20130930 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MSOFFE, 1A., BWANA, J.A., And JUMA, J.A.) CIVIL APPLICATION NO. 154 OF 2012 NATIONAL INVESTMENT CO. LTDT .................................... APPLICANTS FELIX GAMALIEL MOSHA 5 VERSUS PUBLIC SERVICE PENSION FUND (PSPF) LOCAL AUTHORITIES PENSIONS FUND (LAPF) GOVERNMENT EMPLOYEES PENSIONS FUND (GEPF) PARASTATAL PENSIONS FUND (PPF) RESPONDENTS S. CAPITAL MARKETS & SECURITIES AUTHORITY DR. GIDEON KAUNDA KINONI ADAM WAMUNZA (Application for revision of the proceedings, order and ruling of the High Court of - Tanzania, Commercial Division at Dar es Salaam) (Bukuku, 3.) Dated the 13th day of April, 2012 In Miscellaneous Commercial Case No. 4 of 2012 RULING QEIHE COURT 121h September & 3 rd October, 2013 JUMA, iA: This Ruling relates to two sets of preliminary objections to oppose a Notice of Motion which the National Investment Co. Ltd (1st applicant) and Felix Gamaliel Mosha (2 nd applicant) filed in this Court. By that motion, filed on 13/2/20 13, the two applicants moved this Court to exercise its revisional jurisdiction under section 4 (3) of the Appellate Jurisdiction Act, Cap 141, 1 -1 - S hereinafter referred to as the Act, and Rule 65 (1) of the Tanzania Court of Appeal Rules, 2009, (hereinafter, the Rules). As indicated earlier, the notice of motion was opposed by the respondents, who raised preliminary points of objections. Dr. Gideon Kaunda (6th respondent) and KinOfli Adam Wamunza (7th respondent) filed their Notice of Preliminary Objection on 10th May 2013. They contend, That the 2 applicant has no locus standi to institute this application. That the 2°' appilcant's affidavit is incurably defectIve for containing argument, conclusion and point of law. Both Counsel for the applicants do not have instructions to prosecute this application. The application has been instituted without a Board Resolution The applicants have no cause of action against 6th and 7h respondents. On 14th May, 2013, the Registered Trustees of the Public Service Pension Fund (1st respondent), the Registered Trustees of the Local Authorities Pension Fund (2'' respondent), the Registered Trustees of the Parastatal Pension Fund (3rd respondent) and the Registered Trustees of 2 - t 3 the Government Emloyees Providen,t Fund (4th respondent) opposed the motion when they issued their ownNotice of Preliminary Objection against the application for revision. They contended: Both, the first and second applicants have no locus stand/in this matter. The application for reviion is untenable in as far as:- (/ It is prejudicial to the pending application for setting asde the alleged ex parte /consent order, which is still pending in the High Court Commercial Diviion under Micellaneous Commercial ApplicatiOn No. 4 of 2012. It is prejudicial to Civil Case No. 13 of 2013 which is pending in the Hiqh Court Dar es Salaam District Registry filed by the Pt applicant and 6 others against all the respondents herein, through the services of the same Advocates before this court. It purports to move this Court to make findings and orders on Miscellaneous Civil Cause No. 116 of 2011 which is not before this Court. 3 It is important if we at the very outset look back at the background to both the application for revision and the two sets of preliminary objections. On 19/1/2012 the 1st 2nd1 3" and 41h respondents filed a Petition, Misc. Civil Application No. 4 of 2012 in the High Court of Tanzania (Commercial Division). They were moving the High Court to appoint INTERIM MANAGEMENT to manage and regulate the business and affairs of the 1 applicant (the National Investment Company Limited) until such time as the members of the 1 applicant and the Capital Markets and Securities Authority (51h respondent herein) carry out a restructuring and 5th putting in place a new management. The 1s t applicant and the respondent herein were pleaded, as respondents to that Petition. The Petition to appoint interim management team to manage the 1 applicant company was on 19/1/2012 assigned to Bukuku, J. and summons were accordingly issued to parties. It was on 29/2/2012 when parties cited in the Petition appeared in Court. Records show that Mr. Tadayo, learned Advocate represented the Public Service Pension Fund (1 st Petitioner in the Petition). Mr. Mwakitalu, learned Advocate, is recorded as representing the (51h Capital Markets and