20110729 TZCA Dar es Salaam1

I~~, ✓ I~ IN THE COURT QF APPEAL:OF TANZANI~ AT DAR ES SALAAM I (CORAM: MUNUO J.A. MSOFFE J.A. And MASSATI □ .A. I- CIVIL APPLICATION NO; 35 OF 2011 I- 1. OTTU ON BEHALF OF P.L. ASSENGA & 106 OTHERS 2. SUPPER AUCTION MART & COURT BROKERS 3. THE ROYALE ORCHARD INN LTD. .. .. APPLICANTS 1~ 4. AMIKAN VENTURE LIMITED . I VERSUS I . 1~ AMI TANZANIA LIMITED ........................................... ..... RESPONDENT I (Application from the Ruling and Order o( the 1- High Court of Tanzania at Dar es Salaam) (Twaib, J.) 1~ dated the 7 th - I day of February, 2011 g~ in Civil Appeal No. 96 of 1998 I ---------------- 1 ~-.I~ RULING OF THE COURT - 20 July & 5 August 2011 MASSATI, J.A.: P.L. ASSENGA and 106 others were e · ployed bf the Respondent. Sometime in 1995 they were de lared redundant. OTTU, their trade union took up the matter and in tituted an inquiry in the defunct Industrial Court of Tanzania, which dismissed it. On appeal, the High Court, quashed the decision of th· Industrial Court. The Respondent's intended appeal to! this Court as struck out for I I want of a decree. Meanwhile the Applicants filed I n application for I ,-.i 0161 >1_ "'"' f~ .._ ,_· 2 I I execution of the decree in the High Court by att: ch~ent and sale of 1-- the Respondent's properties. The second Applicrt was appointed to 1~ broker the sale. After some unsuccessful objejion proceedings by 1-- the Respondent, the third and fourth Appl cants emerged as I- purchasers of the Respondent's properties in Baobab Village and 1- ' Upanga, respectively. The sale did not amuse the; Respondent. It I 1- applied to set aside the sale under O 21 r. 88 ! (1) of the Civil Procedure Code (Cap 33 RE 2002). This time, r. Twaib J. granted 1- the application. The sale of the properties was set aside on account 1· of irregularities. The Applicants are aggrieved by that decision and 1- have filed a Notice of Motion in this Court to c allenge it by way of g~ . revision. 1- ,~ In this Court the Applicants are represen,ed by Mr. Mbwambo, ,~ Mr. Matunda and Mr. Kamara,· Mr. Buberwa, an Mr. Sylvester Shayo for the 1st, 2nd , 3rd and 4th Applicants in that order. On the other ""' hand, the Respondent is represented by Mr. Richard Rweyongeza, I,... Mr. Mpale Mpoki, and Mr. Walter Chipeta joint! . - I.... la----- ... ···- .- .. ---·- .. I i• I 0161 I- . tH. If-' ·-.,. 1-·. 3 I 1-- The Respondent does not t~ink that the alplication deserves a day in this Court. Counsel hav~ therefore laTched a number of 1- preliminary objections against it. : There are twr sets. The first set 1- contains three, while the second one, contains io objections. They 1~ were argued by Mr. Mpoki and Mr. Chipeta resAective\y. They were 1~ resisted by Mr. Matunda and. Mr. Kamara, supported by Mr. 1- Mbwambo, Mr. Buberwa and Mr. Shayo. 1~ The first objection was that the applicaTn was incompetent 1~ because there was an appeal pending in this Crrt; or, alternatively which is also the second objecti:on, that at thj time of lodging the applicati_on, there was already ar appeal pendir'.1g in this Court. Mr. ' . I Mpoki forcef~:Hy ~ubmitted that Since the Applilnts had already filed 1· ,- a notice of appeal they could not file an aprlication for revision, · because the two matters could not coexist. He cited the case of I 1~ · TANZANIA TELECOMMUNICATIONS CC1)MPANY LTD. V TRITELECOMMUNICATIONS I (T) LTD. (2' 06) 1 E.A. 393 to - l""I augment his argument. I ~ I 11111 I - I,... 0162 I 4 Mr. Matunda, learned counsel Jgued in reronse that although I~ . I there was a notice of appeal. filed :in this Cou1t, they had already ~- written a notice to withdraw it and filed it on 5/5~2011. So no appeal 1~ is pending here. 1~ I ! . ~fter retiring in chambers fo1 deliberationr on the pre~iminary 1~ obJect,ons, we called for the neces~ary records Irom our registry. It 1- is true that, there was a notice Jf withdrawal which was filed on 1~ 5/5/2011, followed by a formal or~er of the Co~rt dated 6/6/2011 to 1~ mark the Notice of Appeal withdra~n. So with respect, there are no parallel proceedings in this colrt at the t me of hearing the 1~ ,~ "" application. We think this sufficiJntly and pract\ically disposes of the ,- first two prelim'in~.ry objections. •.