20110110 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KIMARO, J.A., MJASIRI, J.A. And ORIYO, J.A.) CIVIL APPLICATION NO. 134 OF 2010 THE HON. ATTORNEY GENERAL AND TWO OTHERS ............... APPLICANT~ _____ ~-- VERSUS MAJOR CHARLES JOHN KAZEZE ............................................. RESPONDENT (Application for Review of the judgment of the Court of Appeal of Tanzania at Dar es Salaam) (Kimaro, Mjasiri, and Oriyo, JJJA.) dated 4 th day of March, 2010 in Civil Appeal No. 106 of 2007 RULING OF THE COURT 16 DECEMBER, 2010 & 14 FEBRUARY, 2011 ORIYO, J.A.: In Civil Case No. 45 of 2005 in the High Court of Tanzania, Dar es Salaam Registry, the respondent, Major Charles John Kazeze (ret.) challenged the termination of his services with the Defence Forces. He contended that the termination of his services was illegal and unjustified and_ claimed for the payment of arrears of salaries and allowances payable, specific damages for loss of income and general damages for loss of 1 , comfort, severe emotional distress, loss of face, inconvenience and interest. The suit was dismissed on the ground that it was time barred. Dissatisfied, the respondent appealed to this Court in Civil Appeal No. 106 of 2007. The appeal was dismissed on 4th March, 2010 for lack of merit. The applicants who are the decr~eholders have returned to the Court for a Review of the decision in Civil Appeal No. 106 of 2007. At the hearing, Mr. Donald Chidowu learned Principal State Attorney appeared for the applicants while Mr. Samson Joseph Nnko, learned counsel, represented the respondent. Major Francis Mbindi appeared as amicus curiae. When Mr. Chidowu, learned Principal State Attorney rose to address the Court, he sought guidance from us on why he was summoned as he was not aware of what was in Court, if any. At this juncture, we think that it will not be inapprqpriate, before proceeding further, to satisfy ourselves whether this Court is properly seized of the matter. 2 Applications for Review of the Court's own decisions fall under Part IIIB of the Tanzania Court of Appeal R_ules, 2009. Rule 66 thereof provides as follows:- "66 - (1) The Court may review its Judgment or order✓ but no application for review shall be entertained except on the following grounds - (a) the decision was based on a mamfest error on the face of the record resulting in the miscarriage ofJustice; or (b) a party was wrongly deprived of an opportunity to be heard; (c) the court's decision is a nullity; or (d) the court had no Jurisdiction to entertain the case; or (e) the Judgment was procured illegal!½ or by fraud or perjury. (2) An application for review shalt subject to necessary modification~ be instituted in the same mode as a revision. (3) The notice of motion for review shall be filed within sixty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review. 3 (4) Copies of the notice of motion for review shall be served on the other party or parties as the case may be within fourteen days from the date of filing. The party filing the notice shall file proof of service with the court. //[Emphasis ours]. It is clear from the provisions of rule 66( 1) above that the Court's power to grant or refuse a review is unfettered and discretionary. The rules have, however, established certain conditions to guide the Court in deciding whether or not to grant a review. Such conditions include those spelt out under rule 66 including that a review must be instituted by a Notice of Motion supported by the applicant's affidavit within sixty days of the decision to be reviewed. With this background of the applicable law, the next immediate issue that arises now is whether the review in the instant case meets the criteria set out in rule 66 above. We have earlier pointed out that the decision of the Court which is intended to be reviewed was delivered in March, 2010. According to the record, there is no application for review by way of Notice of Motion before this Court as required by the rules. We think there is 4 need first to be clear and precise about what is before us. Apparently, the applicants' application found its way to the Court by way of a complaint letter dated 30 th October, 2010, addressed to the Honourable Chief Justice. The letter was written after a period of over two hundred (200) days after the judgment of this Court. Even if we were to treat the letter as Notice of Motion; which would offend the clear provisions of rule 66; it was supposed to b~ written within 60 days in terms of rule 66(3). Therefore, there was an unexplained delay of over 140 days. We think, with respect, that there was inordinate delay on the part of the applicants to come back to this Court. We now wish to pose a question for ourselves here. If the jurisdiction of this CQurt to review its judgments is only exercisable upon there being a valid Notice of Motion supported by affidavit and filed within 60 days; how do we circumvent these mandatory requirements of the law to grant what is sought by the applicants through a letter written over 200 days after the judgment? The answer is not far to fetch as it is obvious. Unlike the old Tanzania Court of Appeal Rules, 1979, which did not provide for a limitation period within which to apply for a review, 5 Rule 66 of the Court Rules, 2009, categorically provides for 60 days limitation period to apply for a Review. In the case of OPP vs Prosper Mwalukasa [2003] TLR 34, this Court had occasion to deal with a similar situation where the length of the delay to apply for a review was by several days. The Court had this to say: "After so ruling we are satisfied that about a hundred days elapsed from the time we delivered our Judgment to the time this application was filed. NOW; forty days beyond the sixty - day period of limitation is obviously, inordinate delay. So this application is time barred/~ On our part, the issue of limitation alone is sufficient to dispose of the matter. However, there is yet another equally important omission in this review. We have already stated previously, and we reiterate it here that the review was not initiated by a Notice of Motion supported by affidavit. This is contrary to the provisions of rule 66(3) of the Court Rules which 6 requires a Notice of Motion to set out clearly the grounds for review. In the instant case, the Notice of Motion is non existent, let alone disclosing the circumstances relied upon for review. In the result, we are constrained to hold the purported review to be incompetently before us. It is accordingly struck out. If the applicants strongly feel that a review is necessary, they are, at liberty, subject to the law of limitation, to file a formal application for review. The respondent to have his costs. DATED at DAR ES SALAAM this 10th day of January, 2011. N.P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. E.Y. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL 7