university of dar es salaam vs silvester cyprian 210 others 1996 tzca 39 30 july 1996

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAH: NYALALIt C.J., KAKAME , J.A. . And MFALILA, J.A.) CIVIL APPLICATION NO. 5 OF 1395 In the Matter of an Intended Appeal BETWEEN THE UNIVERSITY OF-DAR..ES. SALAAM* . - . APPLICANT AND SILVESTER CRYPRIAN & 210 OTHERS. . . HESPONTJENTS. (Applica-tlon._f-or..Review from the Judgement of the Court of Appeal of Tanzania at Dar 'es Salaam) (OMAR, MNZAVAS And MFALILA, JJJA.) Dated the 14th day of October, 1994 in Civil Appeal No. 9 of 1994 RULING OF THE COURT NYALALI, ,C.J. : This is an application by the-TJnivei-s-4ty of Dar_es Salaam, hereinafter referred to as the Applicants, for inter alia, a review of this C#urt*s decision in Civil Appeal No. 9 cf 1994 between Tanzania Harbourar AtrWwJrity an^ Hvlta Construction Company Ltd., and f«* a stay rf hearing of Civil Appeal No. 2 of1995 between .the- AppJLicar»ts and Sylvester Cyprian and 21& Others.Before this application came, up for first hearing on 9th July 1996 and was adjourned to 15th July 1996, Civil Appeal No. 2 of 1995 came up for -ojrv- Ts-ovewttae19^>S before the'PuJLl* Be-nch f-f this Court on .a- pjralimirmxry oh^ocvt^ on Iccus standi of the respondents. The Full Bench sat, at the request of the Applicants, who are the appellants in that appeal. The applicants sought to ask the Full Bench, in adjudicating on their objection, to depart from an earlier prtroe'deirt. set by the Court in Civil Appeal No. 9 • • ./2 of 1994 above mentioned. However, the Full Bench, after hearing both sides, was of the view that there was no occasion for any departure from the Court* s decision in Civil Appeal No* 9 of 1994 as that case did not decide any issue of locus standi. Furthermore, the Full Bench clearly stated to the effect that the issue1 of locus standi of the respondents raised in the pending appeal No. 2 of 1995 was within the competency of an ordinary bench of thiree justices of the Court. Thus the Full Bench refused to adjudicate on the objection* with costs, and left the matter to the ordinary court. Thereafter, the Deputy Registrar of the Court wrote to the Chief Corporation Counsel of The Tanzania Lagal Corporation,who are advocates of the Applicants, as follows? "Refer to the above Civil Application * for review filed on 1st February, 1995, Following the preliminary Ruling given by the Court in Civil Appeal No. 2 of 1995, I will l»e grateful t<* know your views or actions you would intend to take in respect of the above mentioned application, i.e. Civil Application No. 5 of 1995". In a letter Ref,No. TLC/30/lINIV/iOO dated 20th February 1996, signed by Mr. W.N, Mnzava for the Chief Corporation Counsel, the Registrar was informed, inter alia, to the effect that the applicants intended to pursue this application before an ordinary bench of justices of this court. Thereafter, Civil Appeal No. 2 of 1995 came up for hearing in March 1996 and judgement was reserved- Subsequently, this application also came up for hearing before us. Mr. W.N, Mnzava appeared and advocated for 3 the Applicants, whereas Mr. J. Ndyanabo appeared and advocated for the respondents, namely, Sylvester Cyprian and 210 Others. Mr.Lukwaro, learned advocate, appeared as AMICUS CURIAE. Prior to the hearing of the application, Mr. Ndyanabo, Counsel for the Respondents, filed a Notice of Preliminary Objection under the provisions of rule 100 of the Tanzania Court of Appeal Rules, 1979, in which he stated that, "... the application is incompetent and bad in law it being interlocutory to Civil Appeal No. 2 of 1995 which has already been argued, inter-partes and the judgement thereof has been reserved. The Counsel for the respondents will therefore pray that this application be struck out with costs". In the course of hearing this objection, incidental questions arose as to the meaning of the expressions "preliminary objection" and "interlocutory" as used in the Respondents’ Notice of Preliminary objection. It seems to us that the expression "interlocutory" has already been judicially considered under English law. According to JOHN B. SAUNDERs' WORDS AND PHRASES LEGALLY DEFINED, Second Edition, Vol. 3 page 82, "Th«se applications only are considered interlocutory which not decide the rights of parties, but are made fo» the purpose of keeping things in status guo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties". We do accept that this is the correct meaning of the expression "interlocutory” and the same applies to judicial proceedings in this country, and we thus agro? that this application is interlocutory to Civil Appeal No. ? of 1995, which has already been heard by another .../4 4 panel of justices of this court. As to the meaning of the expression "preliminary objection” , we must point out first that rule 100 which is relied upon as the basis for the Notice of Preliminary Objection, is inapplicable to