IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM
CIVIL REVISION NO. 32 OF 2003
SALMA ISSA	APPLICANT
VERSUS
DR. YAHAYA MOHAMED KAPONA	RESPONDENT

RULING

MLAY, T:
The Applicant SALMA ISSA has made an application by Chamber summons Under Section 44(10 of The Magistrates Court Act 1984. According to the Chamber Summons the Applicant seeks the following orders:-

c) That the Respondent be condemned to pay the costs of this application.

The Application is supported by the affidavit of SALMA ISSA, the Applicant in which she has deponed as follows:

1	
2. That the Respondent filed a case against the Applicant, Civil Case No.56 of 2002 in the District Court of Ilala Samora Avenue case which was decided exparte against the Applicant. Subsequently to that, the applicant herein filed an application for setting aside the ex-parte judgment, which was dismissed by the same Court for non-appearance while the court knew that the applicant in this application was terribly.
3. That the non-appearance of the applicant in the above mentioned case was caused by the serious illness of the applicant which the Honourable District Court knew but instead issued a Warrant of arrest of the Applicant. Annexed herewith are copies of medical sheets showing the Applicants illness.

5. ….....................

At the hearing of this application, the Applicant was represented by Mr   Magafu   learned advocate, while the Respondent to the
Application DR. YAHAYA MOHAMED KAPONA, was represented by Mr. Eustace, learned advocate.

In his submissions Mr. Magafu submitted that, the main ground for the application, is that the Applicant was denied the right to be heard. He contended that, the Respondent instituted a suit in the District Court of Ilala which was heard exparte and a decree issued in favour of the Respondent. He contended further that the Respondent filed an application to set aside the exparte judgment on 12/11/2002 which was dismissed for want of prosecution.   Mr. Magafu further contended that on 13/2/03 an order was made that the applicant should be arrested and brought to court to show cause why he should not be imprisoned as a civil prisoner for failure to pay the decretal amount.  Mr. Magafu submitted that, it is the applicants contention that when the order was made, she was denied the right to be heard because she was sick.  He submitted further that the applicant was entitled to be heard before issuing such an order. He stated that Medical Chits appended to the application, show that during  that period  the  applicant was  suffering from Severe hypertension and that the order of arrest was issued without there being a Summons issued to the applicant.   For this reason Mr. Magafu prayed that the application for revision be granted.

In reply, Mr. Magafu submitted that the provisions of Act No.25/2002 do not apply to matters relating to execution of decrees but intended to bar interlocutory applications. He contended that the order complained of, was made during execution proceedings. He further submitted that the two cases cited by Mr. Eustce on revision being based in interlocutory decisions, are therefore irrelevant. He also argued that the decision of the Court of Appeal in Civil Application No 46/98 is equally irrelevant, because there is no evidence whatsoever that in the application to set aside the exparte judgment, the applicant's Counsel was summoned to appear. He therefore prayed that the application be granted.

In this Application, the Applicant has asked this court to exercise its powers of revision conferred by section 44(1) of the Magistrates Courts Act, 1984 to revise the proceedings of the District Court of Ilala in Civil Case No.56 of 2002. The particular proceedings targeted by this application, are those which were conducted on 13* February 2003 which resulted in the issuance of a Warrant of Arrest of the Applicant. This is in accordance with paragraph (a) of the Chamber Summons, the contents of which have been set out earlier on in this ruling. The said proceedings as they appear in the record of the District Court, are as follows:-

"13/2/2003
Coram: B.M. Kisensi, DM For plaintiff-For Defendant-CO.Maunga
Mr. Yustasfor the decree holder, DR Yahya M. Kapona We pray for the dismissal of all applications made by the Judgment-debtor, for want of prosecution, and the Court to issue an order of arrest for the Judgment-debtor to come in Court to show cause why not committed to civil prisoner
That is all.

Court
Upon the application made by Mr. Yustas for the decree-holder to dismiss this case for want of prosecution and this Court to order a W/Afor arrest of the Judgment-debtor to come in court to show cause why not be committed as a civil prisoner are granted.

Order
This application is dismissed for want of prosecution. An order of W/A be issued for the Judgment-debtor to come to show cause why not be sent imprisonment sentence as a Civil prisoner.
(Signed) 13/2/03

Ruling Exparte passed today on the 13/2/02 in Chamber Court this in the presence of Mr. Yustas for the decree holder.
(Signed) 13/2/03"

"43(1)	

Delivered in the presence of Mr. Eustace advocate for the Respondent, also holding brief for Mr. Magafu, advocate for the Applicant, this 29th day of May, 2009.

						JUDGE
						29/5/2009