20090219 TZCA Dar es Salaam1

lo..w M 4-rnL.~ ·o'f/ . -4oeJ nd 1 off-Lt -N _,,,'ft•.. ~ . Gurz_f or A-p~ 't> e If- o ~ ~ / 1./'• I /-~ nt: L1rn1:T"fflfrr/ IN THE COURT OF APPEAL ,, OF TANZANIA~ -nro ;:- ~ l . y AT DAR ES SALAAM (CORAM: MSOFFE, J.A., KIMARO, J.A., And MBAROUK.J.A) CIVIL APPLICATION FOR REVISION NO 101 OF 2008 AMOUR HABIB ............................................... ■ APPLICANT Ii • • • • VERSUS HUSSEIN BAFAGI. ............................................ RESPONDENT (Application for Revision from the judgment and decree of the High Court of Tanzania at Dar es Salaam) (Oriyo, J.) dated the 29 th day of December, 2005 in Civil Appeal No. 274 of 2005 RULING OF THE COURT 3 & 19 February, 2009 KIMARO, J.A.: The parties to this application were the respondent and the appellant respectively in High Court Civil Appeal No. 274 of 2001 · before Oriyo, J. In the said appeal the High Court nullified the sale of the house on plot No. 113 Block "A" Temeke Dar es Salaam that took place between John Semsela, the third respondent in the appeal and 1 the applicant. The reason for the decision of the first appellate court was the existence of a prohibitory order against the sale of the said house when the transaction took place. The prohibitory order was issued on 12th August, 1997 while the sale took place on 1st September, 1997. The applicant was aggrieved by the decision of the High Court and filed a notice of an intention to appeal against it. The notice was lodged in the High Court on 5th January, 2006. The applicant later changed his mind and filed this application for revision. Before us the applicant was represented by Mr. Richard Rweyongeza and Ms Hamida Sheikh, learned counsel and the respondent by Alhaj Said EI-Maamry, learned counsel. When the application was called on for the hearing, the learned counsel for the respondent submitted in support of a preliminary objection, notice of the same having been filed earlier under rule 3(2)(a) of the Court of Appeal Rules, 1979 that the application is time barred. He said the judgment sought to be revised was delivered on 29th December, 2005 and the application was filed on 22 nd July, 2008 beyond the limitation period of sixty days prescribed by the decisions of the Court for filing 2 revisions. He cited the case of Halais Pro-Chemie Vs Wella A. G. [1996] TLR 286 to augment his submission. He prayed that the preliminary objection be upheld and the application be struck out. Mr. Rweyongeza, learned counsel for the applicant, agreed with the decision cited by the learned counsel for the respondent but he observed that the Court did not say when the computation period should start to run. Citing the case of James Masanja Kasuka Vs George Humba CAT Civil Appeal No.2 of 1997 the learned counsel for the applicant argued that the decision of the Court was that the law of Limitation Act, 1971 is not applicable in the Court of Appeal because it has its own rules. In his considered opinion, it is the proviso to Rule 83(1) which should be applied in computing the period for the revision because one of the requirements for filing revision proceedings was inclusion of the copy of the proceedings. Since the certificate of the delay issued by the Registrar of the High Court under rule 83 (1) of the rules is dated 17th July, 2007 and it shows that the period 5th January 2005 to 14th July 2008 was excluded from the computation of time, argued Mr. Rweyongeza, the revision filed on 22 nd July, 2008 was within time. He prayed that 3 ., the preliminary objection be dismissed with costs for the two advocates and the application be heard on merit. We have carefully considered the rival submissions by both counsel and our considered opinion is that the position of the law on the limitation period for filing an application for revision is settled by decisions of the Court. Both advocates conceded that from the word go the intention of the applicant was to file an appeal. This position is supported by the notice of appeal filed by the applicant on 5th January, 2006. Even the certificate of delay issued by the Registrar of the High Court under Rule 83(1) refers to the said notice of appeal. The rule is exclusively concerned with civil appeals. The notice for motion for revision is filed under section 4(3) of the Appellate Jurisdiction Act, 1979 and Rule 3(2) (b) and (c) of the Court of Appeal Rules, 1979. Both counsel conceded the position set by the Court in the case of Halais (supra) that the limitation period for filing a revision is sixty days. In the case of lames Masanja Kasuka supra, the Court stated categorically that the Law of Limitation Act, 1971 does not 4 apply to the Court of Appeal and that in the case of Halais the Court \ took "inspiration from the Law of Limitation Act and adopted the time-scale of sixty days for revision. " Clarifying the position taken in Halais the Court in NBC Holding Corporation and Another vs Agricultural & Industries & others CAT Civil Application No. 42 of 2000(Unreported) said: •~s already mentionecl this application for revision was made about 10 months after delivery of the Judgment sought to be revised. In our considered opinion, this application is hopelessly time-barred. Under the provision of section 3 read together with First Schedule to the Law of Limitation Act 1971{Act 10 of 1971), specifically para 21 of the First Schedule the period within which an application like this one ought to have been instituted is 60 days. By any standarcl a 10 months' delay is too late. " On the above decision the Court further stated: 5 It is apparent that the Court could not resort to the Rules for a rule limiting time for making an application for revision because no such rule is provided for under the Rules. Nor could it resort to the Appellate Jurisdiction Act as amended by Act No. 17 of 1993 which confers the revisional jurisdiction because no such provision is made under the Act either. Therefore, the Court resorted to formulating its own rule on the matter, namely that an application for revision ought to be made in 60 days. We are inclined to think that the Court formulated that rule upon drawing inspiration from the principles of the Law of Limitation Act; not that the Court was applying the rule of limitation as prescribed by the Act. (Emphasis added). From the foregoing, the preliminary objection is sustained and the application is struck out with costs. 6 DATED at DAR ES SALAAM this lih day of February, 2009. J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL M.S.MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. (P. B. KHADAY) DEPUTY REGISTRAR 7