20011002 TZCA Zanzibar 1

kA •: : / 2 "I. I1 Ttfl COIJRT \APF.L!AL QkT TiU'FZ1AHIA ft' ZiIt ' (C AM NAKAM4, J.A. i.A. And 'ROSO JUL) CIVIL AF]tiJYO. 54 OF 1997 rr' ,r'xi';vçr T ''''. 'T' -AJJiJLt..L Cl ., A -rl''r o.'.l.n. JUAD:D. 00000 ,' - 0000o0o A l '-VT''V £LJLJJL.L •1 ISML.IL S.YA 3TJ'3132 L, 0 :3,LFH 3AJJJi: U:rJJo - (Aepeal from 'he decision of the High Court. of Zanzibar at Zanzibar) J0 ) dated the 19 2-1 1 da of August 2000 in Civil Case No 22 of 1996 00000000* S RULI:-G OF i1H. C3LCT In the Hi'h Court Civil Case '11o 6 22 of 1996 the E ; ) pe-llaflts sued, the respondent for false imprisonm Int and 'sliciou.s 7 prosecution and ech clainu:d shs0 50 1.11illion0 iiey claimed that the resporcLen has built. a house on a Plot beloning to one Yussuf 0eman 9 deceased, and that they are seohin to restore the )io'; to the rightfuJ. teirs Js a relt of tf res'osert 9 3 resort to tb police the appellaut.s were arrested 9 .a.rded f o r sonie 24 hours and then prosecuted in Criaine.l Case Jo, '162 of 1995 Hov•ever 9 th e charges were later tbdraaru0 The respontnd.e filed a counter-claim for trespass and ualicious ds.o : p ;o property0 The suit ras hr c onsent adj ourne, and. fi::eci for hear i'ag on three differeut occasions0 , U.timate .1.y on 11/3/97 both ap'pellans and their advocete 'iore absent atL DfOUX J 0 disuissed. the plaint and eve.1ruul*y granted the counter- claim on 19/8/97 I-Ience this apsal in which Dr0 Masumbuko Lanu-rai learned counsel 9 represented the respondent 0 There was a preliminary objection by the respondent0 I - J\I U - There are two niatters we wart to uoirit out with respect to the pre1iminar obj 'ction0 One s there was no copy of the notice of the preILry objection in any of, our files but Dr 0 Lanu-ini conceded thoW there was such an objection led a on ulifie ago. Txo 9 I'r0 ibreeleai our1it to have 1'iLed a suopi eraiy recora oi: apea1 containin' portions of proceedixr - which were relevant to the prelimina:cy objection and which were misein..: in the record of appeal0 These matters did not detr..ct us from. proceed:n with the application hut we remind. advcotes to he thorough in their work0 The two objections were: 1. That in law there is no appeal against an ex parte ud':msnt0 2 That the appeal is inconoetent for wand of leave souht and civcn0 At the hearing the first objection was chan:ed without notice or leave a nd I1r0 Mhwezeleni argued that the aooeflants had a coice of either anpealin : . to this Court against the ex arte judgment or seefl :ing to set aside the expoorte judgment hut not to pursu' hui;h prongs at the oane t.me0 Mr 0 Mbwezcleni nied oi - h.i rhe aooehi:n..to f 1ed a notice ol' aupeal on. 22/8/97 ad ndso made an auolication to set aside the ox par- te judg.ent :1n Misc0 Ciril i\plication 0 61 of 1 997 2 bue: ci. ttc' tm t. t s Court decided in fi.ero Helicopter that once a notice of appeal has been lodged in this Court then a matter is renoved from the High Cout into this Court0 So he coritended the a1ppeilant 9 s anuJicitiOn in. the High Court to set aside the cx parte judgment was irregular0 S . S As for the second objection, the learned counsel submitted that an appeal against an cx parte judgmanb requires leave to a'peal and that has not been obtained in this case0 Di liamwai conceded that the appellants moved on two prongs0 Rowever, he submitted that tiat povs was hei'ore the decision of this Court in Aero lj,olico- pterexid so h ar{uca the appellants were not borred. ±'rom ikin both moves0 As Ior the second obiection. Dr0 Lamusi submited that an arpeal against a:: cx parte u.'mnt doe not reauire leave to