20060403 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT OAR ES SALAAM (CORAM: LUBUVA, J.A., MROSO, J.A., And NSEKELA, J.A.) CIVIL APPLICATION NO. 143 OF 2005 NATIONAL INSURANCE CORPORATION (T) LTD ............. 1 5 T APPLICANT PARASTATAL PRESIDENTIAL SECTOR REFORM COMMISSION (PSRC) .................................... 2ND APPLICANT VERSUS SHIKONI ASSOCIATES LIMITED ................................. RESPONDENT (Application for Revision of the Decision of the High Court of Tanzania, Land Division at Dar es Salaam) (Rugazia, J.) dated the 29 th day of August, 2005 in Land Case No. 126 of 2005 Date hearing of the matter was concluded: 17th February, 2006 Date Ruling was delivered: 6 th April, 2006 RULING MROSO, J.A.: Land Case No. 254 of 2004 of the High Court (Land Division) at Dar es Salaam was filed by the respondent against the two applicants. The dispute was over a lease agreement relating to premises on Plot No. 18 Msasani Beach, Dar es Salaam. The applicants disputed the claims by the respondent a·nd filed a counter- claim. The High Court, Longway, Judge, struck out the plaint and 2 directed that the case should be filed in the District Land and Housing Tribunal. Apparently, the counter-claim was not struck out. The respondent was aggrieved by the decision of the High Court and filed a Review application before the High Court (Land Division). When the review application came before Longway, J. she minuted to the Registrar of the Land Division as follows:- I have consulted with the advocate with regards Memorandum (sic) for Review. Let Ruling and process to type for his further action. (signed) Judge 17/5/2005 No further action was taken by the learned judge regarding the review application. The advocate for the respondent assumed that the judge had declined to review her earlier decision in which she directed that the respondent should file its case in the District Land and Housing Tribunal, henceforth to be referred to only as the Tribunal. 3 The respondent went to the Tribunal and filed Land Application No. 171 of 2005. Following from a preliminary objection by the applicant the Tribunal ruled that it had no jurisdiction to hear the case and that only the High Court had jurisdiction. So, the respondent went back to the High Court (Land Division) and filed Land Application No. 126 of 2005. Before the case could be heard on merits the applicants raised five preliminary issues of objection as follows:-· (a) That there was a pending suit in the same court, that was Civil Case No. 254 of 2004 between the same parties before Hon. Kileo, J. (sic) (b) That the application was res judicata in that the reliefs sought had been determined and dismissed with costs in the District Land and Housing Tribunal for Kinondoni District in Application No. 171 of 2005 between the same parties as in the case then before the High Court. 4 ( c) That no leave to sue the 1st defendant (now first applicant) had been obtained as required by law. (d) That paragraphs 10 and 11 of the affidavit (in support of the application to the High Court) be struck out because they were not properly verified. (e) That since the applicant (in the High Court) was not in occupation of the suit premises an application for temporary injunction was not maintainable in law. Advocates for the parties made submissions to the High Court, Rugazia, J., but apparently did not argue ground ( c) of objection. The High Court overruled objection (a) (b) and (d), expressed no comment on ground (c), and as regards ground (e) the court said:- I am not going to uphold this point without affording the applicant an opportunity to argue the application on its merits. In effect the court did not uphold ground ( e) and the final order was that all the points of objection failed and were dismissed with costs. 5 The respondents, then, now the applicants, were aggrieved by that decision and have come to this Court applying for revision of Rugazia, J's ruling in Land Case No. 126 of 2005. But the respondent has brought a notice of preliminary objection, raising two grounds. First, that the decision or order intended to be revised was not revisable in law. Second, that the grounds on which the application was based did not fall within the established grounds for revision. Mr. Mbwambo who appeared for the respondent argued that Rugazia, J's ruling dated 29 th August, 2005 in Land Case No. 126 had merely dealt with preliminary points of objection which had been raised before the judge who overruled them. The proceedings were therefore interlocutory and that Act No. 25 of 2002 which amended section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 provided that no appeal or application for revision shall lie against any preliminary or interlocutory decision or order of the High Court unless such decision or order of the High Court has the effect of finally determining the criminal charge or suit before the court. Mr. 6 Mbwambo submitted that the decision of Rugazia, J. did not have the effect of finally determining either Land Case No. 254 of 2004 or Land Case No. 126 of 2005. Even as regards Land Case No. 254 of 2004, nowhere did the judge say that the case was not pending in the High Court, as Mr. Msemwa, advocate for the applicants, tried to argue. Regarding the second ground of objection Mr. Mbwambo argued that this Court in the case of Halais Pro-Chemie Industries Limited vs Wella, A.G. [1996] TLR 269 set down grounds upon which the Court can entertain revision proceedings. The application now before the Court does not meet any of the set criteria. Mr. Msemwa, in response, contended that the grounds for revision set out in Halais were not exhaustive. It was open for the Court to add more grounds. For example, where there was a manifest error on the face of the record, the Court should be free to entertain an application for revision. He did not elaborate. 7 We think, with respect, that Mr. Mbwambo is right. The ruling by Rugazia, J. was on preliminary points of objection and it did not have the effect of "finally determining" either Land Case No. 254 of 2004 or Land Case No. 126 of 2005. In fact it had the effect of keeping alive those cases, in particular, Land Case No. 126 of 2005 which the applicant wanted terminated. The legislature in Act No. 25 of 2002 - Written Laws (Miscellaneous Amendments) Act - in its wisdom proscribed revision by the Court of a preliminary or interlocutory decision of the High Court unless such decision had the effect of finally bringing to an end the substantive case before the court. The first ground of objection must, therefore, be upheld. That is enough to dispose of the application before the Court. Even so, we wish to comment briefly on the second ground of objection. As indicated earlier, Mr. Msemwa submitted that even if it is assumed that none of the instances stated in Halais are relevant in the present application, that case had not exhausted all the situations in which the Court could entertain a revision of High Court . 8 proceedings. A manifest error on the face of the record could provide justification for revision of a High Court proceeding or decision. That point was argued in Shahida Abdul Hassanali Kassam v. Mahedi Mohamed Gulamali Kanji, Civil Application (for Revision) No. 42 of 1999 (unreported). In that case this Court acknowledged that, indeed, the four categories for revision prescribed in Halais are not exhaustive and that an advocate can satisfy the Court that there were new categories of circumstances for exercising the power of revision. When discussing whether errors apparent on the face of a ruling could be a ground for revision the Court said that was a matter for a review by the High Court itself and that at any rate, such a complaint should constitute a ground of appeal. Per Halais, once a complaint is categorized as a ground of appeal resort cannot be had to revision as the alternative remedy. This Court in the Shahida case considered that no case had been made out to add the point of manifest error on the face of the record as a ground for revision. With respect, we would say the same thing in the present case. 9 In the case of Miroslav Katie Versa Paladin Ingra v. Ivan Makobrad this Court accepted that a glaring error on the part of the High Court, in which the decision bordered on a travesty of justice, it was appropriate for this Court to use its revisional powers to provide urgent remedial action. It was not argued that the application before us was a travesty of justice. At any rate, even if we were to be satisfied that a manifest error on the face of the decision had been proved, since the High Court decision was on a preliminary objection and it did not have the effect of finally determining the suits that were before the High Court between the parties, an application for revision would be caught up in the amendment to section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 which was brought about by Act No. 25 of 2002. For all the above reasons we uphold the Preliminary Objection and quash with costs the application for revision. DATED AT DAR ES SALAAM this 3rd day of April, 2006. D.Z. LUBUVA JUSTICE OF APPEAL J. A. MROSO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original.