20000705 TZCA Dar es Salaam1

IN THE COURT OF APPEAL OF TANZANIA 1 AT DAR ES SALA.A1'1 CIVIL APPLICATION NO. 42 OF 1999 BETwEEN SHAHIDA ABDUL HA,%ANALI !~.ASSAM • , • • • • • • • • AF'PLI CANT AND MA.HEDI MOHAM1€D GU1Al1ALI KANJI ••••••• ·••• RESPONDENT. (Application to call for, examL~e and revise the proceedings, Ruling and dra1m order of the High Court of Tanz,mia at Dar es Salae,m) (Mackanja:, J.) dated the 15th day of _March, 1999 in Probate and._Admi_nistration Cau~~16 _C:£_1988 and No • 75 . of_ 1977 RULING One Hussein Virani d_ied on 20/8/1980. t-iariam Abdul ilassanali Kassam applied for probate and later on two other_petitioners emerged. After MACKANJA, J. had granted proba.te to K2_"!ji, the respon::l.ent, the applicant filed a notice of appeal against that decision and applied 'in the High Court fo·r leave to appeal. 1•:eam,hile, the applicant was granted a stay of execution by LUBUVA, J .A. v:ho also ordered that 0 the appeal be instituted within seven da·ys after receipt of the record of appeal. When that was not done, the re,spondent successfully applied for striking out the notice of appeal before the late .1",NZAVAS, J.A,, and a fulJ. Court rlismissed a referenC!e froru that decision. Now, the applicant bas eome back to tl:is Court seeking a revision of the decision of !·'tACi'J,NJA, J. . ... /?. rt•• 2 The respondent filed a preliminary objection containing four grounds. When the matter came before us for hearing there was a notice for directions filed by the learned advocate for the applicant, Prof. Bhivji. He said th2.t though the power of revision is provided for in s. 4 (3) of the Appellate Juri:::diction Act, 1979 1 there 11re no rules of procedure formulated except what is contained in case la1-1. So, the learned advocate wa.".lted directions from this Court on the procedure to be followed. HP. submitted th~t from the decided cases, especially Halais Fro--Che_mi~s •.Iz:idi.:stries v_~ .. \ 1ella },l~G., Civil Application No. 19 of 1995, there are two stages in revision: First, the Court has to determine. whether or not to exercise its revisional jurisdiction. Assur.iing the matters deponed to ·in the affidavit are true, i:-'rof. Shivji safi,-t·hz .J Court asks itself whether the application is fit for revision. If the ans1-1er is in the affirmative, then the second stage, fie submitted, is how to go about revising the proceedings and the decision of the lower court. Prof. Shivji pointed out forther that grounds '1 tc 3 cf the preliminary objection raise matters th2.t go to the merits of the application for revision. He argued that if these groi..:.--ids are tackled in the prelir,:inar:-: ohjer.:tion, then the applic.:i.nt is cle:1ied her right to be the first a..".ld. the last to address the Court:. The 0 learned advocate submitted further that t!-ie responde:1t in arr,uing his preliminary objection e:ivP.s the Court a half-baked presentation of the applicant's case. And that; he co:1tended, would be detri.1,ental to the applicant. In reply, the lean~ed advocate for ti1e respondent, Mr. Kesaria, rejected the existence of two si:ages. He submitted thi.!t in 2.,:guing the preliminary or,jec:ti'.rn, there is no specuJ.atio,, on t,w p2.rt of the 3 respondent beeause the case of the applicant is well documented in her netice of motion zt.'"!d her .?lffidavit. He Ul\dcrscored that prosecuting a preliminary obje~tion is not prejudging the application. \-le dismissed the notice for directions filed by frofo .Shivji, we no--1 giv~ our reasons. \•!e 2-i;ree with Prof. Shivji that the Gou.rt has to make those t1✓0 ·decisionso At ,:h2-t tirr.e the decisions are t.aJ.:en, deFoncis on the, po.rtic>i.J.ars of indi vi du.al c&.ses. IndE:cd, the vi hole first stage much earlier bE:fore going into the merits of .?.J1 application. This Court b.D>s jurj.sdictfoa cf revision in certain circumstances. So, i11 a preliminary objection a party tells the Court be gainsaid th.?."i: the issue of jur:i..sdiction has al1·12.y~ to .be detornd.ne<i first. Moreover, a notice for directions filed by l"rof._ :,hivji is a novel practice. It is tantc.1mount to a preliminary objection filed ago.ini;.t an.other preliminary objection. ·J:he airn is to pre-e:i.pt a preliminary objection filed in accord2.!~ce \·.:ith ·the i\ul'es .. E.A. 696 at P• 700; So far as I am awru·e, a 'prelimin.=iry objection 0 consists of a point of la•.