20170525 TZCA Dodoma

,. " I IN THE COURT OF APPEAL 0FTANZANIA AT DODOMA (CORAM': LUANDA, J.A. MWARUA, ;J,A AN-D MWAMBEGEL'E. J.A,) CIVIL REVISION NO. 11-0F 2016 SHARRIF ABDALLAH SALIM HASSAN ABDALLAH SALIM l ..................................................... APPLICANTS VERSUS MAHSEN.ABDALLAH SALIM .. ;................................................... RESPONDENT (Revision of tile Proceedings of the High Court of Tanzania at Dodoma) (Mkuye, J~) Dated the 13th day of February, 2015 in DC Civil Appeal No 6 of 2011 RULING OF THE COURT :24\h & 2sth May, 2017 MWAMBEGELE, J. A.: These revisional proceedings have been instigated- by an order of the High Court [Mkuye, J. (as she then was)] dated 13.02.2015 in DC Civil Appeal No 6 of 2011. That order reads: · '~.. the District Registrar to prepare the Court record to be placed before the Court of Appeal for direction and guidance. Given under my hanrlandseal ofthis court this 1:fh day of February; 201'5 Sgd Mkuye, J. .Successor in Office" Before we delve into the nitty gritty of the matter, we find it apt to nc:1rrate, albeit briefly, the relevant material background facts leading to the High Court order· and these revisional proceedings. They go thus: The applicants Sharrif Abdallah Salim and Hassa·n Abdallah Salim, on 14.09.2004, i'nstituted a Sl.fit agc:1ihst the respondent in the District Court of Dodoma at Dodoma seeking several orders Which may not be relevant in this ·ruling. The suit went past several preliminary objections including one . on lack of jurisdiction. Those preiiminary objections were overruled and the suit; eventually, proceeded to hearing. The District Court heard the suit exparte and decided for the· respondent. Dissatisfied, the applicants appealed to the High Court. 2 _ln '.the High Court,. the :appeal was heard by way of wrJtten submissions the court having siated the submissions dates. on 18.03.2014. The judgment was slated to be pronounced on 21.08.2014, the High Court having satisfied itself on 09.06.2014 that the' submissions of the parties were in place. However; judgment was not delivered on thgt date. On 2L08.2014, after subsequent adjournments, the court ordered a hearing on 17.03.2014. But before thatdate; that is on 13.02.2015 to be particular, the High Court referred the case tothis Court ·stati'ng as follows: "... After having given the background of the matter my opinion Is that the issue of jurisdiction · was first raised at the District Court which ruled that it hadJurisdiction under section 54 (1} of the Land Disputes Courts Act.. It would appear that the .lec1rned Judge Inadvertently thought that the issue came for the first time on appeal to the High Court. The second limb of my opinion is tbat so long as the matter at hand was filed on 3 14/9/2004 alter the ,Land Disputes Courts Act had · a1ready come into force since 1/10/2003/ the District Court did not have any Jurisdiction to entettain it orto try it These are the reasons why I did not deal with the appeal :on it merits so that I could seek the direction and guidance of the Court ofAppeal as to whether or .not the District Coutt had Jurisdiction to handle land matters 'i}fter · 1/i0/2003 when the Land Disputes Courts Act was operationalized. In the circumstance$, I d.irect the District Registrar to prepare the court record to be placed before the. court of Appeal for direction and guidance. ,✓ At the hearing of this reference, the applicants and the respondent were; respectively,. represented by Mr Cheapson Kidumage and Ml':. Juve:nalis Motete, both learned counsel. 4 What transpired in the arguments of the. learned counsel for the . parties 'is that both ate ·of the view that the Court has no ·such powers as to .give dlrections on the High Court. It was Mr. Kiduma.ge's submission that the Court of App.eal is guided by the Tanzania Court of Appeal Rules, 2009 (henceforth ''the Rulesi') in its functions. Hrs search in the Rules, he said, has not revealed anything re:garding such powers as to give directions on the Hfgh Court. In the circumstances of the present matter, he argued, the learned judge could have asked the parties to address her on the question of Jurisdiction after which she could decide .accordirlgly. The learned counsel beckoned upon us to stdke oot the reference and direct the High court to decide on the matter before it. Likewise, Mr. Motete, conceding to what was stated by Mr. ;Kidumage, added that reading section 77 together with Order XLI of the ; Civil Procedure Code, Cap. 33 .of the Revised Edition, 2002 and section 4 of the Appellate Jurisdiction Act, Cap. 141 of the