20081011 TZCA Dar es Salaam

I I i ' IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MAKAME, J.A., RAMADHANI, , J.A. And MROSO, J.A.) I CIVIL APPLICATION NO. 41 OF '2001 I ' ' BHATIA BROTHERS LIMITED .................... APPLICANT I VERSUS ABALY ALIBHAI AZIZ ....... ~ .................... RESPONDENT \ (Application for Review from the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) , I (Makame, Kisanga~ Ramadhani, JJJA) I I th dated the 8 day Qf February, 2001 in, Civil Appeal No. 42 of 1995 ------------- ; RULING I I 15 September 2003 & 24 November, 2008 MROSO, J,A. ' \ The respondent had appealed \to this Court in Civil Appeal No. I 42 of 1995 against a decision of the \High Court, Mackanja, J. In the I I th decision of the Court, which is dated 8 February, 2001, he was I I partially successful. It · is apparent,, however, that the applicant i considered the Court's decision wanting and, seventy days (70) after ' I the date of the decision, that is to say on 19th April, 2001, lodged in I 1 \ 1 I 2 this same Court a Notice of Motion praying for a review of that decision. It gave three grounds for seeking review. The three grounds were · elaborated on . three typed pages and were accompanied by a lengthy nine (9) page affidavit of one Pyarali Jaffer Mawji, a director of the appellant. Before the Notice of Motion could come for hearing Mustafa Chandoo and Company, advocates for the respondent, lodged a Notice of preliminary objection, raising three grounds, namely - (a) That the application · is time barred and/or unreasonably delayed. (b) That this application for review is misconceived and/or incompetent and bad in law as there are no statutory provisions enabling the applicant to move this honourable Court to review its own previous decision. (c) The application for review is frivolous and .vexatious and is an abuse of the process of the Court. 3 • At the hearing of the preliminary objection the applicant was represented by Mr. Bakilana, learned counsel, and the respondent was advocated for by Mr. Chandoo, learned counsel. In arguing the first ground Mr. Chandoo said that, as per the decision of this Court in lames Masanja Kasuka v George Humba, Tabora Civil Application No. 2 of 1997 which was given on 2ih March, 2002, an application for review must be made within sixty (60) days after the date of the decision sought to be reviewed. Since, according to him, sixty nine (69) days had elapsed after the decision of the Court now sought to be reviewed, the application for review was made too late in the day. On the other hand, Mr. Bakilana argued that the Court of Appeal Rules did not provide for a period within which an application for review ought to be made. The period of 60 days was fixed in the Kasuka case in March, 2002, subsequent to the date this application was lodged. Since that decision in the Kasuka case was not retrospective in effect, it did not affect this application. The Court should, therefore, consider whether the applicant took unreasonably long to make the application. He submitted that in the obtaining circumstances 69 4 (sic) days was not an unduly long delay. He said that even if regard is had to the limitation period of 60 days, which was subsequently fixed in the Kasuka case, it will be noted that the application was made only 9 days after the time limit. Such delay would not be unreasonable. Regarding the second ground of objection, Mr. Chandoo argued that there is no statutory provision which empowers the Court to review its own decision. He cited a decision of this Court, Mohamed Hassan v Mayasa Mzee and Another, Civil Application No. 4 of 1995 (unreported) which he said supported that view. Mr. Bakilana conceded that there was no statutory provision empowering the Court to review its own decision. However, he argued that the power of review was inherent in the Court. He cited the same Mohamed Hassan case in support of that proposition. He also cited the decision of this Court in Transport Equipment Limited v Devram P. Valambhia, Civil Application No. 18 of 1993 (unreported) which established that the Court has inherent powers to review its own decisions. Rule 3 (1) and (2) (a) of the Court Rules, 5 . 1979 had been cited merely to give added strength to the application and to underscore the point that there was no specific provision in the law regarding powers of review by the Court. Mr. Chandoo also argued that the application was frivolous, vexatious and an abuse of the Court process. Citing the Valambhia case, he argued that none of the grounds for review as given in that case apply in the application and that the errors alleged in the Court judgment would have been grounds for appeal and not for review. But since there could not be another appeal ,it is necessary that litigation should come to an end as explained in the case of Marcky Mhango (on behalf of 684 Others) v Tanzania Shoe Company Limited and Another, Civil Application No. 90 of 1999. He asked the Court to uphold