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IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORUM: MUNUO, J. A, KAJI, l. A AND KIMARO, l. A. ) CIVIL APPLICATION No. 27 OF 2006 I KARIBU TEXTILE MILLS LTD ......... ;................................APPLICANT AND- NEW MBEYA TEXTILE MILLS LTD .. ;........................ 15r RESPONDENT NEW KILIMANJARO TEXTILE MILLS LTD ................. 2ND RESPONDENT THE MINISTER FOR FINANCE, GOVERNMENT OF THE UNITED REPUBLIC OF TANZANIA .................... 3Ro RESPONDENT THE HON. ATTORNEY GENERAL. ... ;....................... .4rH RESPONDENT (Application for Revision of the Ruling(s) and Order(s) of the High Court of Tanzania at Dar Es Salaam) (Manento, l. K) Dated the ih day of February, 2006 in Miscellaneous Civil Cause No. 7 of 2006 RULING OF THE COURT 28th Aug. & 27th Oct. 2006 KIMARO, J. A.: By notice of motion under: Section 4 (2) and (3) of the Appellate Jurisdiction Act, 1979 [Cap 141 R. E 2002], and Rule 45 (1) of the Court Rules, the Applicant, Karibu Textile Mills Limited seeks to move the Court to exercise its revisional jurisdiction to revise the I proceedings of the High Court, Manento, JK in Miscellaneous Civil Cause No 7 of 2006. The High Court, in Miscellaneous Civil Cause No. 7 of 2006 granted the 1st and 2nd Respondents, namely New Mbeya Textile Mills Limited and New Kilimanjaro Textile Mills Limited an order of injunction to stop the operation of Customs (Management and Tariff) (Remission) (M/S Karibu Textile' Mills Limited) Order, 2005- Government Notice No. 162 of 2005. The High Court also granted the respondents leave to apply for orders of certiorari to remove the 3rd Respondent's (Ministry of Finance) decision enacting Government I Notice No. 162 of 2005; aforesaid; and further, leave to apply for a ·declaration that the Memorandum Iof Understanding between the Applicant and the 3rd Respondent was illegal and contrary to public policy and against national interest. I The Applicant_ has three grounds for seeking the revisional jurisdiction of the Court:- i) The orders of the High Court were granted I without giving the applicant an opportunity to be heard. ii) The High Court lacked jurisdiction to give injunction stopping the operation of the law, I namely Government Notice No. 162 of 2005. 2 iii) The trial judge (Manento, J.K) had no ;; jurisdiction to give injunction after the earlier decision of his fellow judge of the High Court, Commercial Division (Dr. Bwana, J) whose decision restored Government Notice No. 162 of 2005. At the hearing of the revision, Dr. Lamwai, counsel for the Respondents, raised a preliminary objection, notice of which was lodged earlier under Rule 100 of the Court Rules, that the revision was incompetent because it arose from inter'locutory orders which did not finally and conclusively determine the matter between the parties. A brief account of the facts is as follows: By Government Notice No. 162 of June 2005, the Applicant was given a 15% import relief on specific imported raw materials on the basis of a Memorandum of Understanding (MOU) signed between the Applicant and the Ministry of Finance. The subsequent revocation of Government Notice No. 162 of 2005 made by the same Ministry, by Government Notice No 379 of 2005 prompted the Applicant to institute, in the Commercial Division of the High Court, proceedings for prerogative orders of certiorari to quash and set aside the decision of the Minister for Finance 3 enacting Government Notice 379 of 2005 purporting to revoke Government Notice No. 162 of June, 2005. An application by the 1st and 2nd respondents to be joined in the proceedings filed in the Commercial Division of the High Court as interested parties was not successful. The proceedings in the Commercial Division ended in favour of the Applicant. The Commercial Division quashed and set aside the decision ·of the Minister for Finance revoking Government Notice No. 162 Of 2005 by G. N. 379 of 2005. G. N. 162 of 2005 was restored. After the decision of the Commercial Division, the 1st and 2nd Respondents filed in the High Court, at the Main Registry Dar Es Salaam, Miscellaneous Civil Cause No 7 of 2006 praying inter alia for: (a) an order granting the applicants (1 st and 2nd Respondents in these revisional proceedings) leave to make an application for the order of certiorari to remove the decision of Minister for Finance enacting Government Notice No. 162 of 2005 giving preferential treatment to the applicant (M/S Karibu Textile Mills Ltd). (b) an order granting leave to the applicants (1 st and 2nd Respondents) to make an application for a declaration that the Memorandum of Understanding between the 2nd and 3rd Respondents (Republic of Tanzania and 4 Karibu I Textile Mills Limited) giving the 3rd Respondent (applicant in these proceedings) preferential tax tre~tment is illegal and contrary to public policy and against national interest. I The 1st and 2nd Respondents also filed a chamber application