TRANSPORT EQUIPMENT LTD v DEVRAM P VALAMBHIA 1995 TLR 161 (CA)

 

TRANSPORT EQUIPMENT LTD v DEVRAM P VALAMBHIA 1995 TLR 161 (CA)

Court Court of Appeal - Dar Es Salaam

Judge Kisanga JJA, Ramadhani JJA and Mfalila JJA

Civil application No 46 of 1994 E

May 24, 1995

(For the revision of the judgment, decree and order of the High Court of Tanzania at

Dar es Salaam, Rubama, J) F

Flynote

Court of Appeal - Revisional jurisdiction - Revision by the Court of Appeal of

Tanzania - When such revision is available - Section 4(3) of the Appellate Jurisdiction

Act, 1979. G

-Headnote

In this application the applicant sought to move the Court of Appeal of Tanzania to

revise the judgment, decree and order of the High Court. The application was brought

under powers of revision given to the Court of Appeal by the Appellate Jurisdiction

Act 1979 as amended by Act No 17 of 1993. The Court of Appeal considered, inter

alia, when such powers of revision can be exercised. H

Held:

(i) The appellate jurisdiction and the revisional jurisdiction of the Court of

Appeal of Tanzania are, in most cases, mutually exclusive; if there I

1995 TLR p162

RAMADHANI JA

A is a right of appeal then that right has to be pursued and, except for

sufficient reason amounting to exceptional circumstances, there cannot be resort to

the revisional jurisdiction of the Court of Appeal;

(ii) The fact that a person, through his own fault, has forfeited his right of

appeal cannot amount to exceptional circumstances;

B (iii) If a party does not have an automatic right of appeal then he can use

the revisional jurisdiction after he has sought leave to appeal but has been refused;

(v) The Court of Appeal, may suo motu, embark on revision whether or

not the right of appeal exists, and whether or not it has been exercised in the first

instance.

C (vi) In the present application the applicant had an automatic right of

appeal which was not utilized due to the applicant's own fault.

Case Infomation

Application dismissed.

Cases referred to:

D (1) Jewels & Antiques(T) Ltd v. National Shipping Agencies Co Ltd [1994] TLR

107.

Mbuya Shayo, Rutabingwa and Mrs Oriyo for applicant.

M Maira and M Marando for respondent.

[zJDz]Judgment

E Ramadhani, JA delivered the ruling of the court:

This is an application by Transport Equipment Ltd moving this Court to revise the

judgment, decree and order of Rubama, J in Civil Case No 210 of 1989 dated 12

February and 22 March 1991. The application is brought under the new powers of F

revision given to this court by s 4(2) of the Appellate Jurisdiction Act, 1979 as

amended by Act No 17 of 1993.

At the hearing of this application, the respondent, Devram P Valambhia, through his

learned advocates, Mr Moses Maira and Mr Mabere Marando, came up with a G

preliminary objection containing two points. First, the powers of revision granted to

this Court by Act No 17 of 1993 came into force on 24 December 1993 (GN 908/93),

so, he argued, the powers cannot operate retrospectively to affect rights which vested

since 1991. He submitted that this application is incompetent and should be struck

out. Secondly, the respondent argued that s 4(2) of the appellate H Jurisdiction Act,

provides for revisional powers where there is an appeal pending before the Court.

It was pointed out to Mr Marando, who started arguing the objection, that the

application has been brought under ss (3) and not ss (2) of s 4. Mr Marando conceded

that error, admitted that I

1995 TLR p163

RAMADHANI JA

ss (3) is wider and does not require an appeal to be pending. After being allowed to A

amend the motion by substituting ss (3) for ss (2), Mr Marando argued that the

application is still misconceived as ss (3) can only be invoked where there is no right

of appeal.

It is our considered opinion that the second point, that is, whether or not revision

under ss (3) of s 4 is available where there is a right of appeal, is enough to B dispose

of this preliminary objection. However, in order to make the ruling meaningful a

brief court history of the parties is necessary. For clarity we shall use their names

rather than legal labels as these have alternated a number of times. The present

applicant shall simply be referred to as TEL while the respondent as Valambhia. C

On 22 August 1989 TEL filed a plaint against Valambhia seeking monies then with

the Bank of Tanzania to be paid to TEL. On 29 August 1989 Mr Ole Mboko, learned

advocate for TEL, told Nchalla, J that he was holding a brief for Mr Mkatte, learned

counsel for Valambhia, and that the suit had been 'Settled amicably out of court'. D

The learned judge gave an order to that effect.