• -I~~ Mr. Mpoki's third preliminary objection i:S that the Notice of . Motion cited a wrong provision ~f the law to\ ove the court. He ,~ i pointed out that Rule 65 of the Court of Appea Rules 1999 does not . I . exist because they are no such rules, but e\ en if the Applicants I . I~ meant to refer to the Court of Ahpeal Rules 20 9, the cited Rule does I I not confer jurisdiction on the Court but only prescribes the - r~ 5 1-- procedure. In his view, the correct provision to cite was section 4 (3) 1- of the Appellate Jurisdiction Act. He referred to us a number of 1~ decisions of this Court to that effect including CJ(TIBANK v TTCL & 1- 4 OTHERS, Civil Application No. 64 of 2003 (uireported). He went 1~ on to argue that even if Rule 48 of the Court of Appeal Rules, 2009 1- allowed citation of a spe~ific rule, this was a deffct in draftsmanship. 1~ He strongly argued that from past case law, the mischief was that there was no provision that directed parties to tte provisions of the 1~ I law that enabled courts to dispose of matters; t1is Court should now r f use .a purposive approach, and interprete rule 8 and read into the r words "provision of the law" instead of "the rule'r. I~ Mr. Mat.~~da:s reply rested on the wording of Rule 48 of the · r f Court of Appeal Rules, 2009 which requires the itation of the specific r rule for the relief sought. To cite other provisions would be I""" superfluous. On the citation of the Rules as "1,99", he said, this was I~ a mere slip of the pen and did not embarrass the Respondent. It ~ was meant to refer to the Court of Appeal RuleJ 2009. I """ I.... .... :··---- ~--~ -· -- --· --· I - 0164 I I 1.- I- 6 I~ In the course of arguing this point, coun eI have referred to 1 Article 107A (2) (e) of the Consti~ution, and rul:e 2 of the Court of 1- Appeal Rules 2009. We are gratJful to them, +t we feel that it is 1- not necessary to refer to the Co~stitution in dlil posing the present -1~~ preliminary objection because as we shall de ·onstrate below the issue can be resolved without resoking to it. I 1- ,~ I We first think that the reference to the C urt of Appeal Rules, "1999", was a mere mistake in the name, but the description "the a~ Court of Appeal Rules, ... precedi~g it sufficiently identifies the Rules g~ i that it was meant to refer to. M~re false descri~tion does not make -~ I ! , I the Rules non existent. We therefore agree wi ·h the Applicant that the misdescriP.1ion.was harmless; lnd curable. ~- In defence of citing only Rule 65 in suppl rt of the application t: for revision the Applicants have relied on Rule f48. The wording of -I Rule 48 has come under heavy cri:ticism from Mr Mpoki. •- Rule 48 (1) of the Court of Appeal Rules p vides as follows:- .... 01 5 1.~ 'j . 1- l 7 -- "Subject to the provisions of subrule (3) and -- 1 to any other rule allowing j informal applications, every application to t~e Court 1 : I shall be by notice of motion suppbrted by ~- affidavit. It shall cite the specific r~le under 1~ l which it is brought and state the ground for •-,- I the relief sought." Rule 3 defines the term "Rules" to mean:- ,~ "--- these Rules or any amendment thereto or 1- any other additional Rules made the[eto, and ,-,~>!I..., includes the Schedules appended Ito these Rules."· , We app!eciqte Mr. Mpoki's forceful argum nt that the mischief 1~ that Rule 48 was intended to cure was the need to cite a provision of I~ ,~ the law that clothes a Court with jurisdiction ov r a particular matter ,~ placed before it. As this Court observed in MBEYA-RUKWA ~ AUTOPARTS & TRANSPORT LTD. vs IJESTINA GEORGE ;..; MWAKYOMA Civil Appeal No. 45 of 2000 (utreported). Section 4 I (3) of the Appellate Jurisdiction Act should hfve been cited in an ""' I""·:--,.