-! which has been pleaded, or 1-1hich arise b:;: cle2n· i.r..plication out of pleadingsf and i·.'hic:-: if argued as a preliminary point may di.spcse of the suiL Examples are an objection to t:--ie jurisdiction of the court, or a plea of limit?..tioi1, or a subrni.ssion thr:,t the parties are bound by the contract civing rise to the suit to refer th<= disp;;te to arbitratio,.• 4 Again, at p. 701 SIR CHARL1:~S NEWBOLD, P. said: A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of la,-1 which is argued on the assumption thRt all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if ,·:hat is sought is the exercise of judicial discretion. above. SIR CHARli1-SS pointed out further that. •·The improper raising of points by ,-,ay of preli.rnin;,,ry objectior. does nothi.n~ but wmecessarily practice should stop.;, We· share thet concern and we add that this emerging practice of countering a preliminary objection by another preliminary ob·jectioc crtcapsulated in. some in..'10cent-£oimding phrases. should be nipped in the bL,d. W,:: no~, turn tc1 tl1~ :::·ovr grounds of tbe preli.rn:i.J~.r_y objec-i:ion raised by lfr. J,esa.ri2.• 2. That the ar,plication is an abuse of the process of the Court; 0 Th2,t the a;·,plicant h2..':, r.ct de,-:-,onstrated any circW:1stances, special or othen-:ise, to move this Hen. Court to exercise its pot·H":rs of revision as an alternative tG the appellate ju.riscl.ict io;-i; 4, The appL.catic,n is time barred, The learned advocate o.rgur:::i the; first thri:!e ground.s tot:;e::tl-,<&r s.:-,c! tte fourth one separately. 5 He pointed out that Halais has provided four catecories of occasions in which this Court could exercise its revisional jurisdiction: 1. The Elourt may,.on its 01m motion and at any time, invol<:e its rcvisivnal jurisdiction in respect of proceedings in the High Court; 2. Except under exceptional circumstances, a party to proce0di.l1gs in the High Court car.not invoke the revisional juri.sdictio?'l cf tne Court as c_.t1 alt0:rn.ative to the appellate: jurisdiction of the Court; 3o A party to proceedings :u1 the High Court ;;;e.y ·invoke the rcvision.tl ju:cis.diction of t~!e Court :i.'1.. in2.ttc;n·s 1•1hich are not appeJ.able with or ,,_,ithout leave; If. j:, party to procseding.s i:-1 the High Court m2.y invol,c the revisional jurisdiction of th1court where the appellate process has been blockeu! by judicial process. Mr. ,<esaria pointed out thnt the first categor:v, \·:here the Court acts suo motu, anc. the third category, dealing ,•;ith m2.tt1e.rs that are not appealable, are not applicable in tbis case. Mr. Ii:esaria also .submitted that the fourth instance is inapplicc!.ble, too, because the process of appeal ,-.:as terr.1inated by ar. order of the cJurt striking out the notice of a_ppeal due •to the failure to 0 institute the a.ppcal. '!'he learned a~vocate stressed tbnt the appellate process 1-12.s not blocked but was terminated. :ie said that the only category that could have been available is the second one -'· . t s revision . h' aUJTI1 wh ic . . _\_ to tl·,e appe 11e.te process in as a. 1 te::--na.tive . exceptional circumstances. H'.'wever, the learned ac\vocate cor.tcndsd that the a.pplicant ha.s not advanced any exceptional circumstance, So, 1-lr. I·'.esaria cont,"r:cc;-d, the applicc•.tion is an abuse cf the process of the Cc;J.rt. 6 r As for lir.Jit.3.tion, l·fr. Kesaria pointed out that the decision or the High Court was made on 15/3/1994 ilhile this applic,Itirin was filed on 2/6/1999, that is, after five years ,..;hile Section 3 of the Limitation Act prescribes the time to be thirty c!ays. The le?.rned advocate pleaded tbat tile application is timG--barred and s~ould be dismissed, Mr. Kesaria also pointed out th3.t the second pfil't of the not.i.ce. of motion· alleges fraud for the first time. The learned advocate conceded that a letter of 30/7/1997, the report of the handwriting eJCPert .(Exh. A.SI: :r:.~), allcG~ fre.u.d but, he p,->i.Dt1?rl out, the applic~ was idle and waited for tl·w years, until ,June, 1999, when filing this e application, to raise the issue of fraud. Prof. Shivji argued th:,~t this application falls under category four, th?.t is, the judicial process he...s blocked the appellate }n'oc66S• He pointed out that the 2.ppl:j.cant was awaiting lee.Ye to appeal from the High Court A.'1d also an issue of a complete copy of the record r,f appeaJ. 