felix bwogi ta eximpo production services vs registrar of buildings 1990 tzca 130 25 july 1990

IN THE COURT OF APPD/J. OP T3TZA1TIA '•» -AT ES SJ.MH 7------ — ----- (COItAM: FfALALI , C . J . , ' jiLUCAHB. J . A . fjad OKZl. J . A . ) CIVIL APPLICATION NO'. 26 OF 1989 FELIX BWOGI t/a SXIMPO PROMOTION & SERVICES .............. APPLICANT And ICjpiSTItAa OF SUILI-IiTGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RLSPOITLBHT (Applicatioh for an order that the judgment of the Court Civil Appeal Ho# 19 of 1988 be corrected from the judgement/Court of Appeal of Tanzania at Bar os Salaam) in Civil Appeal No#. 19 9f 1969 ORDER OF TUP COURT NYA1A1I, C . J . ; This is a very unusual application made by one FSIIX B1T0GI t/a ’ J1XTMFO ;>$$CW lW BRr& SERVICES for d rr+ ty ir. stated in tlxe TJotxoe oX Motion as follows! "(a) The Judgement of the Court in Civil Appeal Ho. 19 of 1988 be corrected by erasing the portion being page 6 , line 2 4 , the use of Evidence Exhibit "D" a letter from the Regional Finance Officer as the said letter of dcfenco of first defendant in the High Court dated 1 5 / 10 /19 8 2 on page 2 2 -3 4 of the memorandum of appeal and therefore not forming part of the proceedings. Amended statement of defence of the dofondajit dated 24/5/83 page 43-59 vaa- introduced# ' (b) Jud(oracnt against applicant be set aside,," T(Jhat the applicant is really seeking is a rectification of the judgement on the ,ound that the judgement contains an error induced by an accidental slip which misled the Court in deciding against the applicant. The facts of civil appeal case Ho* 19 of 1988 are stated in the. judgement in * S' question# There were two main issues-on the merits of the case. The issue which is relevant to the present application is whether the appe]lant in that case, that is, The Registrar of Buildings, which was the Landlord of the applicant, had wrongly terminated a tenancy inrcspoct of comac^cial premises situated at plot Ho.58 2/9 along Sa-nora Avcnue/lnc:pcndcnco Avenue in the City of Dar es Salaam. This Court held that the appellant (who is the current respondent in this application) was octiilod to terminate the tenancy agreement. The Court stated; ... 0/2 2 "3 ? &3*jJrtnd?x v-1? "n'lnr'lTwor'+o^ r>v? ^enro o.ddw’od at +.V>r> t r i a l as Exhibit B attached te the written statcaont or ssrcnee s£ i»e a s n defendant, teat is, abettor Hcf. Ho. 2P0/C3/Bj/Gas/Vol.Il/l35 dated 26th February I98O addressed "TO T7KCI1 IT HAY COHCHM" by the Regional Finance Officcr, Dc.r es Salam and Coast Region. The letter reads: 'M/S ZSlirCO . t The above business is ordered to stop operation with offcct from 26th ITovcmbcr 19 79 bccausc they wore found in oporation while their business liconcc had already expired on 31st March 1979 it had not been reviewed. They will go into business again after they had obtained a valid licence to cover the period from May 1979 "to 30th *-pril I98O and after their offonco for carrying on business illegally had boon compounded under the Financo Act 1972.' !fc arc of the view that since the tcnancy agreement between the parties was for the purpose of carrying on business in the premises in question, that agreement contained an implied term to the cffoct that the respondent was to carry on that business lawfully. By failing to renew his trade licence and illegally carrying on business as stated in the contents of Exhibit D, the respondent was in breach of the tcnancy agreement. Wc arc satisfied that the appellant was entitled to terminate the tcnoncy ±0 stop the respondent using the premises illegally." From the rccord of Civil Appeal No, 19 of 1988 filed in this court by the appellant in that case, that is, the Registrar-of~Buildings, it is apparent that when the case was on trial in the High Court, the cc-dofcnfiant of the logistrar of Buildings, that is, ono Kenneth Cunningham, the first defendant, filed two writton statements of defence, the first ono was cn 1 5 th October 1982 and the sccond one on ^,26th May 1 9 8 3 . Exhibit "D" which was relied upon by this court ±11 resolving the issue ‘of wrongful termination of the tcnancy agreement was annexed to the first written statement of Defencc as part of paragraph siz thereof. It is the applicant's contention, which is not disputed by the respondent, that, the first written statement of defence was abandoned and replaced with the second written statement of defence, and that tl.is court therefore erred