miroslav katic vesra and paladin ingra vs ivan makobrad 1998 tzca 17 16 december 1998

IN THE COURT OF APPEAL OF TANZANIA AT_j)AR JUS SALAAM (CORAM; MAKAME, J .A., RAMADHANI, J.A., And LJBUVA, J.A.) CIVIL APPLICATION NO. 66 OF 1998 BETWEEN MIROSLAV KATIC VBSRA PALADIN INGRA„ . . . . . . . . . . . . . . APPLICANT AND IV A N I - iiiiV O B x ta D a e . o . a o o o e s o . o o X & j S P O i 4D j l j l 'i J. (Application for revision from the decision of the High Court of Tanzania at Dar es Salaam) (Mackan.ja, J.) dated the 1st day of October, 1997 in Civil Case No. 321 of 1997 R U LING L U B U V a , J . A . : Thisapplication is filed under Section k (3) of the Appellate Jurisdiction Act, 1979, as amended by Act No. 17 of 1993* By notice of motion filed by INGRA, the applicant is moving the Court to revise the decision of the High Court (Mackanja, J.) in Civil Case No. 321 of 1997 dated 1.10.1998. The application is supported by an affidavit sworn by Dilip Kesaria, learned counsel for the applicant. As stated in the noti of motion the purpose of seeking revision in this application is to declare the exparte order of 1.10.1998 by Mackanja, J. illegal and improper. In part, it is stated in the affidavit that the order is illegal and improper because: That the said order of the learned Judge of 1st October, 1998 overrules an earlier order of the Court of Appeal (Mfaiila, J,A. of 1^th August, 1998 - Civil Application N». 36 of 1998). 2 The facts giving rise to the case are simple and generally not disputed. In High Court Civil Case No. 321 of 1997, intially, the respondent had filed a suit against the first and second applicants. The third applicant, INCKA, applied to be joined as a defendant. Granting the application on 3.7*1998, the high Court also ordered the respondent to vacate the suit premises at plot No. 30 Kurasini Hoad in Dar es Salaam. Following this order, the respondent filed in this Court Application No. 36 of 1998 seeking to stay the execution of the ruling and order of 3*7*1998. On 1^.8.1998, a .Single Judge of this Court (Mfalila, J.A.) dismissed Application No. 36 of 1998. Then the matter went back to the High Court where, on 30.9.1998 an eviction order was issued against the respondent,. On 1.10.1998 the applicants lodged an application for the execution of the eviction order of 3*7*1998. On the same day (1*10*1998) the respondent through the services of Mr. Mselera, learned counsel, applied for the order of execution of 30.9*1998, to be vacated pending the determination of the reference preferred to this Court against the decision of the Single Judge. Granting the application for vacating the order of 1.10.1998, the High Court (Mackanja, J.) issued the order in the following terms: "■’Accordingly, it is decided that the order allowing execution of the order in respect of which an appeal is pending before the Court of Appeal is hereby vacated. If the order for execution has already been executed that said execution is hereby nullified-'. This is the order which is complained against by the applicants. Before the application came on for hearing, the respondent had filed a notice of preliminary objection, as indicated in the notice of preliminary objection, the ground upon which the objection is based is that: the application is incompetent and not properly before the Court for failure to state the grounds thereof in the Notice of Motion. . . . 3 At the commencement of the hearing of this application Mr. Mselera, learned counsel for the respondent, made submissions in support nf the preliminary objection. In the first place, he firmly contended that the application before the Court was incompetent because it did not state the grounds of the application. Elaborating on this, it was his further submission that the omission to state the grounds in the notice of motion is fatal to the application as this is a mandatory requirement under rule 4-5 (2) of the Court's rules. For this submission, Mr. Mselem relied on the decision of this Court in the following cases which are not yet reported: 1. Giafer^Mohamed Beddor 2. General Construction Co. Ltd. Versus Ital African Transport Ltd., Civil Application No. 4 of 199^, Atlantic Electric Limited Versus Morogoro^Region Co-operative Union (1 9 8 ^) Limited, Civil Application No,. 26 of 1990, VIP Engineering & Marketing Ltd. Versus Sai_d Salum Bakhresa Ltd., Civil Application No. of 1996. In the second place, Mr. Mselem submitted that in terms of the Appellate Jurisdiction ^ct. 1979 as amended by the Appellate Jurisdiction (Amendment) Act No. 17 of 1993i (hereinafter referred to as the Act) the application is misconceived. This is so, he contended, because section k (3) of the Act cannot be invoked in situations where the matter involved is appeallable. In this case, Mr. Mselem maintained, if the applicant was dissatisfied with the order of the High Court of 1.10.1998, an appeal could with leave be preferred on grounds of it being illegal and improper. That is, he went on his submission, the situation of the case is such that it could not be said that the matter is not