under Order X~II Rule 1 and 2 of the Civil Procedure Code, 1966 praying' for:- EXPARTE I I (a) An exparte order ;of temporary injunction restraining the Respondents, their agents, servants, workmen, assigns and I whosoever will be acting through them ' from putting Iinto effect and/or implementing Government Notice No. 162 of 2005 pending hearing and I determination of the application for temporary injunction inter-partes; I INTER- PARTES 5 (b) An order of temporary injunction restraining the Respondents, their agents, servants, workmen, assigns and whomsoever will be acting through them from putting into effect and/or implementing Government Notice No. 162 of 2005 pending the hearing and final determination of the main application. The High Court granted the orders for leave to file an application for orders of certiorari and declaration. The application was heard exparte. An interim Order of temporary injunction to restrain implementation of Government Notice No.162 of 2005 was also granted pending hearing and final determination of the application for temporary injunction interpartes. These are the orders the Applicant is seeking revision by the Court. In arguing the preliminary objection Dr. Lamwai's main pre- occupation was to show that the orders of the High Court are interlocutory, hence not subject to revision at this stage. He said section 5 (2) (d) of the Appellant Jurisdiction Act, 1979 [Cap 141 R. E. 2002] as amended by Act No. 25, of 2002 bars revision of orders 6 which do not finally and conclusi~ely determine the rights of the parties. I Starting with the order granti'ng leave to make application for I orders of certiorari and declaration, Dr. Lamwai said there are no i specific rules made by the Chief Justice as required by section 19 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) I Act, [Cap 310 R. E. 2002] to regulate the procedure and documents to be filed where prerogative order~ are sought under section 17 (2) of the Act. Because of the lacuna in the law, Dr. Lamwai argued, the I High Court is guided by section 2 (3) of the Judicature and I Interpretation of Laws Act, [Cap 358 R. E. 2002] which enjoins the High Court to follow the practice and procedure of England as of 22 nd July, 1920. I In England, Dr Lamwai said, the procedure is exercised in two I stages. The first stage is of obtaihing leave, where the High Court has to establish whether there are brima facie conditions for allowing the application. In this stage the 'application is made exparte save I for the Attorney General who has ~o be made a party under section 18 (1) of Cap 310. Dr. Lamwai co~tended that the stage of leave in the High Court in exercising its prerogative jurisdiction is an I interlocutory stage which does n'ot determine the rights of the parties. 7 A brief submission by Dr. Lamwai on the second order of temporary injunction was that it was interlocutory because the application for temporary injunctio~ was not disposed of. Dr. Lamwai argued in conclusion that the orders made by the High Court in Miscellaneous Civil Cause No. 7 of. 2006 were interlocutory in their nature and they do not finally determine the proceedings before the High Court. To the extent of seeking for leave and the orders of interim injunction, Dr. Lamwai concluded, the revision is barred by Section 5 (2) (d) of Cap. 141 as amended by Act No. 25 of 2002. It is incompetent. On his part, Mr. Kamara, Learned counsel for the Applicant argued that it was not sufficient for, Dr. Lamwai to cite section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 as barring revision on interlocutory orders. His opinion was that Dr. Lamwai had to go further to show whether the orders complained of were made from a I criminal charge or a suit. He contended that the applications made in the High Court were neither a criminal charge nor a suit. As such, Mr. Kamara said, the orders are not covered by section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 because they do not arise from a criminal charge or a suit. His further argument was that the provisions of section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 should be strictly interpreted. He cited the case of Sadick Abdallah Alawi Vs Zulekwa and National Bank of Commerce Civil Reference No. 29 of 1997 (DSM) (Unreported) where the Court said that a probate petition cannot be equated to a suit, to support his 8 view. According to Mr. Kamara, if the intention of the Parliament was ' to cover other matters in addition to criminal charges and suits it would have been specifically stated. The complaint by Mr. Kamara on the order of temporary injunction was that there was no indication that the application would be made exparte. The application shows that the applicant had to be served. With clear indication that the applicant was to be served, Mr. Kamara argued, it was wrong for the trial judge to proceed exparte and issue an exparte order of temporary injunction. I Lastly, Mr. Kamara submitted