20030313 TZCA Dar es Salaam

) IN THE COURI' OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MAKAME, J .Ao, KISANGA, J oA., And LOOAKINGIRA,1 J oA.) · 1 CIVIL APPLICATION NO. 90 OF 1999 In the Matter of an Intended Appeal BE'JWEEN MARCKY MHANGO (ON BEHALF OF 684 OTHERS) 0 0 0 0 ~ 0 0 .. APPELLANTS AND 1. TANZAI\TJ:A SHOE COMPANY L'rD. 2. TANZANIA LEATHER ASSOCIATED .• I o O 0 .RESPONDENTS INDUSTRIES (Application for Review of the Judgment and·Order of the Court _of Appeal of Tanzania at Dar es Salaam) dated 1st October, 1996 in Civil Appeal . _____ No...,.._ 36 of 1996 . RU· LING I-,UGAKINGIRA, J .A_.: This application is for review of the Court's judgement delivered on 01.10~96. When it came up for hearing counsel for . ' . the respondents, Mr, George Kilindu, took a preliminary objection notice of which he had given sometime back. He had two grounds: first, tha~ the application was hopelessly time-barred; second, that the application w~Ei incompetent as it did not fall within any ~f the grounds µpon which an application for review may be. made. ,In relation \o the first ground he pointed out t~at the application was made on 29.10,99, over three years after the judgment s•ught, to ,t.e reviewed, and in relation to the second ground he state~ that the application did not meet any of ·the four principles summarized in Mtikila v. A.G., Civil Application ..../2 - 2 - No. 86 of 1998. Dr. Michael Wambali whc appeared for the applican.,_ replied, fa reference to the first grou,".ld, that there is ~ prescril ... period for an application for review and he did not have to seek au extension of time. Regarding the second ground, he said that ther~ was what he called a manifest error rm the face of the record as some document was not produced by the applicants at the trial. It is not in dispute that it took ov-flr. three years for this application to be made. Counsel for the ,tpplicants did not seek to offer any explana.tion but justified -l:.1e delay en the ground that there is no prescribed period of lirnit1tion. It is correct that the Court of Appeal Rules do not pre£ c1·ibe any period for an application for review; indeed, the Rules nake no provision for review, but it is an exercise der~.ving f1om the inherent powers of the Court. ~owever, despite the ·.,ilence in the Rules on this mattc.1. 1 th~t-e are r~~ons fbt saying ·tha\ an ·appl i.batibn ·-tof· re~i~w'·c"Elful6{ '" • • - ·,.. - . • .. • ~ ,.. •• ~ .... .·- • 'r'~ 1' , ... ~ ...,(' I ; ~ be delayed bdefinitely or br,,11gM ohly at· the convenience ·of 'the ~ O · • • , 4 "", .. r -. • -, • " ':l "' V ""' "":• • ,. I applicanto First of all', thbre· should be an end to litigation a.s .. ~ . • . ., . • • ,.,.-- .. , .,. ·, I · 1 ·· '1··•, a matter .of public' pol"icy;· !he Cowt woulc hence' be' duty~bound t;e· · • . • t : ' " . _., ~ .~ A·- "" " ,.r;a ~ . • °' ,•••" ,, refuse a· delayed ·applicatich the effect of· which is to ·r~..:.open a matter nther;/i..s'e · 1av1fhlly< determined. This ~uie also. d~r!.ves:. legitimacy fr~m the f<!lct, tq.at in analcgcus apP¥,fati9n?3 _ti1f }a~,.:. prescribes~~~ limits. Further, there should b~ certainty.of ' '• - - ·.• ~ I ' . _c l.' ';· judgment; • • a system . : ;.. of law which cannot .• • •: . . guarantee the certainty . '• 1 • • . , - ••! of its judgmef-lt!3 ~?- t~ei;r enforce~bilit;y, i~ ~J f3Y~~em_J\111~~m!~!flly flawed •. There·, ~all be p.9 _certai!lty wp.er,,. d_ectsfop~ ?§1.~ P~.- v~ried at any time at tha .P~e~ure fJf the, lo~ing rar-ty _a~d. ~h::••~~'fb-i~,ezr::~f justice as an. ~:yitut_i_:>n. ~o'4d, ?_e.. ,brol:,:,h~ into. q~~.?~fop ~ .!,~~~Z:- and conversely1- _tl;le, successful litigant. :'..s enti~l.e~ ,to ,t_h e. fr~ir~~f,. 1 ·, \, 3 of his judgment,.-· else judgments would cease to have meaning.: It becomes imperative, therefore, that an application for review ef judgment should be brought with diligence and within a reasoi,able time depending on· the circumstances of each case. In YIP !51feei::in~ ~~~eting Ltd. v • .'s~s. Bakhressa Ltd~, Civil Application N•• .52 of. 1998, a delay of 28 months ,vas held to be grossly inordinate• The ~elay of 37 months in the instant c.ase is, in the absence of any explanation, appalling and ~macceptable • .A,nd this, in our view., is all it rE:~uires te ·dispase of this matt.ero. rro Kilindu's seco;:id ground about the basis of the application .is an invitation to inquire into Us merits and is not properly a· · ground in a preliminary objection. The s~me can be said about Dr. Wambali's adventure into equity for that, too, turns on the 'mer~ts· rather 'than the competence of the applicatien. We uphold the preliminary objection and strike out the application.. with co.sts .. DATED at DAR ES SALAAM this 13th day of March, 2003. L. ;1. MAKAME JUSTicy; OF APPEAL Ro :i. KISANGA JUSTICE OF APPEAL K.S .K,, LUGAKINGIRA JUS'.i.'I CE OF APPEAL I certify that this is ,,_ true copy of the original. G-rJ~ ( F!LoKe WAMBALI) DEPUTY REGISTRAR