20091105 TZCA Tabora 1

I - 'I . IN THE COURT OF APPEAL OF TANZANIA - ATTABORA (CORAM: KIMARO, 1A., MBAROUK, J.A., And MASSATI, J.A.) TBR CIVIL APPLICATION NO. 4 OF 2007 GILLIARD MLASEKO] BALALIWAEKELA ].......................................... APPLICANTS VERSUS CORONA FAIDA BUSONGO ....................................... RESPONDENT (Application for revision from the Ruling of the High Court of Tanzania at Tabora) (Mwita,J.) dated the 4 th day of January, 2007 in Civil Reference No. 1 of 2000 RULING OF THE COURT 4 & 5 November 2009 MBAROUK, J.A.: Before us is an application for revision of the ruling of the High Court (Mwita, 3.) dated 4th January, 2007 in Civil Reference No. 1 of 2000. The notice of motion is supported by an affidavit sworn by Mr. Gilliard Mlaseko (the applicant). When the application was called on for hearing, Mr. Mugaya Mtaki, learned counsel for the respondent, raised points of I' 2 preliminary objections, notices of which had earlier been filed. Earlier on he filed a notice of preliminary objection regarding the competency of the application on the ground that: "The Notice of Motion is incurably defective in that it offends the mandatory provisions of Rule 45 (1) and (2) of the Court of Appeal Rules, 1979." He later filed a supplementary notice of preliminary objection on the ground that: i "(a) The application is time barred (b) The Applicants ought to have exercised the right of appeal instead of resorting to an application for revision." Before submitting on the ground of preliminary objections raised by him, the Court invited Mr. Mtaki to address the Court in the course of his submission on the following points: 3 That, the notice of motion failed to cite the enabling provision to move the Court. That, the 2nd Applicant is not a party to this application for his failure to sign in the notice of motion and affidavit annexed to this application. That, what is the position after the applicant has failed to sign his notice of motion. Mr. Mtaki, opted to begin his submission on the points we raised. As to the point on non-citation of the enabling provision to move the Court, he briefly submitted that the notice of motion in this application ought to have cited Rule 45 (1) of the Court of Appeal Rules, 1979 (the Rules) and section 4 (3) of the Appellate Jurisdiction Act (the Act). However, Mr. Mtaki submitted that, no provision has been cited to move the Court. He said for such non-citation, the application before the Court is incompetent. For being incompetent, he urged the Court to strike out the application. 4 On his part, the applicant readily conceded that his application failed to cite the enabling provisions to properly move the Court. Time and time again this Court has emphasized on the necessity of citing enabling provisions to properly move the Court in hearing applications. In this application, the applicant has conceded that he has failed to cite the enabling provisions to move the Court. Non citation of the enabling provisions to move the Court renders the application to be incompetent. See for instance, China Henan International Corporation Group v. Salvand K.A. Rwegasira Civil Reference No. 22 of 2005 (unreported). For being incompetent the application ought to be struck out. Secondly, Mr. Mtaki submitted that, truly the 2' Applicant is not a party to the application, because he has not signed the notice of motion nor did he sign the affidavit annexed to the notice of motion. For his failure to sign in the notice of motion and in the 5 affidavit, that renders the alleged 2 nd Applicant not to be a party in this application. On his part, the applicant without any hesitation conceded that the 2 nd Applicant is not a party to the application for his failure to sign in the notice of motion and the affidavit annexed thereto. We are of the view that, the record is very clear that the alleged 2 nd Applicant failed to sign in the notice of motion and the affidavit annexed thereto. That clearly excludes the 2' Applicant to be a party to the application, because his signatures in the notice of motion and the affidavit would have authenticated that he is party to the application. As readily conceded by the applicant, we find the alleged 2' Applicant not a party to this application. As to the point that, the applicant has failed to sign his notice of motion, we decided not to proceed with it after we noted that the original file has shown that the applicant did sign his notice of motion. n. Coming back to the preliminary points of objection raised by Mr. Mtaki, he opted to begin with the points stated in his supplementary notice of preliminary objection. As to the point that the application is time barred, Mr. Mtaki submitted that, the application is surely out of time. He said, the ruling of the High Court intended to be revised was issued on 4.1.2007, whereas this application was filed on 22.4.2007. This shows that, the application was filed after 83 days. It is 23 days out of time. Mr. Mtaki, submitted that, several decisions of this Court have fixed the period of 60 days for applying for revisions/reviews. He cited to us the case of Halais