20080529 TZCA DDar es salaam

1 4 IN THE COUR OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, J.A.,NSEKELA, J.A. And OTHMAN, iSA.) CIVIL REFERENCE No. 6 OF 2007 THE SENATE OF THE UNIVERSITY OF DAR ES SALAAIvl ..........................................APPLICANT VE RSU.S EDMUND A. MWASAGA AND 4 OTHERS ............ RESPONDENT (Reference from the Ruling of a single Judge of the Court of Appeal of Tanzania at Dar es Salaam) (Kileo, J. A.) Dated the 17th day of August, 2007 in Civil Application No. 15 of 2007 RULING 21 April & 5thJune 2008 OTHMAN,J.A. In this reference mov.ed..under Rule 57 (i)(b) of the Court of Appeal Rules, 1979 (Rules) the applicant seeks to fault the decision of a single Judge, Kileo, J.A. delivered on 17.08.2007 in Civil Application No. 15 of 2007 whereby the applicant's application for leave to file a supplementary record of appeal under Rule 92 (3) was dismissed with costs. At the hearing of the reference on 21.04.2008 Mr. Mnzava learned advocate for the applicant, submitted that it was necessary to apply to a single judge to file a supplementary record of appeal under Rule 92 (3) that would have contained a drawn order not yet in existence, as the drawn order appearing at pages 573-574 of record of appeal in Civil Appeal No. 61 of 2005 was incorrect, it having been signed by the District Registrar instead of the High Court judge who pronounced the judgment as required under Order XX rule 7 of the Civil Procedure Code, 1966 and that the issuance by the court of an amended or new drawn order requires an order by this court. He drew our attention to paragraphs 6, 7 and 9 of his affidavit deponed on 12.2.2007 whereby it is avered that the drawn order in ri the record of appeal is improper and that if leave is granted he would make the-supplementary record of appeal on supply of a properly drawn order, without delay. He added that leave to file a supplementary record of appeal was the only means of "transmitting" the correct drawn order into the record of appeal. 2 Mr. Mnzava faulted the single judge for not having looked into the details of the application and the affidavit before her as what he had sought was an amendment of the improper drawn order in the record of appeal, which could not be done by the High Court without this court's leave. That an amendment of the drawn order without this court's leave was null and void. He complained that she had misconceived or misunderstood what the court had been asked for. He emphatically submitted that under Rules 18, 47 and 104, both an application and leave of this court are necessary to amend any document filed in court. He led the court at some length through each of those provisions. Mr. Mnzava also clarified that he did not file the application for leave to file a supplementary record of appeal because no leave was required under Rule 92 (3) to file a supplementary record of appeal. That he was aware that no leave is required as he had done so several times in the past without the court's leave. He argued that Rule 92 (3) embraced all categories of supplementary records of appeal, non existent included. Mr. Mnzava observed that one thing that grieved his sense of justice was that the mistake on the 3 drawn order was the cOurt's, but they had to struggle to make the court correct it's own mistake. Resisting, Mr. Magesa learned advocate for the respondent submitted that the reference was baseless as the impugned decision of the single judge was correct under the law. He indicated that the application before her had only two prayers, namely, (a) to be allowed to file a supplementary record of appeal and (b) costs. That the issue then to be determined, i.e whether in terms of Rules 92 (3) leave of the court is required to file a supplementary record of appeal was set out by the single judge at page 13 of the decision. That she was right to say that a correct drawn order can be obtained administratively. Relying on Haruna Mpangaos and 902 others V Tanzania Portland Cement Co Ltd, Civil Appeal No. 10 of 2007 (CAT) (unreported) he submitted that the facts therein demonstrate that a new drawn order can be obtained without this court's leave. That apart, Mr. Magesa submitted thatthere was no application for an amendment for the drawn order before the single judge. That on the application before her she was only going to grant leave to file ru a supplementary record of appeal and not leave to amend any drawn decree or order. He indicated that there is in fact a pending notice of motion in Civil Application No. 49 of 2008 which had been'filed by the applicant on 16.042008 seeking this court's leave to amend the defective decree in the record of appeal. This as reflected in the Applicant's supplementary record flied on 16.04.2008 in this reference. PW Lastly Mr. Magesa made an additional proposition that on Haruna Mpangaos's case even if the applicant was to obtain leave to file a supplementary record of appeal it cannot help him as the original record of appeal filed under Rule 89 cannot be substituted by it and that documents such as drawn decrees or orders thereunder cannot be corrected by way of a supplementary record of appeal. He called this application, praying to correct a correct decision, a wasting of the court's time and urged