20041117 TZCA Dar es salaam

... ~'-er? J, ~ .. . . . 'ri)-1~ IN THE COURT OF APPEAL OF l"ANZANIA AT DAR ES SALAAM ~F ~ . ; (CORAM: RAMAD.HANI, J.A., MROSO, J.A., And MSOFFE, J.A.) CIVIL REFERENCE NO. 11 Of 2004 . In the Matter of an Intended Appeal BETWEEN NATIONAL SHIPPING AGENCIES LTD. ] (As Duly Constituted Agents of ] ........................... APPLICANT GLOBAL CONTAINER LINES LTD.) ] · AND THE TANZANIA HARBOURS AUTHORITY ....................... RESPONDENT (REFERENCE from the Ruling of a single Judge of the Court of Appeal of Tanzania at Dar es Salaam) (Munuo, J.A.) dated the 10 th day of September, 2004 in Civil Application No. 88 of 2004 RULING OF THE COURT MSOFFE, J.A.: This is a reference from the Ruling of a single judge of this Court (Munuo, J.A.) striking out with costs an application for a stay of execution. The applicant through the services of Dr. Lamwai, learned advocate, lodged the application under Rule 9 (2) (b) seeking a stay of execution. in High Court (Dar es Salaam) Civil Case No. 134/96. The respondent, who was represented by three learned advocates, namely Messrs. Mbuna, Mnzava, and Mchome, filed four preliminary objections to the application for stay i.e. (i) the application is ·incompetent for lack of a proper notice of appeal filed within time; 2 (ii) the supplementary record of the application is incompetent and not properly before the Court;: (iii) · the application is incompetent as it does not contain a ·... copy of the decree; and (iv) ·the record of the application and the supplementary record are incompetent/defective for non-compliance with the Court Rules. In a Ruling dated 10/9/2004 the single judge referred to a letter written on 15/7/2004 by NASACO to Global Container Lines Ltd. which read in part as follows:- "..... However, we are unable to proceed on under the Powers of Attorney without a Board Resolution. NASACO was specified in 1998 and is in the process of winding up, therefore it would be inappropriate to continue with the said matter as holders of your power of attorney. . Any inconveniences caused are highly regretted". On account of the above contents of the letter the single judge struck out the application. She reasoned out as follows:- " .. ,.. since NASACO ceased being Attorneys of Global Container Lines Ltd. with effect from the 15th July, 2004, the Notice of Appeal and the present application had to be rectified by way of amendment in view of the fact that NASACO was no longer a ·party to the proceedings. As it is neither the application nor the Notice of Appeal are· properly ... 3 before the Court. I therefore uphold grounds 1 and 2 of the objection ..... " In order to appreciate the reference properly the following background information will be essential:- The judgment of the High Court was delivered on 6/7/2004. The notice of appeal was lodged on 13/7/2004 i.e. well within the 14 day period prescribed under Rule 76 of the Court Rules. On 19/7/2004 the "Record of Application" for stay was filed. The so called "Record of Application" was accompanied with a notice of motion containing an affidavit sworn by one Ali Paksima; Dr. Lamwai's letter written on 13/7/2004 and addressed to the Registrar High Court applying for copies of proceedings; and a copy of the judgment. It will be noticed at once here that the "Record of Application" did not contain a copy of the decree. So, on 30/7/2004 a "Supplementary Record of Application" was filed containing, inter alia, a copy of the decree and a copy of letter ref. no. 001/70/lgl/21 dated 15/7/2004. As stated above, the ruling of the single judge was given on 10/9/2004. So, on the same day i.e. 10/9/2004, this reference was filed. At the hearing of the reference we had to deal with a preliminary objection notice of which was given earlier. The objection which was argued by Mr. Mnzava, learned advocate for the respondent, was essentially that the applicant was abusing court process by proceeding with this reference when at the same time it had already obtained an exparte order from the High Court prohibiting execution. Thus, in Mr. Mnzava's view, the issue of stay of execution is currently being dealt with by two different 4 · jurisdictions. We overruled Mr. Mnzava on the objection basically because the matters before the two courts are differe.nt. Whereas here we are dealing with a reference emanating from an application for a stay of execution,· the matter before the High Court is one of prohibition. In the High Court the applicant is essentially asking that court to give an order prohibiting the respondent from exercising its statutory power· of seizure/arrest under 5.21 of The Tanzania Harbours Authority Act, 1977. It is true that in common legal parlance "stay of execution" and "prohibition" might mean one and the same thing, but the two are different in the context and manner in which they are sought to be ordered in the two respective courts. In arguing the reference learned counsel spent, or rather used, a considerable amount of time, energy and effort in submitting on whether or not NASACO is still an agent of Global Container Lines Ltd. in the light of the contents of the letter dated 15/7/2004. In the process, they cited a number of authorities in support of their respective positions on the point. With respect, we will not refer to those arguments and authorities in this Ruling. We will not do so, not out of disrespect to learned counsel, but essentially because we think the arguments and authorities could be more relevant in the intended appeal and. not in this reference. Furthermore, we are of the considered view that the reference could be disposed of on other points as we shall demonstrate hereunder. As is evident from the above background information, the application for a stay of execution was struck out essentially for want 5. of a proper notice of appeal in view of the letter dated 15/7/2004. In . our view, there was no good. reason for striking out the application.· The letter of 15/7/2004 was written after the notice of appeal had been lodged. Thus, when the letter was written there was already a valid notice of appeal. In other words, in determining whether or not there was a valid notice of appeal as on 15/7/2004, one of the factors ought to have been when it was lodged. Since it was lodged on 13/7/2004 i.e. well before the letter of 15/7/2004 then, in our view, there was a valid notice before the Court. In our further view, the position regarding the notice would not have changed irrespective of whether or not the letter dated 15/7/2004 existed. · We say so because in deciding on the validity or otherwise of a notice of appeal to this Court the determining factors would be:- (i) Whether it was lodged within time; and (ii) Whether it complied substantially with the requirements stipulated under Form D of the First Schedule to the Court Rules. We have looked at the notice of appeal lodged on 13/7/2004. We are satisfied that it was filed within time and it also contained the essential requirements stipulated under Form D. It will also be recalled here that the letter dated 15/7/2004 was part of the "Supplementary Record of· Application" lodged on 30/7/2004. It is, therefore, evident that in striking out the application the single judge used the letter contained in a record she had rejected. We think it was not proper to base the decision on a record which had been rejected. 6 Dr. Lamwai also. complained that in upholding ground no. 2 of the objection on the supplementary record, the single judge did not assign any reasons. In our view, the complaint has merit. It is true that a look at the Ruling will show that no reasons were given for . upholding ground no. 2 of the said objection. It was expected that reasons would be given, more so because a look at the written submissions filed in Court by learned counsel will show that a lot of time and effort were spent in arguing the ground in question. Thus, as a matter of courtesy and expedience, it was only fair that reasons be given for upholding the ground. For the above reasons, we hereby allow the reference with costs. The Chief Justice is kindly requested to assign a single judge of the Court to determine the application for a stay of execution on merit. Since Dr. Lamwai was assisted by Dr. Tenga, and we think properly so, we award costs for two counsel. It is so ordered accordingly. DATED at DAR ES SALAAM this lih day of November, 2004. A.S.L. RAMADHANI JUSTICE OF APPEAL J.A. MROSO JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEAL 7 • I certify that this is a true copy of the original. I / ) _,/ . ( S.AURA) SENIOR DEPUTY REGISTRAR