20180510 TZCA Dar es Salaam

'·1r... ,r ,· . IN THE COURT OF APPEAL Of TANZANIA AT DAR-ES-SALAAM {CORAM: MUSSA, J.A., MUGASHA, J.A., And MKUYE, J.A.) CIVIL APPLICATION NO. 341/011 OF 2017 1. MIC TANZANIA LIMITED ........................................... 1 ST APPLICANT 2. MILLICOM {TANZANIA) NV....................................... 2No APPLICANT 3. MILLICOM INTERNATIONAL CELLULAR S.A ................ 3R 0 APPLICANT 4. SHAI HOLDINGS S.A ..................................................4TH APPLICANT VERSUS THE GOLDEN GLOBE INTERNATIONAL SERVICES LIMITED .•.••.•• RESPONDENT {Application for review from the decision of the Court of Appeal of Tanzania at Dar-es-salaam {Mussa, Mugasha, Mwanaesi, JJJ.A.) dated the 19th day of luly1 2017 in Civil Application No. 1/16 of 2017 RULING OF THE COURT 4 th & 15th May, 2018 MUGASHA, J.A.: This is an application for review of the Ruling of this Court (MUSSA, MUGASHA, MWANGESI, JA) in Civil Application No 1/16 of 2017 which did strike out the application for revision. The application is brought under section 4(4) of the Appellate Jurisdiction Act [CAP 141 RE. 2002] and Rule 1 ... - . "7---....:~~-....:.......:.... - ---~R .~-1- ·- ..... .:. -- - - -~ ~~~;jij~_-,a--;: :: --\!L:'- .... ..£ "·. ,---::--.... ~~ _:~::~~;:::~'.:~~,'-~,~--, -~-==.,_ __ .:......=..,_- - . , ..... -_ - - -~~mt;;~:Z. •---=-~--:,.-;, C. .C • - • - · - ' : 7 -o~o --~~-~0,- ~~~:::_,_--,-~· . 66 (1) (a) of the Tanzania Court of Appeal ~ules, 2009(The R.ules). It is supported by the affidavit sworn by WILBERT BASILIUS KAPINGA one of the 2nd applicant's advocates. In the Notice of Motion, the applicant contends that, the decision was based on a manifest error on the face of the record resulting in miscarriage of justice. A brief account underlying this application is to the effect that: the applicants applied to the Court for the revision following the refusal of Judge Mruma to recuse himself from the conduct of the hearing of the Petition/suit against the respondent. The respondent raised among others, a preliminary objection to the effect that, the applicants were seeking revision against an order which is interlocutory order and barred by the provisions of section 5(2) (d) of AJA. In its Ruling now under review, the Court sustained the preliminary objection having held that, apart from the order sought to be revised being interlocutory; such order did not have the effect of finally determining the suit. This is what precipitated the Notice of Motion herein, where the applicants apply to this Court to review the said decision. 2 -------::-·_--=·-- . ...:..._:_~--- __ ..::._.__ ~ c , - - , · • ___ . - . - -:7 - ~ - .-. - - - ·-- ~ ___ 7; ~ - ·1+~!~-~~~-= ==--~~- . - - :· f-. -; ~ ~..:, ._ -· .• , It is now settled that this Court has jurisdiction to review its own decision in any given case. Such jurisdiction is necessary to ensure that a manifest injustice does not go uncorrected. (See CHANDRAKANT JOSHIBHAI PATEL v R (2004) TLR. 218. However, the grounds, on which this Court could exercise its review jurisdiction are explicitly set out in Rule 66 (1) of the Rules, which reads as follows:- "66 (1) the Court may review its judgment or order, but no application for review shall be entertained except on the following grounds:- (a) the decision was based on a manifest error on the face of the recor~ resulting in the miscarriage ofjustice; or (b) a party was wrongly deprived of an opportunity to be heard; (c) the court's decision is a nu/Ii[½ or (d) the judgment was procured illegal!½ or by fraud and perjury/~ From unambiguous wording of the cited Rule, it is clear that the review is limited in scope to the grounds stated thereunder. As it will be seen in due course, this limitation in scope is reflected in principles 3 -----~.--.~-.,.. . - - - --=-::-~~:.::::-·_"'-~-~-~ ~ governing the exercise of review as established by. case · lavv m our jurisdiction and from various jurisdictions. According to the Notice of Motion, as earlier indicated the present application is predicated upon Rule 66(1) (a) of the Rules, which is that, the said Ruling be reviewed and set aside on the ground that the decision miscarriage of justice. At the hearing, the applicants were represented by advocate Rosan Mbwambo for the 1st applicant; advocate VVilbert Kapinga for the 2nd applicant and advocate Gaudious Ishengoma for the 3 rd and 4th applicants. Advocates Seni Malima and Joseph Ndanzi represented the respondent. It is Mr. Kapinga who argued the application. To demonstrate that there was an error apparent on the face of the record in the Ruling of the Court, he pointed out the following areas. Firstly, that it was erroneous for the Court to have held that, the refusal by the trial judge to recuse himself from presiding did not finally determine the matter, Secondly, the refusal by the judge to recuse himself was an interlocutory order and not a 4 ~ ii-t- -_-:~!.t.~ ~ .~~Jr - - - - - : r .,, _:"__:-=::-:- -·=- ... " _; __ :: :•. - . . ·~-~- ~-;--~~~ _,. ~:-·-7.·_~ ::.