20050715 TZCA Arusha

9:,, . t, ~l'_ -· .. . . ,-,. IN THE COURT OF APPEA1. OF TANZANIA AT ARUSHA (CORAM: RAMADHANI, J.A, MSOFFE, J.A. AND KAJI, J.A.) AR. CIVIL APPLICATION NO. 3 OF 2002 BETWEEN J.H. KOMBA ESQ. EX-EMPLOYEE, E.A. COMMUNITY ........................................ APPLICANT VERSUS 1. THE REGIONAL REVENUE OFFICER SUB-TREASURY-ARUSHA ............................. 1 5 T RESPONDENT 2. THE PERMANENT SECRETARY, . MINISTRY OF FINANCE - D'SALAAM .; .................. 2No RESPONDENT 3. THE ATTORNEY GENERAL, ATTORNEY GENERAL'S CHAMBERS, DAR ES SALAAM .................................. 3Ro RESPONDENT (Application for Revision of decision of the High Court of Tanzania at Arusha) (Rutakangwa, J.) dated the 17th day of November; 2000 in Civil Case No. 13 of 2000 RULING OF THE COURT MSOFFE, J.A.: The applicant, an ex-employee of the defunct East African Community, instituted a suit under summary procedure in a claim of Shs. 8,122,157.48 from the respondents. The respondents filed an application for leave to appear and defend. In response thereto the applicant raised a preliminary objection to the effect that the ,, ' 2 application was time barred. In a ru-ting given on J 7.11.2000 the High Court, Rutakangwa, J. overruled and dismissed t !1; · <lbjection on the ground that extension ~f time to appear and def r·: :ci was granted on 17.7.2000. Disatisfied, the applicant sought to invoke the appellate jurisdiction of this Court by filing the requisite notice of appeal against the above mentioned decision. However, in the _course of time he abandoned the process and chose to come to this Court by way of revision, hence this application. At the hearing of the application the Court had to deal with a preliminary objection notice of which was given earlier. The notice, made under Rule 100, has two points which read as follows:- 1. The application for revision is incompetent for it seeks the revisional jurisdiction o: :._iic Court as an alternative to the appellate jurisdiction of the Court. 2. The application is incompetent before the Honourable Court for being time barred. In arguing the above points Mr. Chidowu, learned State Attorney, began with the second point. He urged mainly that the 3 application was time barred for being filed out of the sixty days period prescribed by this Court in a number of decisin:~, . In this regard, he cited the case of Halais Pro-Chemie v Wella A.G. (1996) TLR 269 as one of the authorities on the point. -As for the first point Mr. Chidowu was of the view that the applicant should not have sought the revisional jurisdiction of the Court. Instead, he urged, the applicant could have appealed against the above mentioned decision. Again, in this regard, Mr. Chidowu cited Halais case (supra) and Transport Equipment Ltd. V Devram P. Valambhia (1995) TLR 161 as some of the authorities on the point. On his part, the applicant was of the view that the application is not time barred. He contended that he duly filed a notice of appeal against the above decision and only to withdraw it following this Court's decision in William Loitiame v Asheri Naftali - Civil Appeal No. 62/1999 (unreported) requiring, inter a/ia, that a notice of appeal be signed by the Registrar of the High Court, which term includes the District Registrar. Thus, in the absence of such signature his notice of appeal was as good as nothing and hence the •. 4 above mentioned withdrawal. Having,~withdrawn the notice he then chose to access this Court by way of revision, he urged. >, this context he cited this Court's decision in Halais case (supra) tt':, Jt :- "A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court where the appellate process has been blocked." In essence the applicant appeared to us to be saying, 111ler alia, that in the light of Halais case (supra) the appellate process was blocked, hence the decision to proceed by way of revision. Hence, according to him, having chosen to come to this Court by way of revision, then the application was not time barred because the above background shows that he was not sitting idle after the decision of the High Court was given. We propose to begin with the second point of the objection. As is evident from the record, the decision of the High Court was given on 17.11.2000 and the application filed on 28.11.2002. Surely, we have no hesitation in saying here that this was an inordinate delay in filing the application. In a number of cases this Court has prescribed a period of sixty days for fil-i)lg applications to this Court - See James Masanja Kasuka v George Humba - TBP C·,!I Application No. 2/1997 (unreported), NBC Holding Corporation and Another v Agricultural Industrial Lubricants Supplies Ltd. And Others - Civil Application No. 42/2000 (unreported) and The Director of Public Prosecutions v Prosper Mwalukasa - Criminal Application No. 6/2000 (unreported). In his submission, the applicant did not dispute the above delay. He tried to justify the delay by saying that he was pursuing the appeal process before filing this application. To this end, he was essentially asking for this Court's indulgence and accordingly to decide in his favour that the application was not time barred. With respect, much as the applicant might have been busy pur •,,,::19 another process and only to withdraw therefrom later, that was no good reason for not filing this application within the prescribed time. As for the first point of the objection, we are in agreement with Mr. Chidowu that this application is seeking the revisional jurisdiction of the Court as an alternative to its appellate jurisdiction. To start with, the above background is testimony to the fact that the ..·, .... appellate process was not blocked in t~e strict sense of the word, as the applicant would wish us to believe. The applicant himself blocked the process upon withdrawing the notice of appeal. We say sr' because if there was a defect in the said notice he could have taken remedial measures by applying for extension of time to file a valid notice of appeal. If successful, he could have then proceeded with the appeal process. Since he did not do so he should not now be heard to complain or blame anybody. There is also merit in the assertion by Mr. Chidowu that revisional process is not an alternative to the appeal process. The two are, no doubt, different and one should not be used in place or substitution of the other. Appeals to this Court are governed by sections 5 and 6 of The Appellate Jurisdiction Act No. 15/79 whereas revisions are covered by 5.4 of the above Act as amended by the Appellate Jurisdiction {Amendment) Act No. 17 /93. We may add that a revision is at the discretion of the Court, whereas an appeal is an aggrieved party's right subject of course to a number of other factors like limitation or leave or a certificate, as the case may be. In this context, it was not open for the applicant to resort to '. 7 revision simply because he thought th'~ appeal process was already blocked. For the above reasons we sustain the preliminary objection. The application is incompetent. It is accordingly struck out. Mr. Chidowu did not insist on costs. We, therefore, make no order for costs. DATED at ARUSHA this 15th day of July, 2005. A.S.L. RAMADHANI JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEAL S.N. KftJI JUSTICE OF APPEAL I certify that this is a true copy of the original. \ , (S. M)'-J;:NYIKA) DEPlJfi REGISTRAR