20080700 TZCA Dar es Salaam

;-.:J/l /} , /~:.,;.,;, ~,.,., ~ ,...,-0 , - />,-{l:>P,3--r,!t Lp,.-,/2 ~ • J ,u V ,- A ~ i'> "' ..... c. ,....., I J~e .,.._. Gi <IC.. ' p• fl~ l,, • ✓o /V'° /,::).✓,,,, c..~ .£:.,( (,.:;:;.,,, v , , 7,:...i-,'-1 "'O v tt-. r.io-·. /1. . IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM . . . . . (CORAM: MSOFFE, J.A., RUTAKANGWA, l.A., And BWANA, J.A.) ZNZ CIVIL REVISION No. 05 oi= 2008 SAMOS LIMITED KARAFUU HOTEL. ..... :.... :............ APPLICANT VERSUS 1. MIRKO TOMASSIA ........................... .' ... } ' 2. ADRIANO USILLO................................ RESPONDENTS (Both t/a Rising Sun Diving Centre) (Application for Revision from the decision of the High Court of Zanzibar at Vuga) (Mwampashi, J.) dated the 28th February, 2008 in Civil Case No. 20 of 1999 RULING OF THE COURT 23RD June, 2008 & RUTAKANGWA J. A:. The applicant was aggrieved by the judgment of the High Court of Zanzibar (Dourado J., as he then was) sitting at Vuga, in Civil Case I No. 20 of 1999 dated 19th January 2001. It lodged an appeal with this Court. The said Civil Appeal No. 69 of 2001, which for reasons which shall subsequently become obvious, shall henceforth be referred to as the first appeal, proved to be abortive. It was held to be incompetent. Indeed, Dr. Masumbuko Lamwai, the then learned advocate for the_ appellant/applicant, had readily conceded to the preliminary objection on this ground, when the same was called on for hearing. That concession notwithstanding, Dr. Lamwai had· orally requested the Court to act under rule 3 (2) (b) of the Court of Appeal Rules, 1979, henceforth the Rules, to extend the period of appeal after striking out the appeal, in order to enable the appellant/applicant to easily re-institute the appeal. The late Mr. Muccadam, advocating for the two respondents, resisted the prayer for extension of time. The Court finding the first appeal to be incompetent, promptly struck it out. It also readily rejected the prayer for extension of time but reserved its ruling for the decision, which it delivered on 7th November, 2003. 2 Before the Court delivered its reasoned ruling, the applicant successfully filed a formal application in the High Court of Zanzibar seeking extension of time to lodge an appeal in this Court against the decision dated 19th January, 2001. A fresh notice of appeal was· filed and subsequently a second appeal, i.e. Civil Appeal No. 33 of 2005, was lodged in this Court. When the second appeal came up for hearing on 5th December, 2005, its competence was also challenged. It was argued on behalf of the respondents that the Zanzibar High Court had been wrongly moved to grant extension of time to the applicant because following the ruling of this Court dated ih November, 2003, the said Court no longer had jurisdiction to do so. In its ruling dated 8th December, 2005, the Court upheld the preliminary objection and struck out the·.-,,:... . second appeal. The applicant was, all the same, undeterred. It went back to the High Court. Proceeding under section 125 of the Civil Procedure Decree, Cap. 8, it applied for extension of time within which to apply for review of the decision of the High Court of 19th January 2001. The High Court (Mbarouk, J., as he then was) granted the extension 3 of time. An application for review was filed within the time prescribed by the High Court. Before the application for review came up for hearing, the respondents filed a notice of Preliminary objection. The objection was that- "... the application is misconceived, bad at law and abuse of the Court process in as much as the Applicant had prior to filing of this Review preferred an appeal. " The High Court (Mwampashi, J.) upheld the preliminary objection, and dismissed the application with costs. The applicant was dissatisfied with the dismissal order. Believing that it had no right of appeal, having regard to the provisions of rule 7 (l) of Order L of the Civil Procedure Decree, Cap. 8, henceforth the C.P.D., the applicant preferred this application for revision. The application, by Notice of Motion, is brought under section 3 (3) of the Appellate Jurisdiction Act, Cap.141, hereafter to be referred to as the Act. The notice of motion is supported by an affidavit affirmed by Salim Hassan Bakari Mnkonje who happens to be one of the three learned advocates for the applicant. 4 --' In this application, the revision of the High Court ruling is being sought on the grounds that:- "... the High court wrongly declined to exercise •jurisdiction by upholding the preliminary objection failing to hear the review on merit and further by dismissing. the review. " The competence of this application was challenged by the two respondents. This is apparent from the affidavit in reply entitled "counter-affidavit," sworn by one Rosan Mbwambo, who is the learned advocate for the respondents. It is averred as follows in paragraphs 9 and 10 of the affidavit:- "9. The contents of paragraph 9 are strongly disputed. The respondents state that the Order sought to be revised was a preliminary decision/order which had the effect of finally determining the matter. Any dissatisfaction on the part of the Applicant could only have been challenged by way of an appeal. 10. The respondents in further reply to the contents of paragraph 9 state that the Order sought to be revised is not revisable at law as there are other remedies available namely an appeal with leave." [Emphasis is ours]. 