20151006 TZCA Dar es Salaam

,. - -,'_\ . \"-·~. ~.."~'·.~· ·,. )\ ·' .. •!!f- -':'~ '.'~t.... {:"" ·.:.. ~:~·-=:·¼ •:~· -~\\. . J~\ IN THE COURr'c)F APPEAL OF TANZANIA ) AT DAR-ES-SALAAM (CORAM: LUANDA. l.A .• MUSSA. AND J.A. And MUGASHA. l.A.) CIVIL APPLICATION NO 190 OF 2014 NOBLE MOTORS LIMITED ....................................................... APPLICANT VERSUS UMOJA WA WAKULIMA WADOGO BONDE LA KISE RE ••••••••.•••••••••••••••••••••••••••••••••••••••••••.•••••••••••••• RESPONDENT {An Application for Revision from the Decision of the High Court of Tanzania, At Dar-es-salaam) (Hon Msumi DR) Dated the 2 nd October, 2014 In Civil Case No. 49 of 2011 ...........•...... RULING OF THE COURT 02 nd & 09 th Oct 2015 MUGASHA, J.A.: The applicant NOBLE MOTORS LIMITED, has by Notice of motion moved this Court under section 4 (3) of Appellate Jurisdiction Act and rules 4 (1), (2) (a) and (b) 65 (1), (2), (3), (4) and (5) of the Court of Appeal Rul~~, ·- ...... 2009 to revise the decision of the District Registrar relating to execution of .r •.•:. :; .,: · .. judgment and decree in Civil Case No. 49 of 2011. The application\iS' ·. ·· .... , '. '. 1 \ .• supported by the affidavit of JAYANTKUMAR CHANUBHAI PATEL the principal officer of the applicant and it is sought on following grounds: (a) The District Registrar, despite objections, exercised jurisdiction to hear and determine an objection to show cause under Order XXI rule 20 (a) when he does not have such power under the law. (b) Contrary to the express provisions of Order XLIII rule l(f) of the Civil Procedure Code [Cap 33 RE: 2002], the District Registrar interpreted that provision to mean that he had powers to hear and determine objection issued on a notice to show cause. (c) The District Registrar refused to consider complaints on his failure to give fresh notice of delay without giving any reasons, and thereby denying the applicant right to appeal to the Court of Appeal. (d) The Court of Appeal may direct that the District Registrar has a duty to respond to requests of parties either administratively or 2 judicially instead of ignoring such request and leaving the parties in the dark not knowing what to do. To understand the background to this application, it is imperative to give a brief account of underlying facts. The applicant is judgment debtor in Civil Case No. 49 of 2011. The applicant lodged in this Court a notice of appeal and wrote a letter to the District Registrar seeking to be supplied with proceedings. However, some of the documents were not supplied to the applicant and this Court had to strike out the appeal for want of completed record of appeal. The applicant unsuccessfully applied for stay of execution which was dismissed for time bar. The applicant went back to the Registrar and applied for the missing documents which were not timely supplied and hence the applicant requested a fresh certificate of delay. On the other hand, the respondent lodged an application for execution and the Deputy Registrar issued to the applicant notice to show cause as to why execution should not proceed under Order xxi rule 20 of the Civil Procedure Code (supra). The applicant objected the execution on ground that, the Deputy Registrar lacks jurisdiction to hear and determine objection on notice to show cause. The objection was overruled hence this application for Revision. 3 When the Revision came for hearing, the applicant was represented by Mr. Gabriel Simon Mnyele learned counsel and Mr. Fulgence Massawe learned counsel represented the respondent. Before embarking on the hearing we wanted to know from the applicant's counsel whether the record of his motion is complete to enable this Court to invoke its revisional jurisdiction. Mr. Gabriel Simon Mnyele learned counsel, insistently submitted that, the record is complete and properly before the Court because the notice of motion is accompanied by an affidavit as required under rule 65 of the Court of Appeal Rules (supra). He argued that, it is not a legal requirement to annex the extracted order upon which revision is sought, judgment and decree which were a subject of execution proceedings before the Deputy Registrar. At some point, Mr. Gabriel Simon Mnyele learned counsel, seemed to concede to the incompleteness of the motion however, he urged us not to strike out the application and instead direct the applicant to file a proper record or in the alternative, the Court suo motu revise the proceedings in question. 4 In his brief reply, Mr. Fulgence Massawe learned counsel opposed the notice of motion to be incomplete for not being accompanied by supporting documents as required under rule 48(4) of the Court of Appeal Rules (supra). In view of the foregoing submissions, the crucial point for determination is whether the application is properly before the Court. It is clear to us that the applicant is seeking the Court to invoke its revisional powers as provided under section 4 (3) of the Appellate Jurisdiction Act [Cap 141 RE. 2002], which categorically provides: "Without prejudice to subsection (2)✓ the Court of Appeal shall have the power, authority and jurisdiction to call for and examine the record of any proceedings before the High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision made thereon and as to the regularity of any proceedings of the High Court.,✓ In the course of exercising its powers cited above, the Court has evolved certain guiding principles in the determination of applications for revision including what was held in the case between BENEDICT MABALANGANYA AND ROMWALD SANGA, CIVIL APPLICATION NO.1 OF 2002 5 {UNREPORTED) where there was only a notice of motion, affidavit and the ruling dismissing the review application to the High Court. Having asked itself if the application is competent revisiting what is entailed under section 4(3) of AJA, the Court said: "The record of proceedings of the High Court, and in the case of appellate jurisdiction of the High Court, then the record of proceedings of the lower court or courts/ must be before this Court. This is glaringly certain from the very definition of what revision entail and if the Court is to perform that function/~ The Court was as such; of a firm view that when the Court acts on its own motion it will have to call for those records itself. But when the Court is moved, then one who moves it will have to supply those records. The principle was considered in THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND {NSSF) VS LEONARD MTEPA. CIVIL APPLICATION NO. 140 OF 140 OF 200S{UNREPORTED), whereby the Court categorically stated that it could not consider legality and correctness of orders of the High Court which are not presented to the Court. As such, the Court did strike out the application for revision. 