·-=-- - ---~~~ ,._a_._,, ,., subject for revision in terms of section 5 · (2) (a) of AJA. As such, he submitted impugned Ruling to have occasioned a miscarriage of justice in that: One, the applicants will be compelled to appear and defend the suit before the same presiding judge who they have already perceived to lack independence and impartiality. Two, the impugned decision will the remedy of the applicants' who feel aggrieved by bias and impartiality of the judge who refuses recusal. In paragraph 8 of the affidavit, the applicants aver that, in the impugned decision, the Court overlooked the point that, once the Judge made an order refusino to recuse himself. then. there was nothina oendina ••• - - - - - -...J - I I --.J I .;.., before him in relation to that independent decision upon which the matter at issue was finally determined. As such, it was erroneous for the Court to conclude that, the order to be revised was an interlocutory one, not finally determining the matter which led to erroneous application of the principle stated under section 5(2) (d) of AJA. To back the proposition, Mr. Kapinga referred us to the Case of CHAMA CHA WALIMU TANZANIA vs THE ATTORNEY GENERAL, Civil Application No. 151 of 2008 (unreported). ~~~J- :. :-~ : :- ~ ~ - : ~-- -~- ~ - - --:--; .--- - = - : . _ , ~ - -- ---; ~ _.-:., - ~'i-~ ._ ~*~~~ ~!.~- - -- . On probing by the Court if the request for recusal was made independently of the main petition/suit, Mr. Kapinga replied that it was in the course of the petition. However, he argued that, since the request for recusal was refused, then the matter was finally determined. He thus urged the Court to review the impugned decision and proceed to revise the order of the High Court. A similar stance was maintained by the applicants in \ their joint written submissions. The respondent resisted the application in both the affidavit in reply and the written submissions. The learned counsel for the respondent pointed out that: The applicants have not established a case under Rule 66(1)(a), in the absence of any error apparent on the face of record which requires detailed examination and clarification of facts or the legal exposition. He backed this proposition by referring us to the case of NGUZA VIKINGS AND JOHNSON NGUZA vs REPUBLIC, Criminal Application No. 5 of 2010(unreported). As such, the learned counsel urged the Court not to overturn its earlier decisions. He added that, no miscarriage of justice would result because after the main suit is determined, the applicants have the remedy and may appeal to the Court. Mr. Ndanzi distinguished the 6 . - - -·--- ..,_. ·-- - . --~~- ~~,;{~,~~~ = i '= iET.: -·-·:o ,,. ..,.y;.. -- ,...._.;:· . ------~- -'~ case of CHt,MA CHA WALIMU (supra) where the respondent sought and was granted permanent injunction order not to call or organize the strike which finally determined what was before the Labour Court, while in the present situation the main suit is still pending before the Court. The learned counsel urged us to dismiss the application in its entirety with costs to the two advocates of the respondent. In a brief rejoinder, Mr. Kapinga contended that, the case of CHAMA CHA WALIMU (supra), was not referred to by the Court in the impugned decision. The issue before us is whether the circumstances enumerated by the applicants in their Notice of Motion and the accompanying documents show a manifest error apparent on the face of the record which resulted in the miscarriage of justice. It is settled law that, what constitutes a manifest error apparent on the face of the record must be obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points which there may conceivably be two- opinions. The exercise of this power of review will depend upon the peculiar facts of each case. 7 . -·- -- . -- - - - ..._·_;__-.. -=- - ·- - --·· --~.-.;;, -~~~~~~~=:~~~~~ -' - ~ ·.,----::::: ~~-~~--~ -~: --:-:=--.,.. .. -ii-·· ··---· ;.,,;;-~--- ·--;:-~'"7""'7::~ However, . the Court has in many instances refused to treat as rr-:2nifest errors on the face of the record if One, the ·error is not self evident and has to be drawn by the process of detailed scrutiny and examination of facts or the legal exposition; Two, disagreement or a different view on a question of law or an erroneous view on a debatable point or a wrong exposition or wrong application of the law. (See CHANDRAKANT PATEL v R, TANGANYIKA LAND AGENCY LIMITED AND 7 OTHERS v MONOGAR LAL AGGARWAL, TRANSPORT EQUIPMENT V DEVRAM P. VALAMBHIA, (supra), BLUE LINE ENTERPRISES LTD. vs. THE EAST AFRICAN DEVELOPMENT BANK, (EADS), Civil Application No. 21 of 2012 (unreported), PETER NG'HOMANGO vs. GERSON A.K. MWANGA and ANOTHER, Civil Application No. 33 of 2002 (unreported) and DEVENDER PAL SINGH v. STATE, N.C.T. of New Delhi and Another; Review Petitions No. 497, 620, 627 of 2002 (India Supreme Court). The genesis of our decision which is a subject for the review can be discerned from page 13 to 14 of the Ruling where we said: •~s regards the second point of objection/ the issue is whether or not the application before us is barred · 8 by the provisions of section 5(2) (d) of AJA as recentiy amended by Act: /Vo, 3 of 2016, For a better appreciation· of the issue of contention we think it is instructive to extract the relevant provision in full: " No appeal or application for revision shall 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 suit." [Emphasis supplied], We have purposely supplied emphasis on the foregoing extract to demonstrate that the proper test for deter.mining t-11.hether or not the impugned order of the High Court is preliminary or interlocutory is patently discernible from the language itself. That is to say, the test is whether or not the order desired to be