Foya T.Z. and Others v Ndigo (Miscellaneous Civil Application No. 73 of 1999) [1999] TZHC 510 (16 November 1999)

86 TANZANIA LAW REPORTS [2001]T.L.R. a FO YA T.Z. AND OTHERS v. NDIGO KIURE NDIGO HIGH COURT OF TANZANIA ATMOSHI g (Mrema, J.) MISCELLANEOUS CI VIL APPLICATION No. 73 OF 1999 c Civil Practice and Procedure - Review of a court of a decision — court with competent jurisdiction to review — a decision of a court of a resident magistrate with extended jurisdiction — Order XLII, rule 1(1) of the Civil Procedure Code. D This was an application for review of the judgment of the court of resident magistrate with extended jurisdiction. The application was brought to the High Court under XLII, rule 1(1) of the Civil Procedure court. The High Court considered whether the application was properly before it. £ Held: (i) The law provides that an application for review may be made to the same court that made the decision sought to be reviewed; (ii) As the decision sought to be reviewed by this application was made by a F court of a Resident Magistrate, extended jurisdiction, this application is improperly made to the High Court. Application struck out G Statutory provision referred to: (1) Civil Procedure Codel966, Order XLII, rule 1- (!)(<?) RULING H (Delivered 16 November 1999) AC Mrema, J.: This is an application for reviewing the judgement j of the learned Principal Resident Magistrate, Extended Jurisdiction, Mrs R.M. Rweyemamu, in (PC) Civil Appeal Number 6 of 1998,

EOYAT.Z. AND OTHERS v. NDIGO KIURE NDIGO 87 which was delivered on 18 May 1998 in the Resident Magistrate ’ s a Court, at Moshi. The application has been brought by the three applicants who were the appellants in the aforementioned appeal, to wit, Foya T.Z., Dismass Mohamed and Hamadi Shauri, hereinafter referred to as B the first, second and third applicants, respectively. The respondent is one Ngido Kiure Ngido. The application has been brought under Order XLII, rule l-(l)(a) of the Civil Procedure Code 1966. c At the hearing of this application the first applicant tendered a document which he said is authority (Power of Attorney) from the other two applicants clothing him with power to appear and prosecute the application for them all. As the document was fully attested by the three applicants I conceded that prayer, allowing Foya T.Z. to appear D and prosecute the application for himself and for the other applicants. The respondent was not present and by a document dated 7 September 1999, also filed in the instant proceeding, very clearly confirms that Ndigo Kiure Ndigo was properly served, hence his correspondence E to the District Registrar purporting to answer the applicants ’ application. From the same document (dated 7 September 1999) I observe the following statement at the bottom of the first page or leaf, which reads: F Naiomba Mahakama yako hii tukufu itakapoona nina haki naomba unipe taarifa kwa anuani hiyo hapo juu. That very clearly, in my opinion, confirms that the respondent did not wish to appear during the hearing of the application. As I have G pointed out earlier on (above) the application is brought under Order XLII, rule 1-(1) of the Civil Procedure Code 1966. For the purpose of this ruling the said law provides as follows: Order XLII, rule 1- 1) Any person considering himself aggrieved: h (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or (b) ... (not relevant here)

88 TANZANIA LAW REPORTS[2001]T.L.R. and who, from the discovery of new important matter or evidence which, after the exercise of 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, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for review of judgement to the court which passed the decree or made the order, [emphasis supplied] It is evidently clear from the court ’ s records that the judgment from which the instant application is brought was in respect of court proceedings before the court of the Resident Magistrate, at Moshi and not before the High Court. It is not, therefore, the High Court which passed the decree or made the order and for that reason, the application for review of the order or decree of the court of the Resident Magistrate could not be filed before this court in terms of Order XLII, rule 1 - (l)(a) of the Civil Procedure Code 1966. As a result, the application has to be struck out for being incompetent before this court. Accordingly, I strike out the application with direction that the applicants, if they so wish, may file the application before the competent court and to be heard by a Principal Resident Magistrate with extended jurisdiction. It is so ordered and I make no order for costs.