Court name
Court of Appeal of Tanzania

Sekulu Construction Co Ltd vs M.B.S. Fubile & Another () [1983] TZCA 8 (09 November 1983);

Law report citations
1983 TLR 47 (TZCA)
Media neutral citation
[1983] TZCA 8

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.

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

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.

G