--~- --·- - ,,__ 9.ppli~atiQn _ for ~evision in __ NBC v SADRJDIN MEGHJI CiYJL .... I 016 ~., 8 1-- 1- Application No. 20 of 1997, now (1998) TLR 5 3. So ideally that provision should also have been Sit~d in the present application. 1~ However, MEGHJI'S case was decided before he new Rules came 1~ into force; The 1979 Rules had no provision e, uivalent to Rule 48 1~ (1). So case law filled in the gap. But cas law cannot amend 1~ statute. 1- ,~ Mr. Mpoki, has convincingly argued t at we adopt the purposive construction of Rule 48 (l) to cure th, mischief. However, 1~ ,~ this rule cannot be used to change the language of a stature from one thing to a significantly different thing whicr has its own name, I~ especially if the language has no evident aml:liguity or uncertainty r~ about it, and."s'econdly there is rio presumptio~ that if there were many problems before the enactment of a sdtute, in an effort to I~ solve some of them, Parliament intended to s llve all. (See Justice I~ G.P. SINGH PRINCIPLES OF STATUTORY INTER RETATION (9 ed. P th I~ 120). In the present case, by implication, Mr. M oki asked us to read the words "Section of the law" into Rule 48 ( 1) so that it may reflect 016 fl I'" . l- 1 9 I~ the relevant provision of a statute that confer, jurisdiction on this Court. Since in Rule 48 (1) the word "Rule" has been defined( we ·I·- .. cannot give it a different definition. The\efore short of an 1- amendment to the Rule we are unable to faulu a party who files a 1~ Notice of Motion by relying and citing only a spebific rule in question, g~ although we encourage the practice of also citing the relevant 1- statuto1y enabling provisions whenever they are there. We say so ,~ because in some cases, such as review, th1re are no enabling · provisions in the Appellate Jurisdiction Act, but there is a rule 1- prescribing how to institute it. 1~ ,~ The next set of preliminary objections was argued by Mr. ,~ Chipeta. ,~ "\'I His first point was that the applicatir for revision was ,~ incompetent for containing uncertified/unsignjd proceedings of the ,~ High Court. His argument is anchored on case law .. He argued that ,~ it was held in MABALANGANYA v SANGA (2f 05) 1 E.A. 236 (CAT) that, proceedings were important for any meamingful revision by the ""' Court. He went on to argue that since judi ial proceedings were I__ '""' I... 016 I... t . j, •· - public documents for purposes of Sections 85 an• 87 of the Evidence - Act, and as these are required to be certified under the Civil Procedure Code, it was wrong to include uncertified/unsigned . proceedings in the application for revision. The e, he argued, make the application incompetent and amenable to be struck out. 1111 Mr. Kamara tackled this objection, first, by submitting that Rule 65 does not require the proceedings to be attared to the Notice of . . '.;?tion. Only an affidavit is sufficient. Secondll, the proceedings are "" there. The Respondent has not been preju iced by their being I, uncertified or unsigned; or complained that the proceedings are I incorrect. If that is so, then th~ omission t, sign or certify was I curable in the.._ light of the decision of this Court in SAMSON . ·• ·. · I I NG'WALIDA v THE COMMISSIONER Gl:NERAL TANZANIA REVENUE AUTHORITY Civil Appeal No. 86 of 2008 ( unreported). There is no serious dispute that if there if to be any meaningful revision of any proceedings, this Court mu t be seized of those proceedings on which revision is being sought MABALANGANYA's case said it all. But there is a: difference I etween what the law • 016 ,, . ,~ 11 ,·~ demands and the practice. A person is said to hawe acted contrary to I the law who does what the law prohibits or circu vents its intention. 1-- In an application for revision, Rule 65 (3) of he Court of Appeal 1 I . 