20140822 TZCA Tabora

', . ~,~-·- IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MBAROUK, J.A., MASSATI. J.A., And MUSSA, l.A.} CIVIL REVISION NO 4 OF 2013 JU MANNE JAFARI NGUGE ·..................................................................... APPLICANT VERSUS NZILIKANA RAJABU ............................ .,-............................................. RESPONDENT (Revision from the Ruling of the High Court of Tanzania at Tabora) (Rumanyika, J.} Dated the 15th day of October, 2013 in . Mic. Civil Application No. 24 of 2009 RULING OF THE COURT 24th & 26 th June, 2014 & MUSSA, J.A.: The parties herein are wrangling over the administration of the estate of the late Farahani Jafari Nguge, who died intestate at Businde, Kigoma. The applicant and the respondent are, respectively, brother and widow of the deceased. f>J;h were appointed joint administrators of the dece~sed's I estate in a dJcision handftj down 1it' the Ujiji Primary court, way back on the 9th May, 2,006. . In the aftermath, the parties have evolved through numerous proceedings which are not quite of relevancy to this matter. Eventually, in Miscellaneous Civil Application No. 24 of 2009, the applicant sought to move the High court under the provisions of section 92 and 93 of 1 ,... - the Probate and Administration of Estate Act, Cap. 352 (PAEA) for the following orders:- i) Cap. 352 shall apply to the administration of the estate in Ujiji Primary Court Deceased Estates Cause No. 11 of 2006; ii) The High Court takes over the proceedings of the estate of Farahani Jafari Nguge and invokes Cap. 352; iii} Letters of administration without will, be granted to Jumanne Jafari Nguge and Nzilikana Rajabu as co-administrators and; iv) Costs in this application be costs in the administration of the estate. In a Ruling that was pronounced on the 15th October, 2013 the High Court (Rumanyika, J.), dismissed the application and, in the upshot, upheld the lower court's verdicts. Dissatisfied, the applicant presently seeks to move this Court to vacate the decision of the High Court in revision. The application is by Notice of Motion, purportedly, taken out under the provisions of Rule 65 of 2 the Tanzania Court of Appeal Rules ("the Rules''). The same is accompanied by an affidavit, duly sworn by the applicant. The respondent has greeted the application with a notice of Pre.!i.m.inary objection to this effect:- i) The Applicant's application for revision i.5 legally misconceived since this matter ought to have come by way of an appeal before the Honourable Court. ii) The Applicant is wrongly moving this Honourable Court to entertain the matter through the forum of revision as an alternative to appeal. iii) The alleged grounds as set forth in the Applicant's Notice of Motion are legally flimsy for this Honourable court to revise the impugned decision of the High Court. -1 Before us, the applicant was represented by Mr. Musa Hussein Kwikima, learned Advocate, whereas the respondent had the services of Mr. Method R. G. Kabuguzi, also learned Advocate. In accordance with 3 L established practice, we invited Mr. Kabuguzi to first address us on the preliminary points of objection. --- ~ ------- --~- ---- --------- ----~ _____ Tb.@-.!earned-counsel· forthe-respondent prefaced his submission with a remark that the three points of objection are interrelated and so, for that reason, he proposed to canvass them generally. Mr. Kabuguzi then contended that the decision sought to be impuged by the applicant is appellable under the provisions of section 5(1) (c) of the Appellate Jurisdication Act, Chapter 141 of the Laws (AJA). That being so, he urged, the applicant should not have sought the revisional jurisdiction of this Court, more· so, as a party cannot resort to the revisional jurisdiction of this Court as an alternative to the appeal process. To the extent that the applicant improperly seeks to move the Court in revision, counsel concluded, this application is incompetent and should be struck out with costs. To bolster his submission, Mr. Kabuguzi referred to us two decisions of this Court, viz, AR.· Civil Application No. 3 of 2002 J.H.KOMBA Esq vs The Regional Revenue Officer, sub-Treasury Arusha and Two others and; Civil Application No.5 OF 2013- Chrisostom Lugiko vs Ahmednoor Ally (both unreported). 4 J ' - ) At the end of his submission, we invited Mr. Kabuguzi to, additionally, comment on whether or not the Court is properly seized of its revisional -------- ----- j~ ~i?gLction,_partic;ula-Fl-y--em- -accotrnt-6f ln_e_ applicant's mere citation of Rule 65 as the enabling clause grounding the application. Without hesitation, the learned counsel for the respondent suggested that the applicant should have, also, made reference to section 4(3) of AJA which is, actually, the enabling provision through which this Court is enshrined with revisional jurisdiction. Counsel further urged that on account of the non-citation of the referred enabling provision, the application was just as well incompetent and ought to be struck out. Responding on behalf of the applicant, Mr. Kwikima cautioned that