Securities Authority respondent herein). It is apparent that the 2 Petitioner (The Registered Trustees of the Pãrastatal Pension Fund), 3rd Petitioner (The Registered Trustees of the Local Authorities Pension Fund), 4th Petitioner (The Registered Trustees of the Government Employees Provident Fund) and The National Investment Company Limited neither appeared nor were they represented by any learned Advocate. Mr. Mwakitalu who represented the Capital Markets and Securities Authority conceded that indeed his client was served. Mr. Mwakitalu then proceeded to concede all the prayers in the Petition. Records show that Bukuku, I. granted the prayers which the Petitioners had filed in Misc. Civil Application No. 4 of 2012. On 09/3/2012 Mr. Felix Gamaliel Mosha (2 nd applicant herein) begun taking steps to try and set aside the ex parte Ruling of Bukuku, J. when acting under Order IX Rule 13 of CPC, he filed a Chamber Summons praying for the setting aside of the ex parte order of 29/2/2012. This attempt to set aside the exparte Ruling was opposed on 10/4/2012 when Mr. Gabriel Silayo, the Principal Officer of the Registered Trustees of the Public Service Pension Fund filed a Counter Affidavit. By 09/08/2012 the application to set aside the ex parte Ruling was yet to be heard. This prompted Mr. Herbert Nyange, learned Advocate, to write a letter (dated 5 4 1/7/2012) to requestfor the hearing of the application for setting aside the Ruling and Order of Bukuku, 3. Mr. Nyange also requested another Judge to be assigned to hear the pending application. Records show that a Notice of date of hearing was issued scheduling the hearing to take place on 28/8/2012 at 11:00 before Bukuku, J. In the meantime, while the Petition (Misc. Civil Application No. 4 of 2012) was progressing in the Commercial Division of the High Court before Bukuku, 3., there was another application, Misc. Civil Cause No. 16 of 2011 (Twaib, J.) in the High Court Dar es Salaam District Registry for the prerogative orders of Certiorari, Mandamus and Prohibition. Misc. Civil Cause No. 16 of 2011 was between on one hand, Mr. Felix Mosha (2' applicant herein), Kathleen Armstrong, and the National Investment Co. Ltd (1st applicant herein); and on the other hand, the Capital Markets and Securities (51h respondent herein) and the Attorney General. On 06/03/2012 Twaib, 3. issued the order of certiorari to quash the decision of the Capital Markets and Securities to carry investigations of the NICOL; and the decision to suspend NICOL's Board and Kathleen Armstrong. The learned Judge also quashed the order that had directed 11 40 Mr. Fehx Mosha to hand over his position as a Chief Executive Officer of NICOL to the most senior official of NICOL. When the preliminary points of objection came up for hearing on 12/9/2013, Mr. Peter Kibatala, learned Advocate, appeared on behalf of the 1st 21, 3rd and 41h respondents. Mr. Obadiah Kameya, learned Principal 5th respondent. Mr. Benjamin State Attorney, appeared for the 6th and 7th respondents. Mwakagamba, learned Advocate, appeared for the Mr. Colman Ngalo, learned Advocate, assisted by Mr. Mwezi Mhango and Mr. Nyange, learned Advocates, appeared on behalf of the applicants. - Except for Mr. Kameya who did not file any written submissions, the remaining learned Advocates relied on the written submissions that were already before the Court. We have given serious thought to the submissions of the learned counsel. We shall premise our opinion from the settled position that section 5 (2) (d) of the Act as amended by Act No. 25 of 2002 is designed to prevent applications seeking revisional jurisdiction of this Court where orders of the High Court subject of revision are still preliminary or interlocutory, and do not finally and conclusively determine the rights of the parties concerned: [See Karbu Textile Mills Ltd Vs. New Mbeya 7 .4 1,. a Textile Mills Ltd & 3 Others, Civil Application No. 27 of 2006 (unreported); Hasmukh Bhagwanji Masrani Vs. Dodsal Hydrocarbons And Power (Tanzania) PVT LTD & 3 Others, Civil Application No. 100 of 2013 (unreported)]. In the case of Hasmukh Bhagwanji Masrani (supra) we emphasized the significance of the word "shall" in section 5 (2) (d) of the Act as obliging this Court to first determine whether a matter called for revision is prohibited by this provision before proceeding to hear an a'pplication for revision. In