20001219 TZCA Dar es Salaam1

IN THE COURT OF APPEAL OF TANZANIA AT DAR--ES-SALAAM (COPAM: MA A.KISANG&,j And RAM .A.) CIVIL APPLICATION NO. 52 OF 1998 In the Matter of Application for Review BETIVIE EN VIP ENGINEERING & MARKETING LTD. . ...... APPLCW AND SAID SAME BAKEMEU LTDv •so.•••.•.••- A1ication for Bew of the Judg- et t,f the Court of £pp.a.1 at Tanzazla It Dar.-es-Salaam) Ramag!LaRi dated the 17th dar of April 1 199 in Civil Appeal No. 39 of 1 2 - S - -- RULING S -- RAMADHANI. J A -5----- - S This i & .1aiiz come to thi-a Ou' i& 1394 We gave our judgment rr 1'/Th April 1996 and that is ie- .ee. u#c -. aTu required to review4 -a4 a ining the grounds: - - The application is time barred and/or - - 5 unreasonably delayed. The application is frivolous and vexatious and is an abuse of the judiia3. proceec. - The application is .misconseived and/or incompetent because it does not dis- close any of the grounds for review as provided by Trport - Eq4ent Ltd. v. Devram P. Valambhia, Civil Application No. 18 of 1993. .../2 - S -2- In order to appreciate fully this application and our ruling, it is imperative to give a brief outline of this litigation. The affidavits filed in support of this application by Pugemalira for the applicant and Mr. Kisusi, the learned advocate for the respondent, and also the Court record provide the following chronoO logy of events. For clarity, we shall refer to the applicant simply as VIP and to the respondent as Bakhresa. The matter started in the High Court of Tanzania as Civil Case No. 112 of 1994. VIP sued Bakhresa for the recovers of a colossal some of money. The matter was before MAPIGANO, J. He framed two issues and then said: I understand it to bt the law that where the execution of a document and receipt of consideration are admitted, but satis- faction or discharge of the debt is pleaded, the onus of proving the plea is on the defendant, which gives the defendant the right to begin. So, Bakhresa, who was the defendant, started to address the Court and at the end of the hearing, the learned Judge found for VIP. Bakhresa wasaggrieved and filed Civil Appeal No. 39 of 1994. But while that appeal was pending, Bakhresa filed, under Rule 34, Civil Application No. 18 of 1994 seeking leave to adduce additional evidence. As Mr. Randall, Q.C., the learned advocate of the VIP, did not object, the single Judge of this Court granted that applica- tion on 23/6/951 and alleiwed the production of addition evidence by affidavits. Upon the request of Mr. Randall, the learned Judge allowed the cross-examination of the deponents at the hearing of the appeal, if necessary. - -3- VIP referred that ruling to three Justices of Appeal in Civil Reference No. 12.f 1995 but that was later withdrawn. The reason for the withdrawal is given in the letter of 6/11/95 from MAAJAR, RWECHtJNGUT<A & KAMJA, advocates fr VIP, to Mr. K1SUS1 stating that the learned single judge was correct in allowing., cross- examination of the deponents of the additional éidence. Balthresa filed 16 affidavits by different prsons adducing additional evidence. Seven of those were countered by the affidavits of Rugernalira who was the first witness for VIP at the High Court. Two other persons filed a counter-affidavit each of which corro.bo- rated two different counter-affidavits of Pugemalira. On the strength of the additional evidence adduced in the affidavits, the judgment of the High Court was quashed because it was .bvious that it was obtained by fraud and. the appeal was decided in favour of Bakhresa. \, We better pose here for a moment and make the following observation. The first ground for this application contends: That the Court by denying to grant the Applicants the right of cross examina- tion it denied them the opportunity to prove that the term 71 constructive trans- fer as used by the Respondents in the counter affidavits was actually ref er- ring to usage and custom of trade in Tanzania. Court records show that witnesses were outside the Court when the hearing of the appeal commenced on 1+th December 1995. The following day, that is 5/12/95, Mr. Kisusi, at the first available opportunity, asked the Court whether or not the witnesses were to continue to hang around. The Court said: They may leave the Court and be made available if the Court wants thm. After that there is nothing on the record showing that there was an application by the VIP for the Witnesses to be re-summoned for cross-examination and that such request was turned down. So, it is a lie to say that the Court denied VIP the opportunity to cross- examine the witnesses. The counsel for VIP did not ask for that opportunity and the Court should not be blamed for thit failure. This litigation is rife with similar oversights. To go back to our appeal, On May 3rd, 1996, VIP sought a revision of the judgment of 17th April 1996, Some amendments were made to that application on 6th May 1996. However, when it was pointed out that this Court could not revise its own decision, VIP withdrew the application and the Court struck it out with costs. VIP then decided to file Civil Application No. 47 of 1996 seeking an extension of time within which to lodge an application for a review of the judgment of 17/ 4/96. That application was placed before SAMA'I'rA, J,A, (as he then was). Bakhresa raised a pre- liminary objection that the notice of motion was not drawn in ) accordance with the provisions of Rule 1+5 (1) and (2). The learned judge found that the Rule was violated but refused to strike out the notice of motion instead he gave seven days within which to amend the notice of motion. That was done and the application for leave to enlarge time within which to apply for review went to PAMADHANI, J.A. That application was based on the Law of Limitation Act, 1971. However, the application was again withdrawn on May 26th 1998 because the learned advocates for VIP took Abood SalehAbood, Civil Application No. 30 of .0.15 9/ ... °n uep .OU. PIflOT[S en9Gi aT44 IlelJ4. MeTA paxeptrn.xoo @7q4 JO aj-e OM Lfl. 