19981218 TZCA Dar es Salaam

U 1 V • 1 I ~ IN O1T OF APPEAL OF TA1ANIA ) (conAn RAUADHNL,JA,LUBUWA & J And_S4MA2A, CIVIL APPLICATION NO. 47 OF 1998 In the Matter.,of an Intended Appeal . I., .. • BETWEEN - MANDAVIN COMPANY LIMITED .... .............. APPLICANT AND GENERAL TThE (E.A,) LIMITED ......... .... RESPONDENT L • (Application for Review of the Ruling of the Court of Appeal of Tanzania at • Dar es Salaani) (PaIladhani,JA.LLubuva, J A,rnttaJA.) S t• ' V dated the 11th day of 11 1arcli, 1998 : in •- Civil Reference No 'II of 1997 I . . * -. • lI&IJ_ V • - •: .LUDAJ.A.: By notice of mution this Court is moved to review its own decision Civil Reference No 11 of 1997 In that Reference Mandavin Company 'V .• V V , 1 Iimited, the applicant in this application was also the applicant. Th J V • ' •Treference '4.- • was allowed V on the ground that the applicant company was ---.-._.... - V - denied the right to he heard. As a result, thedecision of the learred -••.. V \ 'V; V , aingle Judge to grant stay of execution was set aside Though the dec ision of the Court in the reference was in favour of the applic-int ompany, some parts and.wording of the ruling were unsatisfactory to V V • V :VV/ V • - V • V V • ? theapplicant who has therefore filed this application. The application V •supported by an affidavit sworn by one Damas Ndaweka, the Managing. V V .• V- V . V Diretoi of che applicant compi'j, Mda L 51 Cuupany Limited. In the • V.- V • tV, 4 .: 1tice of motion an4 paragraph 4 of the affidavit, the applicant seeks •i .• , tø move the Court in reviewing its ruling of 11th March, 1928, by V V V• • • - .•..• V • •• - 1 l4triking out the words: V • .• V. .. V V • V S V • •.Vi.VVVC t . V •• V V 2;.... - • V 'I • I! / TT , , VI P. - 2 - I -I •- .' ,".. • '...... V :• '': There is no dispute that the Respondent Company served copies of the Notice of Appeal and a letter addressed to the Registrar of the High Court applying for copies of proceedings, judgment and • . V L it" decree by registered post " j4?I. . .. • V ; •.. V .'. I In paragraphs 5 and 8 of the affidavit, the applicant further states r Z4 . - 5. That the erroneous observation or accidental F' 'I slip by the Court in Civil Reference No. 11 of 1997 as aforesaid has caused serious V • il . • V injustice to the Applicant in Civil Appli- cation No. 16 of 1998 C/F No. 23 of 1998 • between the sane parties on the same issues •. V 'y .. in the fluling dated 27th July, 1998 by • Ramadhani, J.A. ... ... ... V •,'• . - .f.: V V 8. That great serious injustice will be caused .. .• 1. •• • V 1 •. V to the applicant if the orders sought in' the notice of motion supported by this , V V V • Affidavjt are not granted. , •. I) For an easy and better perception of the sequence of events leading to this application, we propose to set out briefly th V historical Ii - V fl ' •-?. .I- h'.- . background of the matter. Civil Reference No. 11 'of 1997 arose , from the decision of a single Judge of this Court in Civil ' Applicatin No 25 of 1997 in whch the learned) single Judge t allowed an ex parte application for stay of execution of a decree 4 - ' in High Court Civil Case No + of 1995 As already observed, . •.' V _'• V V . V . from the decision of the single V Judge, the matter -was'taken to thi s - F- •,,, .. Court as Reference No. 11 of 1997 On 11.3.1998, the Court allowed the reference with the consequential order granting stay of execution. • •, V • :. V V In dealing with the reference, the Court made some obser,atDrn1E V and - 'r ii V V. - ' V. - ' •jj 'VV'• •-.,:•. . .." findings with which the applicant was 4issatisfied. As a result, -r • V •. . . V • I • V • " V tV V V - - V . •L , 1/ •.. m :: S T 3 .' this application has been lodged in which, as shown in the notice of • motion, the applicant seeks a review bf the Court's deision by striking out from the Court's ruling the following words: "There is no dispute that the respondent company served copies of appeal and a letter addressed 1, to the Registrar of the High Court applying for copies of proceedings, judgment and decree by I ' registered post." • - . • :"', In this application, the applicant company, was represented by _.•j•• i' - I' • ... , I . . - . . Mr. Lugua, learned counsel and Mr. C. Ngalo, learned advocate appeared • for the respondent. Arguing in support of the application Mr. Lugua S I • • I ' said that review of the Court's decision is sought only in regard to the part in which the Couxt ob.erved to the effect that the respcndent had been served with the copies of appeal and the letter addressed to pow - the Registrar of the High Court applying for copies of proceedings, II - )Ls , . .. . • - S ':- ,. !I•' judgment and decree. This, he went on in his submission, was erroneous • II'•... I.• •• 5 •A• - . . on the part of the Court because it was based on no evidence at all on -' record. This error which the learned advocate said was manifest on thee •.I• .. face of the record, resulted in a miscarriage of justice to the . 