Revised Edition, 2002 as well as rule 6.5 of the Rules~- it would appear that the powers to give directions are vested in the High Court over subordinate courts. and not in the Court oJ Appeal over the Higb Court. To buttress his ar9ument, the learned 5 couns~I cited ai1d supplied to us the case of Celestine Maagi v. :Tanzania Elim_u Supplies (TES) & anothet; Civil Revision No. 2 of 2014 (,unreported) Which, he ,stated, falls in all fours with the present matter. we have dispassionately considered the arguments- by the learned ,:counsel for the parties appearing. As already alluded to above, it is the order of the: High Court which has prompted these revisional proc~edings. i~ is important to n:ote that the High Court did not decide on the appeal which was· before it As already said, in the course of preparing the judgment~ the tourt discovered that there was a point of law concerning illegal\ty or otherwise of the proceedings of the District Court. Instead of the High Court deciding on thc:1t aspect, 'it proceeded to forward the record ofthe matterto this court for·"direction and guidance;'. 1 We find it compel.ling to state at the very outset that the jurisdiction of the cou.rt is mandated by law. The Court derives its powers under the Constitution of the United Republic of Tanzania, 1977, the Appellate .Juris.diction Act~ Cap. 141 'of the Revised Edition{ 2002 (henceforth "the AJA'1 as well qS the Rules. Under these laws, the Court has, jurisdiction to determTn·e appeals from the High Court as well as to call and examine all 6 :proceedings before the High Court for purposed of satisfying itself as to the . correctness, legality or propriety of any finding order or .any other decision IJlqde thereon a.nd as to the regularity of any proceedings of the High court. This is the tenor and import of section 4 of the AJA as ·amended by the ·written Laws (Miscellaneous Amendments)' Act, 2016 ..,. Act No. 3 of Z0:16. For easy reference, we hereby reproduce the section: :t'(l} TheCourtofAppeal shall have jurisdiction to hear and determine appeals from the High Court and from subordinate courts with extended jurisdiction. (2) For all purposes of and incidental to the hearing and determination :at any appeal in the exercise· of the jurisdiction conferred upon it by this Act; the Court of Appeal shall, in addition to any other power✓ authority and jurisdiction confetted by this Act have the power of revision and the powe0 authority and Jurisdiction vested in the court fiom which the appeal is brought 7 .,' (3) Without prejudice to subtectlon (2), thf= Court of Appeal shall have the power, auth9rity andjutlsdidion to -tall for.and exam1f1e the record of any proceedings before the High Court lor the purpose or satisfying itself as to the correctness, legality or propriety of c1ny fiod[ng, order or any other decision made thereon and as to the regularity of anyproceedlng$ ofthe High Court. "( 4) The Court· ofAppeal .shall have the power to review It$ own decisions; (SJ The Court of Appeal may in accordance With this Act the Tanzania Court of Appeal Rules or any other law for the time being in force providing for appeals to the Court summarily reject qpy _appeal. (6) The po wet conferred upon the court .by subse(tion (2) and (4) of this section and the power to examine the records of any proceedings 8. pursuant to s(JbSection (3), shall not be exercised by a single Ja_dge of the court. ✓/ In the case .at hand, there is no decision that has been made by the High Court. It is out considered view that the High Court was supposed to make a decision on whether or not the District Court had jurisdiction.· Havirrg discovered that aHment, the proper c:ourse to take was what the High court did; to summon the parties ·and require them to address the court on that pornt. The learned counsel for the parties addressed the court and were of the view that what was done was more practical than legal. What the court did was quite appropriate. The course taken was to accede to the prindple articulated in several decisions of the Court in which we have insisted on the stance that where a court or tribunal discovers an issue of law after the closure of evidence and submissions which might be decisive of the ca·se, the inte·rest of justice demands that parties must be given opportunify to air the'ir v-iews before making a decision on the point - see: Ibrahim Omary {Ex. D 2323 Ibrahim) v. The Inspector G·eneral of police and 2 others, Civil Appeal No. 20 of 2009, Mire Artan Ismail & Another v. Sofia Njati, DAR Civil Appeal No. 75 of 9 ;2008, John Morris Mp·aki v. The NBC Ltd & NgalagHa Ngonyani, t-1'BY Civil Appeal No. 95. of 2013, and Tanzania Breweries Ltd v. Antony Nyingi, Civil Appec;1I No~ 119 of 2014.