that it be dismissed with costs. In rejoinder, Mr. Mnzava submitted that preparing a decree by the High Court is a judicial not an administrative act. He indicated that the reason the notice of motion was instituted in Haruna Mpangaos's case was the need to obtain a new decree, which 5 required this Court's order. That the case did not say that the applicant had -to go back and start afresft He concluded by saying that if he were to get an order that a new drawn order be issued and should be filed within 14 days as a supplementary record of appeal, then his problem would be solved. He strongly urged for the application to be granted with costs. In view of the material, the parties submissions and the issues canvassed, we think that before delving in to the merits, is important that a restatement be made of the main task of the court on a = reference. In Daudi Haga V Jenitha Abdon Machafu, Civil - Reference No. 1 of 2002 (CAT), (unreported) the court succinctly explained it thus: "what happens in the full court on reference is to look at the facts and submissions on the basis of which the single judge made his decision. If the full court finds that the single judge overlooked certain important facts or arguments which were before him or he misconstrued or overlooked relevant legal provisions it with interfere. But the full court will not interfere with a decision of the single judge on the basis of fresh facts or n. submissions which were not available to the single judge." That settled, we take the starting point for a consideration of this reference to be the applicant's notice of motion made under Rule 92 (3) and instituted on 15.02.2007. It moved the court for an order that:- "1 The Applicant be a/to wed to file a supplementary record of appeal on the ground the Drawn Order appearing at pages 573 - 574 of the record of appeal is not the correct one as it has been signed by the District Registrar, hence the need for a correct one to be filed as a supplement. 2. The costs to be provided for." That application was supported by Mr. Mnzava's affidavit sworn on 12.02.2007. It was heard and determined by the single Judge on 17.08.2007. The crucial question that we have asked ourselves is what were the material, the real issues and submission before the single judge and on which she considered and determined the application. It is 7 crystal clear on the face of the notice of motion that the Court was moved under Rule 92(3) It provides:- "92(3) An appellant may at any time lodge in the appropriate registry four copies of a supplementary record of appeal and shall as soon as practicable after doing so serve copies of it on every respondent who has compiled with the requirements of Rule79' In her ruling delivered on 17.08.2007 the single judge held that the wording in Rule 92(3) supra, clearly indicates that no leave of the Court is required to file a supplementary record. Mr. Mnzava essentially faulted the single judge for misconceiving that the basic reason leave of this court to file a supplementary record of appeal was sought under Rule 92(3) was because the applicant wanted to• file a supplementary record of appeal not yet in existence that would have contained an amended drawn order, which cannot be issued by the High Court without this court's leave. We have carefully scrutinized all the material before the single judge including Mr. Mnzava's affidavit sworn on 12.02. 2007. We LV have found no trace of the Court having been moved for an amendment of the drawn order under Rules 18, 47 and 104. We agree with Mr. Magesa that what was before the single judge was squarely only the two prayers contained in the notice of motion lodged on 15/2/2007, namely, that the appellant be allowed to file a supplementary record of appeal and costs; not the amendment of any drawn order under Rules 18,47 and 104. The issue of amendment under these rules, therefore, was neither raised nor debated before the single judge. With respect, no matter how attractive and respectable the argument may be it cannot be brought up and be relied upon to fault her decision in this reference. In Tritel Tanzania Ltd V. Tanzania Telecommunications Co. Ltd (ii) Tanzania Revenue Authority, (iii) Tanzania Communications Commissions and (iv) Engineering and Marketing, Civil Reference No. 12 of 2003 (unreported) a preliminary objection containing a new point not before the single judge was raised by one of the respondents to the effect that the applicant no longer had legal capacity to continue the reference proceedings in its name as it had been wound up and a liquidator 66 had been appointed under Government Notice No.751 of 22.08.2003. The Court held that those matters, not before the single judge, were irrelevant to the reference and thereforecannot be a ground for objection. It pertinently explained: "in a reference we deal with what was before the single justice of appeal. Since we cannot fault a single judge of appeal for what was not before him/her then however legal an argument could be, it cannot find purchase with us to strike out the reference on a preilminary objection " In Michael Sanga V. Robert Mwang'onda, Civil Reference No. 24 of 2004 (CAT) (unreported) the Court held that as the single judge did not deal with the two