20090429 TZCA Dar es Salaam 2

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, J.A., NSEKELA,J.A., And KILEO,J.A.) CIVIL APPLICATION NO.17 OF 2008 1. TANGANYIKA LAND AGENCY LIMITED 2. KAMAL KUMAR VOHORA 3. ASHINI KUIMAR VOHORA 4. SHAILA VOHORA S. DEV NATH KAPOOR ................... APPLICANTS 6. SNEHLATA KAPOOR 7. SATISH NANDA 8. ARUNA NANDA VERSUS MANOHAR LAL AGGRWAL. .......................... 1ST RESPONDENT (Application for Review from the Decision of the Court of Appeal of Tanzania at Dar es Salaam) Ramadhani, J.A., Nsekela,l.A., And Kileo,l.A.) dated 24th day of December, 2007 in Civil Appeal No. 26 of 2003 RULING OF THE COURT 1 December, 2008 & 21 May, 2009 NSEKELa, J.A. This is an application by notice of motion under Ruels 3(1) and (2) (a), 45(1) and (2) of the Court of Appeal Rules, 1979. The . applicants wish this Court to review its own decision in, Civil Appeal No.26 of 2003 dated 18 December, 2007. The applicants have 1 \ preferred three grounds of review on the ground that there are errors of law apparent on the face of the record. The grounds set forth are the following:- "(1) That the Court wrongly held that the fourth, sixth and eighth applicants were Directors of the first applicant herein as well as three other companies namely Kongoni Estate Limited, Karamu Coffee Estate Limited and Kirani Coffee Estate Limited. (ii) That the Court wrongly held that applicants had waived their objection based on non- joinder of companies an account of "the fact" that, such objection was not raised at the earliest opportunity. (iii) That the Court wrongly held, albeit constructively that, non-joinder of the four companies in an action seeking for orders to convene general meetings was/is insignificant." At the hearing of the application, the first, second, third, fourth, sixth and eight applicants were represented by Mr. Maro, learned advocate, the fifth applicant, Dev Nath Kapoor, appeared in person, 2 unrepresented. The respondent, Monoharlal Aggarwal, was represented by Mr. D. Kesaria, learned advocate. Mr. Maro, at the outset was quick to point out that the Court has limited inherent jurisdiction to review its own decision, citing a recent decision of this Court, Criminal Application No.5 of 2005 Robert Edward Moringe @ Kadogo v.R (unreported). f....s regards the first ground of complaint, the learned advocate submitted the fourth; sixth; seventh and eighth applicants were not directors of the first applicant, Tanganyika Land Agency Limited. He added that this issue was raised as a seventh ground in the memorandum of appeal. In its judgment, the trial Court referred to them as shareholders and directors. This was an error. This was evident from the annual returns of the four companies, Kongoni Coffee Estate Limited, Karamu Coffee Estate Limited, Kirani Coffee Estate Limited and Kilimani Coffee Estate Limited. , The annual returns of these companies were in the record of appeal and the names of the fourth, sixth and eight applicants were not mentioned as Directors in the said companies. He added that the same information was available in the affidavit of the fifth applicant, Dev Nath Kapoor. Mr.Maro concluded by submitting that the finding that that the fourth, sixth and eighth applicants were directors was prejudicial to the said applicant. They were fined and subsequently contempt proceedings were preferred against them. 3 The second and third grounds of complaint essentially· concerned Order 1 rule 13 of the Civil Procedure Code Act Cap 33 2002 (CPC). The Court held that objections on the ground of non- joinder of the parties must be raised at the earliest opportunity and that if the objection is not raised at an early stage, it is deemed to have been waived. Elaborating on this, Mr. Maro submitted that this matter had been raised in the High Court and a decision was made on it. The fifth applicant Mr. Kapoor briefly but ably advocated for himself. At outset, he fully associated himself with the submissions made by Mr. Maro. Specially, he emphatically stated that he was neither a director of the four companies nor of Tanganyika Land Agency Limited. He added that the companies were not parties to the proceedings in the High Court. On his part, Mr. Kesaria stoutly resisted. the application for review. He submitted that the applicants were in effect seeking a re- hearing of the appeal and warned that the Court should not fall into that trap. He added that the Court has inherent jurisdiction to review its decision under certain prescribed circumstances, which included the ground being canvassed by the applicants, namely there being a manifest error on the face of the record. As regards the first ground of review, the learned advocate submitted that the applicants should have challenged that they were not directors in the Court below and not now. The issue was not disputed during the trial. On the second 4 and third grounds of complaint, Mr. Kesaria submitted that the issues were raised in the memorandum of appeal and dealt with both in the High Court and an ~ppeal. He was of the view that this was a disguised appeal and it was tantamount to an abuse of the process of Court. It is now settled law that the Court can exercise its inherent powers to review its decisions. Obviously, this is not open ended. The Court has developed the circumstances in which it can invoke its inherent jurisdiction of review. These are:- 1. Where a party was not given an opportunity to be heard; 2. Where Judgment was obtained by fraud; 3. Where there is an error manifest on. the face of the record and which resulted in the miscarriage ofJustice; 4. Where the Court acted without Jurisdiction. These principles have been articulated in a number a decisions of this Court including Civil Application No.18 of 1993, Transport Equipment Ltd v Devran P Valambia (unreported), Criminal Application No.8 of 2000 Chandrankat Joshubhai Patel v R (Unreported), Civil Application No.33 of 2002, Peter Ng'homango v (1) Gerson M.K. Mwanga (ii) The Attorney General (Unreported), MZA Civil Application No.3 of 2004, Richard Julius 5 Rukambura v (i) Issack Ntwa Mwakajila (ii) Tanzania Railways Corporation (Unreported). Both Mr. Maro and Mr. Mr. Kapoor relied on the ground that there is a manifest error on the face of the record which resulted in miscarriage of justice. They pointed out that the applicants were erroneously found to be directors of the delinquent companies, whereas in actual fact, they were not. There was uncontroverted material before the Court to the effect that they were not directors as found by the Court. And because of this erroneous finding, the Applicants were subjected to penal sanctions under the Companies Ordinance. In addition, since they are not directors, they cannot comply with the Court Order of convening statutory meetings under the Companies Ordinance. Admittedly, these are powerful submissions. However, we must be clear in our minds as to the meaning of a manifest error on the face of the record. We have sought some guidance from a Commonwealth country, India, in the case of M/s Thunga bhadra Industries Ltd v The Government of Andra Pradesh AIR 1964 SC 1372 at page 1377 where the Court stated thus:- 1 ~ review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent 6 ... error. W do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there couk/ reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out." And at home in Chandrakant Joshubhai Patel's case this Court stated:- "We would say, in the light of the authorities at hand, that an error which will ground a review, whether it be one of fact or one of law, will be an error over which there should be no dispute and which results in a judgment which ought to be corrected as a matter of justice." The Court examined a number of decision from India which had considered the meaning of "an error apparent on the face of the record." Such an error must be an obvious and patent mistake and 7 not something which can be established by a long drawn process of reasoning on points which there may conceivably be two opinions, that a decision is erroneous in law is no ground for ordering review. Thus the ingredients of an operative error are that first, there ought to be an error; second, the error Has to be manifest on the face of the record, and third, the error must have resulted in miscarriage of justice. It is against this background of the law that we shall now test the complaints raised by M. Maro and Mr. Kapoor. What errors did the Court commit in its judgment? Mr. Maro contended that the th th th 4 ,6 and 3 applicants were not directors of Tanganyika Land Agency Limited, the 1st applicant, as well as Kongoni Estate Limited, Karamu Coffee Estate Limited and Kirani Coffee Limited. The 5th applicant Dev Nath Kapoor, submitted to the same effect! In our judgment, we blandly said:- 11 The applicants were apparently shareholders and directors of the 1st respondent as well as Kongoni Coffee Estate Limited, Karamu Coffee Estate Limited, Kirani Coffee Estate Limited. " As correctly submitted by both Mr. Maro and Mr. Kapoor, the documentation before the High Court, including the respective companies annual returns, did not list the applicants as directors. Consequently, it was erronequs for the Court to state that the 4th, 5th ,· 6th, and 3th applicants were directors of the said companies. 8 However, this by itself, is not enough to ground an application for review. We have to move to the second stage, that is, whether or not the error was manifest on the face of the record. As we have said before, the record of the High Court included, inter alia, annual returns of the companies in question. These annual returns contained the particulars of the directors filed with the Registrar of companies. This information was self-evident and did not require an elaborate argument to establish it. The Court would not have decided this point in the way it did, had this information been taken into consideration. This was an easily recognizable mistake. There could reasonably be no two opinions on this point. The last consideration,, is, did this error result in the miscarriage of justice? The finding that the fourth, sixth, eight applicants were directors including. Mr. Dev Kapoor was prejudicial to them. They were subjected to fines and subsequent competent of Court proceedings. We propose to de al with the second and third grounds of complaint together. Essentially, they concerned the question on non- joinder of the company applicants. In the course of our judgment, we stated as under: 11 Admittedly, the four companies were not impleaded in the Court below. As we see it, this is a matter of convenience only. The companies are legal persons which cannot summon meetings. Meetings are summoned 9 by human beings who act on behalf of the companies. In terms of Order 1 Rule 13 of the Civil Procedure Code, objections on the g round of non-joinder of the parties must be raised at the earliest opportunity and if the objection is not raised at an early stage, it is deemed to have been waived. " The two issues were de alt with and the Court applied its mind to those particular contentions. In the memorandum of appeal. Mr. Rutashoborwa, learned advocate, argued grounds 2,4,5,6 and 7 together. These were considered by the Court from page 11 of the typed judgment. For matters which were fully dealt with and decided upon on appeal the fact that one of the parties is dissatisfied with the outcome is no ground at all for review. To do that, would, not only be an abuse of the Court process, but would result to endless litigation. Like life, litigation must come to an end. (See Civil Application No.84 of 1997), (i) Gilliard Joseph Mlaseko (ii) Dr. Aziz K. Ahmed v (i) Corona Faida Busongo (ii) The Attorney General (unreported) Having considered the three grounds of compla-int, we sustain the first ground of complaint but dismiss the remaining two grounds. Each party will bear its own. DATED at DAR ES SAAL this 29th day of APRIL, 2009 A.S.L. RAMADHANI CHIEF JUSTICE H.R.NSEKELA JUSTICE OF APPEAL E.A.KILEO JUSTICE OF APPEAL I certify that this is a true copy of the original. i~~ -- < 2) -ff ·t· ...~• \) 0 ,,--· ~ .. (J. MGETTA) !} • ,~~. "~ DEPUTY REGISTRAR "<~ .i : . fl• l/F . \1i \',\_ / ' •,..._,___,___ ,_v_,..,,,,,.✓~,' 11