revised had the effect of finally determining the suit In this regar4 we are minded to express at once that the impugned decision under our consideration did not have such effect the more so a~ despite the presiding officers refusal to recuse himselt the suit was not extinguished and remains pending to date. In the result we find merits in the second point of 9 preliminary objection Hhich i~ accordingly upheld and, in the linal event; the application is inevitably struck out with costs. // After a careful consideration of the arguments of the parties both oral and written and having revisited the impugned-Ruling, the question for determination is whether or not the applicants have made out a good case to warrant the review. We shall apply principles embodied in the cited cases to determine if the present application meets the test to have the impugned decision reviewed. It is not in dispute that, the request for recusai of the presiding judge was made in the matter which was part and parcel of the main suit which is still pending before the Court as confirmed by the parties. In this regard, 1 we found Mr. Kapinga s argument wanting to treat the refusal of recusal independent from the main suit itself. We asked ourselves, how the applicants could request for recusal if the main suit was not before the 1 Court. Indeed, the request to have the trial judge s recusal was ancillary to the main petition or else such request, if made independent of the petition would not have had any legs to stand on. We therefore maintain that, the 10 • order in respect of the trial judge's refusal for recusai was an interlocutory order which did not finally determine the merits of the suit wh-ich is still - pending. In this regard, the predicament of the applicants cannot be salvaged by what the Court decided in CHAMA CHA WALIMU (supra) where the Court categorically said as follows: "We have carefully considered all the arguments presented to us on the issue. We have dispassionately read the ruling of the labour Court and order extracted therefrom in the light of the order sought in the chamber summons. We are of the firm view that the order was not interlocutory. It had the effect of conclusively determining the application. The respondent was unreservedly granted what he was seeking in the chamber summons, as the applicant and its members were unequivocally restrained from calling for and/ or participating in the planned· strike. There was no other issue remaining to be determined by the labour Court". [Emphasis supplied] • The emphasis supplied signifies that what transp:red in CHAMA Cht': YJALIMU is not the case here because, the request for recusal was not the only relief sought by·::-t-he applicants in the entire petition which remains pending. On a plain r~ading of the_ ~ocuments accompanying the plus the oral arguments of the learned counsel for the applicants, it is clear to us that the applicants are unhappy and dissatisfied with the decision of Court. However, since their complaints were dealt with and answered in the impugned Ruling, the applicants are not permitted to challenge the impugned decision in the guise that an alternative vievv is possible under review. We say so because a Court will neither sit as a Court of Appeal from its own decisions, nor will it entertain applications for review on the ground that one of the parties in the case conceived himself to be aggrieved by the decision. Moreover, it would be intolerable and most prejudicial to the public interest if cases once decided by the Court could be re-opened and re-heard because it is an established principle and policy that litigation must come to an end. (See BLUE LINE ENTERPRISES LTD. vs. EADB (supra) and AUTODESK INC. v. DYASON (No. 2) (1993) HCA 6 (Australia). 12 =--=--· ._ - - ____ -:- _______ _ . ~ 7 - 7 -: .;. ~ (~=-;.,:· - --- ~- • With respect, the impugned decision did not create a new precedent as the applicants allege, that tends to bar the remedy of those aggrieved by orders of presiding officers refusing recusal. We wish to point out that, the revisional jurisdiction of the Court is not bound by the likes or dislikes of the parties. It is a creature of statute what and qualifies for revision is regulated by law and that includes complying with the dictates of among others, section 5 (2) ( d) of AJA. Given the circumstances, the applicants have failed to establish the alleged manifest error on the face of record. Instead, in our considered - view, the applicants were all out to have the substantive merits of their initial application re-opened and re-heard while a final decision that has already been handed down by this Court on 19th July, 2017. Having regard to the nature of the present application, we are satisfied that the applicants have not made out. a. case warranting the review on the ground that none of the matters raised fall within the purview of a manifest error apparent on the face of the record. It has not been established by the applicants that there was such error. In this regard, we find th;s application misconceived _and untenable. As a resu:t we accordingly dismiss it. DATED at DAR-ES-SALAAM this 10th day of May, 2018. K. M. MUSSA . JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. P- ~ K YA SENIOR DEPUTY REGISTRAR COURT OF APPEAL - .. . . -~ -- ~tt~ .:. .:. . . ~.'P - --;·-: . 't2'.'."__-- ~~~- . . .. ----~---~--~ , -