IN THE MATTER OF AN INTENDED APPEAL BETWEEN SEKULU CONSTRUCTION CO LTD AND M.B.S. FUBILE AND ANOTHER 1983 TLR 47 (CA)

IN THE MATTER OF AN INTENDED APPEAL BETWEEN SEKULU CONSTRUCTION CO LTD AND M.B.S. FUBILE AND ANOTHER 1983 TLR 47 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mwakasendo JJA, Makame JJA and Kisanga JJA

9 November 1983 B

CIVIL APPLICATION 2 OF 1983

Flynote

Civil Practice and Procedure - Revision - Notice of Motion to revise or nullify an

order of stay of execution - Whether Court of Appeal has jurisdiction - s.3 (1) and 3(2)

Appellate C Jurisdiction Act 1979, s.38 Civil Procedure Code Act No. 49 of 1966 rr.2

and 36 Court of Appeal Rules, O.XLII, R.1 Civil Procedure Code.

Civil Practice and Procedure - Powers of the Court of Appeal - Appellate Jurisdiction

Act -Whether Court of Appeal has powers of High Court D

Civil Practice and Procedure - Appeal to Court of Appeal - Definition of - R.2 Court

of Appeal Rules.

-Headnote

By a Notice of Motion, the applicant moved the Court of Appeal to revise or nullify

an E order of Stay of Execution made by the High Court following a judgment in

which the applicant was the successful plaintiff. A preliminary objection was raised

that the application was incompetent since there was no appeal before the Court.

Held: (i) In the absence of an appeal or an intended appeal, the Court of Appeal does

F not have jurisdiction to revise an order of the High Court;

(ii) the function of the Court of Appeal is to hear appeals;

(iii) an appeal to the Court of Appeal includes an intended appeal; G

(iv) the Court of Appeal has certain powers of the High Court but these are in

the context of the need to determine an appeal only.

Per Curiam: The High Court can be moved to review its own decision only if new and

important matter or evidence comes to light in certain circumstances. H

Case Information

Application struck out.

No case referred to. I

1983 TLR p48

MAKAME JA

R.C. Kesaria and Mchora for the applicant. A

T.J.R. Tarimo for the respondent.

[zJDz]Judgment

Makame, J.A.: delivered the following ruling of the court: The applicant, SEKULU

CONSTRUCTION CO. LTD., has brought a Notice of Motion to move this court to B

revise or nullify an order of Stay of Execution made by the learned Judge Kiongozi,

following a judgment by Mtenga, J. in which the applicant was the successful

plaintiff. The proceedings before the learned Judge Kiongozi related to some money

obtained on a garnishee order. In this application the applicant is represented by Mr.

Kesaria and C Mr. Mchora, learned Advocates. The respondents' counsel is Mr.

Tarimo.

In his Counter-Affidavit Mr. Tarimo took a preliminary point which he pursued in

argument before us. He objected to the application being heard, on the ground that

this D court has no powers to revise the learned Judge Kiongozi's decision in the

absence of an appeal properly lodged in accordance with the Tanzania Court of

Appeal Rule, 1979. It is Mr. Tarimo's contention that the powers of this court are

derived from section 3 (1) of the Appellate Jurisdiction Act, 1979, which provides: E

The Court of Appeal shall have jurisdiction to hear and determine appeals

from the High court and from subordinate courts with extended jurisdiction.

He also referred us to Rule 36 of the Tanzania Court of Appeal Rules according to F

which:

The Court may, in dealing with any appeal so far as its jurisdiction permits,

confirm, reverse, or vary the decision of the High Court, or remit the proceedings to

the High Court with such G directions as may be appropriate, or to order a new trial,

and to make any necessary incidental or consequential orders, including orders as to

costs.

The thrust of Mr. Tarimo's argument is that neither of those provisions, nor Section

95 of H the Civil Procedure Code 1966, which furnishes the High Court with certain

inherent powers, confers upon this court power to entertain the proposed application

in the absence of an appeal. He says that as this Court is a creature of a statute, it can

do no I more than what the creating statute empowers it to do.

1983 TLR p49

MAKAME JA

He therefore urged this court to hold that the application is incompetent and should

A accordingly be struck out.

Mr. Kesaria vigorously countered Mr. Tarimo's arguments. He submitted that we have

powers to hear the application. He drew our attention to section 3 (2) of the Appellate

Jurisdiction Act 1979, which says: B

For all purposes incidental to the hearing and determination of any appeal in

the exercise of the jurisdiction conferred upon it by this Act, the Court of Appeal

shall, in addition to any other power, authority and jurisdiction conferred by this Act,

have the power, authority and jurisdiction C vested in the court from which the

appeal is brought.

Mr. Kesaria argued from this that because under section 38 of the Civil Procedure

Code, 1966, the court executing the decree, in this case the High Court, has powers to

D determine "all questions arising between the parties to the suit... and relating to the

execution, discharge or satisfaction of the decree", the learned Judge Kiongozi had

powers to deal with the matter and so this court has powers to entertain the

application by virtue of section 3 (2) of the Appellate Jurisdiction Act. He further says

that the E learned Judge Kiongozi could review his own decision under Order XLII

Rule 1, so this court can do the same.

Mr. Kesaria also sought to answer Mr. Tarimo's contention that there is no appeal

before us: He submitted that there is, because under Rule 2 of the Court of Appeal

Rules F "Appeal" includes "an intended appeal" and there is, in the present matter, an

intention to appeal, Notice of Intention having been given. The way we have

understood the learned arguments, Mr. Kesaria appears to concede that there has to

be an appeal, actual or intended. G

Assuming for the sake of argument that Mr. Kesaria is right that the application is

properly before us because appeal includes "an intended appeal", the question we ask

ourselves is, what manifestation of that intention to appeal is there in the present

matter? On the day the learned Judge Kiongozi delivered his Ruling, Mr. Kesaria

indicated that H he intended to appeal. He was told by the court to go right ahead

and file the necessary papers. Going by the record, he has done nothing of the sort, to

date. We suppose one may go further and argue that when Mr. Kesaria verbally

indicated his wish to appeal, on 22/8/83, it was the respondent SEKULU, who was

asked to pay into I court the alleged decretal amount. In

1983 TLR p50

view of certain allegations made subsequently by Mr. Tarimo, the court ordered, A

apparently on 8/9/83, that another entity, AMAZON TRADING CO, should deposit

the money, and there was no indication of any desire to appeal at that stage and the

matter rested there. We have not been told, either, that leave to appeal was sought

and obtained under section 4 (1) C of the Appellate Jurisdiction Act, in connection

with the B learned Judge Kiongozi's ruling.

We respectfully agree with Mr. Kesaria that under section 3 (2) of the Appellate

Jurisdiction Act this court has certain powers of the High Court but we are also firmly

of the view that the situation envisaged therein necessarily presupposes the need to C

determine an appeal. There is no such need in the present matter, because there is no

such appeal, actual or intended, before us. Article 68 (A) (3) of the Constitution also

spells out the function of the court of Appeal to her appeals.

Under Order XLII Rule, I the learned Judged Kiongozi could only be moved to review

D his own decision if "new and important matter or evidence" comes to light in

certain circumstances. Nothing of the sort is advanced here. We are also of the view

that to seek to involve this court by virtue of Section 38 of the Civil Procedure Code

would be E wrong because, in our opinion, Section 38 is completely irrelevant for

the purpose of the issue before us.

For the foregoing reasons we sustain the objection by Mr. Tarimo. We are satisfied

that there is no appeal before us. The application is therefore incompetent and is

accordingly F struck out with costs.

Application struck out.

1983 TLR p50

G