5 The contents of these two paragraphs vividly give a notice of preliminary objection which would have been more appropriately given under rule 3 (2) (a) of the Rules. When the matter was, therefore, called on for hearing we decided to deal first with the issue of the competence or otherwise of the application for revision. Counsel for both sides addressed us at length on the issue. Also appearing for the applicant in this matter are Mr. Hamid Mbwezweleni and Mr. Julius Kalolo - Bundala, learned advocates. Submitting in support of the respondents' contention that this application is incompetent, Mr. Rosan Mbwambo strongly argued that the High Court order sought to be revised is an appealable one, the High Court having rightly dismissed the application for want of jurisdiction., He went on to argue that since the application for review was not heard on the merits but dismissed at the preliminary stage the resulting dismissal order was a preliminary one. The remedy available to a party aggrieved by such an order, he urged, is an appeal with leave. He accordingly prayed that we hold that the Court 6 has not been properly moved, uphold his preliminary objection and strike out the application with costs. On his part, Mr. Kalolo - Bundala submitted that so long as the High Court dismissed the application for review instead of striking it out, then the applicant has no right of appeal. He propped up this submission by contending that the dismissal order amounted to a rejection of the review application in terms of rule 7 (1) of Order L of the C.P.D. To Mr. Kalolo - Bundala rule 4 (1) "covers even the issue of want of jurisdiction" as one of the grounds justifying the rejection of a review application. Mr. Mnkonje fully supported Mr. Kalolo - Bundala's contentions. The two counsel, therefore, urged us to dismiss the preliminary objection with costs. In response to the submissions of the applicant's counsel, Mr. Mbwambo forcefully contended that want of jurisdiction is not one of the grounds for rejecting a review application under Order L, rule 1 (1) of the C.P.D. He maintained, therefore, that the applicant has a right of appeal. The crucial issue at this stage in these proceedings is whether or not the Court has been properly moved by the applicant to grant . 7 • - l,> the reliefs being sought. In determining this issue we have found it apposite to, first, address our minds to rules 1 (1), 4 (1) and 7 (1) of Order L of the C.P.D. in order to ascertain their true import. As printed and published by the Zanzibar Government Printer, rule 1 (1) of Order L of the C.P.D. reads as follows:- •~ny person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; (b) by a decree or order from which no appeal is allowed; or (c) by a decision on a reference from a subordinate court and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the orders." [Emphasis is ours]. Except for clause (c), O.L, rule 1 (1) of the Zanzibar C.P.D. is identical with 0. XLII, rule 1 (1) of the Tanzania Civil Procedure Code Cap. 33 or shortly, the C.P.C. The C.P.C. does not contain clause (c) at all. Furthermore, the Indian Code of Civil Procedure of 1908, 8 contains identical provisions in 0.XLVII, rule 1(1), save that clause (c) thereof reads thus:- "by a decision on a reference from a court of Small Causes." We have carefully read the provisions of 0.L rule 1(1) of the \I C.P.D; O.XLII, rule 1(1) of the C.P.C. and O.XLII, rule 1(1) of the " Indian Code. We have found them to be plain and needing no interpolations. It is our holding, therefore, that an application for review of judgement of any of the courts to which these statutes apply is maintainable if made by a party considering himself aggrieved by:- (a) an appealable decree or order but from which no appeal has been preferred, (b) a non - appealable decree or order, or (c) a decision on a reference from a subordinate court (in the case of Zanzibar) or a Court of Small Causes (in the case of India), ·on the basis of the following instances:- 9 (i) from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or (ii) on account of some mistake or error apparent on the face of the record, or (iii) · for any other sufficient reason. It is our settled view that these three instances are not cumulative but disjunctive. This means that an aggrieved party may apply for review on any one of the three and not only when the three exist conjunctively. Coming to rule 4(1) we find it unambiguous too. It provides that when it appears to the court that there is not sufficient ground for review, it shall reject the application. This provision must not be read in isolation. It must be read together with rule 1(1). The application shall be rejected, if it has been filed by a person who was not a party to the proceedings which gave rise to the judgment sought to be reviewed or the aggrieved party has already preferred - ·- • - l an appeal against that decision. The application will equally be rejected if any one of the three conditions or circumstances instanced in rule 1(1) is found wanting or is not sufficiently established by the applicant. Once the application is thus rejected the rejection order, in terms of rule 7(1) is non - appealable, but it is open for revision. We have already sufficiently demonstrated the background of this application. The High Court found the application for review incompetent on the ground of want of jurisdiction and dismissed it with costs. The applicant herein was aggrieved and filed this application. The application, as already sho~n, is being challenged on the ground of incompetence. The respondents are contending that revision does not lie against the dismissal order as the applicant has a right of appeal with leave. The applicant is of a different view, contending that as the High Court wrongly declined to exercise jurisdiction conferred upon it by law, revision lies. Having considered carefully the submissions of both sides, we have found ourselves contending with this crucial question: Was the order dismissing the review application appealable with or without 11 • l - t leave? This question takes us back to rules 1(1), 4(1) and 7(1) of Order L of the C.P.D. Rule 4(1) enjoins the court, to which an