'l'hnse two re.a.sons, the learned -a.dvocate .submitted, p1-event0d the applicant from instituting the appeal. Prof. Shivji argued that the striking out of the notice of appeal blocked the appellate process. He went fu:-thcr to submit that even if Mr. Raithatha, who was then the learr,ec acivocatG? for the applicnnt, is tR-<cn not to have been diligent, !:e committed a minor lapse a_.-,d th2.t it did not 0 attract the stril<ing out the notice ,:,f appE:al. Prof. .Shivji saic! that both the singh Justice of Appeal a'1d. the full Ccurt did not categorize the degn,1; of the lapse. Prof, Shivji submitted further that this applica.tion a.lso falls under thE: S!:C(.:·d c;;i.tegory, that is, the 2;.ci1:tcnc0 c,f .. .. /'l 7 jurisdiction. The learned advocclte gave two circumstances: the ruling of the lo,.'er court was obtained by fraud and that there ere manifest errors on the face of the ruling of the lower court result in a miscarriage of justice. ·The learned advoc3te cited a number of authorities vhere it has been held that fraud vitiates all proceedings. He Rrgued that_ -tt1£: posoibility of Dlo:>.tli>'\g :rratid vas pri:--cmptcd b-y tl1<:: erroneous - decisions of the High Court that derailed tha procccure. in :a. "-011,te~,;,,1. probate. He then gave a cc1talogue of incidents that prevented the raising of frauct in t;ie pleadi?1gs. For reasons to be givo:1 12.tcr, The Professor ?.J..so cn!;1e up 1-!ith 2. litany of ex.?.r;1ples of 2-llegcd confusions on the pR.rt of !·:-6.CKAJ•;Jt,., J. Ve ,·1ill not re-produce- these, too. Prof. Shivji invited us to hoJ.ct the.t the categories of occasions in which this Court _cG.n revise the proceedings of the High Court are not closed. The le2.rned advoce.te sug0 est cd tl,.'o oth"rs: ~alment .and :nanifest errors on the face cf a judgen,e::-it, ~e rcmiru:!e<l us th,;,.t in Transport _E__gui-,.mcnt Ltd,_ v. Devra'll r._ Valrun~. Civil Appli~atiorl f·)o. 18 of '1993 (C.A.), the full heYJch }~eld t!1at this Court has inhere:nt jurisdict io:; to rev·ie•-: its ow11 decisio~ in A cases of fraud and where there is ::;;;,__nifest ,::rror on the fa:ce er the V record. Prof • .Shivji oontwded ti1.st if this Court. ce.r. r8vie1·1 its (')Wn decision in such circumstance, then the ;;,ore the need to exercise its powers of revisio:!"l in those sit 1;ations. i\s to ground four of the prelimin""ry objection, Prof. Shivji submitted that the Limitation /,ct, 1971, does not apply to this Court. He pointed out section 43 (b) of the i,irr.itation ;,_ct categorically pr-::.,vid:,,s t,.i8t thr: .''ct doec:, not Eipply to t}ic: Court of ... ./8 8 Appeal of East Africa, the :;:,redecessor of this Court. hfter the hearing, Prof. Shivji wrote us dr,?.wing our attention to what we held in. _A.'l~p..9..d__s_a.-_1-,~h__Jibood v. k.1.~..'.::::'!1 Mbarak Salehe and ~~-ther_, Civil A.pplicatioD Ne>. 30 of 1993, that Limitation Act, 1971, does.not apply to this Court. We do not wish to revisit that. decision in this applice.tion because it is :-iot necessary to determine this issue of liraitation in order to dispose of the preliminary objection. In !a.P-~a T:r:,;:_nscont inental Co~~..... v. Design__£~~:JE considered ~q Civil Application No. 62 of 1996 we _ • .·. ·-,- the decision of v. Devra1;1 F. Valamhbi~ -------·--·---- 1'1.-d ..,o lwlA tbat.: e ••• the list of circumstances warranting the Court's review of its own decision as stated th,;:rein is neither exheustive nor closed it is quite possible tha:t with further research under changing circumstances, otr.er equally suitable circumstances we.rrant ing the Court:s review of its 01-1n decision could well be brought to light So I the four c2.tegoric6 pre~criba-d. L'1 Halais are .o,:rt -oxhau:,-t i,;e, A.Jl .a,dv~ate has to satisfy the Court that there is a new category of s;ircurnstance for c..