20071219 TZCA Dar es Salaam

• _1.:.' 2 I I IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM 1 I I I (CORAM: MSOFFE, J.A, KAJI, J. A; And RUTAKANGWA, J. A.) CIVIL APPLICATION NO. 20 OF 200 7 1 I 1. NATIONAL INSURANCE CORPORATION OF (T) LTD! 2. PARASTATAL SECTOR REFORM COMMISSION ....... l............. APPLICANTS I VERSUS SHENG ENA LIMITED .................................................. ~ .......... RESPONDENT I I (Application for Revision from the decisionI of the High Court of Tanzania at Dar es Sala~m) i (Luanda,J.) I I th dated the 16 day of February, 2007i in Commercial Ca~e No. 75 of 2005 RULING OF THE COURT 21 ST November & 28 th December, 2007 KAJI, J. A. : In a -notice of motion made under section I 4(3)(c) of the I Appellate Jurisdiction Act, 1979 as amended by the Appellate I I Jurisdiction Amendment Act No. 17 of 1993, read together with Rule I I I 3(2)(b) of the Court of Appeal Rules, 1979, the National Insurance I I Corporation of (T) Ltd and the Parastatal Sector Reform Commission 'j 1 - ,I .\ Citation Parties Legal Principles Discussed CIVIL APPLICATION NO. 20 1. NATIONAL INSURANCE A notice of motion made under OF 2007- COURT OF APPEAL OF CORPORATION OF (T) LTD, 2. section 4(3)(c) of the Appellate TANZANIA PARASTATAL SECTOR REFORM Jurisdiction Act, 1979 as amended AT DAR ES SALAAM- MSOFFE, COMMISSION Vs. SHENGENA by the Appellate Jurisdiction J.A, KAJI, J. A; and LIMITED- (Application for Amendment Act No. 17 of 1993, RUTAKANGWA, J. A. Revision from the decision of the read together with Rule 3(2)(b) of High Court of Tanzania at Dar es the Court of Appeal Rules, 1979. Salaam- Commercial case No. 75 of 2005-Luanda, J.) Application for an order that the proceedings of the High Court in Commercial Case No. 75 of 2005 be called to this court and the legality and propriety of the order dated 6th February, 2007 be inspected and be revised on the ground that the suit leading to the judgment and decree was time barred, and further that the judgment was entered in total • defiance of Order VIII Rule 14(2)(b) of the Civil Procedure Act (cap.33 R.E.2002). Whether failure to file written submissions as directed is synonymous with being absent on the hearing date without notice- What is a preliminary objection?- a rational answer to this question can be found in what the court observed in the case of Mukisa Biscuits Manufacturing Company LTD v West End Distributors LTD (1969) EA 696. At page 700 where Law, J.A observed that a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings, and which, if argued as a preliminary objection may dispose of the suit. .... A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is the exercise ofjudicial discretion. 3 who are the first and second applicants respectively, are moving the court for an order that the proceedings of the High Court in Commercial Case No. 75 of 2005 be called to this court and the legality and propriety of the order dated 6th February, 2007 be inspected and be revised on the ground that the suit leading to the judgment and decree was time barred, and further that the judgment was entered in total defiance of Order VIII Rule 14(2)(b) of the Civil Procedure Act (Cap.33 R.E.2002). The notice of motion is supported by an affidavit deponed to by Mr. Samson Edward Mbamba, learned counsel for the applicants. A brief background of the., matter is that, the respondent Shengena Limited was the plaintiff in the above commercial case where the applicants were defendants. On 28/9/2005, a default judgment was entered against the 1st applicant under Order VIII Rule 14(1) of the Civil Procedure Code 1966. The 1st applicant was aggrieved by the decision. However, instead of appealing against the decision the 1st . applicant applied in the same court. for a review of the decision on the ground that the suit was time barred and that the 4 default judgment was entered in contravention of Order VIII rule 14 (2)(b) of the Civil Procedure Code. On the hearing date, Mr. Mbamba, learned counsel for the 1st applicant, and Mr. Mbwambo, learned counsel for the respondent, proposed and the court consented that the application should be argued by way of filing written submissions. A time schedule was put in place. Mr. Mbamba was to file his submissions not later than on 2/1/2007 and Mr. Mbwambo not later than on 2/2/2007. A rejoinder (if any) had to be filed not later than on 16/2/2007. Ruling was to be delivered on 20/2/2007. But by 2/1/2007 Mr. Mbamba had not yet filed as directed. He purportedly did so out of time on 8/1/2007 without leave of the court. Since Mr. Mbamba failed to file his submissions within the period set by the court, and purportedly filed one out of time without leave of the court, the court took the view that there were no submissions by the applicant. Consequently the application was dismissed with costs. It is against the dismissal order that the applicants are moving the court for an order to call for and examine the record for the purpose of satisfying itself as to the legality or propriety of the order itself, and revise it if appropriate. .,·. ~ 5 -'"'·....,,~ When the application was called on for hearing, ~r. Mbwambo learned counsel for the respondent, raised a preliminary objection, notice of which he had lodged earlier on. The preliminary objection is based on two points, namely: 1. That this application is incompetent at law as there are other remedies available in the matters intended to be revised. 