| dc.description | COMPUTER LOGIX LIMITED AND ANOTHER VS. ZAMZAM SHADADI ISSA AND ANOTHER CIVIL APPLICATION NO. 538/01 OF 2018 COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM.
(Application for Revision of the Ruling and Order of Hon. Siyani, J. in Misc. Civil Application No. 466 of 2015 dated 13th July, 2018 at the High Court of Tanzania, Dar es Salaam Registry.)
CORAM: MWARIJA J.A, SEHEL J.A. And KAIRO J.A 1st August, 2022
FLY NOTES
Revision-Application for Revision against the ruling and Order of the High Court -failure to file for revision within time; reliance on certificate of delay in an Application for revision.
BRIEF FACTS
In this application, the applicants, computer Logix Limited and Stephen Mapunda have moved the Court to revise the decision of the High Court of Tanzania (Dar es Salaam District Registry) at Dar es Salaam made on 13/7/2018 in Miscellaneous Civil Application No. 466 of 2015 (the impugned decision). The applicants had sought before the High Court (Siyani, J. as he then was), an order extending time within which they could institute an application for review of the decision of the same court (Twaib, J.) in Civil Case No. 151 of 2012 between the late Fikirini Issa Kocho, who was the plaintiff and the applicants, Computer Logix Ltd and Stephen Mapunda together with Computer Pole Ltd who were the defendants.
Their application was however, unsuccessful. The High Court found that the applicants had failed to establish that the delay was due to sufficient reasons. They were further aggrieved and thus decided to file this application. The application which was brought under s. 4 (3) of the Appellate Jurisdiction Act [Cap. 141. RE. 2019] is supported by an Affidavit sworn by the 2nd Applicant. On their part, the Respondents opposed the matter through an Affidavit in reply sworn by Zamzam Shadadi Issa. As per the notice of motion, the grounds upon which the Court has been moved to revise the impugned decision are that:
1. The High Court wrongly computed the days of delay for lodging an application [for] extension of time while the said application was lodged in court immediately after issuance of the ruling, drawn order and the decree to the applicants.
2. The High Court Judge hastily ruled out that failure by the advocate to follow proper procedure was not excusable while the overall circumstances surrounding this matter would have entitled grant of extension of time.
3. There is an error on the face of the record as the 2nd defendant in the main suit, to wit; COMPUTER POLE LIMITED, [was] not a party to all the subsequent proceedings.
In further response to the application, on 15/2/2019, the Respondents filed a notice of preliminary objection consisting of the following four grounds:
i. That this application for revision is time barred.
ii. That the application is incompetent before the Court for containing incomplete record of the proceedings.
iii. That this application for revision is incompetent before the Court as the order complained of is appealable upon leave.
iv. That the affidavit is fatally defective for non-disclosure of source of information in the body of the affidavit.
At the hearing of the Application, the Applicants were represented by Mr. Godwin Muganyizi, learned Counsel while Mr. Gabriel Mnyele also learned Counsel, represented the Respondents. Submitting in support of the 1st ground of preliminary objection, Mr. Mnyele, argued that, under Rule 65 (4) of the Tanzania Court of Appeal Rules, 2009 as amended (the Rules), the time limit within which an application for revision must be instituted is 60 days of the date of the decision sought to be revised. He contended that, since the impugned decision was delivered on 13/7/2018, by instituting this application on 15/12/2018, the applicants did so beyond the prescribed time limit for over four months.
In reply, Mr. Muganyizi stated that, the matter was filed within the prescribed time because, the same was instituted after the applicants had obtained a certified copy of proceedings which was applied for on 16/7/2018, three days after delivery of the impugned decision. The learned counsel submitted that the certified copy was supplied to the applicants on 15/10/2018 and the application was filed on 15/12/2018 within the prescribed period of 60 days. Relying on the provisions of Rules 90 (1) of the Rules, he urged us to dismiss this ground of the preliminary objection.
Application was struck out for being time barred.
ISSUES
Whether like in the case of an appeal, the period spent in obtaining a certified copy of proceedings in the High Court is excludable from the period of limitation prescribed under Rule 65(4) of the Rules.
HELD
4. Exclusion of time spent in preparation and supply of a certified copy of proceedings apply only to an appeal, not an application. Thus, the provision of Rule 90(1) can not be invoked where the applicant fails to lodge his application for revision within the prescribed period under Rule 65(4) of the Rules.
5. In the case of a delay for any reason including awaiting a certified copy of proceedings, the available remedy for the Applicant is to apply for extension of time under Rule 10 of the Rules.
6. As a result, we find that the Application was filed out of the prescribed period of 60 days in contravention of Rules 65(4) of the Rules. In the event, this Application which is time barred, is hereby struck out with costs.
RATIO DECIDEND
Where an Applicant has delayed to file his application for reasons of awaiting copies of proceedings, the remedy available to him is to apply for extension of time and not relay on a certificate of delay, as the latter is only applicable in appeal.
STATUTORY PROVISIONS REFEERED TO
Rule 65(4) and Rule 90(1) of the Court of Appeal Rules, 2009.
CASE LAWS REFEERED TO
5. Amos Fulgence Karungula v. Kagera Cooperative Union (1990) Ltd, Civil Application No. 435/04 of 2017 (unreported).
6. Denis T. Mkasa v. Farida Hamza (as na administratix of the estate of the Late Hamza Adam) and Another, Civil Application No. 46/08 of 2018 (Unreported).
7. Patrick Magologozi Mongela v. Board of Trustees of the Public Service Pensions Fund, Civil Application No. 199/18 of 2018 (Unreported).
8. Dr. Muzzammil Mussa Kalokola V. Minister of Justice and Constitutional Affairs and two others, Civil Application No. 183 of 2014 (Unreported).
Mr. Godwin Muganyizi, learned advocate for the Applicant.
Mr. Gabriel Mnyele learned counsel for the Respondent. | en_US |
