harish am baram jina vs abdulrazak jussa suleiman 2003 tzca 29 14 november 2003

IN TH E C O U R T OF APPEAL OF TANZANIA A T ZANZIBAR (CORAM : M R O SO , J.A., MUNUO, J.A., And NSEKELA, J.A.) ZNZ C IV IL APPLICATION NO. 2 OF 2003 BETWEEN HARISH AM BAR AM J IN A By his Attorney A J A R P A T E L ........................................APPLICANT- AND ABDULRAZAK J U S S A SU LEIM AN ............................R ESPO ND ENT (A pplication for Revision from the decision o f the H igh Court for Zanzibar at Vuga) (Bakari, J .) dated the 9 th day of January, 2003 in Civil Case No. 2 of 2003 RULING MROSO, J.A.: The applicant through his attorney, Mr. Patel, has brought an application by notice of motion for revision of High Court Civil Case No. 2 of 2003, citing Section 2 (3) (sic) o f the Appellate Jurisdiction Act, 1979 as the enabling provision. Mr. Patel had applied to the High Court, Bakari, J., under Order III Rule 2 o f the Civil Procedure Decree for leave to institute a suit as attorney for the applicant, against the respondent. Leave was granted but three days later the judge revoked his order for leave for the reason that “it didn’t follow the proper/formal procedu re” . Mr. Patel wrote several letters to the Registrar o f the High Court seeking clarification on what was meant by the w ords “proper/formal procedure” . Eventually the Registrar wrote to say that Mr. Patel wTas supposed to file a form al application which should accom pany the .plaint. Only then w ould the application for leave to file the suit as an attorney be considered. Dissatisfied, Mr. Patel brought this application to this Court. Before the application could be heard, Mr. Mbwezeleni, learned advocate for the respondent, filed a notice o f preliminary objection, raising three points. First, that the application was incom petent and/or m isconceived for w ant of form and propriety. Second, that the application was bad in law and not m aintainable because of a pending application in the High Court lor extension o f time and for leave to appeal. Third, th a t the application was an abuse o f the process o f the Court because the revocation order which was sought to be revised was either appellable or reviewable. Mr. M bwezeleni started off by pointing out that section 2 of the Appellate Jurisdiction Act, 1979 does not have a sub­ section (3). At any rate the section has nothing to do with revisions. If the applicant m eant to move the Court to call for and revise the lower court record he should have cited Section 4 (3) of the Appellate Jurisdiction Act, 1979. That is the provision which em powers the Court to call for and examine a lower court record of proceedings to satisfy itself as to the correctness, legality and propriety of such a record. Mr. Mbwezeleni subm itted that citing the wrong enabling provision of the law rendered the application incompetent. He cited The National Bank of Commerce v Sadrudin Meghji, Civil Application No. 20 o f 1997 to back up his submission. It was also pointed out by Mr. Mbwezeleni that the notice o f motion had another serious defect which rendered it incompetent. The notice of motion did not conform substantially to Form A in The First Schedule, as required under Rule 45 (2) o f the Court Rules. In Form A in the Schedule it is shown that grounds for the application need to be stated. But in the Notice of Motion which was filed by Mr. Patel no reasons are stated for the application for revision. It was subm itted that that was yet another reason why the notice of m otion was incompetent. Mr. M bw ezeleni sought to bring to the C ourt’s attention that the applicant here had filed an ex parte chamber application seeking extension of 14 days to apply for leave to appeal against the order of Mshibe Bakari, J., dated 9th January, 2003. That application was still pending at the time the application for revision was filed. It m eant that the applicant was trying to ride two horses at the same time, which could not be permitted. He cited a decision o f this Court - Jaffari Sanya Jussa and Another v Saleh Sadiq Osman, Civil Appeal No. 54 of 1997 (unreported) in support of his argument. He submitted that the applicant should have exhausted that rem edy in the High Court and pursue the appeal, if leave to appeal was granted, before applying for revision. It was also a ground of objection that the notice of motion in which application for revision was made amounted to an abuse of the Court process. He said the order which was made by Bakari, J., on 9th January, 2003 by which he revoked his previous order was appellable with leave or reviewable. Since a revision is not a substitute for an appeal, it was wrong, he submitted, for the applicant to choose to apply for revision as a substitute for an appeal which could have been