application for review is made, to reject the same where it appears to it that there is not sufficient ground for a review. The law does not define the phrase ''sufficient ground for review'~ Nor does it attempt to categorise specific circumstances which may be taken to be sufficient grounds for review. All is left is in the court's discretion to determine what amounts to sufficient ground. All the same, we are of the firm view that these grounds must be related to the circumstances mentioned in rule 1(1), one of then:, being "for any other sufficient reason'~ In our considered opinion, this ground, broadly and purposively interpreted, will include reasons such as want of jurisdiction on the part of the court to which the application for review is made. So, if such court refuses to exercise its jurisdiction to hear and determine the application for review on the ground that it lacks jurisdiction and proceeds to either dismiss, strike out or reject the same, then no appeal lies against such order under rule 7(1). We would like to emphasize here that there is no magic behind the use of the words 12 - l reject or dismiss. They may be used interchangeably without. affecting the substance of the final order. After all, the word "reject" in ordinary parlance means:- "Dismiss as inadequate or faulty. " See New Concise Oxford English Dictionary, 11th edition by Catherine Suanes and Angus Stevenson, at page 1213. We have already indicated above that the provisions of O.L. rules 1(1), 4(1) and 7(1) of the C.P.D. are identical with the provisions of O.XLVII, rules l(I), 4(I) and 7(1) of the Indian Code, which have been the subject of extensive judicial interpretations and commentaries in India. We have found an illuminating commentary which runs as follows:- "No appeal lies under the Code from an order rejecting an application for review............ Nor is the order open to revision under sec.115 of the Code, for even if it is wrong, it is no more than an erroneous exercise of discretion. But where there is no exercise of discretion at all as where the court rejects the application not after considering whether there are sufficient grounds for review (s.4, sub - r. (1), but 13 • on the erroneous view that it has no Jurisdiction to entertain the application, the order is open to revision, for it is then a case of failure to exercise a Jurisdiction vested in the court by law........... '~· () MULLA ON THE CODE OF CIVIL PROCEDURE ACT V OF 190~ 14TH EDITION, Vol. III at pp.2347-8. In a similar vein, SARKAR in his CODE OF CIVIL PROCEDURE 11th Edition at page 2629, comments as follows:. "There is also no revision where an application for review is rejected. But r~vision lies where the application is rejected on the erroneous view that the court has no jurisdiction. " . We fully subscribe to these views. Indeed this Court, though n_ot referred to the views of Mulla and Sarkar, was emphatically of the same view in the case of CHIKU HUSSEIN LUGONZO VS BRUNNIDS F.S. PAULO, Civil Application No. 30 of 1999 (unreported). In CHIKU VS. BRUNNIDS (supra), the applicant had applied to the High Court for a review of its decision. The High Court struck out 14 ..... ; the application on the ground of being incompetent as the memorandum for review was not accompanied by a copy of the drawn order. The applicant was aggrieved by the order striking out the application. She applied for revision under s. 4 (3) of the Act. The respondent resisted the application claiming that it was incompetent as the applicant had a right of appeal with leave against the High Court Order. Rejecting the challenge on the competence of the application for revision, the Court succinctly stated thus:- "... With respect, we do not agree with Mr. Shayo, learned counsel, that the High Court order of 3.3. 1999 (Mackanja, J.) is appealable to this court with leave of the Court or the High Court in terms of the provisions of section 5 (1) (c) of the Appellate Jurisdiction Act, 1979. The reason is that Order XLII Rule 7(1) of the Civil Procedure Code clearly provides that an order of the court rejecting an application for review shall not be appealable. As the application for review was based on the provisions of Order XLII which as already pointed out does not allow appeals against the rejection of an application for review, it is 15 in our view, inconceivable that an appeal with or without leave can as urged by Mr. Shayo be entertained. The law simplr, does not allow. This, we think is a case whose circumstances aptly fall within category (iii) of the guiding principles set out in the case of Halais Pro-Chemie Industries Ltd. Versus Wei/a A.G. (1996) T.L.R. 269. In that case, under category (iii) among others the principle was stated in these terms: A party to proceedings in. the High Court could invoke the revisional jurisdiction of the Court in matters which were not appealable with or without leave. Such being the position of the law, we are increasingly of the view that this matter is appropriately before the court as it involved a matter which was not appealable... ,✓ This tells it all. Not wishing to be accused of over-egging the pudding, we need not say more. CHIKU'S case provides a conclusive answer to the preliminary objection. The High Court order dismissing and/or rejecting the review application was a non appealable one. The only remedy available to the aggrieved applicant is by way of 16 revision under category (iii) of the principles enunciated in HALAIS' case (supra). All said and done, we dismiss the preliminary objection with costs. As the application for revision is appropriately before the Court, it is accordingly ordered that it be heard on the merits. DATED at DAR ES SALAAM this day of July, 2008. J.H. MSOFFE JUSTICE OF APPEAL E.M.K. RUTAKANGWA JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL 17