MOSES J MWAKIBETE v THE EDITOR - UHURU, SHIRIKA LA MAGAZETI YA CHAMA AND NATIONAL PRINTING CO LTD 1995 TLR 134 (CA)

 MOSES J MWAKIBETE v THE EDITOR - UHURU, SHIRIKA LA MAGAZETI YA CHAMA AND NATIONAL PRINTING CO LTD 1995 TLR 134 (CA)

Court Court of Appeal of Tanzania - Arusha D

Judge Omar JJA, Mnzavas JJA and Mfalila JJA

E AR Civil Application for Revision No 8 of 1994

March 22, 1995

(From the Ruling and Order of the High Court of Tanzania at Arusha, Mkude, J)

Flynote

F Court of Appeal - Jurisdiction - Revisional powers of the Court of Appeal -

Whether revisional powers may be invoked as an alternative to the appellate

jurisdiction of the Court - Section 2(3) of the Appellate Jurisdiction Act 1979.

-Headnote

The applicant sought to move the Court of Appeal to revise a Ruling of the High G

Court. The applicant could appeal against that ruling with the leave of the court. But

he chose to apply for Revision instead because he feared that processing and finalising

the appeal would take a long time.

Held:

H (i) The revisional powers conferred by s 2(3) of the Appellate Jurisdiction

Act 1979 are not meant to be used as an alternative to the appellate jurisdiction of the

Court of Appeal; accordingly, unless acting on its own motion, the Court of Appeal

cannot be moved to use its revisional powers under s 2(3) of the Act in cases where

the applicant has the right of appeal with or without leave and has not exercised that

right;

(ii) The Court of Appeal can be moved to use its revisional jurisdiction I

1995 TLR p135

OMAR JA

under s 2(3) of the Appellate Jurisdiction Act 1979 only where there is

no A right of appeal, or where the right of appeal is there but has been blocked by

judicial process, and lastly, where the right of appeal existed but was not taken, good

and sufficient reasons are given for not having lodged an appeal;

(iii) The applicant in this case had a right to appeal and has not given any B

good and sufficient reasons why he did not appeal; therefore he cannot move the

Court of Appeal to exercise its revisional jurisdiction.

Case Infomation

Application dismissed.

No case referred to. C

Mahatane for the respondents.

[zJDz]Judgment

Omar, JA delivered the following ruling of the Co:

In this Notice of Motion, the applicant seeks to move this Court to exercise its D

revisional jurisdiction to revise the Ruling of the High Court in Civil Case No 9 of

1993 and issue an order to the effect that in so far as the said ruling purports to stay

the proceedings in relation thereto, purportedly by virtue of s 8 of the Civil Procedure

Code pending the determination of Civil Case No 7 of 1993 be set aside E and that in

lieu thereof the trial of the case to proceed to its logical conclusion. The revisional

jurisdiction of this Court is provided by the Appellate Jurisdiction (Amendment) Act

17 of 1993 s 2(2) and (3). The jurisdiction in ss (2) is exercised either in the course of

hearing an appeal or incidental to an appeal. Subsection (3) enables this Court to call

for and examine the record of any proceedings before F 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

in the High Court. The present application must fall within the provisions of ss (3). G

Before proceeding to hear such an application on merits, this court must satisfy itself

whether it is being properly moved to exercise its revisional jurisdiction. The

revisional powers conferred by ss (3) were not meant to be used as an alternative to

the appellate jurisdiction of this court. In the circumstances, this court, unless it H is

acting on its own motion, cannot properly be moved to use its revisional powers in ss

(3) in cases where the applicant has the right of appeal with or without leave and has

not exercised that option. In these circumstances, we asked the applicant whether or

not the High Court Ruling he is moving this Court to revise is appealable. He I

1995 TLR p136

OMAR JA

A conceded that it is appealable with leave. We agree with him. The next question

then was why he did not take that course of action. The applicant replied that he

decided to come to this Court by way of revisional proceedings because he feared the

length of time it takes to process and finalise an appeal particularly in this case where

the judge who is involved was not a resident judge at Arusha. Is this B sufficient

reason? Mr Mahatane for the respondents did not think so. In his view all that the

applicant is trying to do is to use the revisional jurisdiction of this Court as an

alternative to its appellate jurisdiction and that would be a misuse of its revisional

jurisdiction. C

In our view this Court can be moved to use its revisional jurisdiction under ss (3) only

in cases where there is no right of appeal or where there is, it has been blocked by

judicial process. Lastly where such right exists but was not taken, good and sufficient

reasons are given why no appeal was lodged. D

In the present case we agree with Mr Mahatane that the applicant has not given any

good and sufficient reasons why he did not appeal. In his own words he decided to

invoke the revisional jurisdiction of this Court as an alternative to the appellate

jurisdiction because the latter takes too long to process and finalise. But E the

revisional jurisdiction of this Court was not meant to short circuit its appellate

jurisdiction, in any case the applicant was not entitled to assume that his intended

appeal would take longer than necessary and then shape his court of action on that

assumption.

For these reasons we are satisfied that the applicant has not established good and

sufficient reasons for wanting to move the revisional jurisdiction of this Court.

Accordingly we decline to exercise such jurisdiction and dismiss this application with

costs. F

1995 TLR p137

A