Pro-Chemie Vs. Wella A.G. [1996] T.L.R 269 and James Kasuka v. George Humba, TBR CIVIL APPLICATION NO. 2 OF 1997 (unreported). Mr. Mtaki added that the applicant was required to file an application for extension of time but none was filed. For the failure to file an application for an extension of time, he said the current application is incompetent, and should therefore be struck out. 7 We, on our part are of the considered opinion that on the basis of the decisions of this Court applications for revision have to be filed within 60 days. See for instance, Halais Pro-Chemie (supra) and James Masanja Kasuka (supra). As submitted by Mr. Mtaki, the ruling of the High Court intended to be revised is dated 4.1.2007, whereas the instant application was filed on 22.4.2007. This is 83 days after the ruling intended to be revised was delivered. We agree with Mr. Mtaki that the applicant has filed his application for revision well beyond the 60 days limit fixed by the decisions of this Court. For being out of time, we find that the application for revision is out of time. That makes it to be incompetent. For being incompetent, it ought to be struck out. Mr. Mtaki briefly submitted that, the applicant could have preferred an appeal after obtaining leave under section 5 (1) (c) of the Act. It was therefore wrong for him to have preferred the application in lieu of an appeal. The application is therefore not properly before the Court. 8 On his part, the applicant simply responded by submitting that he is a lay person not aware of the technicalities, hence he left to the Court to decide on that point. It is true that the order sought to be revised in this application is appeallable with leave under section 5 (1) (c) of the Act. Where such a right exists, revision cannot be resorted to in lieu of appeal. See for instance the decision of this Court in Moses J. Mwakibete v. The Editor - Uhuru, Shirika Ia Magazeti ya Chama and National Printing Co. Ltd. [1995] TLR 134, it was held: "The applicant in this case had a right to appeal and has not given any good and sufficient reasons why he did not appeal; therefore he cannot move the Court of Appeal to exercise its revisional jurisdiction." In the instant case, the applicant has not given good and sufficient reasons for not having lodged an appeal. We therefore agree with Mr. Mtaki that the present application is not properly before this Court. Finally, on the point that the notice of motion is incurably defective for offending the mandatory provisions of Rule 45 (1) and (2) of the Rules, Mr. Mtaki submitted that apart from several other decisions of this Court, even in this Session at Tabora, this Court has emphasized on the need to comply with Rule 45 (1) and Form A of the First Schedule to Rules by stating the grounds of application in the notice of motion. In this application, he said, the applicant has failed to comply with Rule 45 (1) and Form A by not stating the grounds in his notice of motion. He cited to us the case of Leticia Benedictor Choma v. Tamasha Benedictor Choma and Another TBR CIVIL APPLICATION NO. 1 OF 2008 (unreported). For the failure to comply with the mandatory provisions of the law, Mr. Mtaki urged us to find the notice of motion incurably defective, and prayed for the application to be struck out. On his part, the applicant simply submitted that he leaves it to the Court to decide on that point too. 10 We agree with Mr. Mtaki that, in several decisions this Court has emphasized the necessfty of complying with the mandatory provisions of Rule 45 (1) of the Rules which states that:- "subject to the provisions of sub-rule (3) and to any other rule allowing informal application, all applications to the Court shall be by motion which shall state the grounds of the application." (Emphasis added.) On non compliance with the wording in the provision of Rule 45 (1) of the Rules, this Court in the case of Commissioner General Tanzania Revenue Authority v. Parastatal Pensions Fund, Civil Application No. 73 of 2008 (unreported), stated that:- "In this Court's recent decisions it was held that it is mandatory to state the grounds of the application, and that failure to do so renders the application incompetent." 11 See also, Harish Ambaram Jina (By his Attorney Ajjar Patel) vs. Abdurazak )ussä Suleiman - ZNZ, Civil Application No. 2 of 2003 (unreported) and Leticia Benedictor Choma (supra). The position of the law requires notices of motion to comply with Rule 45 (1) of the Rules by stating the grounds of the application therein. Failure to comply with the mandatory provisions of Rule 45 (1) renders the application to be incompetent. In the event, and for the above stated reasons all the points raised by Mr. Mtaki in his preliminary objection and those raised by the Court are upheld. In the result, we find the application to be incompetent. For being incompetent the application is struck out with costs. 12 DATED at TABORA this 5th day of November, 2009. N.P. KIMARO JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL. S.A. MASSATI JUSTICE OF APPEAL, I certify that this is a truecopy of the original. (J.S. MGETTA) DEPUTY REGISTRAR