20030508 TZCA Dar es Salaam

J,'Ir/~•~ i~,·•.:;. / , . I I '·' -~ I I IN .THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (Coram: Lubuva, J. A.,· Mroso, J. A. and Munuo, J. A.) ! CIVIL APPLICATION NO. 43 OF 2001 In the Matter ·of an Intended Appeal I BETWEEN 1 .ILULA GENERAL SUPPLIES AGENCY LTD ...... APPLICANT AND AFFILIATED BUSINESS CONTACTS LTD ..... RESPONDENT (Application for Revisijr from the decision of the High Court of Tanzania at Dar es Salaam) (Blbeshi, J. I dated the 22 nd day of February, 2001 in Civil Case No. 13 of 1998 .J RULING --------------- .,. Mroso, J. A.: The applicant, which is a judgment debtor in Civil Case No. 13 of 1998 of the High Court at Dar es Salaam, was l required to .~ay a decretal amount of sqillings i 72,000,000/= . : i ' . within a specified period .. It made par;t --r payment but todate ' has not fully paid the decretal amount. 1In the meantime the decree holder, now respondent, applied t6 the High Court and was granted an order for the sale of appli~ant's motor vehicles in order to realize shillings 125,277,318.00 to be paid to the decree. holder. The applicant disput~s the amount and I i contends that out of the :decretal amount of 72,000,000.00 I I shillings there is only a balance of shilling~ 7,700,000/= which is still due and owing to the respondent. I , In the attempt to ~hallenge the amount now being 1 I claimed by the respondent' the applicant, . ' has applied to this I Court under Section 4(3) :. of the Appellate I Jurisdiction Act, 1979 for revision of the disputed High I Court Order. The hearing of the application could not proceed because the respondent took a preliminary objection under Rule 3(2) of the i Rules, and not under Rule 100, presumably because the 1 matter before the Court was not an appeal. 2 • I The preliminary objection is grounded on two reasons namely, that the the application was , misconceived and . I incompeteri.t because the matter complained of was appealable ·,, i and that the orders intended for revision did not form "part I and parcel" of the order of the High Court dated 22 February, ' 2001. Mr. Mselem, learned advocate, argued the grounds for the preliminary objection. As regards the first ground of objection Mr. Mselem con ends that if the applicant was I unhappy with the High Court Order it s.hould have challenged . by appea1·1ng against 1t . 1t, I . and not to app . 1y £or rev1s1on. .. He I cited the case of Halais Pro~Chemie v. Wella A.G. [1996] TLR. I 269 as having established the principle that revision must not I be used as an alternative i to an appeal where the right to 1 I I I appeal exists. As for the · Order of 22 February, 2001 Mr. Mselem said it merely sets the date of salb of attached motor vehicles. It did not conflict with any earlier or later Order of the High Court. He submitted that the preliminary objection 3 should be sustained and the application struck out as incompetent. Mr. Magafu, learned advocate, resisted the preliminary objection on behalf of the applicant. He said the application was properly before the Court. Although the applicant could have appealed against the Order of the High Court, Bubeshi, J., there were compelling reasons for resorting to revision rather than to appeal. He explained that the impugned High Court Order was made at the execution stage and sale of the lorries was imminent so that a speedy remedy from this Court I was needed. The revisiorial procedure would deliver faster than the appeal procedure which has more formalities to comply with than in a revision. He said that this Court has in the past recognized that where sufficient reasons exist for failure to appeal, a party can resort to revision. He cited the case of Moses J. Mwakibete vs. The Editor - Uhuru, Shirika la Magazeti ya Chama And National Printing Co. Ltd [1995] TLR 134 in support of that argument. 4 I .l . It is also argued that the order of sale of the motor ' vehicles and trailer was intended to achieve a relief which was inconsistent with the decree. The court decree did not provide ' for interest,, yet the High Court, subsequent to the decree, purported to grant very substantial iriterest without the applicant being given a hearing. Such a serious irregularity should not be condoned and that this Court should interfere i I to ensure that- -justice is. given to the applicant. That, according to Mr. Magafu, is an exceptional circumstance for this Court to invoke its revisional jurisdiction. There is no dispute Jat the irregulaties alleged to have I been committed by the High Court can be challenged in an I appeal to this Court. It is &lso not disputed that the applicant I did not take any steps to appeal. It's explanation for not using the appeal procedure is that it considered revision as the more convenient and speedier means of obtainiilg redress from this Court and that circumstances exist which, in the interest of justice, make it necessary for this Court to look into the correctness, legality or propriety of the proceedings and 5 decision of the High Court regarding the amount which the respondent is