20001026 TZCA Arusha 1

- vy' .'-/- 0 o'2 7 -; IN THE COURT OF FF:jj 01' NZNILY .f eU T' T' T rTTTrr' - r - rT1( 1L\JrJ TTT..TO ) fi JULVrLOO2flU CIV Ti ILPLIC TI0 ITO 48 OF rA BET TEEN THE REGISTERED TR1JSTEES SOCILIL iCTIOF TRUST FUND & -NOTIlR iPFLICiTTS 'N1) NESSERS FL4 FFY SUSiGES LTD &. 10 OTHE.RS , ESPONJ)!IUiTS (:nplication for Revision from the decision of the High Court of Tanzania at 'irusha) dated the 26th ci 27th June 2000 in Nisc0 CivilCase lTos0 73 ind 27 of 2000 P U L I N 0 KISYJGi,J: This is an application for revision of the decision of the 1-lich Court at irusha (Nusii , J,) in Civil Case .tTo 27 of 2000 dated 276200O 3 ;ranting in;luxteticn order agsi.nst the applicants herein Be fore us the ppi.icanis were unrepresented by counsel; they appeared ehd are:uedt;he application in person while the respondents had the Services of r"Tr. D'Souza, advocatee Before the af..plication couldpr ocoed to h.earin Nr0 Dr8ouza took a prelimiaary obection, the notice of which he had duly given in terms of rule 100 of the Court of ippeal Rules0 The objection is three:old, but counsel .. 9/2 - H 6 1 C( - 2 abandoned the third ground, and argued grounds (1) and (2) only0 By and large the objection hinges on the first ground which a to the effect that the applicant':.' mnot invoke the evisicnal jurisdiction of the Court because they have the riht of •aapeai area to th:rn Mr0 D'Souza submitted that the ruling cf the High Court, the subject of the intended revision, is appealabl(- with leave under section 5 (1) (c) of the .ppeilate Jurisdiction ct, (ce the applicants had such right, but did not wish to exercise it, counsel went on, they cannot invoke the revisional jurisdiction conferred on this Court by the Ippellate Jurisdiction 1979 as amended. by ct No0 1'7 of 1993 unless they can show good and sufficient reasons, amoun' n. cecptional circumstances, - for doing so. In sunport of this submission the learned counsel referred to a number of decisions of this Court including Ha.lais Fro-Chemie Industries Ltd0v. Wella .G0 ff9967 TLR 269, MiroslavIaticVesra andnotherv. Ivan !ioi'L Civil pplication No. 66 of 1998 (unreported) and and n.nother Civil Revision No. I of 199 (unreported)0 Mr0 DSouza contended that the applicantst notice of motion and the accompanying affidavit- do not disiclose any exceptional circumstance which would warrant granting the application, and therefore the application should be dismissed0 In response to that Mr. C. Ngalo contended that there were peculiar circumstances in this case which rne:rited invoking the revisional jurisdiction of the Court. First, the High Court made the order complained of without first RT ARUSHA LIHKAKIf Date revoking its earlier order relating to the matter0 Elabora- ting on this, counsel said that on 1!4.62000 the respondents filed a suit in the High COUrt at rusha and simultaneously filed an application for temporary injunction against the applicants0 The application for temporary injunction was set down for hearing on 672COO, but before that date was reached the court on 2762000 heard the said application and granted the temporary injunction prayed for without first revoking its earlier order which had st the hearing date on60702000, and worse still it made that order in the absence of the applicants. Mr0 Ngalr seriously attacked the trial judge saying that the way he handled the matter was not only improper but amounted to an. abuse of process He also charged that the learned judge was biased8 Mr0 galo then, in support of his submission, referred to the case of Miroslav Katic Vesra cited above where this C o u r t found peculiar circumstances which i:rranted. invoking its re VlSi onal powers0 C OL fl: b±af pt±ngtal 1 i fy se c ondly jjlp Th ondths ie , a d ----- --- - But that situation arpears distinguishable from the case at hand. Here, unlike there, the trial judgedid not purport to nullify any previous order of that court. Indeed, h did not purport to nullify his order which set the hearing date of the application on 6.7.2000; on the contrary he did IIGH COURT ARUS.ftA LIBRARY - - a. honour that order0 For, he did convene the court on 6.7.2000 as appointed, but deferred hearing the application inter- partes because the applicants had alread rsferred the matter to this Court /gain in this case, unlike in the Miroslav Katic Vesra's case, there was no question of the trial judge purrorting to overrule the decision of a higher court. Therefore the decision relied on by r. Ngalo does not really help advance his case The alleged irregularity here concerns an order of a judge which does not affect any previous order of the same court or of a higher court. We can find nothing peculiar or exceptional in this0 It was, in cur view, an crdi.nary