20051220 TZCA Dar es salaam

/ IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 25 OF 2005 CITIBANK TANZANIA LIMITED • . . . . . . • . . . . . . . APPLICANT VERSUS 1. TANZANIA TELECOMMUNICATION ) CO. LTD ) 2. TANZANIA REVENUE AUTHORITY ) 3. TANZANIA COMMUNICATIONS ) RESPONDENTS COMMISSION ) 4. VIP ENGINEERING AND ) MARKETING LIMITED ) (Application for leave to appeal from the decision of the High Court of Tanzania at Dar es Salaam (Kimaro, J.) dated the 27 th day of October, 2004 in Misc. Civil Cause No. 6 of 2003 RULING MSOFFE, J.A.: The background giving rise. to this application may be stated briefly. In a Ruling delivered on 7/6/2003 in Misc. Civil Case No. 6/2003 the High Court (Commercial Division) made a number of orders. Subsequently, the applicant herein filed an application seeking extension of time within which to institute an application for review. On 27/10/2004 the said court (Kimaro, J.) dismissed the Ii 2 application mainly on the ground that the court was functus officio. On 9/11/2004 the applicant lodged a notice of appeal against the decision of 27/10/2004. In the meantime, the applicant also filed an application for leave to appeal against the above decision. On 10/2/2005 the Court (Kalegeya,J) dismissed the application. On 23/2/2005 this application was filed in which the applicant is seeking leave to appeal against certain parts of the decision of 27/10/2004. At the hearing of the application the court had to deal with preliminary objections raised by the second and fourth respondents notices of which were given earlier under rule 100 of the Court of Appeal Rules, 1979. In essence, the objections are centred on three main aspects. One, the order rejecting the application for extension of time to file an application for review is not appealable. Two, since the said order is not appealable the notice of appeal is invalid. Three, the applicant cannot pursue two remedies i.e. a review and an appeal, at the same time. Messrs. D. Kesaria and A. Mujulizi, learned advocates, appeared for the applicant. On the other hand, Messrs. Mgullu, Lugaiya, Daffu and C. Tenga entered appearances for the first, second, third and fourth respondents, respectively. By agreement of 3 . . ' . . . learrted counsel~ Mr. C. Tenga argued the preliminary objections on behalf of the second and fourth respondents. As for the first aspect of the preliminary objections Mr. C. Tenga urged that there is no right of appeal against the order rejecting the application for review. In support of this proposition of the law he cited Order XLII Rule 7 of the Civil Procedure Code, 1966, Bank of Tanzania V. Devram P. Valambhia - Civil Reference No. 4/2002 (unreported) and Mulla on the Code of Civil Procedure - 14th Edition at pages 1346 - 1349. In similar vein, he urged in respect of the second aspect of the objections that the notice of appeal is invalid - the essence being that if there was no right of appeal the notice of appeal has no leg to stand on. As for the third aspect of the objections, his general stance was that the applicant cannot seek two fora at the same time. He cannot pursue an appeal and a review at the same time, Mr. Tenga urged. Indeed, he went on to say, even under Order XLII Rule 1 (1) only a party not appealing is entitled to a review. In response, Mr. Kesaria's submission was essentially that so far no review has been preferred. What was before Kimaro, J. was an application for extension of time and not a review. Likewise, no 4 appeal has been filed as yet. In saying so, I think, Mr. Kesaria wanted to impress upon the court that the first and second aspects of the objections are either premature or unfounded since no review or appeal has been preferred todate. On whether or not a party could pursue an appeal and a review at the same time, he contended that it was possible to do so, citing the following passages from Mulla on the Code of Civil Procedure - 14th Edition:- " . . . . . . . where the application for review is first made and thereafter an appeal is preferre~ the review application can be disposed of provided the appellate court has not disposed of the appeal before the review application is taken up for disposal. . . . . . . . Where an application for review has . been presented by a party to the suit and an appeal is afterwards preferred from the same decree/ whether by the same party or by the other party to the suit the court to which the application for review is made is not thereby 5 deprived of Jurisdiction to entertain. the application . . . . But that power exists so long as the appeal is not heard. . . . // In conclusion, this is what Mr. Kesaria said, and I quote him verbatim asfqY~xrs:.- "In our situation we have an application for extension of time only. Thereafter we will choose to go by appeal or review provided by the time we come to review the appeal has not been heard and determined. // To start with, I wish to observe that Mr. Kesaria is correct in asserting that neither review nor appeal has been filed todate. However, the assertion that the preliminary objections have no basis because so far we have only the application for extension of time to file a review and the notice of appeal is, with respect, not correct. I say so for the following reason. An appeal is a process. A review is also a process. Hence the application for enlargement of time to file an application for review is part of the review process. · Likewise, the notice of appeal is part of the appeal process. Therefore, since a process is a series of actions or steps towards achieving a particular 6 end it will follow that one of the actions or steps cannot be severed from the others. Having said so, the central issue is whether there is cl right of appe~I agai~st t~e order rejecting the application for review. With resp~ct, I agree with Mr. Tenga that there is no such right as clearly borne out by the provisions of Order XLII Rule 7 (1). Needless to say, this is the law of our country on the point in question. It will follow that once Kimaro, J. dismissed the application for extension of time to institute an application for review then that was the end of the matter. In law, as stated above, no right of appeal could be forthcoming in the circumstances. In the same vein, Kalegeya, J. was correct in asserting in his ruling as follows:- ''Now whether the Judge is right or wrong, the factual situation is that the evidence was presented and rejected and therefore it is not a new matter as alleged. Legally, it cannot be put on record by way of review." (Emphasis added) 7 Indeed, the above legal position was restated by this Court in Bank of Tanzania V. Devram P. Valambhia - Civil Reference No. 4/2002 (unreported) thus:- " . . . .. However, it is to be observed that for a proper appreciation of the la~ rule 62 order 21 has to be read in its wholistic context. In our vie~ rule 62 is worded such tha~ upon proper construction its rendering has the ·same effect as rule 7 order XLII of the Civil Procedure Code, 1966 in which it is expressly stated that there is no right of appeal . .. "(Emphasis added). The second point falling for consideration is whether or not the notice of appeal filed on 9/11/2004 is valid. The answer to this point is a brief one. Once it is accepted that there was no right of appeal against the order rejecting the application for extension of time to file an application for review it will be evident that the notice is invalid because it has no leg to stand on. Such notice deserves to be, and it is accordingly , struck out. 8 The final point is whether or not it is correct in law to pursue a review and an appeal at the same time. The point need not detain me because in the light of the position I have taken on the above two points; a discussion of this point will be merely academic. To this extent I will say briefly that I have great respect to Mr. Kesaria in his submission and the passages he cited from Mulla on the point. With respect, however, I am of the following view. Theoretically it is possible to pursue the two remedies at one and the same time. In practice though, that may not be necessarily possible because the end result in either remedy would culminate in more or less the same conclusion - to have the decision complained of faulted or varied. If so, then one asks:- Would it really be worthwhile to pursue the two remedies at the same time? My affirmative answer is that it would not be a worthwhile exercise to do so. For the above reasons, I sustain the second and fourth grounds on the preliminary objections. The application is accordingly struck out with costs. 9 DATED at DAR ES SALAAM this 20 th day of December, 2005. J.H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original.