IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA

(CORAM: KIMARO, J.A., LUANDA,J.A, .And JUMA,J.A.

CIVIL APPLICATION NO.2 OF 2013

AMOS FULGENCE KARUNGULA……………………………………………APPELLANT

VERSUS

KAGERA CO-OPERATIVE UNION (1990) LTD……………………..RESPONDENT

(Application for revision from the Ruling of the High Court of Tanzania
At Bukoba)

(Mjemmas, J.)
dated the 8th day of March, 2014
in
Civil Review No 1 of 2011
-----------
JUDGMENT OF THE COURT

18th& 20th day of February, 2015

JUMA, J.A.:

The Applicant Amos Fulgence Karungula has come to this Court by

way of a Notice of Motion which he filed on 18/4/2013 under section 4 (3)

of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 (AJA) read together

with Rules 2, 48 (1) and 65 (1) of the Court of Appeal Rules, 2009 (the

Rules). This motion for revision is based on the ground the applicant

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described as:“on the ground that the same be revised and give directions

as it considers necessary for the interest of justice.”

In the supporting affidavit, the applicant elaborates that his motion

arises from his dissatisfaction with the Ruling of the High Court which

Mjemmas, J. delivered on 21/03/2012. Two out of a total of twelve reasons

stand out to explain why he would like this Court to exercise its power of

revision. Firstly, the applicant contends that the learned Judge should not

have declined to exercise his power of review because the application for

review before him had complied with the provisions of the applicable Civil

Procedure Code. Secondly, he points at the failure on the part of the

learned Judge to dispose of the preliminary objections before hearing the

application for review.

The motion is resisted by the respondent Kagera Co-operative Union

(1990) Ltd., on whose behalf an affidavit in reply was sworn to by Mr.

Aaron Kabunga, learned advocate.

It is clear from the documents filed in support and in opposition to

the present application, this dispute trace way back to 21/08/2006 when

the applicant, who was at one time in the past an employee by the

respondent, filed a plaint to initiate a suit (Civil Case No. 6 of 2006) in the

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District Court of Bukoba. At its conclusion, W.R. Mashauri, the learned trial

Resident Magistrate, issued an order on 26/2/2007 striking out the suit on

the main reason that it was time barred and the applicant herein had no

right to compel the respondent herein to buy him a Tri-cycle.

Aggrieved, the applicant lodged his first appeal, Civil Appeal No. 5 of

2007 in the High Court at Bukoba. The respondent resisted this appeal by

filing, among others; a notice of preliminary objection contending that the

appeal was accompanied with a defective extracted order whose date was

at variance with the date of the Ruling. Written submissions on objection

were duly filed in readiness for the Ruling of the High Court.

Copies of documents attached to the supporting affidavit show that

before the delivery of the Ruling on the preliminary objection, parties

returned back to the High Court on 2/2/2011 where the respondent

expressed his readiness to pay the applicant three million shillings. The

applicant manifested his readiness to accept the offer which would result in

his withdrawing not only the HC Civil Appeal No. 5 of 2007, but also

relinquish all his outstanding claims against the respondent. The applicant

acknowledged before the first appellate Judge that he had received the

three million shillings and prayed to withdraw his appeal. The first

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appellate Judge duly marked the HC Civil Appeal No. 5 of 2011 as

withdrawn.

Apparently, the applicant had a change of heart about the concluded

withdrawal of his appeal. He returned back to the High Court with Civil

Review No. 1 of 2011 and urged the High Court to set aside its order of

withdrawal and to order continuation of the settlement of the dispute out

of court. On 21/3/2012 Mjemmas, J. dismissed the application for review

after finding that the applicant failed to show any error committed and

stopped him from challenging the settlement agreement that had ended

with his pocketing Tshs. 3,000,000/= from the respondent.

When the application came up for hearing before us, the applicant

appeared in person, fending for himself. Mr. Aaron Kabunga learned

advocate, represented the respondent. The applicant basically informed the

Court that he is asking the Court to revise the Ruling of Mjemmas, J. dated

21/3/2012 in HC Civil Review No. 1 of 2011. The applicant disowned as

incorrect, the record of what transpired in the High Court on 2/2/2011.

Record filed in instant application shows that on that day the applicant

withdrew his HC Civil Appeal No. 5 of 2011.This was after he had accepted

a settlement sum of Tshs. 3,000,000/= which the respondent offered.

Responding to questions from the Court, the applicant conceded that for
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an application for revision like the instant one which originates from the

District Court of Bukoba (Civil Case No. 6 of 2006); there are several

important documents that are missing from the record of this application.

Specifically, he acknowledged that copies of record of proceedings in HC

Civil Revision No. 1 of 2011 and an extracted Order from the Ruling of

Mjemmas, J. dated 21/3/2012 are missing. The applicant was however

quick to point out that despite the missing documents; this Court as a final

court of justice can still hear and determine his application.

