bulyanhulu gold mine ltd 2 other vs isa ltd another 2018 tzhccomd 45 5 april 2018

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL REVIEW NO. 01 OF 2018 (Application for review of the ruling of this Court by Hon. Sehel, J in Miscellaneous Commercial Application No. 292 of 2017 delivered on 14th December, 2017) 1. BUL Y ANHULU GOLD MINE LIMITED 1st APPLICANT 2. NORTH MARA GOLD MINE LIMITED 2ndAPPLICANT 3. PANGEA MINERALS LIMITED Jrd APPLICANT Versus 1. ISA LIMITED ............... 1st RESPONDENT 2. PETROLUBE MINERALS LIMITED .............. 2nd RESPONDENT RULING Date of the Last Order: 26/03/2018 Date of the Ruling 05/04/2018 SEHEL1 J. This is an application for me to review an order made by this Court on 14th December, 20 l 7 that dismissed the preliminary objections raised by the applicants against the respondents' ~~ 1 application for furnishing security for costs. Before dwelling into the application for review let me give a brief background of the matter. The respondents herein filed an application, under Certificate of Urgency, Miscellaneous Application No. 292 of 2017. In this application the respondents pray for summon be issued to applicants herein to appear and show cause why they should not furnish or deposit security in Court sufficient to satisfy the respondents claim worth of USO 80,949,821.15 until final disposal of the main suit; and in default of furnishing security for costs, the Court be pleased to order attachment of movable and immovable property belonging to the applicants worth total USO 80,949,821.15 until final disposal of the suit. The applicants, after being served with the application, they filed their Counter affidavit to oppose the application and also lodged a notice of preliminary objections wherein they raised three preliminary objections. The objections raised were: l. The court has no jurisdiction to determine the matter; ~\ 2 2. The Applicants' application is incompetent for non citing the applicable provision of law or for citing wrong provision of the law; and 3. The application is incompetent for being supported by an affidavit not attested in accordance with the rules of attesting affidavits and thus fatally defective affidavit. In submitting on the first and second objections, Counsel lshengoma informed the trial Court that there are two notices of appeal to the Court of Appeal of Tanzania which they both questioned the jurisdiction of the Court to continue to entertain the suits ensuing from an agreement containing a clause for reference to arbitration especially when one party is ready and demanding to go for arbitration. He also submitted that since the proceedings are no longer at the High Court then the provisions of the Civil Procedure Code are not applicable. For the third objection, he said Paragraphs 1 2 and 13 of the affidavit made reference to websites thus it presupposed that these websites were shown to the Commissioner ~. 3 for Oaths but it is not true because they are not annexed to the affidavit. Counsel Chipeta who appeared to represent respondents replied to the first and second objections that the application is not before the Court of Appeal of Tanzania and in any way there is no order for stay of proceedings. He further stated that the Court has inherent powers to determine the application. On the third objection, the counsel was of the view that the objection does not merit to be termed as preliminary objection since it will require evidence to establish the same. In rejoinder, Counsel lshengoma insisted that since the present application emanates from Commercial Cases no. 114 and 115 of 20 l 6 then this Court has no jurisdiction to entertain as there are notices of appeal filed at the Court of Appeal of Tanzania. On stay of proceedings, he submitted that once there is notice to appeal this Court has no power to entertain an application for stay of proceedings.r~ 4 In resolving the preliminary objections, for the first and second objections, the Court noted that there are two notices of appeal filed by the applicants and thereafter ruled as follows: " ... the filing of the two notices of appeal will only remove the proceedings that ore relevant to the said notices. They will remove the proceedings ,n respect of Consolidated Commercial Applications No. 114 and 115 of 2016 and in respect of Misc. Commercial Applications No. 16 and 17 of 2017. The proceedings of this application will remain intact within the registry of the High Court and they will never be moved to the Court of Appeal. In that respect, though I agree that the filing of notice of appeal renders the High Court to hove no jurisdiction but the said principle does not apply to the matter at hand as I said the records of this application will still remain within the registry of the High Court. I thus see no merit on the first preliminary point of objection and consequently the