applications. That rule states: "Where a respondent intends to take a preliminary objection to any appeal or any part of it, he shall, as soon as practicable before the hearing begins, give reasonable notice to the Court and to the other parties to the appeal of that objection, and if that notice is not given the court may adjourn the hearing and make such order as to costs as it may deem just". It is apparent that rule 100 applies to appeals only. It is also apparent that there is no specific rule concerning preliminary objectio-n to application filed in the court. We are however satisfied that in the absence of such specific rule, the general provisions of rule 3 apply. We are also satisfied that a preliminary objection to an application is, procedurally, similar to a preliminary objection to an appeal, and must therefore be made before the hearing of the application begins. We now come t* the merits of the Notice of Objection. Essentially, the R«epcirw!-ents are saying that this interlocutory application by the A^iplicants is misconceived because what the applicants are asking from the Court can no longer be granted at this stage. As already mentioned, the main thrust of the application is a "review of the Courts Ruling in Civil Appeal _ - _ /5 5 9 of 1994 between Tanzania Harbours Authority and Mvita Construction Company Limited ..." and that "... the hearing of the pending Civil Appeal No. 2 of 1995 ... be stayed until the Court determines the said Review as the Ruling in Civil Appeal No. 9 of 1994 affects the Appellants in the pending appeal". We have asked ourselves whether this court can grant the applicants' prayer if what they seek is the same as that which they sought from and was refused by the Full Bench in the preliminary objection in Civil Appeal No. 2 of 1995. The answer must be in the negative because firstly, that matter is already res judicata and secondly^ only a Full Bench can grant what the applicants seek. Also we have asked ourselves whether we can grant the prayer if what they really seek is an alteration of the decision in Civil \ Appeal No. 9 of 1994. The answer again must be in the negative because the present case and the present parties are not the same as in Civil Appeal No. 9 of 1994. The law on this point is settled by this Court in a number of decisions including the case cited to us by the Applicants, that is, the case of ABOOD SALEH ABOOD and .. MARYAM l^BARAK SALEH, Civil Application No. 19.of .1992 (not vet reported). As to the Applicants' prayer to this court to order a stay of the hearing of Civil Appeal No. 2 of 1?95, we cannot grant it because the appeal has already been heard and secondly, because one panel or bench of this Court is not empowered to intervene in proceedings commenced and pending before another panel or bench of the same Court. This is because all panels or benches of the Court are of the same st 'tus and none is subordinate to another. .../6 6 We are of the considered opinion that in view of the decision of the Full Bench given on 27th November 1995, Counsel for the Applicants, ought to have realized that the present application stood no chance of success and deserved to be withdrawn, to avoid incurring unnecessary costs. Under these circumstances, we have asked ourselves whether this is not a proper case to invoke the provisions of rule 116 of the Tanzania Court of Appeal Rules, 1979, which states: "If it appears to the Court that costs have been incurred improperly or without reasonable cause, or by reason of any undue delay in proceeding under any judgement or order, or of any misconduct or default of the advocate, any costa properly incurred have nevertheless proved fruitless to the person incurring them, the court may call upon the advocate by whom such costs have been so incurred to show cause why those costs should not be borne by the advocate personally, and thereupon may make such order as the justice of the case may require". We asked Mr. Mnzava, learned counsel, to show cause why costs should not t>e ortKaret* be personally paid by him. His response is jto the effect that such an order would be unjust to him, since I he had spent so much of his energy fighting his client's case in the Court of Appeal. With due respect, we do not think that there was good cause for ©pending valuable energy pursuing this application after the decision of the Full Bench was given and after the hearing of Civil Appeal No. 2 of 1995 was concluded. .../7 7 In the final analysis therefore we uphold the objection made by the respondents and order that the application be struck out, ! We further order that the costs of this application be paid persot>ally by Mr. Mnzava* learned counsel for the applicants. DATED at DAR ES SALAAM this 3«th day of July, 1996. F.L. NYALALI CHIEF JUSTICE L.M. MAKAME JUSTICE OF APPEAL L.M. MFALILA JUSTICE OF APPEAL I certify that this is a true copy of the original. ( M.S. s L a N g /iLI ) DEPUTY REGISTRAR