MOHAMED IDDI MJASIRI v MRS JAYALAMI J JOSHI 1995 TLR 181 (CA)

 

MOHAMED IDDI MJASIRI v MRS JAYALAMI J JOSHI 1995 TLR 181 (CA)

Court Court of Appeal - Zanzibar

Judge Makame JJA, Omar JJA and Mnzavas JJA

Civil Appeal No 1 of 1995 B

June 16, 1995

(From the judgment/decree of the High Court of Zanzibar, Hamid, CJ) C

Flynote

Civil Practice and Procedure - Review - Judgment of High Court appealed against -

Appeal Court hears the appeal and makes a decision - Whether High Court judge can

entertain an application to review his judgment already appealed against. D

Court of Appeal Rules - Review - Judgment of High Court appealed against - Appeal

Court hears appeal and makes a decisions - Whether an application to review the

judgment lies to the High Court - Rule 44 Court of Appeal Rules. E

-Headnote

After a High Court of Zanzibar judgment had been appealed against, heard and

determined by the Court of Appeal of Tanzania the appellant made an application to

the High Court of Zanzibar for review of its judgment. The learned Chief Justice

declined to entertain the application to review his own judgment on the ground that

he was functus officio. This appeal was lodged to challenge the decision of the Chief

Justice declining to review his judgment. F

Held:

(i) The appellant went to the wrong forum which lacked jurisdiction and

the learned Chief Justice took a correct view of the matter;

(ii) Since there is a Court of Appeal judgment on record one may not assail

that judgment by way of review other than in the very court itself. G

Case Infomation

Appeal dismissed.

No case referred to.

Mbwezeleni for the appellant.

Kagambo for the respondent. H

[zJDz]Judgment

Makame, JA, delivered the following considered judgment of the Court:

This is an appeal from the decision of Hamid CJ in which the I

1995 TLR p182

MAKAME JA

A learned Chief Justice of the High Court for Zanzibar declined to review his own

judgment for the reason that he was functus officio and also because in any event the

application was time-barred.

The background to the case the learned Chief Justice had tried was that the husband

of the present respondent and the father of the present appellant were friends and

they both lived in Zanzibar. When in 1972 the respondent's husband B went away

to live in Canada he left his house in the care of the appellant's father to whom he

also gave a power of attorney. In October 1987 the appellant's father conveyed the

property to himself and, a day later, to his son, the present appellant. C

In a suit to have the two conveyances nullified and the house declared part of her

deceased husband's estate the present respondent succeeded. For the purposes of this

appeal we do not consider it necessary to go into the specific findings made by the

learned Chief Justice except to say that his decision was sustained by this court on

appeal. D

The judgment of the High Court was delivered on 15 April 1993, that of the Court of

Appeal on 25 November of that year and in January 1995 the present appellant sought

to move the High Court to review its decision in view of the alleged discovery of a

document which would have made the High Court arrive at a E different conclusion

as it would have shown that the respondent's husband had received the proceeds of

the sale of the house. The outcome of that effort was, as we have indicated, a failure

to persuade the learned Chief Justice to review his decision. Before us the appellant is

represented by Mr Mbwezeleni, learned F advocate while Mr Kagambo, learned

counsel appeared for the respondent.

Mr Mbwezeleni assailed the High Court decision. He asserted that he properly went

to the High Court under r 44 of the Court of Appeal Rules for review. A portion of

the rule he relied on reads: G

Whenever application may be made either to the court or to the High Court, it

shall in the first instance be made to the High Court ...

H Mr Mbwezeleni contended that he had no choice but to proceed the way he did

in view of the said rule. Mr Kagambo maintained that Mr Mbwezeleni has

misconceived r 44 - the High Court had no power to review a Court of Appeal

judgment, which was in effect what the High Court was being asked to do.

We are of the view that the answer to the question as to whether or not the appellant

went to the correct forum for review is enough I

1995 TLR p183

MAKAME JA

to dispose of the appeal. In that case it would really be superfluous to deal with the A

provisions of the Civil Procedure Decree, Cap 8, which relate to time scales.

The Court of Appeal considered the substantive judgment of the High Court and was

satisfied that it was sound. The court added its own dimension by remarking that in

any event, there was no proof that the alleged consideration of Shs 150,000/= had

passed to the respondent's husband. B

The final judgment was that of the Court of Appeal and matters rested there. It was

the judgment of that Court, if at all, which should have been sought to be reviewed.

In that exercise, if the court was so minded, it could have made orders it C

considered necessary to the High Court, or otherwise disposed of the matter. The

High Court had gone into the issues on merit, on the basis of the evidence then

available, and the Court of Appeal had received the appeal and heard it on the same

basis. There is a Court of Appeal judgment on record and one may not D assail that

judgment by way of review other than in the very court itself.

With respect, Mr Mbwezeleni's arguments have a severe limitation. Before one can

construe r 44 in Mr Mbwezeleni's favour one has first to determine whether the High

Court is an available forum for the application - that is, whether the E application

he sought to make was one that 'may be made to the court or to the High Court', in

the first place. The rule presupposes, quite obviously, the existence of jurisdiction in

both courts, and not otherwise. We are clear in our view that the appellant went to

the wrong forum which lacked jurisdiction and that the learned Chief Justice took a

correct view of the matter. We wish only to add that s 129 of the Civil Procedure

Decree Cap 8, to which Mr Mbwezeleni kindly drew our F attention, does not

detract from the position we have stated.

We propose to be quite brief on Mr Mbwezeleni's valiant effort to come to us for

review as an alternative in the same document he prepared and filed for appeal. G

This court cannot be reached via the medium of a fishing expedition. A party which

wishes to be heard by us must first determine how to get us grant him audience, and

proceed accordingly. This would incidentally afford the other party opportunity to

prepare himself appropriately. H

We dismiss the appeal with costs.

We wish to add, without being determinative, that we very much doubt whether the

High Court would have reached a different conclusion even if the alleged

communicated dated 23 October 1987 purportedly from the respondent's husband to

the appellant's I

1995 TLR p184

MAKAME JA

A father, had been placed before him during the hearing of the case. Even if one

assumes that it was authentic it would not escape one's attention that it was

'innocuous' and terribly inconclusive. The document makes no reference to a house at

all, only that the writer was 'very happy that everything went well just as B we had

agreed upon'. Besides, US $5000 translates into a sum very different from the alleged

sale price of Shs 150,000/=. Mr Mbwezeleni essayed that one US $ was then around

Shs 300 which would make US $5000 the equivalent of 1.5 million Shs, that is 10

times the alleged price. In fact we have made our own research and discovered that

from October to December 1987 one US dollar was C worth only Shs 83.7174, so

that US $5000 would be about Shs 418,000/=, which would still be a lot more than the

alleged price. There would therefore be no sound reason to surmise that the

mysterious alleged sum of US $5000 related to a sale transaction over the suit

property. D

1995 TLR p184

E