the Preliminary Objection. Mr. Bakilana submitted that the application for review indeed was not another appeal. It fell squarely within the criteria for review listed in the Valambhia and Mohamed Hassan decisions. No attempt will be made to reargue the t;3ppeal during the hearing of the review application. He disputed the allegation that the application 6 was vexatious. Rather, arguments will be advanced to show that certain errors in the Court's judgment have led to a miscarriage of justice, thus undermining the validity of the judgment. Such a state of affairs should not be glossed over but should be addressed and rectified under the review process~ For those reasons the Notice of Preliminary Objection should be dismissed with costs. It is pertinent to observe that neither the Appellate Jurisdiction Act, 1979 nor the Tanzania Court of Appeal Rules, 1979 specifically provide the Court with powers to review its own decisions. In Felix Bwogi v Registrar of Buildings, Civil Application No. 26 of 1989 (unreported), this Court reviewed its previous decision, purporting to act under Rule 40 of the Court Rules. That was a misconception because that rule does not, in fact, provide the Court with such powers. However, later in an important decision of the Court, the. Valambhia case, a Full Bench of seven Justices established that the Court has inherent powers to review .its own decisions. But it did not pronounce on the time limit within which an application for review can be made after the date of the decision sought to be reviewed. The opportunity to do so in a civil matter occurred when this Court 7 . was deciding a review application in lames Masanja Kasuka v George Humba, Tabora Civil Application No. 2 of 1997. In a decision which was given on 2th March, 2002, the Court fixed a limitation period of 60 (sixty) days within which to apply for review. The application for review now before us was made on 19th April, 2001, obviously before the decision of the Court in the Kasuka case. So, at the time the applicant lodged the application no time limit had been fixed by case law and what should now be considered is whether he had taken unduly long to do so. I We are of the considered view that 69 days ( or 70 days in fact) within which the applicant lodged his application was not unreasonably late. Even after the Court fixed the limitation period, the nine (or ten) days beyond the time limit would not be considered so late that the Court would decline to exercise its discretion to extend the period. We, therefore, dismiss the first ground of objection. Regarding the second ground of objection, we have indicated above when discussing the first ground of objection that the power of 8 .. the Court to review its own decisions is not statutory but inherent in its authority. There are numerous decisions of the Court in which it reviewed its previous decisions. Among them are the Valambhia case; Mohamed Hassan v Mayasa Mzee and Another, Civil Application No. 4 of 1995; Tanzania Transcontinental Company Limited v Design Partnership Limited, Civil Application No. 62 of 1996; Mandavin Company Limited v General Tyre (EA) Limited, Civil Application No. 47 of 1998, and Marcky Mhango (on Behalf of 684 Others) v Tanzania Shoe Company Limited and Another, Civil Application No. 90 of 1999, all unreported. The lack of statutory provision empowering the Court to review its own decision is not, therefore, a valid argument that the Court has no jurisdiction to review its own decisions. The second ground is also dismissed. The third ground of objection is not really a preliminary objection. To discuss it one has to get into the merits of the application and whether the case falls into one or the other of the circumstances which justify review. According to the Valambhia decision the circumstances are:- 9 ... 1 - where one of the parties was condemned unheard; 2 - where there was manifest error on the face of the record which resulted in a mis- carriage of justice; 3 - where the Court had no jurisdiction to hear the case; and 4 - where the decision was procured by fraud. While the list is not exhaustive, one will need to undertake a detailed discussion to argue either that the case meets all or any of those situations, or a new circumstance is established, or that the case does not meet any of those criteria. Where such a lengthy process is necessary, a preliminary objection is the wrong means to deal with the case. We think that it was unnecessary to lodge the Notice of Preliminary Objection in this matter and we dismiss it with costs. The merits or otherwise of the application for review will be considered at the hearing on an early convenient date. Ir·;..t· ., i , " I I " DATED AT DAR ES SALAAM this 11 th · day of October, 2008. I L. M. MAKAME JUSTICE OF APPEAL I A. S. L. RAMADHANI JUSTICE OF APPEAL I J. A. MROSO JUSTICE OF APPEAL 1 I I certify that this is a true cJo.ll :'of the original. )J I P.A. L IMO . DEPUTY R GISTRAR I I I I I I I '