in relying on a r.on— czistont Uzhibit D. The applicant, vlro is represented by I3r, Maira, learned advocate, further submitted that this court has jurisdiction under section_4( 2) of the Appellate Jurisdiction Act, 1979 3ulc 40 of tl:c Rules of the Court to correct this error by erasing all that portion of its judgement concerning exhibit I). The respondent, who is represented by fir. Lukvraro, learned counsel of the Tanzania legal Corportion, contends on the other hand, that the court has no jurisdiction cither under scction 4(.2) of the Appellate Jurisdiction Act, 1979 or under Itulc- 40 of the Rules of this Court. ./3 The central issue of this application therefore is whether this court has jurisdiction to erase or strike out the relevant portion of its judgement against the applicantj and consequently enter judgement for the applicant. Unfortunately neither side was helpful in' citing authority to support its position. The only authority cited by Mr, Lukwaro for the-respondent is MUlLAJs toxtbook on the Code of Civil Procedure, 12th and 14th Editions concerning the learned author’s commentaries on the provisions of section 132 of the Indian Civil Procedure Code, 1$)08 . This lack cf assistance frcn the parties involved us in doing our own legal research in addition to our normal daily work of hearing and other cases, ire were almost certain, that th« issue raised in this ' j application, though undoubtedly a new one in our jurisdiction, must have "been raised and dealt with in other jurisdictions within the Common Law legal system. Our task has been regarded, though at the expense of delaying— our-decision, which we reserved on the 23rd February 199°« tave done this research not for academic reasons, but on the firm conviction that the experience of people in other countries or i jurisdiction can, properly used, cnrich the lives and activities of the people in our jurisdiction, on the basis of our common humanity and heritage. Let us now turn first to the provisions of section 4 (2 ) of the Appellate Jurisdiction Act, 1S79 j which state as follows! "For all p u r p o s e s 0f and incidental to the hearing and determination of an appeal in the exercise of the jurisdiction conferred upon it by this ‘ Act, the Court of Appeal shall, in addition to any other power, authority and jurisdiction conferred by this Act, have the power, authority and jurisdietion vested in the Court from which the appeal is brought". Obviously, what the court is being asked tc do in this application does net fall within the ambit of section 4(2) which relates only to the "power, authority and jurisdiction vested in the court' from which the appeal is b r o u g h t I t is beyond doubt that the court below, that is, the Eigh Court in this matter, is net vested with the power, authority and jurisdiction'to erase or strike out the portion of the judgement cf this court which is the subject of the applicant1s complaint. Section 4(2) could conceivably have been invokc% if the application concerned a portion in a judscnenit of the High Court from which the appeal was brought to us. Now wc turzi to 3 ulo 40 which deals with 1correction of errors’ , It sta+.nni "40(l) A olcricr.l or stc-kc in any judgcncnt of the Court or any error arising in it fron an accidontal clip or omission nay at any timej whether before or after the judgement has been oribodiod in an order, to corrcctcd by the court either of its own notion or on the application of any interested person so as to give effect to what the intention of the court was when judgenont was given* (2 ) An order of the court nay at any tine bo corrected b ir the court, ■ either of its own notion or on the application of any interested person if it dees not correspond with the judgement it purports to cnbody or, where the judgement has been corrected under sub-rule (l), with the judgcncnt as corrected#11 It is the applicant1s contention that the reference to and rclianco upon exhibit D was an accidental slip or emission wit]:in the scope of sub-rule (l) of Kulc 40 , On the other hand, the respondent's contention is that, that reference and the t' '*’x ^ oliar.ee by the court was not accidental, since the court clearly intended to uso and rely upon the oschibit in its judge.aont, and that cucla error^ if at all, was an error of judgement, and therefore boyend the scope of rule 40 * The question ^rhich wo/.have to ask ourselves at this stage -is-whcthor this court