grounds in support of the reference, namely, that the case had never been decided on the merits and that the decision of the Court was against principles of natural justice, they were irrelevant to the reference before it. It stated: on reference, a full bench is only required to confine itself to the decision of the single judge and what was before him and not any other matters that may have been presented 10 but was not or what the applicant may present afresh in his submissions in support of the application." In Abdallah Salanga and 63 others V Tanzania Harbours, Authority, Civil Reference 8 of 2003 (unreported)addressing a point raised and never canvassed before the single judge in an application to extend time to file an appeal, namely, that since the applicants were scattered throughout the country a lot of time was spent in organizing themselves for the intended appeal, the court clearly stated: = "With respect the point cannot be raised at this stage. The point was never deponed in the affidavit in support of the application before the single judge. For that matter the single judge cannot have considered it. In the same vain the point cannot be canvassed in this reference' Having anxiously considered thematter those words echo our own respectful views that Mr. Mnzava's forceful arguments on the amendments intended to be sought as well as referral to Rules 18,47 and 104 cannot assist him on this reference, they not having 11 been articulated before the single judge nor having formed the material and basis of the decision reached by her. In this regard, we are also constrained to point out that some of the well intended questions and scenarios Mr. Mnzava wishes us to take up and provide guidance for legal and procedural prosperity, contained in his letter to the Registrar dated 23.08.2007 that moved this reference under Rule 57 (1) (b) such as whether or not the categories of supplementary record under Rule 92 (3) are limited to existing or on existence records; whether a High Court judge has the 1 authority without any order by this court to issue a new and second decree under Order XX Rule 7 of the Civil ProcedUre Code to be used as a supplementary record, or whether the functus officio rule has any bearing on such action by the High Court are all respectable issues but they, not having been presented or raised before the MW single judge, cannot find a platform to stand on in this reference. Similarly, it is to-be noticed that on 16.04.2008 Mr. Mnzava filed a supplementary record in this reference under Rule 92(3) containing various documents including a notice of motion as Civil Application No. 49 of 2008 and his affidavit sworn on 14.04 2008 lodged on 12 16.04.2008. These documents are not and could not have been before the single judge who heard and determined the application almost a year earlier on 17.08.2007. On the strength of the law as expounded in Daudi Haga, Tritel Tanzania Ltd, Michael Sanga and Abdallah Jalanga cases cited supra, those materials cannot be used to impugne the single judge's decision because they were not before her. Having said that, we are not unattentive to Mr. Mnzava's complaint that the single judge was wrong in holding that the availing to him of a drawn'decree under order XX Rule 7 of the Civil Procedure Code is an administrative matter. This he submitted was a functio officio. As observed earlier, we wish to emphasize that the issue before the single judge was whether in terms of Rule 92 (3) of the Court Rules leave is required before the filing of a supplementary record. Whatever the merits or demerits of the point now canvassed, the fact of the' matter is that it was neither urged before single judge, nor was it at the core of her construction of Rule 92(3). In these circumstances, we are constrained that the occasion is not appropriate for us to determine this peripheral issue in this reference. 13 Reverting to the determinant issue that was before the single judge, that is, whether Rule 92(3) does require that leave of the Court be obtained before a supplementary record of appeal is filed in court, having closely examined the record and account taken of the rival submissions, with respect, we do not see how on what was before her she could be faulted for holding that that rule does not state that the supplementary record is to be filed with leave of the court. In our respectful view that was the correct interpretation of that provision. In the end, it would seem to us the Mr. Mnzava too had no quarrel with that interpretation of Rule 92(3) as he stated that he was aware that no leave of the court is required, himself having filed several times in this court supplementary records of appeal without any such leave. Not to mention the supplementary record in this reference which he filed on 16.04.2008 without any leave of this court. For all the above reasons, we are satisfied that the single judge was entilted to strike out the application which was before her and find no justification to interfere. 14 We are, therefore, constrained to dismiss this reference with costs. DATED at DAR ES SALAAM this 29th day of May 2008. E.N. MUNUO JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL M.C. OTHMAN JUSTICE OFAPPEAL fo ti is a true copy of the original. MI 15