20051207 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM · {CORAM: LUBUVA, J.A., MUNUO, J.A., And KAJI, J.A.) CIVIL APPLICATION NO. 132 OF 2005 AFRICAN MARBLE COMPANY LIMITED {AMC) .................. APPLICANT VERSUS TANZANIA SARUJI CORPORATION {TSC) ...................... RESPONDENT {Application for review from the Ruling and Order of the Court of Appeal of Tanzania at Dar es Salaam) {Lubuva, J.A., Munuo, J.A., And Kaji, J.A.) dated the 19th day of July, 2005 in Civil Application No. 8 of 2005 RULING OF THE COURT MUNUO, J.A.: The applicant, African Marble Company Ltd. (AMC) filed a Notice of Motion under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977, Rules 3 (2) (a) and (b) and 45 (2) of the Tanzania Court of Appeal Rules, 1979, seeking review of the decision and order in Civil Application No. 8 of 2005 on the grounds that- (a) there were errors of procedure apparent on the face of the record in respect of the Ruling of the Court on the 19.07.2005; I 2 (b) the applicant was not served with a Notice of the Preliminary Objection; (c) the Court should have overruled the Preliminary Objection; ( d) the hearing of the Preliminary Objection should have been adjourned on the scheduled hearing to enable the applicant to reply to the Reply to the Counter-affidavit of the Presidential Parastatal Sector Reform Commission (PSRC) on the 2th June 2006; (e) the Order of the Court on the 19th July 2005, be vacated and another Order consistent with the Order of the Court in Civil Application No. 26 of 1989 be made to avoid inconsistency; (f) Civil Application No. 8 of 2005 be restored for determination on merit; (g) the first two preliminary objections were unsuitable for determination without a full trial of Civil Application No. 8 of 2005. / 3 The applicant's Managing Director, Mr. Mumba Mabu, deponed to an affidavit in support of the application. The Respondent, Tanzania Saruji Corporation (TSC) was represented by Dr. Nguluma, learned advocate. In view of chequered history of the matter, we find it pertinent to briefly outline the facts of this case. The present application arises from Civil Case No. 89 of 1987 in the High Court of Tanzania at Dar- es-Salaam in which the applicant sued the Respondent for wrongful detention of machinery and" equipment plus damages for wrongfully detaining the same. The High Court ordered the Respondent to restore the machinery and equipment in dispute to the plaintiff, the applicant. The High Court also awarded Shs. 10,000/= nominal damages to the plaintiff who appealed to this Court in Civil Appeal No. 38 of 1987 seeking an increase of the awarded damages. The Court remitted the matter to the High Court for a reassessment of the damages Kaji, J. as he then was, enhanced the general damages to Shs. 150,760,260/20. The Respondent then filed Civil Appeal No. 5 of 1997 to challenge the award of Shs. 150,760,260.20. Subsequently, the applicant filed Civil Application No. 100 of 2000 moving the Court to review its decision in Civil Appeal No. 38 of 4 1993, which application was struck out because it was time barred. The applicant then filed Civil Application No. 8 of 2005, once again seeking review of Civil Appeal No .. 38 of 1993. On the 19th November, 2005 the said application was struck out with costs because it was filed out of time. The Court ruled, and we quote in extenso:- In this application the Court is being moved to review the decision in Civil Appeal No. 38 of 1993 of 9.11.1994, a period of nearly eleven years (11) ago. As just observed the Court having set the time limit of 60 days from the date of the decision which is sought to be reviewed, this application is by any stretch of imagination, inordinately out of time. It is incompetent. The Court continued: Even though this ground alone is sufficient to dispose of the matter, we could go further. Granted that the matter was not time barred, still it would not be free from another difficulty. First, as already indicated, in this application the court is being moved to make 5 .... the amount of money to be paid as an alternative if delivery of the machinery is not effected. This means an assessment of the value of the machinery as damages for the period of its detention has to be made. This aspect, it is to be observed at once had already been done by the High Court (Kaji, J. as he then was) following the order of the Court of 9.11.1994. On appeal to this Court, in Civil Appeal No. 5 of 1997, the matter regarding damages was finally settled --------. In the event the preliminary objection is sustained. The application being incompetent, it is accordingly struck out with costs. Dissatisfied with the above decision of the Court, the applicant then brought the present application