appeal as it IaTls under section 5(1)(a) of the opellate Jurisdiction Act, 1979 dealing with aspeals as of right0 Again, Mr 0 1"Ibwezcleni neither :.ncluded Aero Helicoptcr in his list of authorinies, as required by Rule 32, nor did he produce in Court a copy of the decision0 Dr0 Lamwai, on the other hand, did not complain about that but used the authrity giving a completely wrong information0 He said that Aero .Relic ojter was decided after the events leeding to this apeal and, t Lieref ore, he argued, :L is :Lnappflcabl.e Mr0 Nbwezelerii di d :.iot contradict Dr0 Lamwai because he, too cLio. not have e Ictails o GCi5 ucJSOfl at his fiigertie0 We c nsulted the law roo:':ta- a:l found. Aero_Relic ojItor (T) Ltd0 V. F. N0 Jansen, 119907 TOLON O 12 9 was decided on 6th December, 1990. b-ct isV. almost seven Te:rs before the judgment of 1).3;IIMA. J 19th August ; 1997 We tlo, e that Mr0 Mbwezelecj and other advocat like- him 9 will take a leaf from this unsatisfcctory state Of a:flfairs and obsoive the Rules0 - The qu.cstion here is2 does I1eroHe1icop:;er apply? In that aoplication our learned brotIi ; KI3.-Gi asked himself tia folloying aLias iOIi on P. I 44 The aue5uaOli now _.IJ_:LiO for cOilS V ar- therefore . is a nar:ow one aA it ia this Does saction 95 of the Civil Prooedus confer- jurisdiction on the T - i -h Court to orer a s0oy of execution penLe: 'UOSi to this Couirt1 The Court was satisfied that there is no soecific section in the Civil Procedure Code (CEC) that confers ju.:iociiation Of staying execution of a matter cenc 1 ir:i on apoel in this Court 0 The Court also declined tp use sectlon 95 a;hich confers inherent jurisdiction on the high Court of Tanzania 9 because section 2 of the CPC rakes the GPO applicable to all proceo. ngs in the High Court of the United Republic subjsct to the express provisions of any written law0 The Courh - -x-LS setisfied that 01100 a nOtiCe of appeal has be-an filon in this Court thou proceedings are withdrawn Iron the ambit of the CPC by sectic-n 2 thoreof because there is then a wrjtten. law 2.rOTdaui for May of TLoiJtiOn Pula 9(2)(b) of :;ha 1'anzaia Gau:': of -ppeai i'eles 1979. The question heif ore us is whether that decision isof general applic Ition and that whenever there is a notice of appeal lodged in this Count then any proceeding in the Hish Court with rasoect to that litigation is barred We hesitate to can so0 Moe one occasions when this Court and the High Court ha -jo concurrent jurisdiction of rcatters0 For example 9 leave to aonal can be obtained from the High 0 0 0/5 / Cour- or from tbis Court Un ou ia6tjon 5(1)(c) of the Appellate Jurisdiction Act, 1979 (Act No 0 .15 of 1979) In fact our learned brother acknowledged the existence of concurrenturicciiction over stay of eecution undar Rule 53 of the Zjast African Court of Appeal Rules (sce pages 145 and 146) and hence distinguished a Kenyan decision len • was referred to0 . There is another instance where.-, desIte the presence of a notice of appeal in bhis co1et, the High Court baa exclusive jurisdiction over a matter0 After an aailication before that court is unsuccsse±:l then a party is entitled to c me this Cout wth a ire ale application br on aprealo In the case of a third arpcalQ that is -a matter emanating from aPricary Court in the cee oi''he Nainland, or from the I 'Primary Court and/or the bistrict Court in the cese of Zanzibar, only the High Court can certify that a point of law is involved (section 2)(c) ef the Annellato Jurisdiction Act, 1979) So, it is not aiwoys the case that once there is anot1c JJ of appeal lodged in this Court then the High Courtib functus officio 0 Therefore, AeroHelicoter i.ot ci general application bet refers to stay of ecution s',d possibly other matters that we have not conidered here0 ifter saying so, 'hho question is: \t is tho pOcition if ••, setting aside ax parte proceedings'? I'—, As already pointed oi, both learned advocates are of the opinion that thero is concurrent jurisdiction between this Court andeigh Courts ' \ both of Tanzania end ci Zanzibar)0 %WA..'