second preliminary objection falls out like night follows day." ~ 5 For the third objection, the Court concurred with the counsel for the respondents by holding: " .... the complaint cannot be disposed of as a pure point of law since it will require evidence to establish as to whether the Commissioner for Oath was availed with full disclosure as to what was deponed in the affidavit. For this Court to adequately know whether the Commissioner for Oaths was availed with adequate information on the matters deponed in the affidavit it will require prove on merit as to what was tabled before the Commissioner for Oaths." It is from these findings wherein the applicants decided to prefer the present application for review. In support of the application, Mr. lshengoma, learned advocate for the applicants submitted that the decision of the trial Court has serious manifest error both on law and fact. He insisted that the applicants still maintain that the matter is at the Court of Appeal as the applicants are challenging the jurisdiction of this Court to continue to determine Consolidated Commercial Cases Nos. 114 and 115 of 20 l 6. H~, 6 argued if the appeal is successful then all proceedings relating or emanating from these two cases will collapse. The counsel said the issue at the Court of Appeal is about jurisdiction of the main case in which Misc. Commercial Application No. 292 of 2017 lie. He then wondered how Misc. Application No. 292 of 2017 can proceed without being affected by the decision of the Court of Appeal. He associated Misc. Application No. 292 of 2017 with Misc. Applications No. 35 and 36 of 2017 wherein this Court decided to stay the proceedings of such applications for extension of time for filing Witten Statement of Defence in Consolidated Commercial Cases Nos. 114 and 115 of 2016. Counsel lshengoma was also of the view that the Court erred in law for overruling the preliminary objection in respect of affidavit. He contended that the decision of the Court seemed to suggest that the rules of making affidavit are subject to adducing evidence while they are set by law and they do not require any further evidence to be adduced.~ 7 Counsel Kagirwa representing respondents opposed the application by arguing that the Court ruled rightly since the notices of appeal do not relate directly to Misc. Commercial Application No. 292 of 2017 and it was not challenging the jurisdiction of the Court. He argued the notices of appeal which are at the Court of Appeal are in respect of Consolidated Commercial Cases No. l 14 and 115 of 2016 and Misc. Consolidated Commercial Applications No. 16 and 17 of 2017 which have nothing to do with jurisdiction in Misc. Commercial Application No. 292 of 20 l 7. He maintained further there is no notice of appeal which touches or directly connect to Misc. Commercial Application No. 292 of 2017. Regarding complaint on affidavit, the counsel for respondents replied that the ruling of the Court based on established principle that once the issue instigated the Court to look on mixed points of law and fact then that cannot be termed as a pure point of law. The counsel contended that the Court did not ignore the argument advanced by the counsel for applicants on principles for making affidavit rather it looked at it and dismissed it for being short to be termed as preliminary objection .. -~ 8 With these submissions he prayed for the application to be dismissed with costs. Counsel lshengoma re-joined by insisting that since affidavit is evidence then it does not require any further evidence to prove it. He also maintained that the notices of appeal will directly affect Misc. Commercial Application No. 292 of 2017. From the submissions made by counsels, it is apparent that the Court is invited to review its own decision on the ground that there is apparent error on the face of the record in terms of Order XLII Rule l ( l) (b) of the Civil Procedure Act, Cap. 33 (CPC). The question then I have to ask myself is whether there is an apparent error on the face of the record to warrant me with the jurisdiction to review the decision made by this Court in Miscellaneous Application No. 292 of 2017. An error apparent on the face of the record for purposes of review was amply defined by the Court of Appeal of Tanzania in the case of East African Development Bank Vs. Blueline Enterprises Tanzania Ltd, Civil Application No. 47 of 2010. The Court of Appeqt\\\\. 