20111010 TZCA Mwanza

~c • )!: IA/ H~ ✓d-r cl, M C O CJ /l-; (:~ /'l ;f N '7 ✓· /,!r IV (J ,R,:J 1-0/L As'o, NI-/' C) IJ- , " I -;:-- {;J/ /J/4'" /V f1J ': ,nu? c.l (..f~ 'lO v-1 ~ ·,;: . .fiJ~l "' Ir' <:.i f:JL. e:iJ V /) 1 l> ;;:-ot JJ1 /V {)".' ,(t;-/"'r ( '.,r,r V .z ' ~ " ' b ~ u ~ ;; (./ /,v.:: «7-F-<::J.,,i- 'I -1-f:J~,JJ>A../~ ' IN THE COURT OF APPEAL OF TANZAINIA ATMWANZA (CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And ORIYO, J.A.) CIVIL APPLICATION NO. 7 OF 2009 1. THE MANAGING DIRECTOR KENYA COMMERCIAL BANK (T) LIMITED ........................... 1 ST APPLICANT · ND 2. ALBERT ODONGO .............................................................. 2 APPLICANT VERSUS SHADRACK J. NDEGE .........................•..................................... RESPONDENT (Application for Revision of the Proceedings, Ruling and Order of the High · Court of Tanzania at Mwanza) {Mackanja, J.) Dated the 14th day of April, 2009 In Civil Appea I No. 20 of 2008 RULING OF THE COURT 5 & 13 October, 2011 RUTAKANGWA, l.A: The applicants were su·ccessfully sued by the respondent in the Court of Resident Magistrate of Mwanza. They were ordered to pay him Tshs .. 99,800,000/=, as general damages. They were aggrieved by the decision and preferred an appeal to the High Court at Mwanza (Vide Civil Appeal No. 20 of 2008). 1 ' I ;;. I I Civil Appeal No. 20 of 2008 (th:e appeal) was hrard inter pa,tes by . i th Mackanja, J. (as he then was). Judgment was deliv~red on 15 October, 2008. The appeal was dismissed on a point raised by the learned first appellate judge, suo moto, while composing his judgment. He convinced himself that the appeal was incompbtent as the mJmorandum of appeal was accompanied by a photocopy bf the trial coui's decree and not a , I certified copy of the same. He went on to hold that the said photocopy of the decree had been "doctored" by the appellants. Without hearing the appellants on this serious charge, he proceeded to strike out the appeal i I with costs. The appeal having be~n struck out. the applicants opted to ., "' I challenge the judgment of the High Court in an appe~I to this Court. They issued and lodged a notice of appeaL The intended appeal being a second appeal, they also lodged an application for leave under section 5 (1) (c) of i ·1 the Appellate Jurisdiction Act, Cap 14l (the Act). The application for leave was again heard : and determined by . . I i Mackanja, J. In their application the applicants had I pinpointed five areas of law and mixed facts and law worth consideration bt the Court of Appeal. Unfortunately, however, in his very ibrief ruling, 'thJ learned judge, with I I l I 2 ~ I I - ... I ! i I due respect, never addressed himselfj at all to the tues raised by the applicants. Instead, he SUD moto rrsed his own three points which he "certified" to this Court for consideration. I i I i i In the last one-paragraph sentence of his rulin@ the learned judge said:- I I I " Save as hereinabove statect the points I that the I i applicant sought to be certified have been refused'~ I [Emphasis is ours]. I The extracted order from this ruling which iJ entitled "EXTRACT I j ORDER IN APPEAL" signed by the same learned judgie reads thus in the I operative part: I I "THE COURT DOTH HEREBY ORDER THA 71 a prayer i has to be made in a formal a~plication I i independently of the instant matter and the points I that the applicant sought to be certified Aave been I refused Costs shall be in the court (sic). / i I I I , I 3 I I I I I ! 1. ... Dated this 14h day of April, 2009 Signed JUDGE'~ With this ruling and extracted order, the applicants found themselves I in a quandary. Should they appeal against the order dated 14th April, I i 2009? Should they assume that leave to appeal had, been granted and I I proceed to institute an appeal against the High Court decree dated 15th I October, 2008? Or should they, on the strength of the I order dated 14th April, 2009, assume that the application for leave to appeal had been I I refused and try a second bite in this Court? Each of these three courses to I I them was fraught with uncertainties and obvious risks;. The only rational I and less risky courses they saw was to access the Courit by way of revision. I Hence this application for revision by Notice of Motion under section 4 (3) ! I of the Act and Rule 45 of