.~ Wkefquestion is whether than is so and if so, whether both jurisdictions can 0.:. anvol:ea si.muJ.taneousiy 0 / 00000/ - - I 0 'ie at fQllow: In arry case in whIch a decree is passed ex parte agalnet a deendant, ho may alpply to the court hr which the decrn erajns seed for an order to wet it aice- , This rule of set esug aside an ex parts decree will orL benefit .s defe ..aef0 But the-re are two more possible scenarios in no ox earte decree: One 9 a defendant mirht not want to set aside an cx poite decree but mirht erich to contest the fiYicLenOs or tee sw no.0 fwo a niaa:reifi n.otviithstanaing that io:o aecree we in his eevour niger nev.rtneless wish to challenre the Canning or the award0 o xi R. 14 will :.ot......e-:-ich; either of the two persons :.nentioned above 0 In such s. c-sac the rnedar would appear to be to appeal under section 5(1 (a) fl The howliate Jur odiotiori .tct 1979 which pios ides as follows 541) In civil proondinge; except where w.y law- for the -LL1;O being in force orovidos old .re-iree an apoesi sdef.l lie to the Ooi.neb of hppoal (a) anainot ev.ry P ease eclees pro xe paste or p e 1 h j we C ii s in a suit under Its Civil fnodure Code 9 1966 9 in the exerci.-eeeJi • iurioJicijon; It is abundantly cles.r to us It; L concurrent junisdiclion exists only with respect to setting aside -an ox rerte decree0 - Now 9 could a defendant pursue both avenue-s the same tirne eTc third;; not and we henre three reoasoa-s for thinking so 0 sin- v. U .51. 1 'NP is the only and. singularly for setting aside parte decree0 dc have already said that section 5(4'(a) ud the !ipp-eliate Tjurisdiction hct covers more eituabons than setting aside s-: rex narte decree 0 In that cfal,teit is our considered •opinon thet that provision shnubs invoked first and foremost Sec end., - . - - -. -- - --- • .. ,-'• ': 0 XI R. 14 operates in the High Court (and subordinate courts) because the CF.: does not apply to this Court (see 1(2) section If, of the CiD)0 It is our settled view that one should only come to th s Court as a last resort after a exhausting all available remedies in the High Court0 Finally, it appears to us that, in the case of concurrent jurisdiction under tn ollato Jurisdiction Act, 1979, the sequence of actions is to start in the Hi:h Court and subsequently to this Court0 This is definitely so in the case of applications under Rule 44* Whenever an application may be made either to the Court or to the Hih Court, it shall in the first instance be nade to the High Court We think that that sequence is orderly, logical and avoids confusion and the deplication of litigation, as was the case here0 the applicants ought to hav applied for setting aside the ox parte dcree in th High Court and shoult have simultaneously fil;d an appeal in this Court0That move was udoiiibtedly irrerular0 W2 uphold the preliminary objection and strike out this appeal with c3s0 We do not deem it necesse.ry to go into the othepoint raised.0 J I 1 / - '8 - D.TD at ZNZIB. this 24fth day of October, 2001 L. M. rTr U 1J YJXii J. S L0 JiJ'TIOIJ MROSO -I. 0 •.O JUSTICE OFfPEL.L I certify that this is a true copy of the orii;ina1 0 - 7 TP I