the proceeding in the High Court was instituted under the provisions of the PAEA which hardly involves the Civil Procedure code. More specifically, counsel for the Applicant contended that although an appeal lies from the High Court's refusal to grant the orders prayed; the same is upon a cumbersome process which is quite unwarranted to such a simple matter as the probate cause at hand. Coming to the other apparent infraction raised by us in the course of hearing, Mr. Kwikima defended the applicant's citation of Rule 65 of the Rules which, he said sufficiently moves this Court 5 ' to exercise its revisional jurisdiction. According to him, Section 4(3) of AJA only relates to a revision which is initiated by th@ Court on its own accord and, thus, in his construction, the only avenue open to a party in the applicant's shoes is to initiate the revision through the invocation of Rule 65 of the Rules. In our consideration of the· learned rival arguments, we propose to begin by satisfying ourselves whether or not upon the mere citation of Rule 65, of the Rules, the Court is properly moved to exercise its revisional jurisdiction. In this regard, we should, at once, respectfully decline Mr. Kwikima's suggestion that the provisions of section 4 (3) of AJA are exclusively preserved for a revision initiated by the Court suo motu. We take the position that, upon a legitimate occasion, a party to proceedings in the High Court may just as well, invoke the revisional jurisdiction of the Court unde·r that provision. Thus, whereas section 4 (3) of AJA is the enabling provision through which the Court is seized of revisional jurisdiction, either on its own motion or through a party; Rule 65 of the Rules lays out the manner through which the latter invokes that jurisdiction. To this end, we entirely subscribe to Mr. Kabuguzi's submission to the effect that for the Court to be properly seized of its 6 · revisional jurisdiction, it is imperative for a desirous party to cite the enabling section 4 (3) of AJA. Upon a plethora of authorities, it is now settled that the non- citation or wrong citation of an enabling provision of the law has the ·effect of rendering a matter incompetent (See, for instance, the decision of this Court in Civil Application No. 20 of 1997- NBC Vs Sadrudin Megliji (unreported). Thus, on account of this infraction alone, the application stands to be struck out for incompetence. We are, however, impelled to additionally consider the preliminary points of objection raised by the respondent of which we find to be just as compelling. In agreement with the learned counsel for the respondent, we should take note that the respective appellate and revisional jurisdictions of this Court are, in most cases, mutually exclusive. Thus, if there is a right of appeal, then that right has to be pursued by the concerned party and, except for sufficient reason amounting to exceptional circumstances, there cannot be resort, by the party to the revisional jurisdiction of the Court. The case of Halais Pro-Chemie Vs Wella A.G [1996] TLR 269 meticulously laid down the legal pre-requisites for the invocation of the revisional jurisdiction of this Court:- 7 (i) The court may on its own motion, and at any time, invoke its revisional jurisdiction in respect of the proceedings of the High Court; (ii) Except under exceptional circumstances, a party to proceedings in the High Court cannot invoke the revisional jurisdiction of the Court as an alternative to the appellate jurisdiction of the Court; (iii) A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court in matters which are not appelable with or without leave; (iv) A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court where the appellate process has been blocked by judicial process. 8 Quite deary, the matter under our consideration does not, at all, fall under any of the foregoing benchmarks. More specifically, if by reference to the so-called cumbersome process the learned counsel for the applicant had in mind the requirement under section 5(1)(c) of AJA for one to seek and obtain leave ot the High Court ahead of an appeal; such is a due process to which every litigant is obliged. As such, the requirement cannot, by any stretch of imagination, and which, as such, cannot amount to a judicial blockage. In the end result, be it on account of non-citation of the vital enabling provision of the law or the improper invocation of the revisional jurisdiction of the Court, this application is, either way, incompetent and we, accordingly, strike it out with costs. DATED at TABORA this 25 th day of June, 2014. M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL ! I I certify that this is a t ~ ~ a l . I z ~ DEPUTY REGISTRAR I II COURT OF APPEAL I ' 9 I ! 