appeallable or that the appellate process has been blocked by judicial process. Among other cases, Mr. Mselem referred the Court to Transport Equipment Ltd. Versus Devramj?. Valambhiaj Civil Application No. b6 of 199^ (not yet reported) and Halais Pro-Chemie Industries Ltd., Civil Application No. 19 ofJ1995s (unreported). - k - Counter: ig t e r.’ibraission on the first point that the notice of motion was def'ctive . ir failure to state the grounds of appeal Mr. Kesaria took the oppo' ‘;te "ie1 . Because the grounds for the application are set out in the affidavit e 0companying the notice of motion, the application was competent, he fur'her insisted. At any rate, Mir. Kesaria went on in his submission,: the Court lias not been consistent in its decisions by Single -Judges of this ^ourt on whether it is mandatory to state the grounds for the appli -aticn i: the notice of motion. However, Mr, Kes.aria prayed from the bar, «hould v'ie Court find that it is mandatory to state the grounds in tL . notice of motion, then the applicant should be granted leave to amena the novice of motion by stating the grounds therein. Then Mr. Kesaria dealt with the argument that the application is incompetent o_ accouri" of the fact that it concerns a matter which is appellable. V/hile conceding that the powers of revision vested in the Court were .ncI meant „o be invoked as an alternative to the appeal process, Mr, i'esaria :oldly contended that in a situation such as the case here, whore the ;;igh Court instead of invoking proper jurisdiction and due process of la.-.- blatantly went far widely outof jorisdiction, the exercise of the p :wers of revisionwas warranted. That is, in order to ensure speody corrective measures over a glaring mistake by the High Court, it was more appropriate to invoke the Court’s revisions! powers than the appeal process, he concluded, VJe propose to d'al first with the complaint that the notice of motion does not state the grounds for the application. Failure to disclose the grounds in the notice of motion, Mr, Mselem strongly contends, is fatal to the application. The issue therefore is whether it is a mandatory requirement under Rule V? (1) and form A in the First Schedule to the .Rules to state the grounds. In addressing the issue, it is imperative to h%ve a close look at the provisions of iiule (1) which provide,:; , . . ,/5 - 5 - Subject to the provisions sub-rule (3) and to any other rule allowing informal application, all applications to the Court shall be by motion, which jshall state the grounds of the application (emphasis supplied). (2) a notice of motion shall be substantially in the Form A in the First Schedule to these Rules .....a............ (emphasis supplied) With regard to the no! !ce of notion, in part, F<">rm A provides: -- -— Advocate for the above named applicant, will move the Court/a Judge of the Court for an order that,,,,,.... on the grounds that......... (emphasis supplied). From these provisions, our understanding of rule by (1) and (2; ±r. itnt the grounds of the application are matters of substance, they go to the very root of the matter. For that reason and as the wording of sub-section (1) of rule k-3 indicates, it is a mandatory requirement to sta.te the grounds in the notice of motion substantially in the manner indicated in Form A. It being a mandatory requirement under this rule, it goes without saying that failure to state the grounds in the notice of motion is, as contended by Mr. Mselem, fatal to the application. In the case of VIF Engineering & Marketing Ltd, Versus Said Salim BakhressaLtd.. Civil Application No. ^7 of 1996, the learned Single Judge of this Court (Saffiatta, J.A.) restated this position of the law. There, in an application for extension of time to file an application for review of the judgment of the Court, a preliminary objection was raised. Among others, it was contended that the notice of motion was incompetent because the grounds for the application were not stated in it. It was held inter alia, that Rule ^5 (1) provides for a mandatory requirement which cannot be breached. However, the preliminary objection was nonetheless not sustained for a different reason. That is that the respondent had not been prejudiced by » e /£ o r/ - 6 - the applicant's failure to state the grounds in the notice of motion* The applicant was granted leave to amend the notice of motion* j. p o . t i this decision, despite the fact that the preliminary objection was not sustained, we think the gravemen of the decision is that rule 4-5 O'* xo mandatory in its requirement to state thegrounds ofapplication in the notice ofP motion. >.