2. That this application does not demonstrate that it falls within the established grounds for revision. Mr.Mbwambo argued the two points together. The learned counsel pointed out that the applicant's application for review was dismissed for failure by the applicant's counsel to file his submissions as ; I directed by the court. Failure to file written submissions as directed is synonymous with being absent on the hearing date without notice, Mr. Mbwambo contended. The learned counsel asserted that when an applicant is absent on the hearing date without leave his application suffers the wrath of dismissal, the very act taken by the 6 ., learned Judge in the order complained of. Mr. Mbwambo observed that after the applicant's application had been dismissed, the applicant had an option under Order XLII rule (7)(2) of the CPC to apply for the dismissed application to be restored if he could prove to the satisfaction of the court that he was prevented by sufficient cause from filing his submissions in time. Since the applicant had that option and had not done so there was no justification for lodging this application, argued the learned counsel. Mr. Mbwambo contended that it is improper for a party to apply for revision before exhausting all available remedies. On his part Mr. Mbamba, learned counsel for the applicant, conceded that failure by an applicant to file written submissions as directed by the court has the same effect as if the applicant had failed to enter appearance on the hearing date whereby his application may be dismissed. After conceding the above facts, Mr. Mbamba took the view that, after the applicant's application for review was dismissed for failure to present written submissions in time, the applicant could apply in the same court for setting aside the dismissal order and for restoration of the dismissed application. However, he was quick to point out that that was not the ~, . 1,,"' ( - "' ......-.. 7 only option available to the applicant. He asserted that the applicant had also an option to apply for a revision by virtue of what this Court held in the case of Halais Pro-chemie Vs Wella A.G (1996) TLR 269 under the proposition of "exceptional circumstances" as elaborated in the case of SGS SOCIETE Generale De Surreillance S.S Vs VIP Engineering & Marketing LTD, Civil Application No. 84 of 2000 (unreported) where the court said "illegality or impropriety" may fall within the ambit of "exceptional· circumstances" entitling an aggrieved party to apply for revision so that the illegality or impropriety may be corrected. The learned counsel contended that in the instant case the illegality complained of is time limitation in that the suit which led to the order complained of was time barred and was entered in total defiance of the provisions of Order VIII rule 14(2)(b) of the Civil Procedure Act Cap 33 R.E 2002. In the circumstances Mr. Mbamba took the view that the application is properly before the court under proposition (ii) in the Halais case cited above. I - J. ;;•~, 1;..,_,. - 8 In a short rejoinder Mr. Mbwambo pointed out that since Mr.Mbamba conceded that one of the remedies available to the applicant was to apply for the dismissal order to be set aside and the application be restored, there was no necessity of applying for revision which is a last resort. We have carefully considered the rival submissions by learned counsel. Before considering the merit or otherwise of the preliminary objection, we think, we should first decide whether the so called preliminary objection is really a preliminary objection. At this juncture we may pause and ask: What is a preliminary objection? We think a rational answer to this question can be found in what the court observed in the case of Mukisa Biscuits Manufacturing Company LTD v West End Distributors LTD (1969) EA 696. At page 700 Law, J.A observed as follows:- So far as I am aware, a preliminary objection consists of a point of law which has been I I, 9 pleaded or which arises by clear implication out of the pleading~ and which, if argued as a preliminary objection may dispose of the suit Examples are an objection to the jurisdiction of the court, or a plea I of limitation, or a submission that the parties are bound by the contract giving to the suit to refer the dispute to arbitration. At page 701 Sir Charles Newbold P. had this to say:- A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is the exercise ofjudicial discretion. We take that to be the position of the law on the :meaning of a preliminary objection. With this in mind we ask ourselves: does the ' so called preliminary objection in the instant case pass this test? We 10 think it does not. The two so called points of objection are not self proof. They are subject to proof by some other material facts. For the foregoing reason we dismiss the · respondent's prelim.inary objection with costs in the cause. DATED at DAR ES SALAAM this 19th day of December, 2007. J. H. MSOFFE JUSTICE OF APPEAL S.N.KAJI JUCTICE OF APPEAL E.M.K RUTAKANGWA JUSTICE OF APPEAL I certify that this a true copy of the original. I. P. KITUSI DEPUTY REGISTRAR