Court name
Court of Appeal of Tanzania

Mohamed Iddi Mjasiri vs Mrs Jayalami J Joshi () [1995] TZCA 10 (16 June 1995);

Law report citations
1995 TLR 181 (TZCA)
Media neutral citation
[1995] TZCA 10

Makame, JA, delivered the following considered judgment of the Court:
This is an appeal from the decision of Hamid CJ in which the I

A learned Chief Justice of the High Court for Zanzibar declined to review his own judgment for the reason that he was functus officio and also because in any event the application was time-barred.
The background to the case the learned Chief Justice had tried was that the husband of the present respondent and the father of the present appellant were friends and they both lived in Zanzibar. When in 1972 the respondent's husband B went away to live in Canada he left his house in the care of the appellant's father to whom he also gave a power of attorney. In October 1987 the appellant's father conveyed the property to himself and, a day later, to his son, the present appellant. C
In a suit to have the two conveyances nullified and the house declared part of her deceased husband's estate the present respondent succeeded. For the purposes of this appeal we do not consider it necessary to go into the specific findings made by the learned Chief Justice except to say that his decision was sustained by this court on appeal. D
The judgment of the High Court was delivered on 15 April 1993, that of the Court of Appeal on 25 November of that year and in January 1995 the present appellant sought to move the High Court to review its decision in view of the alleged discovery of a document which would have made the High Court arrive at a E different conclusion as it would have shown that the respondent's husband had received the proceeds of the sale of the house. The outcome of that effort was, as we have indicated, a failure to persuade the learned Chief Justice to review his decision. Before us the appellant is represented by Mr Mbwezeleni, learned F advocate while Mr Kagambo, learned counsel appeared for the respondent.
Mr Mbwezeleni assailed the High Court decision. He asserted that he properly went to the High Court under r 44 of the Court of Appeal Rules for review. A portion of the rule he relied on reads: G
   Whenever application may be made either to the court or to the High Court, it shall in the first instance be made to the High Court ...
H Mr Mbwezeleni contended that he had no choice but to proceed the way he did in view of the said rule. Mr Kagambo maintained that Mr Mbwezeleni has misconceived r 44  -  the High Court had no power to review a Court of Appeal judgment, which was in effect what the High Court was being asked to do.
We are of the view that the answer to the question as to whether or not the appellant went to the correct forum for review is enough I

to dispose of the appeal. In that case it would really be superfluous to deal with the A provisions of the Civil Procedure Decree, Cap 8, which relate to time scales.
The Court of Appeal considered the substantive judgment of the High Court and was satisfied that it was sound. The court added its own dimension by remarking that in any event, there was no proof that the alleged consideration of Shs 150,000/= had passed to the respondent's husband. B
The final judgment was that of the Court of Appeal and matters rested there. It was the judgment of that Court, if at all, which should have been sought to be reviewed. In that exercise, if the court was so minded, it could have made orders it C considered necessary to the High Court, or otherwise disposed of the matter. The High Court had gone into the issues on merit, on the basis of the evidence then available, and the Court of Appeal had received the appeal and heard it on the same basis. There is a Court of Appeal judgment on record and one may not D assail that judgment by way of review other than in the very court itself.
With respect, Mr Mbwezeleni's arguments have a severe limitation. Before one can construe r 44 in Mr Mbwezeleni's favour one has first to determine whether the High Court is an available forum for the application  -  that is, whether the E application he sought to make was one that 'may be made to the court or to the High Court', in the first place. The rule presupposes, quite obviously, the existence of jurisdiction in both courts, and not otherwise. We are clear in our view that the appellant went to the wrong forum which lacked jurisdiction and that the learned Chief Justice took a correct view of the matter. We wish only to add that s 129 of the Civil Procedure Decree Cap 8, to which Mr Mbwezeleni kindly drew our F attention, does not detract from the position we have stated.
We propose to be quite brief on Mr Mbwezeleni's valiant effort to come to us for review as an alternative in the same document he prepared and filed for appeal. G This court cannot be reached via the medium of a fishing expedition. A party which wishes to be heard by us must first determine how to get us grant him audience, and proceed accordingly. This would incidentally afford the other party opportunity to prepare himself appropriately. H
We dismiss the appeal with costs.
We wish to add, without being determinative, that we very much doubt whether the High Court would have reached a different conclusion even if the alleged communicated dated 23 October 1987 purportedly from the respondent's husband to the appellant's I

A father, had been placed before him during the hearing of the case. Even if one assumes that it was authentic it would not escape one's attention that it was 'innocuous' and terribly inconclusive. The document makes no reference to a house at all, only that the writer was 'very happy that everything went well just as B we had agreed upon'. Besides, US $5000 translates into a sum very different from the alleged sale price of Shs 150,000/=. Mr Mbwezeleni essayed that one US $ was then around Shs 300 which would make US $5000 the equivalent of 1.5 million Shs, that is 10 times the alleged price. In fact we have made our own research and discovered that from October to December 1987 one US dollar was C worth only Shs 83.7174, so that US $5000 would be about Shs 418,000/=, which would still be a lot more than the alleged price. There would therefore be no sound reason to surmise that the mysterious alleged sum of US $5000 related to a sale transaction over the suit property. D

E