kulwa salumu kanjovu another vs yusufu shabani matimbwa 2018 tzca 566 9 november 2018

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MBAROUK, J.A., MUGASHA, J.A., And MWAMBEGELE, J.A.^ CIVIL APPLICATION NO. 182 OF 2015 1. KULWA SALUMU KANJOVU 2. MOHAMED MWALIMU .APPLICANTS (Legal Representative of the Late YUSUFU KILAMBO SAID) VERSUS YUSUFU SHABANI MATIMBWA................................................. RESPONDENT (Application for Revision from the decision of the High Court of Tanzania at Dar es Salaam) (Nchimbi, 3.) dated the 18th day of November, 2011 in Land Appeal No. 75 of 2009 RULING OF THE COURT 29th Oct. & 9th Nov. 2018 MUGASHA, J.A.: The parties herein are wrangling over a dispute on the ownership of a house on plot No. 27 Block 'A' Temeke. This precipitated into an action before the District Land and Housing Tribunal of Temeke, whereby the respondent y u s u fu s h a b a n i m atim bw a successfully sued the applicants in a claim for vacant possession of the house in question which is alleged to have been purchased from 1st applicant's husband the late y u s u fu kilam bO; Aggrieved, the applicants initially filed in the High Court Land .Division, Land Appeal No. 141 of 2008 which was struck out on account of not being accompanied by a valid decree. Subsequently, after having secured a valid decree the applicants filed Land Appeal No. 75 of 2009. At the hearing of the appeal before the High Court, a preliminary objection was raised to the effect that, the appeal was time barred having been filed beyond forty five (45) days from the date of delivery of judgment of the Temeke District Land and Housing Tribunal. As such, the 1st appellate court dismissed the appeal on the ground that it was time barred. Dissatisfied, the applicants in the present revision seek to have the decision of the High Court vacated by way of a revision in an application sought under section 4 (3) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2002 on the following ground: (a) There was impropriety, and illegality in computing the period o f limitation o f land appeal No. 75/2009 which led the Court to dismiss the appeal on grounds that the appeal had been lodged out o f time which caused injustice to the applicants. The -application MS'supported by the affidavit sworn by Mrs. Crescencia Rwechungura. The application was challenged by the respondent through the affidavit in reply sworn by Mr. Mutakyamirwa Philemon. The application was confronted with a preliminary objection pursuant to a notice filed on 24th October, 2018 by the respondent's advocate on the following grounds namely: "(a) That, the applicant's application before this Honourable Court is incompetent to proceed to hearing as it has been brought by way o f revision instead o f an appeal. (b) The Ruling and drawn order bears different dates contrary to Order XX Rule 7 o f the Civil Procedure Code Cap. 33 R.E. 2002". At the hearing before us, the applicants, were represented by Mrs. Crescencia Rwechungura, learned counsel whereas the respondent had the services of Mr.. Philemon Mutakyamirwa, learned counsel. As it is the established practice of the Court, we invited Mr. Mutakyamirwa to first address us on the preliminary points of objection. Initially, after a-brief'dialogue with'the ’Court thaf what is before'the Court is an application for revision and not an appeal, the respondent's counsel abandoned the 2nd preliminary point of objection. In his brief address on the remaining point of objection, Mr. Rutakyamirwa submitted that, the remedy open to the applicants was an appeal rather than invoking this Court's revisional jurisdiction under section 4 (3) of the Act. Therefore, he argued that the applicants should not have sought the revisional jurisdiction of this Court, more so, as a party cannot resort to the revisional jurisdiction as an alternative to the appeal process. To the extent that the applicants improperly seek to move the Court in revision, Mr. Mutakyamirwa concluded that this application is incompetent and urged us to strike it out with costs. To back up his proposition, he referred us to the case of HASHIM MADONGO & 2 OTHERS VS. MINISTER FOR INDUSTRY AND TRADE & TWO OTHER, Civil Appeal No. 27 of 2003 (unreported). At the end of Mr. Mutakyamirwa's submission, we invited him to ...additiona!ly.xomment on whether following-the striking, out of the initial appeal before Longway, J. on . account „of the appeal not being accompanied by a valid decree; the applicants sought and obtained extension of time prior to filing the appeal which is a subject of the revision. He replied that, the extension of time was not sought and obtained prior to the filing of the appeal which was dismissed for being time barred. Responding