(all unreported) as well as Tanzania ·China ·Friendship Textiles Co Ltd v. Our Lady of the .Usambara !Sisters [2006J TLR 70. Ir'i' John Morris Mpaki, for ·instance, we reiterated the position that it is trite Jaw that any decision (lff~cting the rights or interests of a party is :a nullify even if the same decision would have been arrived at had the affected party been heard. We stated: 11 The law that no person shall be condemned unheard is now legendary. It is trite law that any decision affecting the rights or interests of any person arrlVed at without hearing the affected party is a nullif:Y✓ even if the same decision would have been arrived at had the affected patty been heard. ✓, In the case at hand; having_ heard the parties, the High Court. did not · pro.teed to decide on that aspect but in its stead went on to forward the 10 . ... . ,,.--' . ~O• matter to this Court for directions. We are of the considered view that that "' was n·ot the appropriate step to take. We think, having heard the parties .,;,,~ A'. · on the question of jurisdiction of the District Court over land matters, it was incumbent upon the court to proceed to decide on that point. And we think, without deciding, .that could have been stated in the body of the ~ l--.bf judgment that was pending before it having heard the parties through written submissions. We find comfort on this stance in the case of ,. C_elestine Maagi (supra); a case cited and supplied by Mr. Motete, '·' '?' learned counsel for the respondent. As correctly stated by Mr. Motete, learned counsel for the respondent, Celestine Maagi (supra) falls in all fours with the present ._:tt,,~ .- ·· case. In that case, the High Court (Utamwa, J.), like in the present case, ,...~ had realized in the course of composing the judgment that he had no ,. jurisdiction to entertain an application for extension of time to file an · · • appeal in a matter which stemmed from the Industrial Court. It was his view that under the provisions of section 14 (l) of the Law of Limitation Acti Cap. 89 of the Revised Edition, 2002 read together with section 27 ..0 (1C) of the Industrial Court Act, Cap. 60 (now repealed), the matter ought 11 .. ;_ to have beeh ehte'rtafnedby'a panel of three High Court Judges. The High :court thus felt appropri.ate to forward the record of the matter to this Court ' for directions. Having considered the matter in :depth, we held at p. 5 of · the: typed judgment: "We wish to point out that the learned Judge is yet to make a decision on the issue of Jatisdiction. He merely ,expressed his sentiments that he had no jurisdiction to adjudicate the application, hence· the· forwarding of the record for directions. But the Judge did not cite or quote ar,y enabling provision of the law which empowered him to do so. Likewise he did not tell us under which Jaw which empowered U$ to deal with the matter. This is a Court of law it must always function withfn the legal frame - w.ork it was established and not whim. // And we went on to articulate at p; .8 thereof:. 12 ii••• 11: is clear that this court has no such powers . to make directions or order to an issue which is yet to be decided akin to the powers of the High Court as we have explained above. So, we ca(}not exercise our revislonal powers under those circumstances. We decline to do so as · there is nothing to revise. we remit the record to the High Court so that it composes a Ruling on the strength of the submissions of the parties already made. " In the case at hand; like in Celestine Maagi, the High Court did not rna:ke any verdict on the matter that was before it. It is our view, but Without deciding, that the High Court, having. found that the District Court 'entertained and heard the matter Which it was according to it, a land case, Without jurisdiction, ought to have accordingly made that decision in the judgment that was pending before it. In the premises, we remit the record to the High Court so that it deals with the matter according to law; that is, 13 . -~~---- . · · - .. . t to deal with the matter from the stage at which it adjourned 'it for judgment. In the upshot, we strike .oat these revisional proceedings. As the r~visional proceedings were instigated by the tourt suo motu, we make no oraer as to costs. Order accordingJy. DATED at DODOMA.this 25 th day of May; 2017. :B.M. LUANDA JUSTICE OF APPEAL A.G. MWARIJA JUSTICE OF APPEAL J.C.M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original.