Said Khamis Hemed vs Saaid Mohamed Salum (Civil Application No. 367/15 of 2024) [2025] TZCA 890 (27 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 367/15 OF 2024 SAID KHAMIS HEM ED ................ .............................................. APPLICANT VERSUS SAAID MOHAMED SALUM .......................... ................ ......... RESPONDENT (An application for extension of time to file an Application for Revision from the Ruling and order of the High Court of Zanzibar at Tunguu) fShein. J.^ dated the 16th day August, 2023 in Civil Application No. 24 of 2023 RULING 25th & 27th August, 2025 MWANDAMBO. J.A.: The applicant was aggrieved by the decision of the High Court of Zanzibar sitting at Tunguu made on 16 August 2023 in Civil Application No. 24 of 2023 dismissing his application for extension for readmission of his appeal which had been dismissed earlier on for want of prosecution. Earlier, the applicant had lodged a notice of appeal from the impugned decision. Subsequently, upon advice from his attorneys, he changed his course and

opted to challenge the impugned decision by way of revision to the Court. Since the time for doing so had already lapsed, he filed the instant application. According to the affidavit annexed to the notice of motion, the applicant attributes the delay to lack of notice of the delivery of the ruling and delayed supply of certified copies of the ruling and proceedings for that purpose which were not supplied until 12 December 2023. The application was lodged in Court on 18 January 2024. Apparently, despite being served with a copy of the notice of motion, the respondent did not lodge an affidavit in reply. However, Mr. Peter Serapius Mdamu, learned advocate addressed the Court through Video link on the date the application was called on for hearing, resisting it. At the virtual hearing, both Mr. Jambia Said Jambia learned advocate, representing the applicant addressed me on the merit of the application urging the Court that the applicant has shown good cause in the founding affidavit warranting exercise of discretion in his favour for an order prayed in the notice of motion. However, the determination of the application turns on a different issue as it will shortly come to light. 2

In the course of hearing, I invited both learned advocates to address me whether the decision sought to be challenged by way of revision is not appealable. I did so mindful of the provisions of section 8 (1) the Appellate Jurisdiction Act, Cap. 141 of the 2023 Revised Edition (the AJA). I also had in mind the Court's decisions, in particular, Moses J. Mwakibete v. The Editor Uhuru, Shirika la Magazeti ya Chama and Another [1995] T.L.R 134 for the proposition that, revision is not an alternative to appeal which means that, where there is a right of appeal, a litigant has no choice but to exercise it and not resort to revision. While appreciating the dictates of section 8(1) of the AJA, Mr. Jambia urged that, the order of the High Court dismissing the applicant's application for readmission of his appeal is not one of the appeliable orders under the provisions of Order XLVII rule 1 of the Civil Procedure Decree (the CPD). In any case, counsel argued that, since the application seeks to challenge the irregularities in the impugned decision rather than its merits, it cannot be by way of an appeal but revision. He thus invited me to find the application properly before the Court. For his part, Mr. Mdamu invited me to dismiss the application the application primarily because the it is geared towards pursuing a remedy 3

way of revision which is not available to the applicant as he had a right of appeal from the impugned decision. With the foregoing rival arguments from the learned counsel, I will now turn my attention to the determination of the issue raised by the Court. The law which governs appeals from the High Court and subordinate courts with extended jurisdiction throughout the United Republic of Tanzania is the AJA which stipulates: "In civil proceedings, except where any other written iaw provides otherwise, an appeal shall lie to the Court o f Appeal against every order or decree, including an ex-parte or preliminary decree made by the High Court, in the exercise o f its original, appellate or revisionaljurisdiction." Apart from the above, there are other specific taws providing for a right of appeal to the Court, in particular, section 26(2) of the Tax Revenue Appeals Act, section 58 of the Labour Institutions Act, and section 52(1) of the Land Disputes Courts Act, to mention but a few. All the same, neither the CPD nor the Civil Procedure Code (the CPC) provides for a right of appeal to the Court from the High Court of Zanzibar or the High Court of the United Republic. This is so in view of section 2 of the CPD, provides clearly that it

applies to the proceedings in all subordinate courts to the High Court of Zanzibar other than the district courts expressly excluded. The same position obtains under section 2 of the CPC which stipulates that the provisions of the CPC are applicable to all proceedings in the High Court of the United Republic, the courts of resident magistrates and district courts. It is significant that, none of them provides or regulates appeals to this Court. With respect, Mr. Jambia's argument pegged on Order XLVII rule 1 of the CPD, the equivalent of Order XL rule 1 of the CPC listing appealable order is, with respect, misconceived. In my view, the argument is relevant to the extent it relates to appeals from the subordinate courts to the High Court of Zanzibar and High Court of the United Republic but not to the Court. In view of the above, I respectfully agree with Mr. Mdamu's submission that, since the applicant had a right of appeal to the Court in terms of section 8 (1) of the AJA, and indeed lodged a notice of appeal, the application for extension of time to seek revision which is legally untenable is a futile exercise. On the other hand, Mr. Jambia's argument that the intended application for revision is against exercise of discretion by the High Court and so it can only be challenged by way of revision rather than an appeal 5

sounds attractive but wholly misconceived. I must confess that I know no law in our jurisdiction and none was cited to me to support that contention. In the event, I find the application to extend time to pursue an untenable remedy by way of revision misconceived and I accordingly dismissed it. Since the issue on which this application has been disposed was raised by the Court itself, I will make no order for costs. DATED at DODOMA this 27th day of August, 2025. The Ruling delivered this 27th day of August, 2025 in the presence of Mr. Jambia Said Jambia, learned counsel for the Applicant and Mr. Peter Serapius Mdamu, learned counsel for the respondent, is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL 6