that the order for temporary injunction, like the order for leave to file prerogative order of I certiorari do not fall within secti~n 5 (2) (d) of the Appellate Jurisdiction Act, 1979 [Cap 141 R. E. 2002], the same having not arisen from a criminal charge or a, suit. The Court was asked to dismiss the preliminary objection. In a brief rejoinder, Dr. Lamwai conceded that the case in the High Court, the Civil Procedure Code was not applicable. But Dr. Lamwai was not of the opinion that the case cited by Mr. Kamara was I relevant because the distinction was made by the Court in circumstances with specific rules g?verning the procedure for filing probate petitions. His emphasis was that the lacuna in the law makes the High Court fall back to section 2 (3) of the Judicature and Application of Laws and apply the procedure and practice in England. 9 In England, Dr. Lamwai said; certiorari and mandamus are Common Law writs. The common l~w procedure detects two stages in application for prerogative writs. It is common law practice. It is I not statutory. He contended that under Common Law the application I should be equated to a suit because it is an action. It is a cause. According to Dr. Lamwai, it is not correct to say that section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 ousts the jurisdiction of the I Court for orders which arise out of application for leave to apply for prerogative order of certiorari. I Dr. Lamwai's response to the I right of appearance of the applicant in the High Court was that the prerogative stage for seeking I for leave is always exparte. The Applicant was cited as a Party in the High Court for purposes of showing against whom the order of certiorari was going to be made. ;He requested the Court to take judicial notice that it is the practice in the High Court to cite parties. 'I However, Dr. Lamwai argued, the citing of the applicant did not confer an automatic right of appearance on its part because of the nature of the application. He prayed that the preliminary objection be upheld and the revision be struck out for being incompetent. I I The provisions of section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 as amended by Act No. 25 of 2002 provide:- 10 11 d) No appeal or application for revision shall lie ( I against or be made in respect of any preliminary ' . or interlocutory decision or!order of the High Court unless such decision or order has the effect of finally determining the . Criminal charge or I suit. 'cEmphasis added) I The submission made by Mr. Kamara to counter the preliminary I objection did not seem to dispute that the orders giving rise to the revision are interlocutory. Rather, they are not covered by Section 5 ' (2) (d) of the Appellate Jurisdiction Act, 1979, the main reason being j that they do not arise from either a criminal charge or a suit. The only. issue before us therefore, is whether ' or not the orders fall under the provisions of section 5 (2) (d) of the Appellate Jurisdiction Act, '' 1979 as amended by Act No. 25 of 2002. Dr. Lamwai argued strongly that the application in the High I I Court should be equated to a suit. because the procedure used in filing the application was in accordance with the Common Law practice in England, there being no specific rules in place to cater for filing the application for leave for prerogative order of certiorari in our laws. I I On the other hand Mr. Kamara urged the Court to give the provisions of section 5 (2) (d) of th~ Appellate Jurisdiction Act, 1979 11 a strict interpretation so as to exclude any order not arising from a criminal charge or a suit. Our research has revealed that the terms suit and action are not defined anywhere in the Civil Procedure Code, Cap 33 R. E.2002. Because of the omission, we found it necessary to go for a dictionary definition. The definition given by Black's Law Dictionary, Seventh Edition, Bryan A. Garner seems to be very comprehensive. An Action is defined as civil or criminal judicial proceeding. "An action has been defined to be an ordinaryproceeding in a court ofJustice, by which . .' one party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a 11Yrong or the punishment of a public offence. But io some sense this definition is equally applicable to special proceedings. More accurately, it is defined to be ':'ny Judicial proceeding, which if concluded to a determination, will result in a Judgment or decree. The action is said to terminate atJudgment Black's Law Dictionary goes on to say: 12 i1 I The term "action" and ''suit" are nearly if not quite synonymous. But lawyers usually speak ofproceedings in courts of law as actions and those in equity as suits. In olden times there was a more marked distinction, for an action was considered as' terminating when judgment was rendered, the execution forming no part of it. A suit on the other hand included the execution. .. Action in the sense of a judicial proceeding includes recoupment, counterclaim, set-off, suit