pursued. That conduct on the part o f the applicant was said to amount to an abuse of the Court process. In response to the arguments advanced by Mr. M bwezeleni in the prelim inary objection Mr. Patel said the citing of section 2 (3) of the Appellate Jurisdiction Act, 1979 was a typographical error and he meant section 4 (3) of the Act. After all, he said, section 2 of the Act does not have sub­ sections. He applied for leave to rectify that position which he called an obvious typographical error. He also argued that there are special circum stances which compelled him to apply for revision. Bakari, J. had adamantly refused to consider his requests to either clarify what he meant in his order or to dismiss his suit as requested in the letters he had been writing to the Registrar of the High Court. Then, throwing his hands up, as it were, Mr. Patel said if the Court considered the first ground of objection was enough to dispose of the notice of 6 motion, it was futile for him to advance arguments against the other grounds which Mr. M bw ezeleni filed. We think Mr. M bw ezeleni is on firm ground in saying that the Court is not properly m oved if a wrong provision o f the law is cited in a Notice o f Motion. This Court said so in National Bank of Commerce v Sadrudin Meghji, Civil Application No. 20 of 1997 (unreported), a decision which was later followed by the same Court in Almas Iddie Mwinyi v National Bank of Commerce and Another, Civil Application No. 88 o f 1998 (unreported). In Meghji there was application to this Court for revision. In the Notice o f M otion was cited section 4 (2) o f the Appellate Jurisdiction Act, 1979. The correct subsection was (3), not (2). It was subm itted in a preliminary objection which was raised against the Notice o f Motion that the Court had not been properly moved. This Court, referring to the error said - It follows therefore that the application has been filed by notice of motion under an inapplicable section of the law. Consequently, as__the Court was__not 7 properly moved, the application is likewise, incom petent. In Meghji the correct section had been cited and the error was only in citing the incorrect subsection which did not em power the Court to call for the lower court record to consider the propriety of the proceedings and decision of the- High Court. In the case before us a wholly inapplicable section was cited, which was a worse situation than in Meghji. It may well have been a typographical error as pleaded by Mr. Patel, but if that was so, he ought to have sought to correct the error before the preliminary objection was filed only seven days before the m atter came for hearing before us. The application had been filed six months earlier. To allow a correction on the hearing date is to pre-empt the prelim inary objection against that error. It is also true, as pointed out by Mr. Mbwezeleni, that the Notice of Motion does not conform substantially to Form A of the First Schedule in the Court Rules, as required under Rule 45 (2) o f the Court Rules. No grounds for the prayers in the N otice of M otion were given . It was as if Mr.. Patel wanted to be on a fishing expedition in Court. He would think of the reasons and present them to Court as the hearing proceeded. Th at cannot be proper. The Court and the other party to the application are entitled to kn ow the grounds on which the application for revision was being made. The failure by the applicant to com ply with Rule 45 (2) of the Rules was sufficiently grave to render the application incom petent, even if the applicant w ere to cite the correct provision for revision. We do not find it necessary to discuss the second part of the first point o f objection or any of the other points o f objection in detail because, having held that this Court is not properly moved, there is really no application for revision before the Court to be considered on its merits. We only n eed to say in passing regarding points 2 and 3 in the Prelim inary Objection that we agree with Mr. Mbwezeleni that there was indeed no need for the applicant to seek revision o f Bakari, J .’s order because it wras appellable with leave. Indeed, there was already pending in the High 9 Court an application for extension of time to apply for leave to appeal against the order. Mr. Patel should have pursued that correct course to its conclusion instead o f com ing to this Court for revision. It was unnecessary and an abuse of the process of the Court to pursue two different avenues in two different courts at the same time. For the reasons which we have given, the application is incom petent and is struck out with costs. J.A. MROSO - JUSTICE OF APPEAL E.N. MUNUO JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy o f the original. (F.L.K. WAMBALI) DEPUTY REGISTRAR