1. PHOENIX (T) ASSURANCE CO.LTD 2. TANZANIA P.MANUFACTURERS MWARAMI KOBELO RESPONDENT

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1 1. PHOENIX (T) ASSURANCE CO.LTD 2. TANZANIA P.MANUFACTURERS MWARAMI KOBELO RESPONDENT Date of last Order 14/9/2006 Date of Ruling 13/2/2007 This is an application made by the applicant under section 97(1)(a) of the Civil Procedure Code, 1966, section 44 (l)(b) of the Magistrate's Courts Act, 1984, and any other enabling prevision of the law. The applicant is for the following orders: 1. That the order of the District Court of Iiaia made on 20 th September, 2004 dismissing with costs the Applicants Application for Review be revised and ~et aside as the District Court exercised jurisdiction not

2 vested in it by law and the order was manifestly irregular and there was errors material to the merits of the case involving injustice to the applicants. 2. That costs of this application be provided for 3. Any other order as this honorable Court my deem proper and just to grant This application is supported by an affidavit of one Jovin Aloyce Lyimo, an advocate of the High Court and courts subordinate thereto serve primary courts/ who was in conduct of the case at Iiaia District Court and in this court. The applicants advocate had deponed in his affidavit that he had been aggrieved by the decision of one Kabuta, RM dismissing his application to set aside an exparte judgment on the ground that it lacked merits. He filed another application for review of the said ruling and order on a number of grounds, one of them being an error apparent on the face of the record. That on 20 th September, 2004 the said District Court presided over by hon. Mwankenja, SDM, acting suo motu and withqut notice to the parties summarily dismissed the application for review, the effect of which was to finally determine the application and the suit to the detriment of the applicants.

3 It is further deponed that the court which dismissed the review was not in law vested with jurisdiction to adjudicate upon the application and to issue a ruling and order which order was issued upon errors material to the merits of the case involving injustice to the applicants in that the court failed to consider the overwhelming solid grounds upon which it was made. On the other hand, Mr Mwarami Kobelo deponed in his counter affidavit that the court which dismissed it was vested with jurisdiction to adjudicate the same and decision was so reached for furtherance of justice. There are two points raised, by the applicants advocate that the court which acted without jurisdiction had also acted suo motu, without even giving the parties notice and secondly that the application for review had been heard by the same court which dismissed the application for lack of merits. The basis of that argument is Order XLII rule 1 (b) whereby an application for review of judgment is made to the court which passed the decree or made the order and rule 5(1) of order XLII of the Civil Procedure Code, 1966 where a judge continues or continue attached to the court at the time the application for review is presented, such judge shall hear the application and no other judge of the court shall hear the same. Here, judge

4 include a magistrate as per sub rule (2) of rule 5. Thirdly, is whether, Mr Mwankenja SDM had jurisdiction or lacked jurisdiction. The applicants submitted that Mr Mwankenja who dismissed the application for review lacked jurisdiction because MIS Kabuta, SRM was present. On the other hand, the respondents had submitted that MIS Kabuta, SRM had been transferred, a fact which made her not to continue being attached to the Iiaia district court where the application for review was filed. I am very sorry to say that none of the learned counsel made a physical research on the issue. They all argued for and against without going further to furnish the court with information as to where she was transferred to and when was MIS Kabuta transferred. I sought for an assistanceon the courts record if I could find anywhere to show that the case had been - re - assigned to Mr Mwankenja, SDM for if MIS Kabuta, SRM had ceased jurisdiction at Iiaia district court but I didn't see any such order. On my perusal in the subordinate case file, it shows that MIS Kabuta RM last handled the case file on 10/8/2004 when she delivered her ruling, which is not actually shown above the

5 her order. From no where, there is a ruling by Mr.Mwankenja, which ruling has no corum or date. It reads as follows: RULING: " I have had the opportunity to go through this record and I am clear in mind that the application or memorandum of review is calculated to delay justice. There was a prior application which was not success. This application is dismissedwith costs N.T.Mwamkenja- " The interference by Mr Mwankenja SDM was nothing but an act to create chaos in the administration of justice. The learned counsel complained that the ruling was done suo motu. This is a true fact. There is nowhere in the record showing that any of the parties was notified and heard. He just picked the case file, in the absence of even any court clerk and made a ruling in the way he wished. By doing so, the applicants were condemned unheard, a fact which is fatal in the administration of justice. On the issue whether MIS Kabuta,RM was still exercising jurisdiction at Iiaia district court can be determined from what is in the record and submissions by the learned counsel. The

6 respondents who argued that she had ceased exercising jurisdiction at Iiaia district court had to prove that fact. A copy of a transfer letter from the Registrar of the High court, attached to their counter affidavit could prove that fact. There was no such document or evidence to prove that she was not exercising jurisdiction at Iiaia district court. If that is the case then, did Mr.Mwankenja, SDM properly exercised jurisdiction in dismissing the application for review in the absence of evidence that the court which made the judgment or order was still exercising jurisdiction at Iiaia district court? The answer is that, he lacked jurisdiction in the clear wording of order XLII - 1(1) (b) because the application for review was made to the court which passed the decree or made the order, as per rule 5(1)(2) of the same order. I am sorry to say that some acts of some court officials like that of Mr Mwankenja SDM in this case, cause more injustice to the people who would like prompt but just decisions or order of the court. His unprocedural behavior have added more salt in the sour rather than alleviating the parties with these uncalled for delays. To end up With, I come to the conclusion that the dismissal of the application for review by Mr.Mwankeja SDM is hereby quashed and dismissed. Secondlythat MIS Kabuta SRM has ceased jurisdiction at Iiaia district court for over six months

7 now, so the application for review can now be heard by another magistrate at Iiaia district court. It is further ordered that hon. Mlawa, PRM should not hear the application for he had a hand in execution proceedings as per record shows. Though the applicant had applied for costs, I find it not convenient to order it since the respondent had not moved the court to decide as it did in any way. The dismissal was suo motu. Thus, costs will lie where they fall. Ma~ 15/1/2007

(CORAM: NSEKELA, J.A., KILEO, J.A. And BWANA, J.A.) CIVIL APPEAL NO. 26 OF 2008

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: NSEKELA, J.A., KILEO, J.A. And BWANA, J.A.) CIVIL APPEAL NO. 26 OF 2008 AGNESS SIMBAMBILI GABBA. APPELLANT VERSUS DAVID SAMSON GABBA RESPONDENT