the Tanzania Court of App~al Rules, 2009 (the I I Rules). I I In their Notice of Motion, the applicants are maying the Court to call . ! for and examine the record of proceedings in the sai~ Civil Appeal No. 20 I I 4 ' I I I of 2008 for the purpose of satisfying its~lf as to the corr~ctness, regularity, . I I legality or propriety of the ruling and: order dated ·14fh April, 2009, and' I I issue appropriate orders to re-establish, within those proceedings I legality· ' i and propriety, among other things. Among the grounqs relied on for this. move are:- I I (a) That the impugned ruling and order are fraught with serious I I illegality, confusions and irregularities; I I (b) That the applicants had applied for leave t~ appeal which I I was neither granted nor refused but instead la certificate on , I three points was issued; and I I I (c) That the extracted order is incomprehensible, I confusing ! and inconsistent with the ruling as it genetally refers to a I I prayer and it does not state.the points whic~ the High Court certified for determination by this Court. The respondent, who was being advocated for ~y Mr. Deya P. Outa, . I ! learned advocate, resisted this application. He had l earlier on lodged a I notice of preliminary objection c~allenging the ~ompetence of the ' i application. The gist of the point of ~bjection was th bt the application for 1 I I I I , I I , I revision was legally unmaintanable on th~ ground that th,e applicants had I I I not exhausted all the remedies available to them. I ,,I I I I , I When the matter came up for heating . before us, . we I first heard Mr. : I Outa on his point of objection. He wa~ brief. He argued that since the , . I I I learned High Court judge had rejected: the applicatidn for leave, the : I i I applicants had a right under Rule 43 (b) of the then fanzania Court of ; I .I ' I Appeal Rules, 1979 to try a second bite":in this Court .. T/hey did not do so, i . I 9 and they therefore have no right to ccess the Cou1 by way of these I revisional proceedings. He accordiq;gly urged us ro strike out the I: I I application with costs. To buttress h(s argument he /referred us to the I I : I cases of:- , 1 ,! , I /c [1995] TLP 134, 1 (a) Moses Mwakibete V. Editor·::Uhuru & N. P. : I I , 1· (b) Halais Pro-chemie V. Wella: A. G. [1996]. TJL.R. 260, and 1 ' I , I (c) Mohamed and Another V. Khatib [2008] 2 EA 226 (CAT). 1 ,1 I Mr. Faustine Malango, learned advocate~ ldvocating for the :' 1. I : . I applicants, called for the dismissal of tre point of Prelir inary objection with costs. He was equally concise. He submitted that gbing by the ruling of . I 6 I I I I , I ! I ' I I I I 'I I ,: I the High Court and the confusing order extracted therefrort,, it could not be I I seriously contended that the High Court determined th,'e application for , I I leave before it. It never granted leave ,nor refused it. It only granted a I I certificate on some points, which had nev:~r been sought ~Y the applicants. ' I I I I I I I After hearing both counsel on the Preliminary objection, we decided I I ,' , I to proceed with the hearing of the substantive applica:tion. This ruling, , I , , I therefore, shall embody our decisions on both the preliminary objection I I :' : and the merits of the application for revi,sion. / I I .I I I I , I After studying the ruling of the High Court and t~e extracted order, : I .: I we have reached the conclusion that: the point of p~eliminary objection 1 I i raised by Mr. Outa, ought to be overruled. We are ,in pgreement with Mr. I I I Malango that the applicants could not try a second bit~ under Rule 43 (b) I I of the 1979 Court Rules because their application for !eave to appeal was , I not refused. It was not granted either. The learnrd judge instead of :, II determining the application for leav!e, as we have i already sufficiently I I I demonstrated, jettis'oned it to the wi,hds only half-way in his ruling, and I proceeded to look for his own points ,'to certify for ~eterminatiori by the I I I 7 I I I I I I I I I I I I I I I I ·! '1 I Court. More serious for the applicants, wqs the legal hurdle placed along . I I . their way by Rule 46 (3) of those Rules. •[ / I I • I I It was a mandatory requirement of Rule 46 (3) that every such ,! I I application for a second bite had to be ac/bmpanied by a 1opy of the order of the High Court refusing to grant the a~plicant leave to 1appeal. In view ! of what we have already shown they ctjuld never have obtained such a i I copy. It was simply not there. So their application would /have been struck 1 ,; I out on account of being incompetent. I I I : I For these two reasons, we dismiss! the point of preliminary objection ii' I with costs. The applicants, in our consiG:Jered judgment,/ properly accessed :1 the Court by way of these revisional pro~eedings in purs~it of justice. 11 I I I :l I Counsel for the appellant lodged written submis5ion in accordance ·• I with the requirements of Rule 106 of: the Rules. At the hearing of this I 1 . r I application he adopted these submissions and made ro oral submission . ./ I 1 ! Counsel for the respondent only relied ion his submissidns in, support of the _. r I ,I I point of preliminary objection. :1 I I 8 ,I I I I I I , I I I ' I I I ' I The gist of Mr. Malongo's submission is that applicarhts had applied . I , I for leave to appeal as is required by section 5 (1) (c) of /the Act. Their : I I , I application, though heard by the learned judge, was not determined at all. ·; I . I Instead, he submitted, the judge issued: a certificate, ~hich order falls ' I . I under section 5 (2) (c) of the Act. It was, Mr. Malongo's strong contention ' I I that in granting a certificate, without even,; stating the relev;ant provisions of I the law empowering him to do so, the High Court judge "acted illegally, , I I created confusion, inconsistencies and irregularities". / I I I I Mr. Malango went on to argue, quite correctly, fn our considered I . I I opinion, that assuming the learned judge was right in certifying those ' I ' I I I points of law, they ought to have been .'shown in the extracted I order. He 'I I .I i I concluded contending that reading the High Court rul ing and the order , I1 ' I extracted therefrom, one cannot be certain as to whetijer or not the High I . I Court, rightly or wrongly, certified any points. It is ~otal confusion, he I stressed. I I I I I I I I I I I I 'I I I I I I I 9 I I I I I I I I I I I Relying on the cases of Fahari Bottlers Ltd V. The Registrar of I I I I I Companies, Civil revision No. 1 of 1999, VIP Engineering and I I I Marketing Ltd V. Mechmar Corpor~tion (Malaysi~) Berhad of i I Malaysia, Civil Application No. 163 of 2004, Mabibo eJer Wines and Spirits Ltd V. Lucas Malya aka Barakci Stores & Cotj,missioner for I 1 Customs T.R.A, Civil Application No. 160 of 2008, he yrged us to hold ; I I I that these patent confusions, inconsistencies and irregularities are not , I I I ' I amenable to any other legal process, but to the revisional process alone . .I I I I I I As already pointed out counsel for the responqent only lodged I written submissions in support of the' preliminary obj,bction, I which he I I invited us to consider. We have duly considered them irl our discussion of I the point of preliminary objection. We have already ryled on that point. I I , I I He was overruled. I I I I I I However, counsel for the respondent lodged what he labeled a I I ; I "counter affidavit in opposition to the, orders prayed ~br in the Notice of I I , I . Motion". He did not dispute the contents of paragraphs 1 to 11 of the I 1' affidavit in support of the Notice of Motion. He Ii only countered in I I I IO paragraph 4 the averments in paragraphs 12 and 13 of the said affidavit. He thus deponed:- "That I have read the contents of paragraph 12.and 13 of the affidavit and state that the relief/prayers sought by the Applicants were categorically refused The remedy for little confusion (sic) appearing in the ruling and drawn order is an application for correction of errors". Mr. Outa maintained this stance while answering questions from the bench. He sought reliance on the decision of this Court in the case of "1., Sebastin Stephen Minja V. Tanania Harbours Authority, Civil I- Application No. 107 of 2000 (unreported). We should start by making it abundantly clear that we have objectively read the decision of S. S. Minja V. T.H.A (supra). We have found it of no assistance to the respondent's cause. On the contrary, it strengthens the applicants' case. This is because in that case the Court held that the learned single judge had erred in law in granting extension of time to appeal out of time whereas the application before him was an 11 ~ ' I . ~ I I ., I I I I I I I application for leave to appeal. The reference was allowed. By parity of '1 i I I reasoning, it can be quickly pointed out that the learned Hibh Court judge , , I ' I erred in law and/or exercised his jurisdiction with material' irregularity by I I I I ' failing to determine the application for :1eave before, hi,m and instead , I I r purported to grant a certificate. I I I I I Mr. Outa, has, in his "counter-affidaJit" tried to belittlle this by calling I I I I it a "little confusion". We respectfully s~e it differently. It was neither . I "little confusion" nor "an error arising fr~m an accidental (sic), that is to say unintended slip or omission", which bould be correct¢d under section I I : I 96 of the Civil Procedure Code, Cap 33, (CPC) . as he triedI to impress upon , I us in his written submission in support of;his point of prellminary objection. The error was fundamental and the irr~gularity incuradle under the slip I I I I ' rule. / I I I I We are therefore in full agreement with Mr. Malango in his 1 ,I I contention that this error created a lot confusion not' o~ly to the applicant I I ; , I but was also bound do so to the courts) as we have already tried to show. . . . I The confusion would have been none~istent or less o6vious had the Act I I , I I 12 I I I I I I I I I I I ' I I I I I I been providing one mode of accessing the Court on an ~ppeal _from a I decree or order of the High Court in the exercise of its original, appellate or . , I . I revisional jurisdictions. It is common knowledge that the 1ct in section 5 I ' I I (1) and (2) provides three different modes ..· There is an automatic right of . I I appeal, a right of appeal with leave of the, High Court or t~e Court, and a I I right of appeal on certificate of a point of law. The applica~t had a right of I ' I appeal with leave but not with a certificate. The appellant could not have I I ' I I instituted a competent appeal with a ce~ificate granted by Mackanja, J. • I I Hence our holding that the error committed by Mackar:,ja, J., was not i I I I I I ·, minor. I I J 1 I I I I I I I I In Probate and Administration Cause No. 3 of 2005, I one Brigitte G. , I ' I ' I Defloor had petitioned the High Court at, Mwanza for the: grant of Probate. I I . I After all the necessary legal processes had , been completed, . I the High Court granted her letters of administration. What ensued in ibetween is not of I I I moment here. When this error was discovered subsequJntly, Civil Revision , I No. 3 of 2011 was initiated by the Cou~ on its own moti,bn. It was argued I I . I by counsel for both sides that that was only a cleric~I error which was ! I curable under section 96 of the C. P. C. The Court qisagreed and ruled I I I 13 I I ! I ' I l I I I I I I I , I I that confusing the two "cannot be called a slip of the pen oria clerical error , I but is a fundamental error which cannot be cured by secition 96 of the , I CPC." It invoked its revisional jurisdiction :under section 4/ (3) of the Act I I ' I and quashed the order of the High Court. The record was :'remitted to the I I High Court for the court to process the ,petition in acco~dance with the , I I I provisions of the governing laws. We shall' act in similar m~nner. I I I I , I I From the above discussion, we are of the settled· mi,hd that the High I I . I Court fundamentally erred in law in failing to determine t~e application for I leave to appeal and instead purported to determine an /application for a ,: I certificate on a point of law which was not before it. Th~t error cannot be I left to stand as it greatly prejudiced the applicants. we:', accordingly have I ; ' I no option but to, invoke the Court's revisional , powers Ito nullify and set i I I I aside the ruling and order of Mackanja, J. We leave it ~ntirely within the I ' I discretion of the parties to choose whether or not thei matter should be , I heard afresh. i I I I I I I I ' I In fine, we allow this application with costs. I I I I I I I I I 14 , I , I I th DATED at Mwanza this 10 day of fctober, 2011. : E. M. K. RUTAKANGWA I JUSTICE OF APPEAL : I : N. P. KIMARO , I I JUSTICE OF AP.PEAL I I K. K. ORIYO I JUSTICE OF APPEAL I certify that this is a true copy of the original. J. S. MGETjfA DEPUTY REGISTRAR COURT OF APPEAL 15