Valambhia filed a chamber application to set aside the order of 29 August 1989

marking the suit settled out of court, alleging that fraud was used to obtain it. Mr E

Mbuya, learned advocate who had taken over the case for TEL, was aware of the

hearing date of the application but was absent on 10 December 1990 and so it was

heard ex-parte. On 28 December 1990 Rubama, J set aside the order marking the suit

as settled out of court.

Valambhia, on the same day, 28 December 1990, filed a written statement of F

defence (WSD) and a counter-claim for 45% of the proceeds of the money due from

the Government of the United Republic of Tanzania to TEL. A reply to the WSD and

a WSD to the counter-claim were ordered to be filed by 25 January 1991 and the

hearing was to be on 1 February 1991. G

On the latter date Mr Mbuya came with two applications: extending the time within

which to file a reply and a WSD to the counter-claim to 8 March 1991, and

adjournment of the hearing of the suit to the second week of March, 1991. The two

applications were refused, the plaint was dismissed, the counter-claim was H granted

and Valambhia was declared entitled to 45% of the money as prayed. The learned

judge also ordered Valambhia to prove quantum of general damages by affidavit to be

filed on 5 March 1991. TEL again did not file a counter-affidavit on quantum and was

absent on the date set for the proof thereof. General damages were granted ex-parte.

I

1995 TLR p164

RAMADHANI JA

A TEL being aggrieved by the above decisions filed a notice of appeal in this Court

on 19 February 1991. However, a copy of that was not served on Valambhia. TEL

became aware of the non-service on 23 April 1991 when he received a copy of a

notice of motion by Valambhia seeking to strike out that notice of appeal. Despite B

that discovery, TEL did not file a notice of motion seeking to enlarge time within

which to serve a copy of the notice of appeal on Valambhia until six months later,

that is on 23 October 1991.

The matter went to Mfalila, JA for enlargement of time in which to serve a copy of

the notice of appeal to Valambhia. That was refused and the reference from that C

refusal was also dismissed by three judges of this court. TEL returned again with an

application for a review of the ruling of that reference relying on the inherent

jurisdiction of this court. There was a dispute as to whether or not we have inherent

jurisdiction. That issue was referred to the full bench of this court which D ruled

that there is inherent jurisdiction to review our decision in certain circumstances. So,

the matter reverted to the three judges who, after hearing submissions, corrected

certain errors but found 'no sufficient grounds for reviewing our previous ruling as

asked.' That was on 12 September 1994.

E This application to revise the decision of Rubama J comes to us from that

background, that is, after the right of appeal was lost through the fault of the

applicant himself.

As already said Mr Marando's argument was that the door of revision is only open to a

person who does not have a right of appeal and that the door is closed to the present

applicant who had the right of appeal, tried to exercise it but was F unsuccessful

because of his failure to fulfil certain prerequisite conditions.

Mr Marando said that the Appellate Jurisdiction Act is silent on the principle he has

submitted but he contended that that is the principle governing revision in the lower

courts. He cited s 79(1) of the Civil Procedure Code and also s 22 of the G

Magistrates Courts Act, 1984 for the revisional powers of the district Court over the

Primary Courts and s 43 and 44 of the same Act for the revisional powers of the High

Court.

H The applicant was represented by a team of four advocates: Mr Everest Mbuya,

Mr Shayo, Mrs Oriyo and Mr Rutabingwa. The first to respond was Mr Mbuya who

said that s 44(1)(b) of the Magistrates Courts Act is saved by s 79(2) of the CPC. He

then pointed out that s 44(1)(b) of the Magistrates Courts Act has wider powers of

revision that s 79(1) of the CPC. Mr Mbuya argued that s 44(1)(b) of the Magistrates

Courts Act, negates the principle pro- I

1995 TLR p165

RAMADHANI JA

pagated by Mr Marando. Mr Mbuya pointed out further that s 4(3) of the Appellate A

Jurisdiction Act offers a party a choice of coming to this Court on appeal or for

revision. He submitted that where a party has a good reason he can still seek revision

after he has failed to prosecute an appeal. However, he did not say what is a good

reason. B

Mr Shayo also took his turn to address the Court. He said that the rights of revision

and appeal under s 4(3) are concurrent and simultaneous and that there is no

limitation. May we stop here and observe that we cannot pretend that we have

understood what he meant by 'concurrent and simultaneous'. C

In reply, on behalf of the respondent, Mr Maira maintained that it is irregular for a

party to choose both appeal and revision at the same time, even under s 44(1)(b) of

the Magistrates Courts Act.

Section 79 of the CPC restricts revision to where there is no right of appeal.