on behalf of the applicants, Mrs. Rwechungura did not dispute that the initial appeal was struck out on account of being accompanied by an invalid decree. However, she contended that the subsequent appeal was illegally dismissed because initially, the 1st appellate court granted the applicants extension of time to file such appeal having allowed them on 23rd September, 2009 to pay filing fees in respect of the appeal. She thus argued that, since the .Memorandum of Appeal was already before that court, dismissing the appeal for being time barred was indeed illegal and a deviation from what the 1st appellate court had initially validated. To bolster her argument, she referred us to the cases of s g s - s o c ie te g e n e r a le de s u r v e illa n c e s.a. vs. v ip ENGINEERING AND MARKETING LIMITED [2004] TLR p. 135 and HALAIS PROCHEMI VS WELLA AJ3. [1996] TLR 269. In rejoinder, Mr.'Mutakyamirwa argued that, in SGS‘ (supra) there was no error or illegality warranting this Court to invoke its revisional jurisdiction which makes it inapplicable in the present case. He added that, allowing the applicants to pay filing fees was purely an administrative issue which did not impact on the statutory timelines or otherwise of filing the appeal before the High Court. He reiterated his earlier prayer that, the application is not competent and it deserves to be struck out. What made the 1st appellate court to allow the applicants to pay the filing fees in respect of the appeal is reflected in the proceedings dated 23/9/2009 whereby, Judge Nchimbi is on record to have ordered as follows: "...Upon deep thought, I consider that in the interest o f justice the appellant be given time to pay the requisite filing fees o f the appeal. I hereby order the appellant to file fees within one day from today. Reasons for my decision to follow later." 6 The respective reasons are found at 'page 31 - 32 of the Ruling follows:. "In the present matter the applicant's /appellant's counsel knew that the appeal was out o f time. She, however, avoided doing two things: Firstly; she did not apply for extension o f time to appeal out o f time. Secondly, she did not pay the requisite filing fees on the pretext that a court c/erk had advised her so. That was a mere pretext because being a senior lawyer, she very well knew o f the consequences o f omitting to pay court filing fees for the appeal and, at any rate, she is quite aware that the payment o f such fees is a requirement o f law such that it is only the court which can grant exemption from that. Though it may be indelicate to say, these are glaring weaknesses and failures on the part of the applicant's/appellants' learned counsel which cannot be camouflaged in any way. They postulate fundamental flaws in the law. So the permission granted to her to pay the filing fees, as was done, did not at aii validate the appeal.... I am not at one with her that the enlargement o f time to pay the requisite fees meant the appeal was retrospectively filed in time i.e. on 23rd November, 2008; 45 days from the date of Judgment on 9/10/2008. £ would repeat, in the absence of leave to appeal out of time the payment of court fees, as was done, is inconsequential...From the foregoing, I am satisfied that this appeal is hopelessly out o f time. Since the appeal is found to have been filed out o f time, it naturally follows that the application before me, which is anchored in the barred appeal, has no legs with which to stand. Consequently, both the appeal and the application are ordered dismissed with costs to the respondent" [Emphasis supplied] Having carefully considered the submission of counsel and what transpired at the High Court, the point for our determination is whether the present application is competent. From the outset, we wish to point out that, the respective appellate and revisional jurisdictions of this Court are, in most cases, mutually exclusive. Thus, if there is a right of appeal, then that right has to be pursued Dy the concerned party and, except for sufficient reason amounting to exceptional circumstances, there cannot be a resort, by the party to the revisional jurisdiction (See jum ann e j a f a r i nguge v s n z ilik a n a ra ja b u , Civil Revision No. 4 of 2013 (unreported). Moreover, the case of h a la is p ro c h e m i vs w e lla a.g. (supra) the Court laid down •the legal pre-requisites warranting for the invocation of the revisional jurisdiction of this Court:- "(/) The Court could, on Its own motion and at any time, invoke its revisionaljurisdiction in respect o fproceedings in the High Court; (ii) Except under exceptional circumstances, a party to proceedings in the High Court could not invoke the revisionaljurisdiction o f the Court as an