5 applicant in another case That is, the advocate further. submitted, - in Civil Application No. 16 of 1998 C/F No 23/98 the applicant suffered a miscarriage of justice because the learned single Judge J 6 .... based his decision on the Court 1 s decision in Civil 1eference No 11 j.. -'-- :: -• . ..,I.• :-• of 1997 which has the error complained against. Thisis the error I .. - 5 ? • . . - . ••••••••••••• which is sought to be corrected in this review, stressed,Mr..Lugua. - • •. 'I l _. For the respondent company, General Tyre (E A.) Linited, flr. . Ngalo vigorously opposed the application. • He maintainedthat - . • ;. - .5 . . _t --• there is no merit in thl3 application because none of the circumstances I 'SI set out in _Lrn Devram P._a1anbia, II I i. . . :-•j- -...-: .--:_ • •,. - - . - .......:. I I $f . - 1 - S ...s.t .. Civil Application No. 18 of 1993, (unreported) is available in this 4 case to warrant the exercise0of its inhernt powers of.review. ,.y . He further submitted that the complaint of dissatisfaction against the Court's finding that service had been effected is no ground for seeking the review of its own decision In his view, this •' , 18 a matter which could be raised in an appeal, against the Court's ' • finding on non—service. This is anapplication for review and not a •••, ' '.. further appeal Mr. Ngalo emphasized. At any rate, Mr. Ngalo further " . . •" .,•. T'7.' contended, there was no miscarriage of justice occasioned.to the 'I I' ,.' "•' ' . 4 . '. applicant company which got what had been asked for.. Elaborating on :':•.!j" '. • , , 4 .4 .• •',_•;1 'I this, Mr. Ngalo pointed 'out that in Reference No. .11 'of" 1997, the ç ' reference was allowed in favour of the applicant and in Civil App]icah -, •,i ..•.'. 4. , .. .4 4.. tion No. 16 of 1998 C/F No 23 of 1998 in which the applicant claims J the decision was based on an error of the Court, again the decision r panting a stay of execution was in favour of the applicant He .urged the Court to dismiss the application because there was nothing before the Court for review. . . - '• ' •.,. We have given anxious consideration to these submissions. The issue is simple, namely, whether the case falls within the instances ' in which the Court can invoke its inherent powers to review its own . decision. It is common ground that in the case of TranportEqui,pnient - 1,11 4 versu'DevramP.Valambhia, Civil Application No. 18 of 1993 (not .)'et reported) the Court set out the instances warranting review by the Court. Among these instances is where the decision of the court is A ' - based on m-inifest error on the face of the record resulting in a • 4..,-'. • 4 4' '1' • 4 • '•-,,n,rniscarriage'of justice. In this application, ti si urged that in • '.'Civil Reference No. Ii of 1997 there, is an error, manifest on the ' face of the record That the error is encompassed - .• . in-'the words ' j- .-r.." already extracted above. So, we ask ourselves whether this 'is an err o r,.'r, 4 4 ..* •.r.' 4 ' .;'... 4 . . • 1 - •: Ij_; 4 I. ' • . ----4 •.,. j ' '-'- .'• / • - ••. 5 - • - *..' r -• which is not only manifest on the face of the record but has also caused a miscarriage of justice to the applicant. As observed, th' • ••• •'. _.".i••. essence of the words complained against is that the applicant company - was served with copies of appeal and a letter addressed to the , -.. .-i-: Iegistrar of the High Court applying for cop..es of proceedings, ç. ,,- - .• • .1.- t:- .• •judgment and decree byristereJost. This, the applicant firmly : contended was factually not correct because there was no evidence to prove service In other words, it was a finding by the Court in the reference which was based on no evidence and hence the error. As already observed, from the affidavit and the oral submissions by the applicant at the hearing of this matter, it seems to us tnt l .the case for the applicant is pegged on the complaint that there was • no evidence on record that the applicant had been served by'a process server As a matter of fact, the applicant contended, the court I .. •_ , ; i-. • - process server had not been to the offices of the applicant in which -case service could not be effected. We agree with Mr. Ngalo that q -i• ' affidavital deposition is evidence on oath which canxaot be-contra- 44 dicted by statements from the bar. Such evidence like any other >1 type of evidence given under oath can only be controverted by evidence on oath In the instant case, apart from the statemnts 1- 1 from the bar by Mr. Lugua, learned advocate, denying service, there 1. -': •• I was no evidence to contradict the respondeflts evidence. 1n' - • U ' paragraph 5 of the affidavit sworn by the Financiil Manager of the • • • • - respondent company, it is stated to the effect that the applicant : - - 4-14 was served with a copy of the notice of appeal by registered post. • r- ' - .. . In the reference proceedings, the applicant did not adduce any - 0 • • ••• • '-. evidence to show that service was not effected and so, in that situition, it would be an exercise in futility for the applicant i - : • ,. .