6 In CHRISOSTOM H. LUGIKO VS AHMEDNOOR MOHAMED ALLY, CIVIL APPLICATION NO 5 OF 2013(UNREPORTED), the question of completeness of the record of an application for revision was discussed and the Court declined to exercise powers of revision because the whole record was not before the Court. The Court made a following observation which is of relevance in the application at hand: " ...... we are unable to say anything meaningful in relation to Land Application No. 25 of 2007 because we are not seized with all proceedings relating to the said application. As such we cannot step in and make an order of revision over something we do not have the full picture" The fact that, the applicant filed incomplete record of proceedings is implied in the supporting affidavit affirmed by JAYANTKUMAR CHANUBHAI PATEL the principal officer of the applicant. In paragraph 9 it is affirmed as follows: "The amount that is sought to be executed is Tshs. 296,698,000/= and the persons to whom this money is going to be paid in not known. It is correct that the plaintiff is a cooperative society limited under Cooperative Societies Act. But its members are not known. Their addresses are not known. Should the appeal succeed while the money has 7 been paid out, the applicant will not know from whom to recover the money// However, the judgment and decree of the trial court not having been included in the record of revision application, it is difficult for the Court to ascertain if what is in the judgment and decree of the trial court is compatible with what is affirmed by JAYANTKUMAR CHANUBHAI PATEL. Also, in paragraph 10 it is affirmed as follows: 'J1t the beginning of the proceedings the applicant objected on the jurisdiction of the District Registrar to hear objection on a notice to show cause. The District Registrar, on Z1d October, 2014 ruled that he had power to hear objection. Again the Extracted Order of the District Registrar was not part of the record of the revision application. As judgment and decree of trial plus the Extracted Order of the Deputy Registrar are not before us, the Court is not in a position to ascertain the decision of the trial court and what was actually a subject for execution before the Deputy Registrar. In the light of the settled principle of completeness of the record, this application for revision. is incompetent for• not being accompanied by 8 Judgment and decree of the trial court and the basis of execution· proceedings resultant of the impugned order of the Deputy Registrar. In this regard, as this Court does not have a full picture of what transpired in the court below, it cannot venture to revise a matter to determine the correctness and legality of the impugned proceedings. Mr. Mnyele was of the view that, in terms of rule 65 (1) of the Rules, in an application for revision what suffices is notice of motion and affidavit. We do not agree with such proposition because rule 48 (4) of the Court of Appeal Rules (supra) categorically provides: "The application and all supporting documents/ shall be served upon the party or parties affected within 14 days from the date of filing" Applying the principle embodied in the above cited rule and expounded in case law, in an application for revision, the entire supporting documents must be lodged together with notice of motion and the affidavit in support of motion before service on the adverse party. As such, we agree with Mr. Fulgence Massawe learned counsel for the respondent that the applicant did not comply with rule 48 (4) of the Court of Appeal Rules 9 . (supra). Moreover, considering that this application for revision was lodged by the applicant, we are not in agreement with Mr. Mnyele who pleaded sympathy soliciting this Court, not to strike out the incompetent application and in the alternative, invoke suo motu revision powers and revise the proceedings before the Deputy Registrar. This Court has in numerous decisions asserted that, this is a Court of law and not of sympathy. As earlier reiterated, if a party moves the Court to invoke section 4 (3) of the Appellate Jurisdiction Act (supra) to revise the proceedings or decision of the High Court, he must make available to the Court a copy of the proceedings as well as ruling and the copy of extracted order of the High Court. As such, it was prudent on the applicant's counsel to exercise due diligence to ensure completeness of the record other than indulge on grave and foreseeable mistakes expecting to be shielded by the suo motu revisional powers of the Court. Besides, this is not one of those cases where circumstances necessitate invoking section 4 (3) of Appellate Jurisdiction Act (supra) suo motu. In view of the aforesaid reasons, we are satisfied that, the application is incompetent to move the Court to exercise its revisional 10 Y' powers. We hereby strike out the application with no order as to costs • because the shortfall was raised by the Court. DATED AT DAR-ES-SALAAM this 6th day of October, 2015. B.M. LUANDA JUSTICE OF APPEAL K.M.MUSSA JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL I certify that this is a true copy of the original. 11