20110217 TZCA Arusha

1 IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA {CORAM: NSEKELA, J.A., KIMARO, J.A., And MBAROUK, J.A.) CIVIL REVISION No. 3 OF 2008 CHRISTOPHERSON COMPANY LIMITED .................................................... APPLICANT VERSUS TANGA CEMENT COMPANY LIMITED ........................................................ RESPONDENT (Application for Revision from the judgment of the Court of Appeal of Tanzania at Arusha} (Ramadhan, C.J, Mroso, J.A, And Rutakangwa, J.A.} dated the 30 th day of October, 2007 in Civil Appeal No. 133 of 2007 RULING OF THE COURT 15th & 18th February, 2011 MBAROUK, J.A.: The genesis of this matter is from High Court Civil Case No. 11 of 1998 at Arusha, where judgment was entered in favour of the applicant (original plaintiff). The respondent (original defendant) was dissatisfied and so appealed to this Court in Civil Appeal No. 133 of 2006, where the appeal was allowed, since the suit was time barred. Undaunted, the applicant instituted revisionary proceedings under section 4(2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002. f 2 When the application was called on for hearing, the Court suo motu wanted to satisfy itself on whether the application for revision was properly before us, since the Court had already heard and determined the appeal. Mr. Herbert Makange, learned advocate for the applicant, conceded that, the application was misconceived. He thus, prayed for leave of the Court under Rule 2 and Rule 4(2)(a) and (b) of the Court of Appeal Rules, 2009 and allow him to file a formal application so as to institute appropriate proceedings before the Court. Mr. Peter Shayo, learned advocate for the respondent on his part stated that, he had not been served with the record of revision. He thus, urged us to dismiss the application with costs. On our part, we are of the firm view that the application is totally misconceived. Section 4(2) of the Appellate Jurisdiction Act, the anchor of his application states as follows:- "(2) for all purposes of and incidental to the hearing and determination of any appeal in the 3 exercise of the jurisdiction conferred upon it by this Act, the Court of Appeal shall, in addition to any other power, authority and jurisdiction conferred by this Act, have the power of revision and the power, authority and jurisdiction vested in the court from which the appeal is brought". This Court in the case of Augustino Lyatonga Mrema V. Republic, Criminal Appeal No. 61 of 1999(unreported) as follows; " ...... under subsection (2) thereof, the Court is conferred with powers of revision for the purpose of and incidental to the hearing and determination of any appeal. That is to say, revision under this subsection may be resorted to as a device in the disposal of an appeal". (Emphasis added) 4 The application in the instant matter is not incidental to the hearing and determination of an appeal, because the appeal has already been determined in Civil Appeal No. 133 of 2006. It is important to note that section 4(2) of the Appellate Jurisdiction Act applies to proceedings from the High Court to be revised during the hearing of an appeal. Currently, there is no appeal before us, it has already been disposed of. With due respect to Mr. Makange, we are of the considered opinion that, the application is misconceived. For that reason, we find it as incompetent and the same is hereby struck out with costs. DATED at ARUSHA this lih day of February, 2011. H. R. NS EKE LA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL