20061212 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DARESSALAAM. (CORAM: LUBUVA, J.A, RUTAKANGWA, J. A. AND KIMARO, iA.) CIVIL APPEAL No. 79 OF 2005 THE ATTORNEY GENERAL APPELLANTS MINISTER FOR FOREIGN AFFAIRS VERSUS VALERIAN BAMANYA tia TANZANIA ASSOCIATED RESPONDENT MERCHANDISE f (Appeal from a Ruling and Order of the High Court of Tanzania at Dar es Salaam) (Kiieo, J) Dated 25 day of March, 2003 In Miscellaneous Civil Cause No. 103 of 2003 JUDGMENT OF THE COURT 6" Nov. 2006 & 12th Dec. 2006 KIMARO, J.A This is an appeal by the Attorney General and the Minister for Foreign Affairs against the ruling and orders of the High Court, Kileo, J (as she then was) dated 25th March 2003. Briefly the facts are that. the respondent exported 103 pieces of mixed raw and polished ivory to Japan in 1986. For unknown reasons the weight declared by the respondent in the export forms C, - 'I and the weight registered at the customs check point did not tally. The weight declared by the respondent in the export forms was 391 kilograms. According to him the declared weight tallied with the weight which he was given by the officials of Natural Resources and Tourism when they weighed the consignment. But at the Dar Es Salaam Port Customs check point the consignment was re-weighed and 412.5 kilograms were registered as the actual weight of the consignment. Because of the discrepancy in the weight of the consignment, it was seized and impounded in Japan. The Tanzania Embassy in Japan sold the cargo on behalf of the second appellant and remitted the sale proceeds to the Bank of Tanzania. Attempts were made by the respondent to make a follow up of the matter generally, but he landed in court for criminal prosecution for the offences of exportation of goods without fair and reasonable consideration and unlawful exportation of goods without permission of the Bank of Tanzania under the then Exchange Control Ordinance read together with the Economic and Organized Crime Control Act, 1984. He was also prosecuted for the offences of forgery and uttering a false document under the Penal Code, Cap 16 of the laws. The District Court of Ilala at Kisutu where the respondent was prosecuted for the offences mentioned above, acquitted the respondent of all the offences charged, The trial court also ordered that the proceeds realized from the sale of the ivory by Tanzania Embassy in Japan remitted to the Bank of Tanzania be handed over to the respondent. Aggrieved by the restoration order, the Director of •Public Prosecutions appealed to the High Court. The late Mr. Kyando, J. dismissed the appeal. 2 - Subsequently, the respondent made several demands to the 1st appellant which insisted compliance by the Bank of Tanzania of the restoration order. Before the trial court evidence was brought showing that the ivory was sold for USD 39667.25. After deductions, USD 34,000 was remitted to the Bank of Tanzania. The Bank of Tanzania paid the respondent only T shs.2,523,537.25 which was equivalent to USD12,035.60 at the exchange rate of USD 196.6 then prevailing in 1990 when the payment was made. Being dissatisfied with the partial compliance of the restoration order, the respondent filed in the High Court of Tanzania, an application for prerogative orders under sections 17 (2) and 18 (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, now Cap. 310 R E. 2002 and the Judicature and Application of Laws Act, Cap.3 10 R E 2002. In the application for certiorari and mandamus the respondent moved the High Court to quash and set aside the appellant's decision not to pay the balance of the sale proceeds of ivory and compel the appellants jointly and severally to obey the court order by surrendering and paying the respondent in accordance with the restoration order made by the District Court and confirmed by the High Court. A prayer for damages was also made. it was based an they inconvenience suffered by the respondent because of the length of time taken without compliance by the appellants. An amount of T. shs. 65,000,000/= was requested as damages. Interest was requested at the rate 3 1 - of 40% per annum from the date the Bank of Tanzania received the money to the date ofjudgrnent for the same reason. The appellants opposed the application. The High Court determined the application in favour of the respondent. An order for certiorari was granted. The High Court found that there was a decision by the appellants not to pay the whole amount as ordered by the District Court. The decision was quashed and set aside. An order for mandamus was granted directing the appellants to hand over immediately to the respondent the sum of USD 21,293 or its equivalent in Tanzanian shillings at the exchange rate prevailing on the day the money would be paid. T shs. 30,000,000 were granted as general damages. Costs were also granted to the respondent. Aggrieved, the appellants filed this appeal which has two grounds of appeal:- i) That the learned trial judge erred in law when she granted monetary damages in an application for judicial review. iz) That the learned trial judge erred in law and fact when she granted interest of 10% which interest is on the high side bearing in mind that the award was inforex 4 dj When the appeal was called on for hearing, Ms Rwechungura, learned counsel appearing for the respondent raised a preliminary objection, notice of which was lodged earlier under rule 100 of the Court Rules. The ground for the preliminary objection was that the appeal was incompetent because no leave was applied for and obtained as required by section 5 (1) (c) of the Appellate Jurisdiction Act, 1979. She argued very strongly that the appeal does not arise from a matter which gives the appellant an automatic right of appeal under section 5 (1) (a) and (b). Rather, the matter falls under section 5 (1) (c). Leave was required before the appeal could be properly lodged in the Court. She cited the case of Mechanical Installation and Engineering Co Ltd vs Abubakar Ndenza 1987 TLR 44 where in a mater falling under the Companies Ordinance, the Court held that leave to appeal was required.. She said this appeal falls in the same position for the requirement of leave. On his part, Mr. Chidowu, learned Senior State Attorney appearing for the appellant conceded that the appeal does not fall under section 5 (1) (a) or (b) of the Appellate Jurisdiction Act, 1979. However, he observed that the right to appeal to the Court is not exclusively given by the Appellate Jurisdiction Act,, 1979. He contended that the right to appeal is also given by other laws. The cases of Leonsi Silayo Ng.alai v Justine Alfred Salakana and Attorney General Civil Appeal to 38 of 1996 (Court of Appeal) (Unreported) and Attorney General v Phiiemon Ndesambura Civil Appeal No 14 of 1998 (Court of Appeal) (Unreported) were cited to show the other laws which give the right of appea.1 to the Court. He further contended that the right of appeal in this appeal is derived from section 17 -I (5) of Cap 310 R. E 2002 and it is automatic. Leave is neither required from the Court nor the High Court. He informed the Court that the same objection was raised in a different application between the same parties before a Single judge and it was overruled. He prayed for the dismissal of the objection. After hearing counsel for both sides on the preliminary objection, .the objection was overruled. We reserved the reasons to be incorporated in the main body of the judgment which we now give. With respect, we agree with the submission of the State Attorney in relation to the law as set out in section 5(1) of the Appellate Jurisdiction Act, 1979. In The Attorney General v Philemon Ndesamburo (supra)the Court stated as follow: "Under section 5 (1) of the Appellate Jurisdiction Act, 1979, and as this Court held in Ngalai's appeal, it is obvious that the right of appeal to this Court is not granted by the Appellate Jurisdiction Act, 1979, alone but that there are other laws providing for such right. In Ngalai the other law was the Constitution of the United Republic of Tanzania, 1977. In the present case it is the Law Reform Fatal (Accidents and Miscellaneous Provisions) Ordinance as amended So, there was no need for leave to appeal in the present case" N. The present appeal is from orders made in an application for judicial review. It is in all four with the case of Ndesamburo (supra). We only need to emphasize that section 17 (5) makes it clear that no leave is required before lodging an appeal to the Court. The section says: Section 17 (5)" Any person aggrieved by an order under this section may appeal therefrom to the Court of Appeal." For this reason, we overrule the preliminary objection raised. It is curious that the counsel for the respondent repeated the objection after it was raised in Civil Application No. 119 of 2004 between the same parties before a Single judge of this Court which was overruled. This is un procedural. If the Counsel for the respondent was not satisfied with the decision of the Single judge, the proper course was to go for a reference under Rule 57 (1) (b) of the Court Rules. Coming back to the merit of the appeal, the first ground of appeal relates to the award of damages. The crux of the argument by the learned State Attorney was that as the application in the High Court was seeking judicial review, the award of damages was wrong because the application was concerned with public law and not private law. Three reasons were given to support his argument. First, the remedies available under the law relied upon in filing the application for review are certiorari, mandamus and prohibition. Compensation by way of damages is not included. Second, the 7 4 - I - purpose of certiorari is to quash and set aside decisions of public bodies which are contrary to the law or laid down rules or procedure. Third, there was no decision made by the appellants which was capable of giving the applicant a cause of action for filing an application for prerogative orders. Rather, it was only a complaint that the Bank of Tanzania refused to pay the respondent the whole amount ordered which was not in itself a decision of public authority. Mr. Chidowu further contended that in hearing the application for review, the High Court acted as if it was hearing an appeal, and the appellants were. denied the right to be heard on the assessment of damages. He also argued that the conditions for granting the rernedy of certiorari set out in the case of Sanai Murumbe & Another v Muhere Chacha [1990] TLR 54 were not met. He was of the view that the High Court misdirected itself in granting the order for certiorari because there was no decision of a public authority which could be quashed. On her part, Mrs. Rwechungura conceded that the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Cap 310 R E 2002 makes no provision for damages. However, she took the view that as is the case in England, where the Supreme Court Practice 1991 - Rule 53 (7) allows a claim for damages in a judicial review if pleaded, the ends of justice would not be met if the prayer for damages was refused simply because it is not part of our laws. She said although the law in England is persuasive, damages in this case were properly awarded because it was included in the statement. She contended that the facts in Sanai Murumbe (supra) are distinguishable from the facts in this case because in Sanal Murumbe a - damages were awarded while were not pleaded while in this case, the damages were pleaded. While she conceded that there was no specific order brought before the High Court for quashing, she maintained that there was no other way to compel the appellant to pay the money to the respondent. As indicated, the application for judicial review in the High Court was brought under the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Cap. 310 R E 2002. Ms Rwechungura conceded that section 17 (2) does not make provision for the remedy of damages. She further conceded that in England the remedy for damages is not a matter for judicial innovations but it is incorporated in the Supreme Court Practice Rules 1991 - Rule 53 (7). This means that her argument that the order for damages should be upheld cannot be sustainable. The court has to look at what is provided in the law. We are therefore not persuaded that the court should go beyond the statute. This position was underscored by the Court in the case of Sanai Muruiubc (supra). The Court quashed and set aside a compensation order granted in an application for judicial review. In doing so the court said: - The compensation order for the 145 head of cattle given by the judge was contrary to the existing law. In our considered opinion, with respect to the learned trial judge, since the law under which the application was filed does not make provision for the award of damages, the learned trial judge misdirected herself in awarding damages. This ground of appeal has merit. 