20050127 TZCA Dar es Salaam

• ."1 :·.·1'· .. i .·' 1 'f;_Q , f F /• ,.i I 1·. ·. -~' . I . _I. I . IN THE COURT OF,c\PPEAL Of TA~Z~l'JIA _·. . · AT DAR ES SALAAM . , ,I I' , . - . . l '. (CORAM: MUNUO, J.A., NSEKELA, J.A., And MSOFFE► J.A.) . .· .. .. ; .I .I . c1v1LAPPLICA_rrpN NO. 10 0F:iop1 In the Matter of an Intended Appeal . ' ~ I . :. BETIWEEN /> . . ... . : ERIC SIKUJUA NG'MARYO ................................ .1.. .... ~ ... ~ .... APPLICANT · · .- - _·. · 1· - ; I • _ . _ _. -_- _ 4ND I - / _.· . JOSEPH SINDE WARIOBA ........... J.: ................. ~ .. ;.. ,'.... RESPONDENT . (Application for RevisiJ frol)l the RuiinJ and Order of the-High Court-of Tf nzania at Da~ es/Salaam) . . • I . I . _ , (Kalegeya, J.) ; . . th . . dat.edthe 9 dh/ August; ioo/ . !1. t 1 1 . Miscellaneous Civil ta use No. 155 of 1998 . ___f ____ t . '1 R UiL ING I ! MUNUO, J.A.: . I I . - - -. - .. - •- . . .. : I .._. _-.The-applicant- brought the' .present Notice of Motion under the /'' provisions of Section 4 (3) ~f thie Appellate J~riJdiction Act, 1979 as · --· .·-·- -· -. ·i : I . \ ). Amended_ by Section 2 of the Appellate Juris1iction Amendment Act, 1993 and Rule 3 (2) and 45 Jr the Court bf ~ppeal Rules, 1979, moving the Court:- \\(a} to call and examin~ the proceed_ing~ and Ruling in Miscellaneous , CivH Cause No.I 155 in the 11 . . .. \ . . : High Court of Tanzania l at DarI es Salaam to I • satisfy itself as !to correctness, /legality and I:1· ' ... t .. ,, 2 .,·, propriety of the assumption by Kalegeya, J. to tax the advocate's bi.II of the applicant; ' (a) to satisfy itself as to the correctness, legality and propriety of the' learned trial Judge giving leave to selected parties to address the Court on a taxation mattef and subsequently issue a full fledged Ruling and Order; and (b) to satisfy itself on the correctness, legality and propriety of the High Court of T~nzania in avoiding to address itself on the q'uestion of its powers to tax the applicant advocate's bill and instead raising other extraneous grounds • I ' and dismissing it." !, Before proceeding to determine, the revisional application, we first ,, have to satisfy ourselves that the same is competent. Among other authorities laid down by the Court on revision, is the case of Halais Pro-Chemie versus Wella A.G. (1996) TLR 269 in which the Court determined when the Court's revisional jurisdiction may be in'voked. In that case and unlike in the present revision, the application was time barred because it was instituted ten months after the delivery of the judgement. The Court pronounced the conditions for invoking its I revisional jurisdiction and held that- ; ---r 1 . ,, 3 \\(i) the Court can, on its :own motion anq at any I time, invoke its revisional jurisdiction in respect ' of proceedings in the High Court. (i) Except under exceptional circumstqnces, a ' ' party to proceedings in the High Court cannot invoke the revisional jurisdiction . of the: Court as ' the alternative to the appellate jurisdiction of the Court. (ii) In matters which ar,e not appellable with or ,, without leave, a party to the proceedings in the !I ' High Court can invoke the revisional Jurisdiction of the Court. (iii) Where the appellate,' process has been blocked . . •· I , by the judicial process, a party to the proceedings can resqrt to revision." : The present application is peculi$r in that it does not routinely arise from a ruling, order or judgeme~t of the High Court. The Provisional I < ' Liquidator of Fahari Bottlers Ltd. ;referred the demand fee note of the applicant to the High Court in the, following terms: ' ''(b) Mr. Eric Ng'maryo. has presented -a fee note ' ., to the amount of il0% of realization from the ,, I assets. He base$ his claim on the fact that .r .,• 4 he was the advocate df the petitioners and when the hive-down i was overruled the provisional liquidator stepped into the shoes ; of the Petitioners. I would reguest directions on whether 1have responsibility toJ pay Mr. Ng'maryo's dosts and also on the . I quantum." I We are of the view that since the /matter was referred to the High Court for directions by way of request, and as: there were no pleadings, the applicant rightly inv9ked the revisional powers of this Court for want of a right of appeal 1 against the Ruling of the learned ' ' Judge. We are satisfied that the application falls under items (ii) and i (iii) of the above holding in Halais/Pro-Chemie case. ' ' The above said, we now tµrn to the merits of the revision. Representing the applicant, Dr. ~guluma, learned advocate, raised two issues namely - .. I (a) whether a Judge ())f the High Court can tax ' the fees of an adv6cate; and (b) whether the appliaant I was entitled to fees as liquidators. ~- I I I J ~ If ..:~ II / ! 7 Under the circumstances we qiliash and set asibe the material I I I ' I Ruling. We order that the matter ~e placed befor~ another Judge o I who shall direct the taxing officer to 6eal with the sarhe. ,I Ii I I I I In view of the above, the appli~ation is allowed/with costs. .· I i l DATED AT DAR ES SALAAM thlis 2ih day of Jarjuary, 2005. l 11 f i { E.N. MUNUO JUSTICE <J.:F APPEAL fO~~~~ r_,' ,..._ (~ ~~. ,,._.',t~,~..:;i./r,,,; ·f ;~~·.;~~il,/.~. \ \ tf-..\ H. R. N5EKELA JUSTICE OF APPEAL I ' I ' i~~· fJ~;iw. · -.. .J ~; ...1~. ,,., ,( ,..\~•,;•',:"-?/ ~•• N.''•·t .· N ; ;/,' · -.;.) I. ~{1~:ti~f4i);~ '~<~ /. I 0 ' .' .~:~}{{{f\~"::~~!ffe~• . _________ ·-,~~"--.__,4~;.:;Jt~~ /./--~~ . I I ' .....r __ ~ J. H. ~SOFFE ·- JUSTICE OF APPEAL II I I I certify that this is a true cJpy I . of the origin~!. · · 1 /J : I ( 5. M.JtOIVIAI\J)J'M ) /. DEPUTY, REGISTRAR 1 ' I . I I I I I I I I I I ' 1• • • ·······-------· -.-----·-- / !