Juma Rajabu vs Tausi Ally and Another (Civil Revision No. 2 of 1998) [1990] TZHC 28 (21 September 1990)

JUMA 1. IN THE HIGH COURT OF TANZAfTIA AT TABORA CIVIL REVISION NOo 2 OF 1998 (Being Application to Revise, T<?-bora District Court Civil Appeal Noo 9 of 1996) RAJABU oo 0., 0 0 .... ., . ' •• APPLICANT VE RS u s TAUSI ALLY ) ! ·I 0 .. .. .. 0 0 RESPOl.\IDENT 2o MOHAMED MASONGEZI) RULINGJ MASANCHE 2 J.: This matter was before me enrly this year and I thought the dir&ctions in the judgment delivered on 16th February, 1999, were complied with. The directions were not complied witho The matter has come back to me ;::, nd ·: I am being asked to review my ruling dated 16th February, 1999. For better appreciation of the unusual matters in this case, I reproduce · the ruling of this Court dated 16th February, 1999: It reads: "In the High Court , of Tanzania '.t At Tabora Civil Revision No. 2 of 1998 (Being Application to Revise Taborn District Court Civil Appeal No. 9 of.1996) JUMA RAJABU 0., .. 0 ., 0 0 0 APPLICANT VERSUS 1,. TAUSI ALLY ) 2 .. MOHAMED MASONGEZI) RESPO:>IDENTS

·• 2 RULING Civil Appeal No. /96 of the Court of Resident Magistrate Tabora which origine..ted from Civil Case No. 55/96 of the Urban Court of Tabora was or is between T_au,si Ally a.nrl flohamE;d Msongezi.. It was, to be exact,· a probate matter. Mohamed Masongezi 1:ms declared an Administrator ·1:. :,c::_r. and heir. 1-m objection was rai 9 ed by 8. person c2.lled Juma Rajabu, but the obje3ction was thrown his overboard. Now, Jw.11a Rajabu /rn-e to this Court :1 (High Court) asking for e. revison of an order of the Court of Resident Magistate confirming Mohamed Masongezi to be an Administrator of the estate of the late Masongezi o ,The applice.tion for a revision is purpotedly being made under So 44(1)(11) of the Magistrat0s Courts Acte ,I I have gone through the record, I do not see what uan be revised. I do not see any error apparent on ihe face .of tb:e recdrclo And the mo.tter ~,. ~- e is not coming here by way of appee.l, although it 1 k l .k 1 . - . oo s i .e an appea in :;;::..~~guse. The application is incompetent and it is struck out(\1ith cooats. If there is any ,:::_grievance with any orcler or lfr, ruling of the Court of Resident Magistrate, it should come here>!}Y way of _appeal., Jo E .. Cc Masanche 1 i ~~

,I \l 3 ... At Tabora-. 16th February, 1999• Present: Tausi Alli - respondent Juma Rajabu applicant Mohamed Msongezi That was the ruling: respondent. 11 Now, before me now is an application taken by Mr. ikima, learned.c-:advocate for the applicants, this time asking me not to revise the proceedings but review them. No provision of Emy law has been ci tea. to bG.ck up the applicc:i_tion. The application taken by Mr., Kwikima, is, again, not signed by the District Resistrar., It howevE:>r was presented for:. filing on 18/3/1999, well over the statutory limitation period for such 2,pplications ~ The Application reeds: 11 Chamber Summons LET PARTIES CONCEii'NED attend his lordship the juc1ge in chsmbers on the •• • .,.~ ... o .. o .. day of ..... ""!"'oeoooe 1999 at 9a00 o'clock in the .forenoo:g. as soon thereefter 8.S practic2ble-. UPON the hearing or; applice.tion for the following orders: (i) the order dismissin~ the _, objection be reviewed. (ii) the applic&nt's house be reinstated to him., (iii) the respondent pay costs of the review., The affidevi t of JUMA RA.JABU attached hereto as well as facts and reasons to be ac/tuced at the heairing shall be relied upon by Counsel ..

Oiv.Rev.2/98. Issued. under my hand this • o o-o •• . d2y of • ••• o e •• ,. o 1999. DISTq_REGISTRAR This chamber summons and application he .. s been taken out by Mo HQ A. Kwikima Advocte PeO• Box 280, Tabora, Counsel for applicanto" "REASC1NS FOR REv'TE1J'l The applicant, whose objection to the alienation of his house in r-i suit to which he was not--:~pY,;rty' 1 c. bn;tng aggrieved with the Court order to consider his objection and to order him to lodge appeal instead seek the review of the order on the following grop.nds;, that:-

1. The e.pplicant cou\D..d hot appeal as he was not party to the originnl casee Indeed he was puzzled to receive a Court direction calling upon him to surrender his tittle deed •.. 2o The objection lodged by the appellant wsB due to the fact that his house was to be seized on ·a decree which does not nsme him the judgment-debtor. 3 .. The direction ordering him to surrender his house was mnde without giving him opportunity to be heard.

5 4 The applicant prays thet the order dismissing his objection be reviewed so that he retains the house derived without e.ny or any just cn.useo. EFPLICA,.llJT 'i VERIFICATION: Wbat is st@-ted above is true to the / .. • best of my knowledgeo Dated at Tabora this 18th d2y of, February 19~~;. -· Sgd.: APPLICANT Presented for filing this ...... d2,_y of February, 1999. ~ <• I I ftAoooog•oe•o••••••o~~o••4-, REGISTRY OFFICER" That application is supported br an affidrwi t, of one Juma :Rajabu which reads,._nnd I quote it in full: 11 A FF ID AV I,T I, JUMA RAJABU, T9nzanian, citizen of the Moslem f2.ith, of Ng' runbo Road Tabora Municipality solemnly affirm and state that:~

1. I was not party to Tabora Urbe,n Primary Court Deceased Estc=:,.tes Cause No. 9/96·~-- . I only came to know of it when I was served with a Court order diPecting me to surrender my tittle deed to the respondent ·::.c Tausi Alli., 2,, I then lodged objection in the District Court where the pre.si(hng Magistrate dismissed it despite my holding ve.licl. tittle 2.nd g.oid rent, receipts.