91 On the second ground of appeal, Mr. Chidowu argued that apart from the order of interest at 10% being improper it was on the high side because it involved foreign currency. He contended that the Bank of Tanzania Monthly Economic Review for February 2005 showed that the rates were less than 1%. The rate of 10%, the learned State Attorney argued, was on the high side. He prayed that the appeal be allowed with costs. The response by counsel for the respondent was that the law as it stands does not allow interest to be granted. Nevertheless, to meet the ends of justice, the Court must go beyond the statute, she contended. She argued that since the question of interest depends on the discretion of the judge, the rate of 10% was not high. Although she admitted that the normal rate of court interest is normally 7 V2 in local currency, still she insisted that the rate of 10 % interest in foreign currency was not high. We need not be delayed in this issue. Ms Rwechungura conceded that the law does not provide for interest. The case of Sanai Murumbe, (supra) sets out the position of the law clear. The court cannot go beyond what is provided by the law. These grounds we think are sufficient to dispose of the appeal. But the court was curious to know about the propriety of the proceedings for judicial review in the High Court. Both coursel were called upon to state whether there was any particular order issued by the appellants which was brought before the High Court seeking the remedy for certiorari. Both counsel were in agreement that there was no such particular order. Mr. 10 Chidowo said what was before the High Court was only a complaint that the Bank of Tanzania refused to pay the respondent the whole amount. We stated earlier that what has given rise to this appeal started from a restoration order by the District Court of Ilala at Kisutu in a criminal case. The order was confirmed by the High Court. Part IX of the Criminal Procedure Act, Cap. 20 R. E. 2002 deals with execution of monetary sentences passed in criminal cases. In particular, section 328 deals with warrant for levy of fine, penalty, compensation, costs, expenses or otherwise. Ordinarily, this was the first option open to the respondent for the execution of the restoration order. Enforcement would be by way of distress. The issue of the propriety of the proceedings for the judicial review has highly tasked our minds but we are of the firm view that the proceedings were not proper. One of the remedies which was prayed for and granted was certiorari. Both counsel agreed that there was no specific order made by the appellants in which the remedy for certiorari could be granted. The Court was referred to the book by Clive Lewis on Judicial Remedies in Public Law including certiorari Unfortunately, the book was not available to us. But H.R.W. Wade in Administrative Law at page 128 states that:- Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass 11 the test, it is quashed- that is to say, it is declared completely invalid, so that no one need respect it. This is therefore a remedy of public rather than of private law. The record of appeal does not contain any specific decision made by the appellants which could be relied upon by the respondent to pray for the remedy of certiorari. With respect, we do not think that the complaint by the respondent that the appellants refused to comply fully with the restoration order, should have been equated to a decision which entitled the respondent to seek for judicial review. The case of Sanai Murumbe (supra) is explicit on the conditions which must be fulfilled before the remedy for certiorari can be granted. There should be a decision of the lower court or tribunal or public authority. Then the decision is brought before the High Court which is to investigate upon any of the following grounds being apparent on the record. Matters which it ought not to have taken into account. Matters which ought to have been taken into account but were not considered. Lack or excess ofjurisdiction. (d )If the conclusion arrived at is so unreasonable that no reasonable authority could. eve.r come to it. (e) If Rules of natural justice have been violated. f)Illegality ofprocedure or decision. 12 It is only after the decision of the tribunal or public authority has been proved to satisfy the above listed conditions that an order for certiorari can be issued by the court. As we have endeavored to demonstrate, and both counsel are in agreement, no decision of the appellants was brought before the High Court. Naturally there was nothing to be tested in line with the grounds listed in the case of Sanai Murumbe (supra). The options which were available to the respondent for the enforcement of the restoration order were the normal process for execution of such orders under the Criminal Procedure Act, Cap. 20 R. E. 2002 of the Laws. In the circumstances, for the reasons stated we are satisfied that the application and the subsequent proceedings for judicial review were totally misconceived. In the event, we allow the appeal, quash and set aside the decision of the High Court. Costs to the appellants. DATED at DAR ES SALAAM this 12 December, 2006 D.Z.LUBUVA JUSTICE OF APPEAL E. M. K. RUTAKINGWA JUSTICE OF APPEAL 13 4 N.P. KIMARO JUSTICE OF APPEAL (.. . . / ertify that this is a true copy of the original. 47.1111 , ........-.-.. ....... .....- I]