-..::erc2sing the po1✓ e1· cf !'c<Vi8ion. 0 We agree with Mr. l~esaria that categories one and three are not applicable here. This applic-s.tion is not before us because we h?.ve suo motu called the: file of the High Court. The appliceJ1t has moved us. Equally, we are not persuaded th2-t whn.t is before us is a mat.ter that is not app.::llable with or \lithout leave~ As already said, c. notice of appeal we.s properly file:d in this Court but w2.s struc% out. So, we are left Hith c--:itc-:c.;orir;;s two P.J1d four and 6.1..sc \-:hc:ther or not a case has been made for 2. :,c;;-1 c,,t.:,gory. 9 Let us start with category four; was the appellate pr~cess blocked by judicial process? A copy of the record of proceedings was delivered on 4/3/1995. However, leave to appeal was not granted by the High Court and this caused the notice of appeal to be struck out for failure to institute the appeal within a wee!.: of receipt of the record of appeal as ordered by the single judge. Prof. Shivji argued that the applicant could not have .i.Jistitutcd the ,.r;:rpeal i.,hen leave to appee.l had not been grMted. This issue 1~<'-S deponed to in paragraph 3 of the count~a..ff.idarii; of the applicant and was adcqudely deD.lt with by- tJoth th,,. single judge and the full Court. 1•.;l':z,.:,v;.s, .J .A. observed: That it hc\s t~(en Mr. P.2.i that ha, lce.rned ~o--.m.sd fer ·-the respondent, three yaars - (Mackanja' s ruling was on 15/3/94) to 0bt2;in leave to appeal to this Court is, to say the least, beyond my comprehension. The t2-rdi- ncss on the p2.rt of the -learned counsel ce.n only be attributed to del.J.ying tactics as amply shown in the Ccurt record. The full court rcm2.rked: ~e ~re not satisfied that Mr. Raithatha made appropriate diligent efforts to pursue the necessary leave to appeal after he had m:=mvged to get an crder for 0 Stay of Execi..tion. !·!bile we may lack the certitude of the single judge to support the view that l-lr, P.cJ.ithatha was employfog delaying tactics; we cannot fault the learned .judge's decision to strjjrn out the Noti_?.e of Appeal ":~ich we are consequently un.able to restore. .. .. ;,o .. . 10 \le do not agree with Prof. Shivji that taking three years pursuing leave to appeal is a slight lapse that should not be visited with striking out a notice of appeal. Therefore, we uphold ~fr. Kesaria "!:hat the process of appeal was terminated and not blocked by the judicial process. Are there exceptional circumstances that can ma..l;:e this Court exercise re-visiona1. jurisdiction as an alternative to appellate jurisdiction? Let us look at the applicant's two circumstances. One, that the decision of the High Court was obtained by fraud and two, that there are errors app2sent on the fa.ce of the ruling. There is !10 doubt that fraud viciates proceedings. In .~J:E_SJ?ort Eq1;:ipment Ltd. v. Dev ran: P. Valambhi~, Civil Application. No. 18 of 1993, \•!e left it to be decided at an appropriate. oc~asion which co-..u-t ca..11 nullify proceedings tainted with fraud. Is it the court on which the fraud was committed or any other court? However, in those revie,; proceedings, as fra1.,t~ not been raised and so, decided upon by ths High Court, we are of the opinion that 1-;e could not· have dec>.lt vtith it on c>.ppeal. In the present application fraud was disclosed at the trial but the applic;:._nt kept quiet about it. S• 1 there is no evidence on "ecord to en&ble us to decide on fraud. In that case, it is imperative that we hear evidence that would 0 enable us to come to a ::ec is ion. But we ask, can we take fresh or additional evidence in a revision like this'.' ),Je think not. Our task in revision is to see what 1-1as before: the High Court and how it was handled. .Therefore, fraud cannot be a ground of revision in this case. As for errorE a:ppare:nt on the face of the rulir.g, our opinion is tha.t that is a ;~<1tte:r for a revie,1 by tr:e High Cou.rt it.sslf. .. './'i1 ... 11 Court. However, as already eXplained above, that opportunity was abUBed~ ·Wedo not think that a case has been made out t~ add a new category of cases for revision. Prof. Shivji suggested t~o oategories; concealment and apparent errors on the face of a ruling. These are the 68D)e grounds. as those he advanced. f"or eX:C<3ptiona-l cir-cumsta.nc-e vhioh . will make this Court exercise its revisional jurisdiction as alternative to its appealable ju.Tisdiction, that is, fraud and apparent errors on the face of a decision. Our response is the same as outlined above. So, for the above reasons, we; uphold the preliminary objection that this application is not a fit ona for us to exercise our revi..sional jurisdiction. The application is dismissed with cO&ts... DATED at DAR ES SALAAM this 5th day of July, 2000. L. M. MAKAME JUSTICE OF APPEAL . R. H. KISANGA ~-c~._AP~X:AL G A.S.L. RAMADHANI JUSTICE CF APPEAL I certify that this is _a true copy r,f the original~ / (J. , I / vv 1/~lh--<~-- l2_ 1 ------M\·/AI ( N,.1-:. 7 ILE ) SENIOR DEPUTY REXiISTRAR