The High Court at Mtwara (Lukelelwa, J.) was hearing a Civil Case No. 3 of 2002 between
the parties to this application. Although the facts before us are scanty, it would appear that the advocates for the applicant, Messrs
Mbuna and Company, Advocates were instructed to appear and advocate for the applicant after the hearing of the case had already been
under way. So, on 23rd August, 2005, just a day after Mbuna and Co., Advocates received instructions to represent the applicant, the advocates wrote to
the District Registrar of the High Court at Mtwara requesting to be supplied with a copy of the proceedings. That would enable them
to know what had transpired in court so far and to prepare the strategy to represent their client in the remainder of the proceedings
which appeared to be at the defence stage. Seven days later, which was the 30th of August, 2005, the case was again before the trial judge. The applicantfs advocates appeared and as they had not yet received
the copy of proceedings which they had earlier requested, they prayed for adjournment of the hearing and were prepared to pay the
costs of the adjournment. They were not in a position to plan the direction of the defence case unless they had acquainted themselves
with the respondentfs case as presented in court. The trial court refused the prayer for adjournment and proceeded to fix 25th October, 2005 as the date for judgment in the case. The applicant felt the trial court was acting unfairly in refusing the prayer
for adjournment and in fixing the date of judgment without affording it opportunity to present its defence to the court. It thought
that it should seek revision first, of the decision of the High Court to refuse the prayer for adjournment and, second, of the order
that the case would proceed to judgment. It, therefore, applied to the High Court for a copy of an alleged High Court ruling and
drawn order which it needed in order to file the application for revision to this Court.
On 5th September, 2005 the District Registrar of the High Court wrote to the advocates for the applicant informing them that their request
could not be met because the file for the case was with the trial judge. The copies of proceedings, ruling and drawn order could
only be made available after the judgment in the case had been delivered on 25th October, 2005.
In the affidavit of one Mafuru Mafuru, an advocate with Mbuna and Co., Advocates,
which was filed in support of the present application, it is explained that it was impossible for the applicant to annex to the application
for revision the necessary documents such as the ruling of the High Court of 30th August, 2005 and the drawn order thereof because of the apparently obstructive and uncooperative attitude of the High Court at Mtwara.
The applicant is saying in effect that it realizes that this application for revision lacks certain necessary documents but that
it is not a result of any negligence on its part.
Mr. Mtepa, the respondent, who is a lay person, has said in his preliminary objection
that the fact remains that the application for revision is incompetent for want of a copy of the High Court ruling and drawn order.
For that reason he prays that the application be struck out with costs. He argues that when a party moves this Court under Section
4 (3) of the Appellate Jurisdiction, Act, 1979 as amended, it is his duty to ensure that a copy of the proceedings, decision and
drawn order of the court from which revision is sought accompany the notice of motion for an application for revision. He cited as
authority Civil Application No. 1 of 2002 of this Court between Benedict Mabalanganya and Romwald Sanga, unreported.
Mr. Mchome, learned advocate from Mbuna and Co., Advocates, for the applicant countered
that the respondent is blaming the applicant for failing to annex to the application the very documents which the latter is complaining
that he was unable to obtain from the High Court and that the circumstances leading to such failure are explained in the affidavit
of Mr. Mafuru Mafuru. He further explained that the application for revision was intended to ask this Court to stop the judge of
the lower court from proceeding to write and deliver a judgment without first hearing the applicantfs defence in the case.
Although the judgment in the case was to be delivered on 25th October, 2005, it has not in fact been delivered as yet. This Court should call for the lower court record and satisfy itself as
to the correctness and legality of the procedure which was followed by the High Court so far. He also appeared to be saying that
Section 4 (3) of the Appellate Jurisdiction Act, 1979, as amended, was not applicable in the circumstances because the necessary
documents were not available to the applicant and that Rule 3 (2) (b) of the Court Rules, 1979 would have been more appropriate because
there is no specific provision of the law which caters for a situation in which an applicant for revision by this Court is unable,
through no fault of his own, to comply with legal requirements. According to him, even the Mabalanganya case which was cited by the respondent is not relevant to this application because it dealt with a situation in which an applicant
for revision negligently failed to annex to the Notice of Motion copies of proceedings, decision and drawn order which were available
but not used.