Subsection (1) of that section provides as follows: D

'The High Court may call for the record of any case which has been decided by

an court subordinate to the High Court and in which no appeal lies thereto ...

(emphasis is ours) E

However, that limitation is absent in ss 22, 43 and 44 of the Magistrates Courts Act,

contrary to what Mr Marando submitted. In fact, as Mr Mbuya pointed out, s 44(1)(b)

of the Magistrates Courts Act provides for very wide powers of revision that what is

contained in s 79(1) of the CPC. That section provides: F

'(1) In addition to any other powers in that behalf conferred upon the High

Court, the High Court -

(a) ...

(b) may, in any proceeding of a civil nature determined in a district court

or a court of a G resident magistrate, on application being made in that behalf by any

party or of its own motion, if it appears that there has been an error material to the

merits of the case involving injustice, revise the proceedings and make such decision

or order therein as it sees fit.' H

There is a proviso to the effect that an order shall not be made to the adverse interest

of a party without being given an opportunity of being heard.

We must admit that it is difficult to reconcile ss (1)(b) of s 44 of the Magistrates

Courts Act with s 79(1) of the CPC. And yet, ss (2) of s 79 of the latter legislation

expressly saves the revisional powers I

1995 TLR p166

RAMADHANI JA

A of the High Court under the Magistrates Courts Act. Section 79(2) provides:

'(2) Nothing in this section shall be construed as limiting the High Court's

power to exercise revisional jurisdiction under the Magistrates Courts Act, 1963.' B

We have not been referred to any authority which has decided on these two

provisions. The reconciliation of the two sections is not an issue before us. These

enactments were cited to us by way of analogy to help us determine when the right of

revision is available under s 4(2) of the Appellate Jurisdiction Act. But, as C we have

said earlier, we cannot find that assistance from the provisions cited to us.

The issue we have to decide, also arose in this court in M/s Jewels & Antiques (T) Ltd

v M/s National Shipping Agencies Co Ltd (1). The applicant obtained an D ex-parte

judgment against the respondent in Civil Case No 51 of 1984 in the High Court at

Arusha. However, he found some errors in that judgment and sought a review to

correct them by filing, in the same court, Misc. Civil Application No 14 of 1991. The

errors apparent on the judgment and decree were corrected. A year later he filed

Misc. Civil Application No 57 of 1993 in the same court seeking to E correct errors

due to a accidental slip or omission in Misc. Civil Application No 14 of 1991. The

matter went before the same judge who dismissed the application because what was

complained against was not an accidental omission but was a specific finding by

which the prayer was refused for lack of supporting material. The learned judge was

thus functus officio. F

So, the applicant sought to come to this court to appeal against the decision in Misc

Civil Application No 57 of 1993. He first filed a notice of appeal and then sought leave

to appeal to this court but that was refused by the High Court. The G applicant then

approached this court through revision in Revision No 26 of 1994.

At the hearing, the learned advocate for the respondent had a preliminary objection

containing inter alia, a ground that the applicant cannot use the revisional H

jurisdiction of this court as he had already filed a notice of appeal in this very court.

The preliminary objection was upheld on another ground. Nevertheless, this Court,

with respect to the ground mentioned above, had this to say:

'We are satisfied that this ground is misconceived. As we have I

1995 TLR p167

RAMADHANI JA

indicated earlier in this judgment, the applicant resorted to the revisional

jurisdiction of this A court when the appellate door was blocked by the dismissal of

his application for leave.'

That means: if the applicant had been granted leave to appeal, and so earned the right

to appeal, then that would have barred him from the revisional jurisdiction of this

court. That is, revisional jurisdiction is exercisable only where there is no right B of

appeal.

It has to be remembered that in that application the applicant did not have an

automatic right of appeal. He had to earn that right through leave. In the present

application before us, however, TEL had an automatic right of appeal but owning to

his own fault he was unable to utilise it. C

The appellate jurisdiction and the revisional jurisdiction of this court are, in most

cases, mutually exclusive. If there is a right of appeal then that has to be pursued and,

except for sufficient reason amounting to exceptional circumstances, there D cannot

be resort to the revisional jurisdiction of this court. The fact that a person through his

own fault has forfeited that right cannot, in our view, be an exceptional circumstance.

If a party does not have an automatic right of appeal then he can use the revisional

jurisdiction after he has sought leave but has been refused. However, the court may,

suo motu, embark on revision whether or not the right of E appeal exists or whether

or not it has been exercised in the first instance.

In the circumstances the preliminary objection is upheld. This application is

misconceived and is therefore dismissed with costs for two counsel. F

1995 TLR p168

A