in giving the judgcncnt in question accidentally referred to and relied upon exhibit D* To bo ablo tc answer this question, wo have to bo clear in our ninds as to what is meant by an accidental slip or omission of the cotirt* In our considered opinion, an accidental slip or omission cf the court, as distinct from a clerical or mathematical ;:iiGtako nay be any of the following^ First, a fortuitous slip or emission such as occurs in a criminal trial wlion tirc-i ntering a plea of not guilty the word ’Hot 1 is not recorded by a slip of tho penj inspito of the trial judge’s firm intention to- make or cause to bo made a full and correct recording of the pica. In najiy ways such an error is similar to a clerical mistake, cxcept that tho latter usually occuxd in the registry or offico of the court as envisaged hy lord Eonzanco in tho caso cf IuJQ.IE.V4 L 5SS (l88l) 7 App,C,>3 t3» An accidontal slip or omission cf the Court however occurs in the courso of proceedings in court« As our present oaso docs not involve a slip of tho pen, wo nood say no more except that on the available authorities, including the oaso of Ro Swire (1885) 30 Ch, D» 239« this first category of orrors, when it occurs, is roctifiablc under the inherent jurisdiction cf tho court Without invoking the appellate jurisdiction*-.It he nay alsc/rcctificd ur.der an express legal provision* 6 The Ccurt of Appeal hold to the cffcct that since tho rectification sought did > Cnct alter tho nature or substance of the judgement, th&JPQ WfiS iP.Lorent jJtxrUH&GtlCtl to rectify tho judgement; InThyne's case,, a court dissolved the marriage of a couple who, undisclosed to tho courtj had coijo through two ceremonies of marriage, the second and invalid cno being the subject of the court proceedings* On a summons to rectify the record of the court so that the first ccrenony of marriage could be cited in the proceedings, it was holdj by a majority on appeal by tho Court of Appeal, that there was jurisdiction-to rectify as requested both under the inherent jurisdiction of the court and under A dor 70* rule 1 of the -lulos of the Supremo Court. Those four casesy •*. oscpocially K L u U J O * o ease and Tliyno1o case, aro persuasive authority for the proposition that there is inherent power in a court to correct an error induced by □iB^.cproGosontaticn where such action does not alter tho operative or substantive part of tho court1g.decision and that the exorcise of such V• _ power is discretionary and will not bo used where it would result in injustice* In situations whoro tho action would result in an alteration of tho operative or substantive part of tho ccurt's decision, tho only remedy lies in tho appellate process# Now, although the o jboforo Us docs net involve an error occassionod by i misrepresentation, we think that those authorities need to bo nontionod tc complete j Q o picturo of accidental slips or omissions. Tho forth and last category nay bo described as accidental slips or omissions occassionod by faiso assumption of existence of a fact crucial tc the ease. The colobratod ease in this category is obviously tho case of LA^-AII) B3GTII5IIS AMD COIPAWY. 7. IfllOfD B-'JTK ltd. (1933) A.O.. 289,. In that ease, jufi£o:.iont woo entered in Engla::.d against a Russian Bank in dofault of appearanco,. It later transpired that the Russian Bank had been nationalised and ceased to oxict at the tino tho legal action was __ _ _ instituted in tho Dnglish High Ccurt.. On subsequent proceedings in tho High Ccurt on a garnishee order, tho High Ccurt, Hucho J. held, inter alia, that tho judgement of the High Court was a nullity on the ground that the judgement debtor was ncn-cxistont. That decision was reversed Tby the Ccurt of appeal on appeal, Hc.wcvcr, on further appeal to the House cf Lords, tho decision of the High Court was restored. Lord bright, in delivering the unanimous decision of tho Ccurt stated, inter alia, on page 2?6* ■ - * ../7 "«**»\«» it is cloar lew, scarcely noocing an y^ia’tmu uu’tfum'eyj Ufca\ a judgement must be set aside and declared' a nullity "by the court in the exorcise of its inherent jurisdiction if and as soon as it appears to the court that the person nanod as the judgement debtor was at all material tines at the date of writ and subsequently non-existent * .... «*."i Tho case boforc us 1g essentially similar to the Midland Bank* c case in that wo the existence of a crucial fact, that is, tho written statement