situation the remedy of which lay in the normal appeal process. Mr. Ngalo further cited the decision of this Court in the case of I. bdalahr-tifi an i Civil Revson No. '1 of 1999 (unreported) in support of his contenion that the hsarini of the applicti.on and the granting, of temporary injunction ex--parte by the trial judge, thereby denying the anulicants the opportunity to he heard, incurably date ctiv and constituted an exceptional circumstance warranting this Court to exercise its revisional jurisdiction.. In the case cited by counsel this Court noted that the record of the proceedings had revealed serious irregularities in the three courts below. One of the serious errors so found was the hearing of an application ex-parte by the High Court on the ground that the application involved technicalities which the respondents would not he able to understand. The Court, emphasizing the need to accord a -5- litig'ant the rieht to be heard, fecti-ve0 11 But apart from this there were further serious errors and irregularitis committed not only by the High Court but also by the District Court and the 1imary Court. This then distinguishes the case from the one at hand where the alleged error involved one court, one judge, and one decision only This was a situation which was capable of reddress through the normal appeal mechanism and we can see nothing exceptional about it0 The case, therefore is of no assistance at all to Mr0 Nga10 In his tireless effort to persuade us, Mr. Hgalo yet referred us to the Hahari Bottlers case, already cited above, to support his argument that the matter is one of urgency0 In this respect he said tat the case involved a commercial dispute with sensitivity0 It involves goods of a perishable nature with little or no possibi1iy of coatinuing their production in future, hence the need to dispose of the business urgently0 But once anain this case is distinguishable from Fahari Bottlers case0 ifl that case the proceedings in the High Court were afflicted by confusion, almost amounting to chaos, arising from the various orders and decisions given by not less than three judges of that court on different occasions0 Some orders were obviously erroneous while others were conflicting and incomprehensible0 There were yet other irregularities0 The High Court judgeshad failed to observe and apply the mediation process in handlina the particular case, and an advocate had been improperly appointed provisional liquidator in circumstances which placed him in a position of C conflict oinre 0 di fferLnt Ii am one in t h e iris tant c iso ibc e the lleod irregu r:ity Is a strai.fh.t.-forward one i P :ing only one judee and only one order made by him0 Such a situation could easily he remeiLei th2014.*. hc acrma erocess of appeal end there is n othiri exceptional about it to justify invoking the ravisional jurisdiction of the- Court0 It is true that in revising the oroceedings in Fahari Bottlers case the Court said. that it took into ccre.jnt that that-; cT Tt a commercial cse deserving to be treated with sensitivity for the needs of the commercial community both aithin and outside Tansania0" However, i t oyn_ the Court f ouis :iI tion ~ Je could f nd no such substratum of material in this case0 Therefore Nr0 galo cannot rely on the 1ahari BotUlers oaso Lo support OilS si*inission, and with ULit we tied that i;hc aeplicants ha\;c iled to show exceptional circumstances which wculd justify mae a the revision-al powers of the Ioaicu.een U ric ight of appeal with leave was or is open to them0 Therefore the firc± r" of Mr0 D'Souzas preliminary objectjon succeeds0 His second ground of objection is that the app au!s prayer that the case he transierred to another judge or to the cornmercial division of the High Court is baseless0 This ground need not detain us, and it in--iy be disposed of aery quick1y0 /s Mr0 DtSouza quite rightly observed, f In the instant ca however 9 the triel 0 0 0/7 IIIGJj Co(j1(T ARUSHA L1BRAy Pale —7-- judge made no order respecting this aspect of the matter0 He was not asked to disqualify himsel.f from heaing the matter or to transfer the case to the commercial avision, and he refused0 Therefore 9 there can be no peg on which to hand a revision order of this CotLrtj as it were0 That ground. also succeeds. In the result and for the reasons we have endeavoured to set out above, we uphold Mr0 D'Souzas preliminary objection .ccordingly the application for revision is dismissed with costs0 DATED at PJSHA this 26th d.ay of October, 2000. IOHO KIS•.JTG.. JUTI( OF JPEL D.Z. LTJBUVr JUSTICI OF •FFF[LL K. S0K 0LUGKINGI1L. J1JSTIOE OF FPFL I certify that this is a true copy of the originale 4 1k ( OG/t NJRIJ.'i ) DEPUTY REGISTR.R - I ., . :i -. - - I. H. . . -. . . H, -Ii