20041200 TZCA Dar es Salaam

'.. IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, J.A., MROSO, J.A., And NSEKELA, J.A.) CIVIL APPLICATION NO. 100 OF 2000 In the Matter of an Intended Appeal BETWEEN AFRICAN MARBLE COMPANY LIMITED ..........................APPLICANT AND TANZANIA SARUJI CORPORATION (TSG) ..................RESPONDENT (Application for Review of the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) (Omar, Mnzavas, Mfalila, JJJA) dated the 9th day of November, 1994 in Civil Appeal No. 38 of 1993 RULING OF THE COURT MROSO, J.A.: Before the Court is a Notice of Motion for an application to review the decision of this Court in Civil Appeal No. 38 of 1993, dated gth November, 1994. The Notice of Motion was made under Rules 3 and 45 of the Court of Appeal Rules, 1979 and also under Article 13 (6) (a) of the Constitution of the United Republic. it is prayed that this Court add to the Judgment of the Court in Civil Appeal No. 38 of 1993 the following alternative Order:- 11 2 The recovery of the value of the machinery and equipment by the applicant from the respondent as assessed on 31 st January,1996 together with the consequential interest accrued at a simple interest rate as per the plaint i.e. 25% p.a. from 11th November, 1996 to the date of this order and thereafter at the court rate until satisfaction. The advocates for the respondent, that is to say Maajar, Rwechungura, Ngulurna and Makani, took a preliminary objection to the Notice of Motion contending that the application was incompetent because the matter now before the Court had been adjudicated upon and finally and conclusively determined in Civil Application No. 5 of 1997 between the applicant and the respondent. (We assume the respondents have in mind Civil Appeal No. 5 of 1997). Before Mr. Nguluma, learned advocate who appeared for the respondent, could argue the preliminary objection, the Court asked him to address it on whether the application for review was made in time and whether there was any law regarding the period of limitation within which an application for review can be made to this Court. 3 Mr. Nguluma said the application for review was to be made within reasonable time and that since it was made on 10th October 2000 which was some six years after the judgment in Civil Appeal No. 38 of 1993 was given, it could not be said to have been made in time. He further said that he was not aware of any law, statutory or arising from a decision of this Court, which fixed the limitation period for applying to this Court for review. Mr. Bakilana, learned advocate for the applicant, for his part conceded that six years was a long period for making the application for review but argued that there were special circumstances which explain away the apparent long delay. He, too, thought there was no law on the period within which an application for review ought to be made and that the guiding rule is that it should be made within a reasonable period. Both counsel in arguing the issue of limitation veered off into either the ground of preliminary objection in the case of Mr. Nguluma, or into the merits of the application in the case of Mr. Bakilana. It is clear on our part however that the application can be disposed off quickly on the issue of limitation alone. ru Contrary to the views of the two learned advocates, there is case law on the period of limitation in the case of an application to this Court fOr review of its decisions. In the Director of Public Prosecutions v. Prosper Mwalukasa, Criminal Application No. 6 of 2000, this Court fixed the period of limitation for applying for review to be sixty (60) days and proceeded to strike out an application for review which was before it and which had been filed more than 60 days after the date of the judgmentwhich was soughtto be reviewed. The Mwalukasa case was a criminal matter but in James Masanja Kasuka v. George Humba, Tabora Civil Application No. 2 of 1997 (unreported), the applicant applied to the Court of Appeal for review in a civil matter. The decision of the Court which was sought to be reviewed had been given five years earlier. A preliminary objection was taken that the application was time barred. The applicant argued that the rules had not fixed any time limit for review and that an earlier decision of the Court in Aboud v. Mariam Saleh and Another, Civil Application No. 30 of 1993 did not apply. I' 5 This Court, following Aboud, held that the Law of Limitation Act, 1971 did not apply to proceedings in the Court of Appeal and proceeded to say:- We think ... that it is proper and reasonable that we should impose the same time limit of sixty days (as in DPP v. Mwalukasa) for applications for review in civil matters such as this one. We accordingly set the time limit of sixty days in civil applications as we have for criminal applications for review. It is patently clear, therefore, that case law has fixed the period within which to apply for review in the Court of Appeal to be sixty days from the date of the judgment sought to be reviewed. On that score, this application for review is hopelessly out of time. Even without considering the period of limitation of sixty days as fixed by this Court in the cases to which we have referred above, it seems to us the period of six years which had elapsed between the date of the judgment in Civil Appeal No. 38 of 1993 and the date of the application was inordinately long. It cannot therefore be said that the application was made within a reasonable period. 2 II IN If, as Mr. Bakilana argued, there were special circumstances which necessitated a delay in making the application for review, the proper course to take should have been to apply for enlargement of time to apply for review. The special circumstances would then have been elaborately given and if the Court was persuaded, the application for review would then be made. It means therefore, that it is now too late in the day to plead special circumstances for the delay. It should now be obvious that the Court has to strike out this application which is time barred. it is so ordered. Since the question of limitation was raised by the Court, there will be no order for costs. DATED AT DAR ES SALAAM this day of December, 2004. A. S. L. RAMADHANI JUSTICE OF APPEAL 3. A. MROSO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. (S. M. RUMANYIKA) DEPUTY REGISTRAR