On his part, the learned advocate for the respondent, Mr. Kabunga,

invited the Court to consider several defects which should necessitate the

striking out of the application before its consideration on merit. The

learned advocate referred us to a part of the Notice of Motion which

indicates that this motion is seeking the revision of the Ruling of the Court

of Appeal dated 8th March, 2013. According to Mr. Kabunga, the Ruling of

the Court in BK. Civil Application No. 6 of 2012 merely granted the

applicant an extension of time within which to apply for revision, and it has

nothing to do with the instant revision application. To that extent, the

notice of present motion is defective, he submitted.

The second defect, according to Mr. Kabunga, is the failure of the

applicant to attach to his application copies of proceedings in HC Civil

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Review No. 1 of 2011, and Order extracted from the Ruling of Mjemmas, J.

dated, 21st March, 2012. On the basis of the aforementioned defects, Mr.

Kabunga urged us to strike out the application with costs. If the Court finds

appropriate to proceed on merit instead of striking out, the learned

advocate urged us to dismiss the application with costs, for want of merit.

He submitted that the applicant should not be allowed to impeach the

integrity of what transpired in the High Court on 2/2/2011 to cover his

failure to include record of proceedings showing what had happened days

before the date when the learned Judge marked Civil Appeal No. 5 of 2011

as withdrawn. Mr. Kabunga urged us to look at the documents included in

the affidavit in reply to the notice of motion which indicate that Civil Appeal

No. 5 of 2011 was destined to be struck out had the first appellate court

delivered its ruling on pending preliminary points of objection.

From submissions on behalf of the opposing sides, the present

application may be disposed of without going on to its merits, by our

consideration of the legal significance of the missing proceedings in the

High Court during the course of hearing of the Civil Review No. 1 of

2011record of proceedings and failure to include a copy of a Drawn Order

extracted from the Ruling of Mjemmas, J. which was delivered on

21/03/2012 after the determination of Civil Review No. 1 of 2011.There is

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no dispute that these documents are missing from instant application

seeking an order for revision.

The position of the Court is now settled on the legal premise that

copy of proceedings, judgment/ruling and Decree/order are mandatory

part of applications seeking to invoke the revisional jurisdiction of the

Court. In The Board of Trustees of The National Social Security

Fund (NSSF) vs. Leonard Mtepa,Civil Application No. 140 of 2005

(unreported)the Court was presented with a question whether an

application for revision which lacked record of proceedings of the High

Court subject of proposed revision, was complete record for us to exercise

our jurisdiction of revision. We said:

“...This Court has made it plain, therefore, that if a party

moves the Court under Section 4 (3) of the Appellate

Jurisdiction Act, 1979 to revise the proceedings or decision of

the High Court, he must make available to the Court a copy

of the proceedings of the lower court or courts as well as the

ruling and, it may be added, the copy of the extracted order

of the High Court. An application to the Court for revision

which does not have all those documents will be incomplete

and incompetent. It will be struck out.”

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 A later decision in Chrisostom H. Lugiko vs. Ahmednoor

Mohamed Ally, Civil Application No. 5 of 2013 (unreported) a decree was

not made part of an application for revision. The Court gave a rationale

that these documents furnish fuller picture of the dispute before the Court

can exercise its discretionary power of revision:

“…we are unable to say anything meaningful in relation to

Land Application No. 25 of 2007 because we are not seized

with all the proceedings relating to the said application. As

such, we cannot step in and make an order of revision over

something we do not have the full picture.”

The duty to attach record of proceedings of the High Court required

before the Court can be moved in revision is strictly placed on the applicant

seeking such revision. An application cannot be saved where the

respondent has included in affidavit in reply the documents that are

missing from the application. This legal position came out very clearly in 1.

Abbas Sherally, 2. Mehrunissa Abbas Sherally vs. Abdul Sultan

Haji Mohamed Fazalboy, Civil Application No. 183 of 2005 (unreported),

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where the Court was considering an application for revision made under

section 4 (3) of the AJA. The application lacked a copy of the ruling sought

to be revised. But, a copy of the ruling was attached to the affidavit in

reply which was filed later. The Court stated:

“The question for consideration is whether the copy of

the decision attached by the respondent to the affidavit in
reply satisfies the requirement for the attachment of the
decision sought to be revised to the application as urged by
Mr. Kesaria. We do not think so. As submitted by Mr.
Marando, and Mr. Kesaria apparently is not disputing, at the
time the application for revision was filed on 15.12.2005 no
attachment of the copy of the decision subject of revision
had been attached to the application. It would therefore
follow that the application was incompetent on account of
lack of attachment of a copy of the decision sought to be
revised.”

In the upshot of the settled position of the Court, the missing record

of proceedings and extracted order deprive the instant application with

requisite competence to be heard by the Court in exercise of its revisional

jurisdiction under section 4 (3) of AJA. It is accordingly struck out with

costs.

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 DATED at BUKOBA this 19th day of February, 2015.

N.P.KIMARO
JUSTICE OF APPEAL

B.M. LUANDA
JUSTICE OF APPEAL

I.H. JUMA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

E. Y. MKWIZU
DEPUTY REGISTRAR
COURT OF APPEAL

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