1 ·.,...., IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KILEO, J,A., MMILLA, J.A., And JUMA, J.A.) CIVIL APPLICATION N0~·~37 OF 2013 BULYANHULU GOLD MINE {T) LTD ............................. APPLICANTS VERSUS NICODEMES KAJUNGU & 1511 OTHERS ..................... RIESPONDENTS (Appeal from the Ruling of the High Court of Tanzania Labour Division at Dar es Salaam) (Wambura, J.) dated 29 th October, 2012 in Misc Civil Application No. 48 of 2012. RULING OF THE COURT 2nd April & 2ih August, 2014 MMILLA, J.A.: Bulyanhulu Gold Mine (T) Ltd (the applicant) is ,1sking this Court to strike out Civil Appeal No. 116 of 2012 between itself and the respondents, Nicodemes Kajungu and 1511 others for failure to take an essential step to appeal. It is brought by way of notice of motion and is based on the provisions of Rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by 1 an affidavit sworn by Honest Lugalla, said to be the Legal Services Manager of the applicant company. Paragraph 7 of his affidavit alleges that the appellant did not seek and was not granted leave to appeal, thus rendering the ~ppeal incompetent and liable to be struck out. Before us Mr. Alex Mgongolwa and Mrs Stella Manongi, learned advocates , .... ~resented the applicant, while Mr. Silvester Eusebio Shayo, learned advocate represented the respondents. The respondents' affidavit in reply was sworn by their advocate Mr. Shayo. In paragraph 5 thereof, he is firm that leave to appeal is not an essential step in the circumstance of the pending appeal. He has urged the Court to dismiss the application with costs. The background facts of the case were briefly that the respondents filed Misc. Civil Application No. 48 of 2012 in the High Court Labour Division at Dar Es -..,dlaam, praying for extension of time in which to allow l'Jicodemes Kajungu to represent his fellow complainants, also to allow STAMICO to appear and be heard in the proceedings. That application was struck out by the court after it sustained the preliminary objections raised by the applicant. The respondents were aggrieved and preferred Civil Appeal No. 116 of 2012 which, as aforesaid, 2 ,s pending before this Court and is the subject of the preliminary objection giving rise to this ruling. In his written submission, the applicant contended that the respondents' appeal lacks an essential requirement of the law by failure to observe the mandatory procedure of obtaining the necessary leave to appeal from the High Court, Labour Division as contemplated by section 5(1) (c) of the Appellate Jurisdiction Act Cap 141 of the Revised Edition, 2002 (AJA), or from the Court of Appeal, hence liable to be struck out in terms of Rule 89(2) of the Rules. In elaboration, Mr. Mgongolwa submitted •that the decision which is the subject of the intended appeal was an order and not a decree, therefore that the respondents ought to have applied for and granted the necessary leave to appeal by either the High Court (Labour Division) or the Court of Appeal. He cited the case of Jose Ferreira v. Mbaraka Salum [1994] T.L.R. 214 in which he said, the Court of Appeal stated that where the matter is appealable only with leave and no such leave has been obtained, then the appeal is incompetent. By way of emphasis, Mr. Mgongolwa submitted that under section 54 of the Labour Institutions Act No. 7 of 2004, any appeal to the Court shall, as 3 .. early as possible,. be Jn conformity with the provisions of the Court Rules and that, Rule 45 (a) and (b) the Rules requires leave to be sought and obtained by a party intending to appeal to this Court from an order of the High Court not listed under section 5 (1) (c) as amongst those which are appealable without such leave. In his oral submission before us, Mr. Mgongolwa reiterated that the order of the High Court (Labour Division) under focus is not appealable as matter of right under section 5 ( 1) of the AJA which provides for the kind of decisions of the High Court which are ·appealable as a matter of right. He expounded that under section 57 of the Labour Institutions Act being relied upon by Mr. Shayo, a party may appeal without leave of the Court on a point of law only, hence his conviction that since the order under consideration does not constitute a point of law, it cannot be appealed against unless section 5 of the Act has been complied with. Mr. Mgongolwa's submission has been complemented by that of Mrs Manongi, his partner, who stressed that section 52 of the Labour Institutions Act provides that the High Court Labour Division has similar powers to those of the High Court of Tanzania, hence that the appellant ought to have complied with the requirements under section 5 of the Appellate Jurisdiction Act. 4 On the other hand, Mr. Shayo is firm that -~he respondents' right of appeal is provided under section 57 of the Labour Institutions Aa:--He addea chert-rule 54 of the Labour Court's Rules, G.N. 106 of 2007 provides for procedures governing appeals from the decisions of the Labour Court, but that that rule is subordinate to the said section 57 thereof. In his view, section 5 (1) (c) of the Act does not deal with appeals from Labour Court because the said Court does not issue "decrees" or "orders". As such, the appeals from Labour Court are governed by section 57 of the Labour Institutions Act; therefore that _section 5 (1) (c) of the said Act is not applicable in the circumstances of the matter under discussion. He concluded on the point that as a matter of practice, appeals from Labour Court do not require leave to appeal. He cited the case of Nicodemes Kajungu and 1374 others v. Bulyanhulu Gold Mining (T) Ltd, Civil Appeal No. 110 of 2008 CAT, Dar es Salaam Registry (unreported) of which he availed us with a copy thereof. Mr. Shayo repeated the same arguments in his oral submission before us. He emphasized the point that the Labour Court has its own Rules· and that section 57 of the Labour Institutions Act does not provide for the requirement to seek for leave to appeal. 