the present application, we shall first deal with the points of objections contending that this Court lacks revisional jurisdiction because there is still pending before the High Court not only an application seeking to set aside an ex parte order of the High Court, but also a Civil Case No. 13 of 2013 is still pending in the High Court of Tanzania at Dar es Salaam District Registry. On the significance of matters that are still pending in the High Court, it was submitted on behalf of the 1 to 4th Respondents that the applicant should not be allowed to resort to an application for revision as a disguised appeal against the Ruling of Bukuku, 3. We were urged not to allow the application for revision because after the High Court had made its Ruling 8 / On point of objection that the applicants should not be allowed to file the Civil Case No. 13 of 2013 and also seek the revision, it was submitted on behalf of the 1 s' to 4th respondents that through both this application for revision, and also the Civil Case No. 13 of 2013, the applicants have a common objective of seeking to nullify the order of Bukuku, J. We were urged to disallow the application and let the applicants resort to Civil Case No. 13 of 2013. In their reply written submissions, the applicants had at first submitted that they do not think that existence of the Civil Case No. 13 of 2013 is offensive to their application for revision. Rather, that it confirms that Bukuku, J. was on 29/2/2012 wrong to allow the prayers in the Petition to appoint Interim Management of the National Investment Company Ltd. But when the parties appeared before us, Mr. Colman Ngalo informed the Court that Civil Case No. 13 of 2013 was withdrawn on 9/9/2013. From submissions on effect of the pending application to set aside the ex parte Order, we inevitably have to ask ourselves two basic questions. First is whether the Commercial Division of the High Court has deliberately refused to determine the application for setting aside of the ex 10 4) ' p 0 parte decision of Bukuku, 3. Secondly, whether a party who has applied to set aside an exparte decision of the High Court can at the same time apply for an order of revision by this Court before his application is heard and determined by the High Court. We propose to look at the substance of the allegation that the Commercial Division of the High Court refused to hear an application hence the decision to seek the revision by this Court. We are not in any dpubt that the claim that the Commercial Division of the High Court has refused to hear an application seeking to set aside its ex parte order is a very serious allegation to say the least. It is clear from the record of this revision that the applicants lodged their application to set aside the ex parte decision of Bukuku, J. way back on '19/3/2012. On 1/7/2012 the applicants through Mr. Nyange, their learned Advocate wrote a letter to remind the trial court of the pending application to set aside the ex parte Order of Bukuku, 3. Records also show that the application to set aside the ex parte decision was scheduled to be heard on 28/8/2012. There is nothing on record to explain why the hearing did not proceed. In Jing Lang Li vs. 1. National Housing Corporation, 2. Lars Eric Huistrom, Civil Revision No. 1 of 2013 (unreported) we suo motu 11 I 0 dealt with a dear situation where the learned trial Judge had explicitly declined to assumejurisdiction on the explanation that the learned Judge cannot "interpret" the Ruling of this Court. With respect to the present application before us, there is nothing on the record from which this Court can explicitly conclude that the Commercial Division of the High Court had refused to hear the application that parties had filed and pending for hearing and determination. The applicants before us would like the Court to go along with their understanding that the delayed hearing of their pending application is nothing but a refusal by the High Court to take up its jurisdiction over the pending application. We are obviously concerned over the delayed hearing of the pending application. However, we do not think it is appropriate on the basis of what appears on the record of the trial court, to conclude that the delay is nothing but a refusal by the trial court to take up its jurisdiction. We shall as a result proceed from the premise that there is still a