for review on the grounds stated supra. Dr. Nguluma, learned advocate for the Respondent, abandoned the Preliminary Objection filed on the 21.10.2005 and argued the Preliminary Objection filed on the 25.10.2005. The later Preliminary Objection states that - 6 The application for review is fatally incompetent and an abuse of the Court process as it seeks to move the Court to exercise its revisional jurisdiction and or appellate jurisdiction contrary to the provisions of Rules 4 ( 1), 4 (2) and 4 (3) of the Appellate Jurisdiction Act, 1979, and Rules 3 (2) (a) and (b) of the Tanzania Court of Appeal Rules, 1979. Counsel for the Respondent submitted that the Notice of Motion indicates no apparent error on the face ,of the record for review considering that Civil Application No. 8 of 2005 which the applicant wants reviewed was struck out with costs because it was time barred. As no apparent errors for review were listed by the applicant, counsel urged us to hold that the purported review is incompetent and thence strike it out with costs. The applicant maintained that the present application is properly before the Court so it should be determined on merit. He contended that Article 13 (6) (a) of the Constitution confers power on the Court to determine the application on merit. He further contended that Respondent's counsel concocted the Preliminary Objection so it should be overruled with costs. . ... 7 The issue is whether or not the application for review is, or is not competent. We shall start by reiterating the criteria for review in this Court, in the case of Transport Equipment Ltd. Versus Devram P. Valambhia, Civil Application No. 18 of 1993, Court of Appeal of Tanzania ( unreported) a ful! bench of seven justices considered the Courts power to review its decisions and held that - The Court has the inherent jurisdiction to review decisions and it will do so in any of the following circumstances to wit, where there is a manifest error on the face of the record which resulted in miscarriage of justice, or where the decision was attained by fraud; or where a party was wrongly deprived of the opportunity to be heard. In the present application the applicant alleged that there are errors apparent on the face of the Ruling delivered on the 19.7.2005 but he did not particularize the said apparent errors. We stated earlier on, that Civil Application No. 8 of 2005 was struck out because it was filed out of the prescribed period of limitation of sixty days. • I . 8 Neither the Notice of Motion nor the affidavit in support of the application disproves that Civil Application No. 8 of 2005 was time barred, which in our considered view, indicates that there is no apparent error on the face of the record and Ruling in Civil Application No. 8 of 2005. With regard to an error apparent on the face of the record, Mulla, Indian Civil Procedure Code, 14th Edition Pages 2335 - 36, states that - An error apparent on the face of record must be such as can be seen by one who writes and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. We are satisfied that there is no apparent error on the face of the Ruling in Civil Application No. 8 of 2005 and the applicant listed non to substantiate a need for reviewing the said Ruling. The applicant was accorded a full hearing just like his adversary. Under the circumstances the preliminary objection, though on other 9 grounds, is meritorious. We sustain the preliminary objection. We ac_cordingly strike out the review with costs. DATED at DAR ES SALAAM this ih day of December, 2005. D.Z. LUBUVA JUSTICE OF APPEAL E.N. MUNUO JUSTICE OF APPEAL S.N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. (S.A.N.Q~RA) SENIOR D~;;':~GISTRAR r ~ O~\"'-\Qj \R~ \s. =-.._(\._ C:::.&s_~\ ~ \ "'-- ('<'>t<:::::_..,_...:;r\-\~ ~ ,,, '~"-cl,;;., ~ ~~~ f.:) 't IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 134 OF 2005 NATIONAL HOUSING CORPORATION ........................ APPLICANT VERSUS MISS LAZIM GHODU SHEKHE ................................. RESPONDENT (Application to strike out Notice of Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (MOSHI, ].) dated the 5th day of June, 1996 in Civil Appeal No. 15 of 1995 5/4/2006 & 10/4/2006 RULING KAJI, J.A.: By a notice of motion filed under Rule 82 of the Court of Appeal Rules, 1979, the applicant, the National Housing Corporation, is moving the Court for an order that the notice of appeal filed on 10.6.1996 by the respondent Miss Lazim Ghodu Shekhe be struck out on the following grounds: Li) That no application for leave to appeal to this Court has been filed as per Rule 43 (b) of the Court of Appeal Rules, 1979, after refusal of the same by the High Court of Tanzania at Mtwara in Miscellaneous Civil ,... ·'Ii