of defence which in f" 't had ceased to exist* Wo aro of the considered opinion that the law in this Country is similar to English, law on this point. "' It follows that under the inherent jurisdiction of the court wo have to doclarc our earlier judgement vitiated to the oxtont that it relied upon exhibit D* The portion of the judgement which is thus '’itiatcd begins with the issue whether the appellant wrongfully terminated the tenancy in June 1980. Our finding on this issue based on exhibit D was in the negative# Wo nust now substitute an affirmative finding, that is that tho appellant -wrongfully terminated the tcnancy of tho respondent in Juno 1980. The question that follows a^nccf'na the relief or reliefs to which tho applicant t is entitled inrospoct of the wrongful termination of the tcnancy* Tho High Court granted the following reliefs against tho present respondent, who was the second defendant in the suit, and the landowner of tho suit promises0 "(a) Tm (Plaintiff) is duly declared to bo the legal tenant in tlic suit promises and the first defendant is to vacate the promises immediately* (b) The second defendant shall pay him compensation at the rate of shs* 3?000/= per day from 1$/6/80 to 7/8/84 and interest thereon shall run at 7% p.a* up to the date of satisfaction* (c) The Plaintiff will have his costs of tho suit. It is fair that separate costs be allowed.to the defendants0 The first defendant shall pay f- of the costs and the second defendant Tho question of compensation has been dealt with by 11s in the portion of our judgement which has not been vitiated* ITo hold therein that "the High Court had no power to award compensation for a sum greater than that claimed by the respondent in the plaint". The applicant/plaintiff had claimed compensation at the rate of shs, 1 ,500/= but tho High Court awarded it at the rate of 3>Q00/=« For tho avoidancc of doubts wo reiterate that the applicant/plaintiff is entitled to payment of conponsaticn only at the rato shs'* 1,500/= por day from 19/6/80 to 7/8/84, plus tho interest decided l)y the- High Court* 8 ITo appeal was "brought against the Order for costs, So wo noecl net disturb that order* However the order declaring the appl icant/plaint iff to be the legal tenant was challenged in the appeal, Wo nust therefore consider whether the HigL Ceurt was correct in making the order. It is trite law that declaratory orders ar discretionary. However, since on the facts established by the trial High Court, the tenancy was terminated by the Second Defendant (the respondent in the present application) and the promises were subsequently allocated to the First Defendant who was still in occupation cf the suit premises at the tine of the suit, and since i rf/o have found that the termination was wrongful, we arc satisfied that as between y the parties to the sv.it, the High Court was correct in declaring the plaintiff/ applicant to be the legal tenant and ordering the eviction cf theFirst Defendant, that is, the said Kenneth Cunninghan, If as a consequence of the decision cf the High Ccurt, the plaintiff/ applicant entered into occupation of tlx suit prerdses and still in occupation, his tenancy is to be treated as valid until otherwise terminated according to law. In case the plaintiff/applicant entered into occupation but has subsequently vacated as a consequence of the earlier judgement of this court, or in case ho did r*. ^ enter,lac nay now re-enter into occupation as a tenant cf the suit prerdses, ^^less the landlord - that is the Second Defendant, has allocated the preuisos to a new tenant consequent upon our earlier judgement, In such a case where such bcna fide now tenant is in occupation, wo arc of the considered opinion that it would be just and proper for the plaintiff/applicant tc be paid compensation by the landlord in lieu of tenancy at tlx rate of shs, 1,500/= per day fron 1$80 to the date cf this decision, excluding any period that tho plaintiff/applicant nay have been in occupation of tlx suit prerdses in ccnsoqucnco cf tho judgement cf tlx High Court* To that extent and with tlx modification cf the quantun of compensation, i "tl:c appeal is allowcc1 with costs tc bo tr.^d, Wo order accordingly. 9 H.TED at D;jl 3 S SAL'JIM this 25tli dr,y of July, I9SO. P. L. ITynlc-li CHEEF JUSTICE •* \ \ L. Ho Makanc „ tv ;• 4 ,/ JUSTICE OF APIEAL A# Mo A® Oncj? JUSTICE OF APPEAL I ccrtify tl:.cvt this is e, true copy of tr.c original