'! 3~ I st:::md to Jose my house for no reason at aJ.l and the order dismissing my objection should be reyiewed so that I retain oi.,mership of my houseo What I have stated heJL>ein is true to the best of my knowlede;e o Affirn'.ed at Tabor2. before me in my presence this 23rd day of February, 1999: Signatu.re:.oo•o•oooQ••O•·b·~ ,j !I r 1 · -f'. "t. • , ,. ' II i l{U.3. l.1.lC,-.,. 1on .• ooooooo•.•<'0II00 .1 DEJ?ONENT. Now, severe.l matters cc-m be said about this application, or purpoted application: Firstly, the application as I have hintc::13. earlier is time~ barred., Period for makins applications to revJtew mattes is 30 days (see Limitation Act ·1971 Part 111 Item 3 • .'): The ruling of this Court was given on 16th February I 1999 anc7- the applicntion was receiverl for filing, here at the registry, on 18th March, 1099 .. The 2,_pplication was, therefore two c1e.ys late .. Se.fondly, the applicant, as the re2,sons for review suggest, is a. str;:mger to the case that was 2Jljudic!lted upon in the District Court.. The co.se in;i the District Court was between Jnut _Q.Y..___§pd Others 2nd Mo.£_b.med 1'.1aEJsi~~~i o ,, The present a~)plice..nt, Juma Rajabu,, bec2me an objector and his objection was dismissed by Mwanclu Resident Magistrate on 5/5/1998. No appeal vms preferred by 2n;yone aggrieved at the decision of Mwand.u, RoM11 Instead, an application for revision,

Civ.,Rev.,2/98ei to the High Court was made by Mr,. Kwikimo., leerned advocate on 17/6/98 well over the limitation period of one month. Actually, what it me::ans is that the High Court could have rejected the application on this ground a;tone, of limitationo Thirdly, even assuming that th~ 2pplication by Mr. Kwikima, for a review of ·nhe ruling of this Court, dated ,I 16/2/1999,.was in time, what would review be for,, Here, may I I give what an author, R. _ De,.SJ~:..c!;E_W.:sd.£, says in '.£.h.£__.Ci vil Procedun0 Code 3rd edition on reviews He says: nrt is well settled that the power of review lS not an inherent power of n judicial officer but such a right can only be oonferred by sto.tute II Q · . I uA review is practicBlly the hearing of an appeal by the same officer who decided c '· :-:ic the case .. " "A right to review is not cm inherent power. 11 liOne eudge ca..Dnot set aside an order made by another Judge of the same Court, although it may be wrong,." "A Court is not entitled·to review its order without notice of the o'ther side 11 • aDiscovery of fresh evidence i,s not ground for review in second appeal 11 ,. 11 An error of lc:tw is not _sufficient reo.son for gr2nting review"o

l ' .. CivRev.2/980 n - ™· -•9 "The person who wonts review should at least prove strictly the diligence he claims, to have exercised and also thet the mc.tter or evidence which he wishes to have access to is, if not absolutely concJ.unive, n·early conclusive of the matterv The'a.pplication for review cannot succeed on the ground of filscovery of ne-w &'1.c1 important matter or evidence which after exercise of due diligence could not be produced at the time of pe.ssing the c1ecree 11 • 11 A Court has juriscliction,to decicle wrongly". "Incorrect interpretBtion of 12.w is not an 2.pparent mistake on the face of the record:'. ;rAn error of l:rw is not sv,fficient reason for granting review 11 o 11 'tif.hen appeal is p.referrec7-; review is out of question,_ and the party 1 's procedure is to apply to the appellate Court to ad.mi t addi tiono.l evidence ell A review, therefore, will lie, e.nc1 it is encouraged to lie, when there is a mistake or error apparent on the face of t<he recordo Errors or mistakes apparent on the face of the record, could be many, but could include, o mixture in naming the parties, say where a defcndont he.s been referred to as a plaintiff. Or, where there ws.s o. wrong elate. - Or, where there has been an obvious over sight over a matter in either the proceedings or the 3Udgmento In short, it must be an obvious error which .::1.nyone will detect on a mere glance. · So, the purpot6d1:'. applicotion before me 7 even assuming .. h. t· ~ t was wi-c __ .. in ime, CLO- point out what error there is on the face of the record, which neads rectification. ·For., as I pointee. out ea.rlier, a Court ha.s ju:riscliction to c':.ccide wrongly.

One last point: Mr. Kwikima was to [ppcar to prosecute the "application for a review" before me. He did not turn up, Instead the party himself informed me th0.t he (the party) hed abandoned the services of Mr. I{wikima, and that he would conduct tho case himselfo It would therefore appear to me that gone are the days when Counsels wishing to wi thdrsiw from ca.ses would. come before the same Court for leave to wi thdrawo This courteous practice seeras to have been abandonedo No Court will compel an e.dvocate continue defending his client, But, certainly, I h2d thought courtesy and professional etiquette demanded that leqve tc withdraw from e. case should be sought,. This purpotecl application 'for review is struck out., as incompetent in law. It is struck out with costs. \ \ At Taborao 21st September, 1999. Applicant: present. Respondent: (Both present). \ ( ,) k/---- ~ . /-------- J. Ee C., MASANCHE, JUDGEo --- .. ~