Application No. 10 of 1996. Lu) That no speedy steps have been taken by the respondent to finalise process for the appeal to be heard. The facts of the case which were not controverted by the respondent are as follows:- The applicant was the successful party in Civil Appeal No. 15 of 1995 in the High Court of Tanzania at Mtwara. Judgment was delivered on 6.6.1996. The respondent was dissatisfied. On 10.6.1996 the respondent filed a notice of appeal. Thereafter she applied for leave to appeal to this Court, apparently under Section 5 (1) ( c) of the Appellate Jurisdiction Act, 1979. On 16.7.1997 the application for leave to appeal to this Court was dismissed for want of merit. The respondent was dissatisfied. Under Rule 43 (b) of the Court Rules, 1979, she was required to apply for the same in this Court within fourteen days of the date of delivery of the ruling. The respondent did not do so and has not done so even up to the date of hearing this application on 5.4.2006. She has also not applied for extension of time to file the same. Hence this application to strike out the notice of appeal under Rule 82 of the Court of Appeal Rules, 1979. The respondent' s explanation is that, she has failed to apply for the same to this Court because she has not been supplied with copies of proceedings, judgment, decree and a copy of the ruling in Miscellaneous Civil Application No. 10 of 1996 despite her efforts to obtain the same. As indicated earlier, the respondent' s application for leave to appeal to this Court was refused on 16.7.1997. The respondent who was dissatisfied was required to apply to this Court within fourteen days of the date of delivery of the ruling as per Rule 43 (b) of the Court of Appeal Rules, 1979. However she would only do so after obtaining a copy of the judgment and a copy of the ruling of the High Court refusing her application which should accompany the application as provided for under Rule 46 (3) of the Court of Appeal Rules, 1979. The respondent contended that she failed to lodge her application in this Court because she has not yet been supplied with a copy of the judgment and a copy of the ruling. She said she applied for the same on a date and month she could not remember. She said she had copies which she had misplaced. She stated further that she remembered to have sent copies of the same to the applicant. The Law of Evidence is very clear on this. "He who alleges must prove" . The respondent says she wrote letters to the High Court Mtwara applying for a copy of judgment and a copy of the ruling. She could not show copies of the same alleging she had misplaced them. She said she could not remember the date and month when she wrote them. She further alleged that she remembered to have sent copies to the applicant but she could not substantiate it. MS Ndigwako Joel, learned Legal Officer for the applicant denied the applicant to have been served with copies of the said letters. In view of this I am far from being persuaded that the respondent applied for a copy of judgment and a copy of the ruling for the purpose of applying to this Court for leave to appeal, and that she was not supplied with the same as a result of which she failed to file her application in this Court. n is a pity that she has slept on her right for nine years without doing anything useful in obtaining the leave required by Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979 and Rule 43 (b) of the Court of Appeal Rules, 1979. It would appear the respondent is not serious enough in prosecuting the intended appeal. She also talked of a letter applying for copies of proceeding, judgment and decree in Civil Appeal No. 15 of 1995 of the High Court at Mtwara. She could not produce a copy. She produced a hand written copy of a reminder. The applicant denied to have been served with either of them. Obtaining leave to appeal ~ is an essential requirement in prosecuting the intended appeal in this case. Since the respondent has failed to apply for leave to lodge her appeal in this Court for the past nine years, and since there is no application for extension of time in which to file the same, I agree ·• with the applicant' s Legal Officer that the respondent has failed to take essential steps in prosecuting the intended appeal. It is upon the above reasons that under Rule 82 of the Court of Appeal Rules, 1979 I do hereby strike out the notice of appeal filed by the respondent on 10.6.1996. There is no order as to costs for the reasons stated by the applicant' s Legal Officer at the hearing of the application. DATED at DAR ES SALAAM this 10th day of April, 2006. S.N. KAJI JUSTICE OF APPEAL I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL. ( S.M.RUMANYIKA) DEPUTY REGISTRAR