresented.'. Before I consider the merits or otherwise of this application, a backound history will be in order. In Civil Case No.2 of 1993, Mussa I muhoja (.the appli- cant herein) was the plaintiff and the first defendant was Ma- n ng'ondi Muhoja and the 'second. defendant was Jacob Malale. In a judgment of the District Court delivered on 31/8/94 the plaintiff Mussa I !uh.ja emerged as the successful rcarty. The ,defendants were understandably ag'ieved by this decision and appealed to this court which on 31.1.95 (Mrema, j) allowed the appeal, which meant that the decision of the District Court ceased to have effect. For reasons which are not apparent on the record, on the 20.6.95 Misc.Civil Application No.6 of 1995 was filed in the.District court.. It should be remembered that this was aftei this Court had delivered its decision on 31.1.95 in the exercise of its appellate jiirisdictic$n. The applicant was the same Mussa I Muhoja. The District Court (KHOJO 'Utamwa)p.M) delivered its Ruling on 17.6.96 which is the subject matter of this application. As I have narrated the sequence of events above this court in Civil Appeal No.kl of 1994 originating in the District Court of Kwimba at Ngudu delivered its judgment'in respect of Civil Case No.2 of 1993 en 3 1 .1.95. Thus after 31 .1 .95 an application culd be iade ei'ther tp this court or to the 1' Court of Appeal depending on the, circumstances. Therefore Misc0Civil Application N..6 f 1995 in the District, Court was clearly miscon•3ived It, iâ'my considered view that it was erroneous on the.part of the District Court on the 20. 6.95 to entertain an application when six months earlier this court had

• 3 - of decided Civil Case No.2/993in its appellate jurisdiction G Section 44(1)(b) of the Magistrates Courts Act, 1984 provides- 'kk(1) In addition toany ohr powers in that behalf confer'ed upon the High Coui't,'the High Court (a) 0 6 0 . . 0 -: (b): may,. in any. prpQeeding 61 a. civil nature determined in a district court or a court of a realdnt magistrate on application being made in that behalf by any party o of its own motion, if it appears that there has been an error material to the merits - of the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit: (Proviso omitted) Under th±sprovision,:this court can assume revisionalr:- jurisdiction in any case where there has been an error on the face of the cae i)volving injst±cø. This is of course in addition: to section 79 of the Civil prOcedure Code ih16hI4 basically concerned with jurisdictional considerations. In thi application, I need not go to the merits of the application since once this court haddelivered its judgment in respect of Civil Case No.2 of 1993 the District Court should not have entertained Misc,Civil Application No.6 of 1995 which was filed on 2C,6,95 after the delivery of the judgment of this court on 31.1,95. After this date there was only the judgment and decree of this court. In the result, in the exercise of this court's revisional jurisdiction I do hereby set aside the District Courts Ruling in Misc,Civil Application No.6 of 1995 dated 17.6,96. I make no order as to costs, 0 gd: H.P. NSEKELA JUDGE 5/8/99

/ .. Date. 30/11/1999 Com: B-M.K 'MntLUà, DR Appellant: Abent For Responden: Mr. Magopgo Adv bsent Mr. Muhula Adv holding bii•eT B/C: Sekela Order: Judgment delivered in Chamber thIth30th day of November, 1999 in the presence of learned Counsel Mre Iviuhula who held brief for learned Crus.ul Mr Magongo for the respondent as well as in the presence of-the respondent hitheIf but in the absence of the applicant. 0 AT MWNZA.. SGD, B. M. K. NMILL 30/11/99 DISTRICT RGISTRR I hereby certify that this is the true copy of the 'Origi1. • 0 • DISTRICTRISTRAR IVMANZA 9 0 c-Ji