in equity and other proceedings in which rights are determined. The definition of a suit, again by Black~s Law Dictionary (supra) is:- Any proceedings by a party or parties against another in a court of law. , Gathering from what Black's Law Dictionary says about action · and suits (supra), in our opinion, with respect to Dr. Lamwai, the . applications which were filed by the 1st and 2nd Respondents in the High Court are covered by the definition. The record of revision at page 50 shows that the Respondents have a complaint against I Government Notice No. 162 of 2005 for illegality, unconstitutionality and unreasonableness and they want to have it quashed and set aside. It is an action for enforcement or protection of a right. Under the circumstances, we agree with Dr. Lamwai at it_is-rigbt__j:o e_ggm_e~p_p_lJcationto a suit7 13 We further agree with Dr. La~wai's submission that the spirit of the amendment of the provisio,ns of section 5 (2) (d) of the i Appellate Jurisdiction Act, 1979 is .to prevent unnecessary delays. I This is rightly so because interlocutory orders do not finally and I conclusively determine the rights of the parties. Where a party is aggrieved by interlocutory order, that can form a ground of appeal or I revision if the party is dissatisfied with the final decision of the court. Article 107 A (2) (b) of_ the Constitution of the United Republic of Tanzania 1977 as amended by Act No. 3 of 2000 reads in official language as follows:- j I 107A (2) (b) Katika kutoa uamuzi wa mashauri ya madai na I jinai kwa kuzingatia sheria, Mahakama zitafuata kanuni · zifuatazo: (a) ....... .. (b)kutokuchelewesha haki bila sababu ya kimsingi. I I In our view, section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 was amended purposely to :give effect to the provisions of Article 107 A (2) (b) of the Const/tution of the United Republic of Tanzania, 1977. In a fit case, like this one, the Court is required to I .• adopt a "purposive" approach in interpreting the provision. The approach was endorsed by the Couh while construing section 114 of the Elections Act in the case of1 Joseph Waribba V Stephen Wassira and Another (1997) T R 272. 4 The Court quoted with 14 d IJ approval what Lord Denning M. R. stated in the case of Noth man V • earnest London Borough (1978)1 All E R 1243 at page 1246:- The literal method ( of construction) is now completely out of date. It has been replaced .. ,by the ''purposive" approach. .. This was said in Kasmminis Ballrooms Co. Ltd V Zenith Investments {Torguay) Ltd [1970] 2 All ER 871 and it was recommended by Sir. David Renton and his colleagues in their valuable report entitled 'The Preparation of Legislation' ' In all cases now in the interpretation of statutes we adopt such a construction as will promote the general legislative purpose underlying the provision. It is no longer necessary for the ' Judges to say: There is nothing we can do about it. Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the Judges can and should use their good sense to remedy it--by reading in, if necessary--so as to do what Parliament would have done had they had the situation in mind. See also the case of Goodluck Kyando V R CAT. Criminal Appeal No. 118 (Mbeya) (Unreported). This being the position, we are far from being persuaded, and with respect to Mr. Kamara, that the provisions of section 5(2)(d) of the Appellate Jurisdiction Act, 1979 should be strictly construed to include only those orders arising from criminal charges and suits. That was not the intention of the ' 15 Parliament. The intention was, strictly speaking, to include all orders arising from civil and criminal matters which do not finally and conclusively determine the rights of the parties. That need arose from the notorious delays in civil matters. In Mahendrakumar Govindji Momani t/ a Anchor Enterprises V Tata Holdings (Tanzania) Ltd and Another CAT Civil Application No. 50 of 2002 Mrosso, J. A. observed: One of the pertinent reasons for paragraph ( d) of section 5 of the Appellate Jurisdiction Act 1979 is to stop the irresponsible practice by which a party could stall the progress of a case by engaging in endless appeals against interlocutory decisions or orders. The case of Sadick Abdallah Alawi (supra) cited by Mr. Kamara is not applicable in the circumstances. The distinction made by the Court in the procedure applicable in a suit and a probate petition was made in a different situation. In the event, and for the reasons explained, the preliminary objection raised by Dr. Lamwai is upheld. The revision is incompetent, having arisen from interlocutory orders which are barred by section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 as amended by Act No. 25 of 2002. 16 The revision is struck out with costs. E. N. MUNUO JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL ' N. P. KIMARO JUSTICE OF APPEAL ' I certify that this is a true copy ,.of the original ' (N. P. Z. CHOCHA) DEPUTY REGISTRAR I 17