9 ~ cited in approval the case of Chandrakant Joshubhai Patel v Republic (2004] TLR 218 that adopted the reasoning in MULLA 14th Edition pp 2335-36 thus:- "An error apparent on the face of the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drown process of reasoning on points on which there may conceivably be two opinions ... A mere error of law is not a ground for review That a decision is erroneous in law is no ground for ordering review ... It can be said of an error that is apparent on the face of the record when it is obvious and self- evident and does not require an elaborate argument to be established ... " It is follows then that an apparent error on the face of the records envisaged under Order XLII Rule l ( l) (b) of CPC must be obvious one that strikes in the eyes immediately after looking at the records and it does not require a long drawn process of reasoning on points where there may be possibly two opinions. It is an error ~ 10 which is patently clear and self-evident such that it does not require any extraneous matter to show its existence and which no court would leave it to remain on records. An error apparent on the face of the record which Counsel lshengoma is referring to this Court is such that the Court ought to have found that the matter is at the Court of Appeal since the main suit within which Miscellaneous Commercial Application No. 292 of 20 l 7 lie it has been taken to the Court of Appeal as there is notice of appeal lodged by the applicants. In other words, Counsel lshengoma is advancing an argument that the notice of appeal filed by the applicants in respect of Consolidated Commercial Cases No l l 4 and l 15 of 20 l 6 would affect the proceedings in the Miscellaneous Commercial Application No. 292 of 2017. He has also argued that the decision made by this Court suggests that the rules for making affidavits for use in court proceedings are not definitely set by principles of law but subject to adduction of evidence. Let me start with the last complaint in respect of affidavit. With due respect to the counsel lshengoma's understanding of thi~~ 11 Court's decision. I have gone through the entire ruling of this Court and I failed to see any such suggestion. All that was said by the Court is that the argument as to whether the Commissioner for Oaths was availed with sufficient disclosure of evidence required evidence to establish the same. This is in line with the repeated holdings of the Court of Appeal that where an objection is mixed with issues of facts and law then such an objection cannot be termed as a pure point of law. The complaint advanced by the Counsel as pointed out earlier did not purely lie on non-compliance with Order XIX Rule 3 ( 1) of CPC that set out a principle of what should an affidavit be confined to. The argument advanced by the counsel for applicants on his preliminary objection was not that the facts adduced by the deponent was not based on his own knowledge rather it was his contention that it is not clear as to whether the Commissioner for Oaths was presented with websites mentioned under Paragraphs 12 and 13 of the affidavit. The Court considered this complaint and noted that it cannot adequately determine it at the preliminary stage without going into facts and merits of the evidence hence the \~ 12 Court ruled it out that it is not a pure point of law as it requires evidence. Such a finding did not please the applicants hence the present application. Applicants wished for the Court to proceed to determine the issue arguing that it is a pure point of law. The fact that the Court did consider the objection but overruled it for not being pure of law contrary to the applicants' anticipation then it cannot be said that there was an apparent error on the face of records. I see no merit on this complaint. Regarding existence of notice of appeal in Consolidated Commercial Cases No. 114 and 115 of 2016, the Court was well aware of the notice of appeal but ruled it out having noted that the said notice of appeal shall not affect the proceedings in Miscellaneous Commercial Application No. 292 of 20 l 7. The Court not only considered the notice of appeal in Consolidated Commercial Cases No. 114 and 115 of 2016 but also the notice of appeal in respect of Misc. Commercial Applications No. l 6 and l 7 of 2017. The Court having weighted the said notices, failed to see how the said notices will affect the proceedings in Miscellaneou~ 13 Commercial Application No. 292 of 2017. The noticeable facts, there are Consolidated Commercial Cases No. 114 and 115 of 2016 and Miscellaneous Commercial Applications No. 16 and 17 of 2017 whose proceedings are subject to appeal, were thus considered by the Court but it came to a different conclusion as expected by the applicants, the conclusion which is argued will have the effect to the Miscellaneous Commercial Application No. 292 of 2017, even if correct, cannot constitute an error which will ground an application for review. It may probably be a ground for appeal but not for review. In the end, for the reasons stated above that there are no apparent error on the face of records, the application has no merit. I proceed to dismiss it with costs. It is so ordered. DA TED at Dar es Salaam this 5th day of April, 2018. ~\ B.M.A Sehel JUDGE 5th day of April, 2018. 14