entitled to be paid by the applicant. The law on the revisional jurisdiction of this Court has been well considered in a number of decisions of the Court and it will suffice to refer to only a few of them, some of which have been cited by counsel in these proceedings. In the Moses J. Mwakibete case cited supra the applicant in that case sought the revision of a High Court Order by this Court. The High Court Order was appealable but the applicant resorted to revision rather than appeal because he ! thought the appeal process would take too long. This Court 1 commenting on section 2(3) (sic) (section 4(3)) of the Appellate ! ' Jurisdiction Act, 1979 as amended by Act No. 17 of 1993 under which the application was made said:- "Before proceeding to hear such application on merits, this court must satisfy itself whether it is being properly 6 . moved to excise its revisional jurisdiction. The revisional powers conferred by ss. (3) were not meant to be used as an alternative to the appellate jurisdiction of this court . . . . (T)his court, unless it. is acting on (sic) its own motion, cannot properly be moved to use its revisional powers in ss. (3) 1n cases where the applicant has the right to appeal with or without leave and has not exercised that option". Later in the same ruling the Court said:- "In our view this Court can be moved to use its revisional jurisdiction under ss. (3) only in cases where there is no right of appeal or where there is, it has been blocked by judicial process. Lastly where such right exists but was not taken, good 7 . and sufficient reasons are given why no Appeal was lodged". The above principles were substantially reiterated in Transport Equipment Ltd. v. Devram P. Valambhia. In that case this Court considered when powers given by Section 4(3) of the Appellate Jurisdiction Act, 1979 as amended by Act No. 17 of 1993, can be exercised. It said:- "The appellate jurisdiction and revisional jurisdiction of this court are, in most cases, mutually exclusive. If there is a · right of appeal then that has to be pursued and, except for sufficient reason amounting to exceptional circumstances, there cannot b~ resort to revisional jurisdiction of thi~ court. The fact that a person through his own fault has forfeited that right cannot, in our view, be an exceptional circumstance. If a party 8 does not have an automatic right of appeal then he can use the revisional jurisdiction after he has sought leave but has been refused". In the Valambhia case this court upheld a preliminary objection that the application was misconceived because the applicant had a right of appeal which it did not use. We find the same reasoning 1n Halais Pro-Chemie v. Wella A. G. (1996] TLR 269. The applicant applied to this I Court to call for and examine the record of the proceedings and judgment of the High Court in order to satisfy itself as to the correctness of the adjudication of an appeal. The Court considered the earlier decisions in the Moses J. Mwakibete v. The Editor - Uhuru and Two Others and the Transport Equipment Ltd. v. D. P. Valambhia and listed down the following legal propositions concerning the revisional 9 I I . jurisdiction of the Court under Section 4(3) of the Appellate Jurisdiction Act, 1979:- "(i) The Court may, on its own motion and at any time, invoke its revisional jurisdiction in respect of proceedings in the High Court; (ii) Except under exceptional circumstances, a party to proceedings in the High Court cannot invoke the revisional jurisdiction of the Court as an alternative to the appealable jurisdiction of the Court; (iii) A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court in matters which are not appellable with or without leave. 10 ,. (iv) A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court where the appellate process has been blocked by judicial process". The ground given in this application that revision is speedier cannot be accepted first, because it mean~ that revision is being .resorted to merely as a convenient alternative to an appeal. Second, because the same reasoning which was given by the C0urt in the Mwakibete case will apply, that is to say, that the applicant is not entitled to assume that an appeal necessarily takes longer than a revision. In fact this revision application is already two years old and it c_annot be said that appeals to this Court always take longer than two years. ( The reasons given in the affidavit of Mr. Mtatifikolo and in the submissions of Mr. Magafu are persuasive if the Court were sitting on appeal but do not amount to special circumstances why an appeal was not preferred and resort was made to revision. In· the upshot, the application for 11 11 ... • • .rev1s10n was misconceived. The preliminary obj~ction 1s. upheld and the application is dismissed with costs. Having reached this conclusion, we find it unnecessary to discuss the second ground of objection. DATED AT DAR ES SALAAM this 8 th day of May, 2003 . . D. Z. LUBUVA JUSTICE OF APPEAL J. A. MROSO JUSTICE OF APPEAL E. N. MUNUO JUSTICE.OF APPEAL fttt F. L. K. Wambali DEPUTY REGISTRAR 12