alternative to the appellate jurisdiction o f the Court; (Hi) A party to proceedings in the High Court could invoke the revisional jurisdiction o f the Court in matters which were not appealable with or without leave; (iv) A party to proceedings in the High Court could invoke the revisional jurisdiction o f the Court where the appellate process has been blocked byjudicial process [See also c h r is o s t o m h. lu g i k o v s a h m e d n o o r mohamed a l l y , Civil Application No. 5 of 20.13 (unreported). Furthermore, we have as well considered the case of sg s - s o c ie te GENERALE DE SURVEILLANCE S.A. VS. VIP ENGINEERING AND MARKETING lim it e d (supra) which was cited to us by Mrs. Rwechungura. We deem it •crucial to 'restate*'the facts in that case in order to understand .what transpired at the High Court Commercial Division and became a subject of revision before the Court. In the SGS (supra) the applicant was appointed an agent for conducting Pre-shipment Inspection on goods destined for Tanzania pursuant to an agreement between her and the Tanzania Revenue Authority. Following a dispute between the applicant and the respondent, the respondent filed a case in the High Court Commercial Division. The applicant filed a written statement of defence together with a Chamber Application seeking stay of proceedings pending arbitration as provided in the pre-shipment agreement. The High Court dismissed the chamber application on ground that, having filed the written statement of defence together with the Chamber Summons the applicant had subjected herself to the jurisdiction of Court and abandoned its rights under the Arbitration Agreement. SGS sought a revision to the Court. Having considered the competency of the application and the grounds upon which it could be moved to invoke its revisional jurisdiction, the Court dismissed the revision application having held thus: 10 "(i) The Appellate Jurisdiction Act 1979 as amended by Act Number 17 o f1993 vests the power o f revision in the Court in that it is empowered to call for and examine the record o f any proceedings before the High Court for the purposes o f satisfying itself as to the correctness, legality or propriety o f any finding, order or any other decision made thereon and as to the regularity o f any proceedings o f the High Court; (ii) Since the applicant is not challenging correctness, legality and regularity o f the proceedings o f the High Court, there is no basis upon which the Court could be moved to invoke its revisionaljurisdiction; (Hi) The fact that a matter is not appellable by virtue o f section 5 (2) (d) does not automatically mean that it is revisable; (iv) To accept on revision applications which are based on grounds that touch on merits o f the decision or judge's discretion to stay or not to stay proceedings, would amount to circumventing the very provisions which prohibit appeals in interlocutory matters." In the matter under scrutiny, we are satisfied that, prior to the dismissal of the appeal the applicants were not granted extension of time ii to file an appeal by the High Court Land Division (Judge Nchimbi) as • suggested by Mrs. Rwechungura. In that regard, there is no illegality warranting the invocation of revisional jurisdiction of the Court. Thus, the case of sg s - s o c ie te g e n e r a le de s u r v e illa n c e s.a. vs. v ip e n g in e e r in g a n d m a rk e tin g lim it e d (supra) is not applicable and with respect, it was cited out of context. We say so because the case originated from an interlocutor/ order which though not appellable was found not revisable since the applicant was not challenging the correctness, legality and regularity of the proceedings of the High Court. Finally, it is clear that, the matter under our consideration does not at all fall under any of the stated benchmarks in the case of HALAIS PRO-CHEMIE supra). Besides, Mrs. Rwechungura did not submit anything to suggest that the appeal process has been blocked which means that the appeal process is a remedy which is still open to the applicants subject to the law governing limitation. Since it is the settled position of the law that a revision is not an alternative of an appeal, the present revision which is tantamount to an appeal through the backdoor; is misconceived. 12 All said .and done we are satisfied that, the preliminary objection is merited. >For thisjreason, the application which is an<appeaLin disguise, is incompetent and is hereby struck out with costs. DATED at DAR ES SALAAM this 2nd day of November, 2018. M. S. MBAROUK JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL 1 C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy i f the original, E.F. FUSfel DEPUTY REGISTRAR COURT OF APPEAL 13