5 \ .. In his brief rejoinder, Mr. Mgongolwa submitted that the High Court Labour Division is the same as the High Court covered under section 5 of the Appellate Jurisdiction Act and the Court of Appeal Rules. He stressed that the appellant was duty bound to comply with the requirements under section 5 of the AJA. The basic issue in this regard is whether an appeal such as the pending one may be brought t9 this Court against the decision of the Labour Court without first applying for leave to do so under section 5 (1) (c) of the AJA. Admittedly, section 5 (1) (a), (b) and (c.) of the AJA generally governs which appeals may be brought to the Court without first applying for leave to do so, also which may not be competently before it until such leave may have been applied for and granted. While appeals under clauses (a) and (b) of subsection (1) of that section refer to appeals in the first category in which no leave is required, appeals under clause (c) of subsection (1) of that section cannot be regarded as competently before the Court unless such leave has been applied for and granted. However, it is glaringly clear that that very section does ~ not restrict all appeals to be in its terms, but recognises that there are other laws which may have granted the right of appeal to the Court outside its scope. The first part of section 5( 1) of that Act provides that:- 6 "(1) In civil proceedings/ except where any other written law for the time being in Force provides otherwise/ an appeal shall lie to the Court of Appeal .... " [Emphasis provided] This underscores the point we have just covered above, and we are of the settled mind that section 57 of the Labour Institutions Act and section 47 of the Land Disputes Courts Act are amongst those laws contemplated by se(:tion 5(1) of the AJA. Section 57 of the Labour Institutions Act provides that:- •~ny party to the proceedings in the Labour Court may appeal against the decision of that court to the Court of Appeal of Tanzania on a point of law only. I/ We are convinced that this provision permits a party to appeal to this Court without recourse to section 5(1) of the AJA, and that as submitted by Mr. Shayo, it provides a different avenue to that covered under section 5(1) of the AJA. Also, contrary to the opinion of the applicant's. advocates that the respondents ought to have applied for leave to appeal because the subject of the intended appeal was an order and not a decree, we hold the view that the requirement that a party may appeal against the decision of that court on a 7 point of law only means that it precludes appeals to the Court which are not on points of law. As already pointed out above, Mr. Shayo referred us to the case of Nicodemes Kajungu and 1374 others v. Bulyanhulu Gold Mining (T) Ltd (supra) as supportive of his view that section 57 of the Labour Institutions Act c;QDfers automatic right of appeal to this Court. Unfo1tunately however, upon reading that case we found it to be irrelevant in the circumstances of the present case because it did not concern section 57 of the Labour Institutions Act which is the subject of discussion in the present .case. However, we came across the case of Chama Cha Walimu Tanzania v. The Attorney General, Civil Application No. 151 of 2008, CAT (unreported) in whicl1 the Court said that the applicants had an automatic right of_a_pp~I to the C0!:!!1,under section 57 of th~ Labour Institutions Act on points of law. We are constrained to emphasize at this stage that a statute should not, in the absence of any express provision, be construed so that it deprives people of their accrued rights, and that in fact _it is the duty of the court to give sensible meaning with a view of promoting the enjoyment of such rights instead of narrowing them down. In other words, we are duty bound to interpret the law accommodatingly with a view of expanding its frontiers rather than narrowing 8 • rrontiers, the purpose being to see- to it that the procedure is reasonable, fair and just. That way, we think, we will have invested the provision with sound reasoning and content. In the upshot, we agree with Mr. Shayo that section 5 (1) (c) of the AJA does not apply in respect of appeals originating from the Labour Court. Thus, the application lacks merit and is dismissed with costs. DATED at DAR ES SALA.AM this 22 nd day of August, 2014. E.A. KILEO JUSTICE OF APPEAL B.M.K. MMILLA JUSTICE OF APPEAL I. H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. _iff,t :./11/f-J. F.J. KABWE DEPUTY REGISTRAR COURT OF APPEAL 9