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'p 'pesq ew3 eq qOUUSO MeTAex S 103 uotsot1dds us q.su £sou p -tp uo-tstoep pinj 'qtAspJJs stL ut 4no peuiod JiedoJd sq isits 'I9A9MOH '4JnOD STT44 Jq MaTAaJ uo O9s SSM uOt.SOTTddS q-eqq 'Aipe. -q.twpy q..xnoo stq o. RTdde ;ou seop 'LL6I. 'ov UOISIUIV] Jo iwj aTql St4 4oejja 9TA4 O. St 1iJOtflS qPTjq UtSS 99e19tp V.SW eM 31 .MetAeJ 5 103 U015OtTddS T-fl- PITJ JIA 'og *pajxaq-@wTq qou 9 M9TAeJ 103 uo -tsotTdds we q.su itiouns '"-ra Jq perp c66i - 6 - Mr. Chandoo submitted that the application is time-barred or is inordinately delayed: it was filed on 25/8/1998 while the judgment was delivered on 17/4/1996., thus it was filed after the lapse of 28 months. The learned advocate further pointed out that no reason was assigned to explain that delay. He submitted that public policy and justice demand that there should be an end to. litigation. In support of his submission he cited Abood and Warioba&A.G., Civil Application No. 1 of 1998. Dr. Tenga, in reply contended that despite Abood it is their argument in this application that the Law of Limitation Act, 1971, applies. Moreover, Dr. Tenga, argued that VIP was vigilant. He explained that the notice of application for revision was filed 16 days after the judgment but when it was discovered that this Court could not revise its own decision, the application was withdrawn. Dr. Tenga argued that under the law of limitation time spent in a wrong forum is exempted. As already decided in AbOOd, the Law of Limitation Act, 1971, does not apply to this Court. It is the Tanzania Court of Appeal Rules, 1979, which provide the time scale for proceedings in this Court. Dr. Tenga appears not to agree with that decision but he has not given us any ground for departing from it. So, there is nothing to persuade us to depart from that., decision. Consequently, Dr. Tenga cannot seek to use section 21 of the Law of Limitation Act, 1971, to exempt from limitation the time taken by VIP and its advocates fumbling over what action to take against the judgment of 17/ 4/96. Admittedly, Mr. Pugemalira has said in his affidavit that he was following the advice given to him by his advocates. It is a matter of great pity that his advocates were on a legal window-shopping 0 0 - 7 - excursion. But this Court has repeatedly said that the error of an advocate does not constitute sufficient cause to enlarge time. In oir considered opinion, it automatically follows that the error of an advocate eklinot be a ground for stalling the running of the period of limitation as proposed by Dr. Tenga.. We agree with Dr. Tenga- that the Appellate Jurisdiction Act, 1979 and the Court of Appeal Rules are silent as to the procedure and the pr.scription of time for apl.ication forrev'iwbyt1isCourt.. - We said so in Abood where we went further and pointed out that that lacuna does not mean that there is no time limit for an interested party bringing an application ... An interested party cannot be allowed an indefinite delay in making such application. Dr. Tenga, too, conceded that there should not be inordinate delay. In the circumstances of this application as disclosed above, the issue here is whether or not there was inordinate delay. There is not a flicker of doubt in our minds that the lapse of 28 months is nothing but a gross inordinate delay. Therefore, this application is obviously time barred. '-3 That issue of limitation alone is sufficient to dispose of this preliminary objection. However, we may as well add that the preliminary objection can also be upheld on the ground of the application being frivolous and vexatious and that it is an abuse of the process of court. We have already shown that the contention that this Court refused to allow VIP to cross4xamine the deponents of affidavits adducing additional evidence is unfounded. We have to reiterate what we said in GeoreM.'Shamiev.National Printing Co. Ltd., Civil Application No. 7 of 1997: -8- Over the recent past there has grown a habit of asking this Court to review its previous decisions. We must say that this habit should be discouraged otherwise there will never be an end to litigation even after this final Court of the land has made its decision. For the reasons given above, we uphold the preliminary objection by Bakhresa and we dismiss the application by VIP for a revieW of our judgment of 17/4/96, with costs for two advocates0 DATED at DAR-E-SALAAM this 19th day of December, ~ 000 4 1 L. M. MAKA JUSTICE OF_APPEAL R. H. KISANGA JUSTICE OF APPEAL - - ç A.S.L. RAMADHANI JUSTICE OF APPEAL I certify that this is a true copy of the original. ii ( AQGLfWARIJA ) DEPUTY REGISTRAR