-:I- •-.•- • .'u at this stage to impugne the finding of the Court based on the .' J evidence as disclosed from the affidavit. In the circumstances, • .-:- •- •- - ':,- 0• • . 4?. •- • 0 : • •.•- -••.•• •L-. .-" .r -- - - • - 0 •• *• . • fl• •- • - I: •P'/ - 6 - .: it is our view that the applicant's complaint that the Court's - •: Its finding that the applicant was served with copies of the notice of appeal and the letter to the Registrar was based on no evidence is ci without; foundation. •- '. There is yet another aspect of the matter. This pertains to • f, proper service. As the applicant adamantly mainth ins that he was 'i not served, it is imperative to examine the facts of the case on this point against the applicable principles of law. In this case it was the submission of Mr. Ngalo that it was not possible to • trace the applicant for the following reasons. Firat, Mr. Shio, the advocate who was initially representing the applicant had did in March, 1997. Secondly, that the applicant had moved its office from the Co-Architecture Building, Uhuru Street, Dar es Salaam to a place where the respondent could not be traced. Thirdly, that the known address of the applicant as evidenced by the Post Office .1' •: 41 Registered slip was P 0 Box 1279 through which the letter to the I S., applicant was posted. In these circumstances, we think the provision •i1L- of section 122 of the Evidence Act, 1967 could appropriately be ';ç supplied The section provides 122. - The court may infer the existence of j o any fact which it thinks likely to ...c. have happened, regard being had to the common course of natural events, A:. human conduct and public and private business, in their relation to the f facts of the particular case. - • •- • -; In this case we are respectfully in agreement with Fir. .Ngalo, learned J ounsel that in view of the fact that the known address of the • applicant was used in effecting service on the applicant, the Court .. was entitled to presume that the applicant was, in the circumstance 4 •• served by registered post. The Post Office Registered' slip bearing ';• -;i•. • • ,...1• •S• 9 ]• 'SS '.1I4, . - - • f/ I 7-1 • - 7 : rl. the address P,O. Eox 1279 was also a relevant factor upon which the. Is presumption was based. And so,, the applicarxt.having moved its office. • - from the Co-Architecture BulldlnCr to an unknown plaice we can thini of H no better alternative'than using the applicant's known address. Ue find no merit in the applicant's complaint onproper service. \!i ,'•• • i..: :.j ; . , - Finally, having taken the view that in the circumstances of • this case, there was no error manifest on the face of the record • . •. . . still we propose to take the matter further. Granted that there was 1 L;:i such an error on the face of the record, could it be said that the • !•; applicant suffered a miscarriage of justice as a result of the alleged error It is commonjcnouiedge that it is not enough meiely • . . • to show that there was manifest error_on the face of the record, it • •: . . should also. be established that such an error caused a miscarriage ii of justice. Here, the applicant claims that as a result of the error occasioned by the Court in Civil Reference No. 11 of 1997, the •• . . : applicant has suffered a miscarriage of justice in another . ease ,: ,.-• • . . • ..-•gjl• S • . - That is, in Civ il Application No. 16 of 1998 C/F No. 23/98 a siigle •. • 2 . .c Judge of this Court in his decision relied on the wrong decision of • i.. h.' ç r the Court. It must be pointed out at once that when a miscarrwge of justice is alleged, it must be real and not merely fanciful. In this case, the record is loud and clear that in Civil Application •n;.. No. 16 of 1997 C/F 23/98, the applicant in one of the applications, :I . •. . was seeking to have the notice of appeal struck out and in the other . . ' S. • . a stay of execution. The applicant was successful in having a stay :! .' of execution granted and the application to strike out notice of I appeal was not entertained Effectively therefore, the applicant company which was sicáessful in its application, cannot, in our opinion be said tq.have suffered a miscarriage of justice as a S . I• I •, • . ;; • •' , ' S ::• result of the Court's decision in Civil Reference No.'.11 of 199'?. •••t• IS. • . • • S I, • I •• . . • .• - ..: • • - ' • - • •,I,•tJi 4••• l I i ft• I 5, ' ' S • i4 — 8 - Consequently and for the foregoing reasons, we are ntisfied 1' that no grounds have been raised in this application to wrrant the Court's review of its decision in Civil Reference No. 11 of 1997. L 4. The application is dismissed with costs. - ;. ' - DATED AT DAP ES SALAMI THIS 18TH DAY OF DECEMBER, 1998. :. ••:-- Ir A.S.L. RANADHANI • JUSTICE OF APPEAL r. 41 JUSTICE OF APPEAL B. A. SAMAA • •,•' •'•• • certiEytht.,his is a true copy of the original. / (&.• • j;1 •••'! • t3c 1 A G4LARIJA 1 DEfUTY_PEGISTPAR • •;;;. . • • •:•• • • • ' • • •,.