We must hasten to point out that Mr. Mchomefs argument that Section 4 (3) of
the Appellate Jurisdiction Act, 1979 was not the appropriate provision of the law to be invoked in the circumstances is too late
in the day. They chose to invoke it and the question must be whether or not the application under that section, which is now before
the Court, is competent.
In the Benedict Mabalanganya case which was cited by the respondent, this Court was dealing with an application for revision under section 4(3) of the Appellate
Jurisdiction Act, 1979 and asked itself the question whether that application was competent. It made a finding that the record before
it was incomplete for revision purposes. It did not have all the necessary documents. It had only the notice of motion, the advocatesf
affidavit and the ruling of the judge of the High Court which was sought to be revised. It did not have a copy of the proceedings
of the High Court. It then said:-
c (T)he record of proceedings of the High Court, and in the case of the appellate jurisdiction of the High Court, then the record of
proceedings of the lower court or courts, must be before this Court. This is glaringly certain from the very definition of what revision
entail and if the Court is to perform that function ----. Now, when the Court acts on (sic) its own motion it will have to call for
those records itself. But when the Court is moved, as in this case, then the one who moves it will have to supply those records.
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.
Mr. Mchome said he and his client were aware of all that and would have annexed to
the application all the necessary documents but for their inability to obtain them from the High Court and for no fault of their
own. The pertinent question which this Court has had to consider is, can it revise proceedings or a ruling and drawn order it has
not seen? We were told that the High Court record was in fact now in the Court of Appeal. But we do not know how it got to the Court
of Appeal and, to say the least, it was not before us (properly). It would have been properly before us if the revision proceedings
were initiated by the Court under the same section 4 (3) of the Appellate Jurisdiction Act, 1979, but, as all the parties know, that
was not the case. Does it matter that the applicant was unable, through no fault of its own, to comply with the conditions which
were stipulated in the Benedict Mabalanganya case? After anxious consideration we have had to come to the view that the circumstances that made it difficult for the applicant
to supply to the Court the ruling and drawn order which are sought to be revised evoke sympathy but do not convert an otherwise incomplete
and consequently incompetent revision application complete and competent.
In VIP Engineering and Marketing Ltd. v. Mechmar Corporation (Malasia) Berhad of Malasia, Civil Application No. 163 of 2004 (unreported), the applicant in that case sought under Section 4 (3) of the Appellate Jurisdiction
Act, 1979 as amended by Act No. 17 of 1993, an order of this Court to revise High Court proceedings in Misc. Civil Case No. 254 of
2003. It was complained that the proceedings in the High Court were being conducted in a highly irregular manner, calling gfor
the immediate intervention of the highest Court before justice (was) irretrievably hijackedh. Some of the alleged irregularities
were that the case had been before two different judges of the same court, the earlier one having made an order which the later judge
appeared to ignore, and there was also an order of the Court of Appeal requiring the case to be consolidated with another case but
the current judge apparently claimed wrongly that the High Court file was still with the Court of Appeal. A preliminary objection
was raised against the application for revision in that case but the Court ruled that since the parties in the case before the High
Court could not know which court order to follow and considering that the proceedings appeared to be conducted in a confused and
haphazard manner, it was proper for the Court to hear the application for revision with a view to restoring a sense of direction
in the case before the High Court, even though there was no copy of ruling or order before the Court.
The case before us is distinguishable from the case discussed above. In the VIP case supra this Court was being asked to consider the regularity of the proceedings which were pending in the High Court, whereas
in the present application the Court is being asked to consider the legality and correctness of orders of the High Court which were
not before us. There was no order of the High Court before us which ruled that the applicant should not get a copy of the proceedings
in the case or that the application for adjournment had been refused. One other implied request which this Court could not properly
be expected to grant was for an order that the High Court should not write a judgment unless the applicantfs defence in the
case was heard.
We wish to remark by the way that if, as alleged by the applicant, the lower court refused to provide its counsel with a copy of the
proceedings up to the stage its advocates appeared in the case or refused to grant adjournment and said it would proceed to write
a judgment based on the evidence of the respondent alone, the normal and obvious remedy would be to challenge that judgment in an
appeal.
For the reasons we have tried to give, we sustain the preliminary objection and strike
out the application with costs.
DATED at DAR ES SALAAM this 2nd day of February, 2006.