1~ Rules, 2009 requires:- I 1~ ,~ "The notice of motion ishall be sup~orted by one or more affidavits of the applicant or some other . person 1 or persons I having j 1~ ,~ knowledge of the facts" ,~ ! I In none of the remaining subrules is a pa required to attach ,~ proceedings, much as it may be to I the applica t's ·advantage to do ~ But in our view, that omission does not lnder the application 1~ incompetent as Mr. Chipeta suggbsts. The u certified proceedings I~ may be expunged ·and still leave the application intact. . I r We now visit the second leg of the arguTent advanced by Mr. r 1 Kamara. In NG'WALIDA's case there was a statutory requirement r for a copy of the judgment to _be signed/an6 certified by all the I assessors of the Tax Appeals Tribunal. In hat case one of the I""". I assessors did not sign. This Court held that:- ... 0170 l.... ,,. 12 ,,,. "The fact that it was the Registrlr who 1- ,~ certified that the copy of the decisior1 was a true copy of the original did not occasion a ,~ · miscarriage of justice ..... It would h~ve been different if there was a complaint that the copy of judgment in the record did n· t reflect 1- ,~ a true copy of the original.,, ,~ Of course, unlike in the NG'WALIDA caie, in this case the proceedings were neither signed nor certified, even by the registrar, 1~ but the two situations are similar in that there. is no complaint that 1~ the attached record does not reflect a true opy of the originaJ r record. So, like in NG'WALIDA's case we cannot fault the Applicant r on this account. r The last preliminary objection argued by r· Chipeta is that the r I record of revision is defective because it conta·ns records that have notbeen properly paid for, or at all. The learne~ counsel argued that according to the Court Fees Rules, 1964, the Applicant should have paid Shs. 23,200/= for the copy of the ruling, ut the record reveals 0171 ... ,.. 13 ,.,.. no exchequer receipt for such payment. This renders the proceedings improper. ,.. ... . Mr. Kamara's response was that as the obiection admits of an f""I inquiry into evidence, it' was not a preliminary ofjection, properly so 1~ called. Even if it were so, this did not depTe the Court of its jurisdiction to hear the application. He referrep to us the case of 1- MELITA MEYASI vs THE NATIONAL BANk OF COMMERCE 1~ ,~ (1977) TLR. n. 42. ,~ We agree with Mr. Kamara that the queron whether or not ,~ the Applicant :aid court fees, required some erdence to answer it ,~ one way or the o.ther. Respondent had to have - Indeed even the learned counsel for the r~ "a close look of the record to disc ver that \~ 1 there is no exchequer r~ceipt for that amount as "evidence of payment of the requilsite fees" """ It was held in MUKISA BISCUIT MANUFACTURING CO. LTD. v WEST END DISTRIBUTORS LTD. (1969) E.A 696 no ... . 0172 ,-,;, • - 14 I~ preliminary objection can be raised if som fact has to be I- I- In the present case, the question of whet1er or not court fees 1~ had been paid for the proceedings is a question ff fact that had to be 1~ resolved by evidence, bl.it even if found in favour of the Respondent, it would not deprive this Court of its juris iction to hear the 1~ I ,~ application. As observed by the defunct East Af ican Court of Appeal ,~ in MELITA MEYASI v THE NATIONAL BANIK OF COMMERCE ,~ (1977) LRT n. 42 - "I do not know of any authori for the l~ ,~ proposition that underpayment deprive? a court of jurisdiction. A ourt can ,~ always, if fees have been underpai , , require payment of the proper amount" Similarly, should this Court discover that 10 fee has been paid, or underpaid, it can always require payment of the proper fees. The Respondent had fronted the above I reliminary objections to challenge the competency of the app ication. We have .... 15 ,,.. endeavoured to demonstrate above that those objections have no 1.- merit. We accordingly overrule them with costs. j.- Order accordingly. ,,... DATED at DAR ES SALAAM this 29th day f July, 2011. I,.. I ·- E.N. MUNUO JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL ""' I Certify that this is a true copy of the original. "'I (J.S. MG ITTAg DEPUTY REGISJtM.R ~·' COURT OF A:PPEAL ... ..._,__ ______ ··-··-- ·-·- --- . -----. . - . - -----------·----·. ---- ---· ·-······-··-··· ~ -- --•-··-·· - ---- - ..... -· ---- - . . ·. ·-·-----" -- . -------· ... 017~