20150414 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KILEO, J.A., MASSATI, J.A., And MUSSA, J.A.) CIVIL APPLICATION NO. 44 OF 2005 1. NUZRAT EZAT ABDULRAHMAN 2. KASEKANDRI CONSTRUCTION CO. LTD 3. ASAD MINING & CONSTRUCTION CO. LTD •••••••••••••••••••• APPLICANTS 4. GEITA GOLD MINING CO. LTD VERSUS 1. FAHAD ZABAN ELSHA MMARY 1 2. THE REGISTRAR OF COMPANIE~································ RESPONDENTS (An Application for Revision from the decision of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Bwana, J.) Dated 8 th day of March, 2005 in Petition No. 41 of 2003 RULING OF THE COURT 13th & 2~th day of April, 2015 KILEO, J.A.: The app!ication before us by way of Notice of Motion is for Revision of the decision of the High Court, Commercial Division (Bwana, J. as he then was) dated 8th March, 2005 in Petition No. 41 of 2003. The Notice of Motion was supported by the affidavit of Dr. Masumbuko Lamwai, learned advocate who also represented the applicant at the hearing before us. The 1st respondent, using the services of Hallmark Attorneys filed a Notice of Preliminary Objection on the ground that the Revision was improperly before the Court for violating the provisions of section 5 (2) (d) of the Appellate Jurisdiction Act, 1979, as amended by Act No. 25 of 2002. The matter proceeded to hearing in the absence of the second respondent who had been duly served but failed to enter appearance. The Notice of Preliminary Objection was argued before us on behalf of the first respondent by Ms Aneth Kirethi, learned advocate. The matter is simple and need not detain us. The . issue for determination is whether the decision given by Bwana J. (as he then was) on 8th March 2005 is subject to revision in view of the provisions of section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 as amended by Act no 25 of 2002 which bars revision from interlocutory proceedings. The provision provides as hereunder: "5 (2) Notwithstanding the provisions of subsection (1)- .................................................... (d) no appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision or order of the High Court unless such decision or 2 order has the effect of finally determining the criminal charge or suit." Referring to the definition of "interlocutory proceedings" given in Israel Solomon Kivuyo versus Wayani Langoi and Naishooki Wayani (1989) T.L.R. 140 Ms Kirethi argued that the decision impugned was for all intents and purposes an interlocutory one in as far as clause 8 of the terms of settlement had not been finally determined. Clause 8 of the terms of settlement which were recorded on 28/11/2003 pertained to compensation to the 1st respondent which was to be mutually agreed upon. It is not disputed that the compensation mentioned in that clause is yet to be mutually agreed upon. The Solomon Kivuyo case cited above defines an interlocutory proceeding in the following terms: ''an interlocutory proceeding is incidental to the principal object of the action, namely, the judgment Thus interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of their cases, whether before or after judgment; or ofprotecting or otherwise dealing with the subject matter of the action before the rights of the parties are finally determined; or of executing the judgment when obtained " Dr. Lamwai on the other hand argued that the matter in the Commercial Division of the High Court was finally determined on 28/11/2003 which was 3 the date of signing the terms of settlement. We hasten to say however that what is before us for revision is not the settlement agreement dated 28/11/2003 but rather the decision of 8/3/2005. This decision which appears at page 152 - 162 of the record speaks for itself. The relevant part appears at page 162 where the learned judge stated: ''From the foregoing, it is evident that issues may be framed not from the restricted sources that the two counsel want us to believe. Further R 1(1) read together with R 5(1) empower the court to frame issues from a wider range of sources. In the present matter, it is my view,· the court may proceed to frame issues pertaining to the unresolved clauses. All in all considered, the preliminary observations raised by Chandoo/Lamwai are dismissed with costs. The matter to proceed under Order VIII B of the CPC, before Kimaro, J, as earlier assigned. (Emphasis provided) Dr. S. J. Bwana JUDGE 8/3/2005" The above statement clearly speaks it all. The decision challenged did not bring the matter to finality. The matter was ordered to proceed under Order VIII B of the CPC. 4 • Without much ado we find merit in the Preliminary Objection raised. In consequence thereof we sustain it and dismiss the application for revision with costs to the respondents. The matter is remitted to the High Court for it to proceed as directed in the Ruling of 8/3/2005. It is so ordered. DATED at DAR ES SALAAM this 14th day of April, 2015. E. A. KILEO JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. j}II>: P. W. Bampikya SENIOR DEPUTY REGISTRAR COURT OF APPEAL 5 \