pending application before the Commercial Division of the High Court seeking to set aside an exparte Ruling and Order dated 29/2/2012. Having concluded that there is a pending application before the High Court, we asked ourselves whether the applicants can still come to this 12 0 Court on revision where their application to set aside the exparte Order is still pending In the High Court?. We do not think so. We think the law is settled that a party can only come to this Court on appeal or revision after exhausting the remedies that are still available in the High Court. In 1. Jaffari Sanya Jussa 2. Ismail Sanya Jussa vs. Saleh Sadiq Osman, Civil Appeal No. 54 of 1997 (unreported) one of the issues before us was whether an aggrieved party may pursue both avenues of setting aside an ex parte decree at the High Court and an appeal to this Court. We categorically said NO. We stated that one should only come to this Court as a last resort after exhausting all available remedies in the High Court. We said, '..applicants ought to have appiled for setting aside the ex parte decree in the High Court and should not have simultaneously filed an appeal in this Court/' In CRDB Bank (1996) LTD vs. Morogoro Farm and Transport Services (1985) Ltd, Civil Application No. 61 of 2010 (Unreported) we stated as much on page 4: 13 '0 "With resped we agree with the learned Advocate for the applicant that after the HI'h Court had entered an ex I.: parte judgment on the .1.9.2008,' the course of actio open to the applicant was to make an application to set aside the ex parte judgment and not to appeal as discussed in the Government of Vietnam vs. Mohamed Enterprises (T) Ltd, Civil Appeal No. 122 of 2005 (unreported)." We also restated the need for parties to exhaust all available remedies in the High Court before coming to this Court in Kezia Violet Mato Vs. 1. National Bank of Commerce, 2. Edith Majura & Co. Ltd., 3. Benedict Magwega Mataba, 4. Edith Mataba, Civil Application No. 127 of 2005 (unreported): "..where a party has no riiht of appeal but there is an alternative remedy provided by law, he cannot properly move the Court to use its revisional jurisdiction. He must first exhaust all remedies provided by law before invoking the revisional jurisdiction of the Court. The applicant who has not yet exhausted all remedies provided by law cannot invoke the revisiOna/jurisdiction of the Court." 14 4., 0 0 Having lodged in the High . Court an application to set aside an ex parte order, we think that the applicants should.. follow through that application first instead of resorting for a revision by this Court. Our settled position in Jaffari Sanya Jussa (supra), CRDB Bank (1996) LTD (supra) and in Kezia Violet Mato (supra) on the need to exhaust remedies available in the High Court also apply to the issue regarding the effect of Civil Case Number 13 of 2013 on the application for revision. The applicants have not disputed the fact that they sought to overturn the exparte order of the High Court. The applicants have similarly -. not disputed the fact that they filed a fresh suit in the form of Civil Case Number 13 of 2013 to overturn the decision of the High Court. Although during the hearing of the objections, Mr. Ngalo had intimated that the Civil Case Number 13 of 2013 has since been withdrawn, our position remains the same to the effect that where a party has embarked on a fresh suit in order to overturn an ex parte decision of the High Court, that fresh suit must be pursued to its logicalconclusion without simultaneously resorting to the revisional jurisdiction of this Court. In the upshot, we uphold the point of preliminary objection contending that Notice of Motion before us is untenable because it seeks to 15 pop . 4., / revise an ex parte order, wñih is still pending in the High Court CQmmerciaI Division as Miscellaneous Commercial Application No. 4 of .2012. Without having to determine other remaining points of preliminary objection, we hold that the applicatiOn is incompetent and it is hereby struck out with costs. We also direct the trial court to hear the pending application that seeks to set aside an exparte order. 30th1 day of September, 2013 DATED at DAR ES SALAAM this J.H. MSOFFE JUSTICE OF APPEAL S.I. BWANA JUSTICE OF APPEAL I.H.JIJMA JUSTICE OF APPEAL IçerW'hat is a true copy of the original. Z.A. MARUMA DEPUTYREGISTRAR COURT OFAPPEAL 16