-/as held byJ this Court in the case ii similar v „ f \ .u that case a stay of execution was sought. The of Giafar (.supra) J .i Single Judge dismissed the application on the ground inter alia, that the notice of motion did not state the grounds of the application as required under rule ^5 (l)« The case of the Atlantic (supra) was also cited by fir. Mseiem. This case however, does not in our view, have a direct bearing on the need for the grounds of the application being stated in the notice of motion. The issue involved was whether there was substantial compliance with Form D in the First Schedule to the .Rules. The notice of appeal was struck out and the preliminary objection upheld on the ground that failure to comply substantially with Form D is a fatal irregularity. From these cases, apart from the differences in the particular nature of the points at issue, we can see no inconsistency in the Court’s decision with regard to failure to state the grounds of the application in the notice of motion as claimed by Mr. Kesaria. In our understanding, the Court in its decisions in these cases has consistently held the view that the irregularities and omissions involved in these cases were not merely procedural, they were of fundamental nature going to the root of the matter. In that situation the Court has further held, the non-conformity with rule ^5 (1) would be a breach of a mandatory requirement. At this juncture, we pause to consider the effect of such non-compliance under rule ^5 (1) of the Rules in this case. Mr. Mseiem was quick in urging us to strike out the application. As already indicated, the other reason he advanced for striking out the application ... e/7 - 7 - was that the matter was appeallabie. Mr. Kesaria for the applicant had, we think rightly, conceeded that this application involves a matter which is appeallabie to this Court. In such a situation, ordinarily, the Court would not invoke its powers of revision because that would amount to making use of the revisional powers as an alternative to the appellate jurisdiction of the Court. On this, we are settled in our minds that the •bjective behind the enactment of the amendment effected by Act No. 17 of 1993 to the appellate Jurisdiction Act, 1979 was not to provide an alternative to the appellate .jurisdiction. It is common ground that the Court was vested with revisional powers in order that in certain circumstances, the Court can satisfy itself as to the correctness, legality or propriety of any decision or order of the High Court._ In this case, we are increasingly convinced that the peculiar circumstances of the case are such that even though, as urged by Mr. Mselem, the matter involved is appeallabie, the Court's revisional powers could appropriately and promptly be invoked to rectify the situation. In our considered opinion the special circumstance of this case is that the matter was dealt with by the High Court in such a way that it appears that the order of 1.10*1998, is problematic for two reasons. First, it purports to nullify the High Court’s previous order if execution had taken place and secondly, it also purports to overrule a previous order of this Court by a Single Judge refusing to grant stay of execution. Such glaring type of error on the part of the High Court we think calls for urgent remedial action on the part of the Court. In order to achieve this, it is our view that it is more appropriate and expeditious to invoke the revisional jurisdiction of the Court than the appeal process which would take time. In a situation such as this which, it appears to us borders closely on a travesty of justice, for prompt corrective action, the Court could appropriately invoke its powers of revision. O•* 8 Furthermore, as regards the mandatory requirement under rule ^5 (1) to state the grounds of the application in the notice of motion we have restated the legal position in general. In the instant case, while it is undisputed that thp grounds w e i 'f t n u t slated in the* n o t i o n of '-nn-h i<-.nT such grounds can be gleaned from the accompanying affidavit, sworn by Mr. D. Kesaria, counsel for the applicant. In that case, we are inclined to the view that though the grounds were not stated in the manner required under rule (1) such were made known to the respondent through the affidavit. Consequently, we think the respondent cannot be said to have been prejudiced by the applicant's failure to state the grounds in the notice of motion. And so, if the respondent was not prejudiced by the applicant's non-disclosure of the grounds in the notice of motion, we are not persuaded by Mr, Mselera's forceful submission to have the application struck out. Rather, having regard to the peculiar circumstances of the case, the nature of the matter, the subject of the intended revision; v/e think that the ends of justice of the case 'would be met by granting leave to the applicant to amend the notice of motion so as to comply with the requirement of rule (1) of the Court’s Rules, 1979« In the event, and for the foregoing reasons, the preliminary objection is overruled. The application for leave to amend the notice of motion by stating the grounds of the application is granted within two weeks from the date of this ruling. Each party to bear its costs* DATED AT BAR 38 SALAAM this 16th day of December, 199S. ,../9 9 L.M. MAKAME JUoTICE OF APPEAL A .S .L .KAMADHAN I JUoTICS OF APPEAL D.Z. LU3UVA JUSTICE OF APPEAL I certify that this is a true copy of the original. $! -J ( A.G/’MrfARIJA ) DEPUTY SEGISTRaR