19900817 TZCA Dar es Salaam

IN THj: COURT OF AP:?Ei\L OF TANZANIA 1\T ,:\RUSHA '(CORM.JI: Ki c,·. ·\Jc' ._ _ J '.\. R ,. ·,1r, •)T{·,. "-Tr .. _.J_J_,,_,--"'~•..i.9_1.;,;.'_~J'...;.d'...;.L!...;l.;;;;..J·~:. --2 0_ J o r1·1 • J CIVIL \P?,~:'1L NO. 33 OF -1988 THJi: OLJ.;Li~ RUii./J_, CO-OPER:\TIVE SOCIETY LIMIT~D • • • • • • • . . . APP.i:::LLANT AND Y.M. MSUYJ\ AS3IST.\iT.r C0:1,;1:;JSSIC1N:.Jl. ,\ND 11.EG I ST;i.. ·.fl J:i'OH COOP.~~R/\ TIV E • • RiSPOND~N'l' SOCIETIJ~S KJLH'L\NJ ;. R.O 1{.l:!.:GION (Appea{ from the decision of the High Court of Tanzania at Arusha) (Munuc.2.1_. J .) dated the 12th day of October, 1987 in Misci Civil' AppJication No. 168 of 1987 JU:OGVi.8N1.' OF ·rH.E COURT KISANGA, J .i\. : The appellant Olele Rural Co-operative Society Limited, hereinaft12r to be ref erred to siu1ply as the Society, had applied for leave before the High Court (Munuo, J. (Mrs._)), ~o apply for an order of certiorari, but the application was refused. ·rhe appellant Society then applied to the same Court (Mwakib~tc, J.) ·this time for lcdve to appeal to this Court against the refusal and leave was granted. On two separate occasions the respondent raised pr2liLlinary objection which we overruled, giving our r2::tsons in writing on ~ach occasion, and 2v2ritually the appeal proceeded to hearing. / '. l '.:·~ ·12 .:, ;! : ) l !' ;JI ' .• 3' ... al though he tried his best, was not of much nssistm1c2 to · us, which w;)s quite understond::ible. However, W'2 w11rG assisted gr8atly by Mr! M.K, KiJiomogoro, the 1~arned State Attorney who apyenred for tho rospo11.d0nt. What comc:'S out cle~_n,,ly from the rulJng of the lc:-,.rnod judge is th0t she dismissed the application because it ~JS premo.ture. However h,.::r process of re: ,.soning leading to 0 that conclusion is both obscur0 2nd scanty, It is also apparent tha.t this was so b0c::1us-2 shu did not ::1dd.rcs.s l1Grsclf ~µf~!~iently to th2 provisions of s~ction 18 (3) of th~ Law ~efofm (Fatal A6ciden·ts and Miscellan2ous Provisions) Ordinance No. 55 of 1968 which wis duly cited to her during submicsions by counsel for th~ respondent. In other words we think th.::.t for a proper dC?termin3.tion of the rw:.1ttcr which was befor..:: h,:?r she h·].d to considor clos2ly 2nd togGther the provisions 6f s~ction 18 (3) of Act No. 55 of 1968 3nd those of section 106 (9) and (10) of ~ct No, 14 of 1982e Section 106 (9) and (10) of Act No. 14 of 1982 provides th:J.t:- r1(9) ./m ,.:ppeal shall lie to th2 Minister from any ord0r· mnde by the Registrar under subs2ction (1) and the decision of the Minister on any such appeal shall be final and shall not be subject to revi2w in any court. (10) ivery appo2l under subsection (1) shall be mad2 within sixty days from · the d,1t2 of the public.'.'ltion in the Gc:1.z2ttC?, of the order 3.ppealed against. 11 Sub-section (1) rnc-ntioned j_n both sub-s~c_tj_ons Le. t]1c on(:) . •. '1. ' ; which vests in tho Rogistr'J.r the power to dissolve a .•· ../L ~ • I I a -5 brought prematurely, the judge may adjourn .i.t until (according to the facts here) the time for appealing has expired. The learned judge did not address herself to this part of the provision even though, as stated eorlier, the provision vras duly brought to her notice by counsel. She simply dismissed the a?plicatiori, and it is here thdt we think she went wrong. For, the application was not misconce- ived and incompetent as she thought. It was only premature, but the sub-section clearly recognizes and makes provision for such premature ap~lications by empowering ~he judge to adjourn·them. Mr. Kimomogoro contended that under the sub-section~ adjournment was not made mandatory; it was only discretionary, and so the learned judge was entitled to exercise her discretion, as she did, against adjournment in this case. We agree that under the sub-section the learned judge had discretion whether or not to adjourn, but that discretion must be exercised judicially. The learned judge was obliged to say why she considered it inappropriate to ad,journ the application. In other words the applicant was entitl0d to know why he was denied the right which the law expressly says is open to him. Tn deny the applicant his right of adjourn- ment without assigning any reason therefor cl2arly amounted to an improper exercise of discretion. Had the learned judge adequately addressed herself to the sub-section in question, and had she properly directed herself in the matter, we cannot say that she would have necessarily dismissed the application rather than adjourn .it. Accordingly we direct that the application be deemed , .. /6 \ i . r 7 ccrtioro.ri o.nd the npplicc'ltion sh,Juld h'.lVG b,::c'n h0r1d,?d so. T.he prcs2nt he'.J.ding · ;;In tho nwtter of applico.tion f8r orders in. certiorari II is 1;-iisleo.ding. Such heading would be o.ppropri:i.te only after lc:1vc in the pr2sent 3pplicntion ws.s granted. The docu,i1ent ought to be nrnended accordingly. The applicant w:::ts repres0nted by counsel who filed the proceG>dings in the High Court. He consider it approprinte to dro.w counsel's attantion to the need to bring such applications in their corr2ct form. In this respect reference - is 1imd2, inter o.lia, to the case of Farmers Bus Serv~~i;__ :md Others v. The T:i:-_~ns:e,crt Lice12£.tl}.iL.h.PJ?_e·:1l Tri_~1::!,.!}Ql (1959) £.A. 779, involving somewh1.t. siiuila.r fo.cts, in which the Court of Appeal for Eastern ~frica, among other things, stressed the need for ~orrectly intituling such proce0dings. 17th day of Ai...:.gust, 1990, R.H. KISANGA JUSTICE OF AP':JE/\L ) A. S. L. l1,\M.'\DH,'\iH JUSTICE OF APPE.1\L N.S. MNZAVAS JUSTICE OF APPEAL I certify thnt this is a true copy of the original. k. (M.L.K. KANNONYELE) DEPUTY RBGISTR,:\R •'. •~ I ... .. , ., . I •·.