20001219 TZCA Dar es Salaam

TN THI COURT 0? APPi;L 01 N14 AT DAP-S-5ALU' cii;.i And RfYDP CIJILAPbI0;TION NO. 52 CF i9 In the hatter of Application for Review BT1FEN ViP ENGINEERING & MkRKETING LTD . ....... APPLICANT AND SAID SALIM B}IIRE.SA LTD, .............. ESPOfl2T (An Application for Reviw cf the Judg- ment of the Court of Appeal nf Tanzania at Dar-es--Salaam) And Randhani JA) ted the 17th day of April, 1996 in R U L I N G RAMADHANI J.A.: This i pj-otzzt,_ted matter havin,g come to this Court i 1994. We. gave our judgment on 17t'i kpril 996 d that is &-- & are required to review. 11ho vers pondVQ3+ 4-d a plim ii.j- ... pi t.jnjrg three The application is time barred and/or unreasonably delayed. The application is frivolous and vexatious and is an abuse of the judi.ial proces. The application is miscon.eived and/or incompetent because it does not dis- close any of the grounds for review s provioed nj TrflspotuauifleflELtu.__V. DevrarnP._VaIarnbhia Civil App1icnton - o. C? 01 lv), - C I - in order to appreciate fully t}is anDaac ion o o-i ., j e a Un le f c.0 no e this i. it. .icr. The ffidav its filed in su';or o :Ui. spi it'ion by Puge;al1ra or toe aOpIlcCflt and ar. '.rc-oat, coo lear-nec ad - -)c at bar respondent, and also the Court record provide the following chionoO 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 Nc. 112 of 994 VIP sued Bakhresa for the recovery of a- colossal some of money. The matter was before MAPIGANO, J. He framed two issues and then said: I understand it to bc the law that where the execution of a document and receipt of consideration are admitted, but satis- faction or discharge of the debt is pleadea, the onus of proving the plea is on the defendant, which gives the defendant the right to begin. So, Bakhcesa, who was the defendant, started to address the Court and at the end of the hearing, the learned Judge found for VIP. Bakhresa was aggrieved and filed C.vil 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 Pr. Randall, Q.C,, the learned advocate of the VIP, did not object, the single Judge of this Court granted that applica- tion on 23/6/95, and allwed the production of addition evidence by affidavits. Upon the request ot' Mr. Randall 1 the learned Judge allowed the cross-examination of the denonents at the hearing of - -i f rccF3nan.'. I • • .1-i - VIP referred that ruling to three Justices of pneal in Civil eference No. 12 of 1995 hut that was later withdrawn The reason for the withdrawal is given in the letter of 6/11/95 from RWECIWNGUflA : iJ1JA, advocates for VIP, to •r Kisusi stating that the learned single judge was correct in allowing cross-- exanination of the deponent.s of the additional evidence. Bakhresa filed 16 affidavits by different persons adducing additional evidence. Seven of those were countered by the affidavits of Pugemalira who was the first witness for VIP at the High Court. Two other persons filed a counter-affidavit each of which corrobo- rated t'io different counter-aff idav its of Rugernalira. 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 observatimn. The first ground for this application contends: That the Court by denying to grant the Applicants the right of cross exaina- tion it denied them the opportunity to prove that the term °constructive trans- fe ru as used by the Respondents in the counter affidavits was actually refer- 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 Crur I wants thes. Aftcr that there is nothing on the record showing that there was an application by the VIP for the witnesses to he re-summoned for cross- exam inat ion 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 that failure. This litigation is rife with similar oversights. To go back to our appeal, on May 3rd, 1996, VI? sought a revision of the judent of 17th Arril 1996. Some amendments were made to that application on 6th Nay 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. 147 of 1996 seeking an extension of time within which to lodge an arplicat ion for a review of the judnent of 17/ 1+196. That application was placed before SANATIA, 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 45 (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 RAMkCHANI, J.A. That application was based on the Law of Limitation Act, 1971. However, the application was again withdrawn on Nay 26th 1993 because the learned advocates for VI? took Abood Saleh Abood, Civil Ppplication No. 30 of .15 - 5 - 1993 cited by 13akhreaa, as authority that an application for review is not tme-oarred. So, VII' filed this application for a review. If we may dis,ress again, that authority is to the effect that the Law of Limitation Act, 1 97 1 , does not apply to this court Adniit- tedly, that application was also on review by this Court. However, as Mr. Kisusi has properly pointed out in his affidavit, that decision did not say that an apolication for a review cannot be time barred. So, there is still the question of whether or not this application for review is in time and hence the preliminary objection which we shall deal with shortly. - In this application VIP was advocated for by three learned counsel: Dr. Tenga, Mr. Rosan Mhwam'bo and Miss Hawa Bayona. On the othcr hand, Bakhresa was represented by two learned advocates: Mr. Chandoo and Mr. Kisusi. Mr. Chandoo was allowed to consolidate grounds two and three of the preliminary objection and he argued them first. However, he started with a totally different matter. He pointed out that the notice of motion cites Rules 3 and 45 as authority for making this application. The learned advocate argued that this Court held in Transport Equip- ment Ltd. v. Devram P.'Valarnbhia that review is not imder statutory, powers but under inherent powers of this Court. The learned advocate argued that the application, on that score, is incompetent and should be struck out. Adnittedly, we let hr. Chandoo address us cu that point and we equally allowed Dr. Tenga to respond. However, that is not one of t h e grounds for the preliminary objection. It would appear that it came as on afterthought though it is a valid point. After • ••• . -r t •cn dro-j v:i ow tho. t the iue shouid not detain us. I'- - 6 - Rr. Chandoo submitted chat the aupitcatior is time-barred or is inordinately delayed: it was fIod on. ,h/1998 whitethe judgment was delivered on 17/-/996-, thus it was leoafter tne lapse of 28 months. The learned advocate further pointed out that no reason was assigned to explain that delay0 He submitted that public policy and justice demand thrt 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 thatVIP was vigilant. He cxplaine 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 fules, 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 lemal window-shoaping /7 -7- (-xcurs1on 3u 'u Court boo En)eatedly said that -Lhc error of an does not cc tiuts sufficient cause to enlarge time. In our considered opinion, it automatically follows t}uc the error of an advocate wannot 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 Pules are silent as to the procedure and the prescription of time for application for review by this Court. We said so in Abood where we went further and pointed out that that lacuna ud o es nQt mean thet 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 5 . 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. 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 cross-examine the deponents of affidavits adducing additional evidence is unfounded. Je have to reiterate wi'iat we said in GeoreM.Sharnbwev.NaUonal brint co. Ltd., Civil Application No. 7 of 1997: .../8 • : - 3 - 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 dec is ion. 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 advocates. DATED at DAR-ES-SALAAM this 19th day of December, 2000. L. M. MAKANE JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL A.S.L. RANADHANI JUSTICE OF APPEAL I certify that this is a true copy of the original. ( A.GL'i4ARIJA ) DEPUTY REGI STRAP