20050512 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA · AT DAR ES SALAAM (CORAM: MROSO, J.A., NSEKELA, J.A., And KAJI, J.A.) CIVIL APPLICATION NO. 163 OF 2004 . f. BETWEEN . VIP ENGINEERING AN.D MARKETING LTD ................. APPLICANT VERSUS MECHMAR CORPORATION {MALAYSIA) BERHAD OF MALAYSIA ..............-............................. RESPONDENT .. -- {Application arising from the proceedings of the High Court of Tanzania at Dar es Salaam District Registry in Misc. Civil Cause No. 254 of 2003 Before Honourable Ihema, J.) RULING If NSEKELA, l.A.: In this Notice of M9tion, t~e applicant seeks to move this Court under Rule 4 (3) of the ·Appellate Jurisdiction Act, 1979 as amended by Act No. 17 of 1993 to exercise its revisional jurisdiction to revise the proceedings in Miscellaneous Civil Cause No. 254 of 2003. The applicant had six grounds for seeking the revisional jurisdiction of the court including - 1. :There exists serious irregularities that amount t.o exceptional circumstances in the cond4ct of the High .court proceedings 2 in Miscellaneous Civil Cause No. 254 of 2003 : which call for the · immediate interventi.on of the highest Court before justice is ·irretrievably hijacked. 2. The High Court cannot be seized with jurisdiction to proceed to the oral hearing of the :;~ matters b~fore the: relevant pleading~ are compl~ted, because ·.both the Arbitration Rules and the Civil Procedure Code require the Court first to give noti'c;e to the opposite party to show . cause why the relief sought should not be granted to the other party. 3. The Hig~; Court carinbt have the time to make an accurate and complete record of the proceedings if all the applications are simultaneously argued together orally. 4. Since there was an order of the Court made b/: the 1st J,udge, name°ly Madam Judge Or\yo and which was known to the present Judge, namely Hon. Ihema, J. to 1,f. the effect that the proceedings in Misc. Civil Cause file No. 49' of 2002 to the High L . , , 3 Court from the: Court of Appea·1, and as the pres~nt judge claJms that _he was not aware that Misc .. Civil Case file No. 49 of .2002 had,, already be~n . returned from·. the . '.. Court of'::',.Appeal, the present judge had no . to proceed with hearing of the jurisdiction , matters -i,n Mfscellaneous Civil Case No. 254 of 2003 in contravention of the Order of the .court before determining the present , · applicant's prayer for consolidation." The hearing of the application could not proceed because the respondent, through ttie learned advocate, D. Kesaria, took a preliminary objection baRed on two 'reasons, namely - ·}, . . . :i (1) .Pursuant to 'the Written Laws (Misc. Amendments) Act (No. 25 of 2002) the a·pplication herein for revision is expressly and specifically prohibited. :, (2) The application is an abuse of the ,.; p~ocess of the Court intended to derail and delay the High Court proceedings. J :;..~. -f ,f 4 Mr. Kesaria, learned advocate for the respondent, very {~ forcefully submitted that Section 5 (2) (d) of the Appellate '. Jurisdiction Act, 1979 as amended by Act No. 25: of 2002 was a complete bar to an application for revision since it is prohibited. The :-! ' learned advocate submitted to the effect that the respondent filed in ~- ;_; ; the High Court Misc. Civil Cause No·. 254 of 2003 for the enforcement of an arbitration award. However, these proceedings could not proceed since the applicant had filed applications for setting aside the award. He added that the parties had appeared on the 1.12.2004 before Ihema, J., who ordered that ttie learned advocates appear ' before him on the 7.12.~004 for hearing of submissions. This was not possible since th~ . applicant had already filed revisional proceedings before thi~ Court. The learned advocate also complained that the application was an abuse of process of court. ..' ,Mr. Kesaria could not comprehend under what provision of the law : the applicant could seek1_::direction and guidance from·· the· Court. He l·' added that there are no ,decisions of the High Court that can come before · the Court for._; revision. The learned . advocate bitterly 5 : . ll complained that the application herein was aimed at derailing, as he j; :•. put it, the proceedings before the High Court . .·,,. On his part, Mr. C Tenga learned advocate for the. applicant, . . with equal force, vigorously countered the submissions made by Mr. · D. Kesaria. The learned advocate contended that Mr. Kesaria had .' completely missed the :import of the application for revision. He submitted that the applicant did not target any particular interlocutory decision or order of the High Court. Rather, it was the apparent total disregard by the High. Court of the procedural rules thus leading to confusion. For instance, he added, two judges have dealt with Misc. Civil Cause No. 254 of 2003 and had made certain Orders which have not been complied with. Mr. C. Tenga concluded that this is the sort of procedural disorder which has to be sorted out now and this can only be done by way of revisional proceedings in ~ this Court. Mr. Tenga strongly relied on the decision of this Court in Civil Rev·ision No. 1 of 1999 between (i) Fahari Bottlers Ltd. (2) . '· Southern . Highlands Bottlers Ltd. v. (1) Registrar of Companies (ii) . National Bank of Commerce (1997) Ltd. (unrepo_rted). 6 Mr: Kesaria's preliminary objecti_on is based· on Section 5 (2) ( d) of the Appellate Jurisdiction Act, 1979 as amended by Act No. 25 of 2002. It provides as follows - "( d) no appear or application for revision shall· '· 1· 1 I •' ·Iie against qr be made in respect · of any preliminary . or interlocutory decision or order ~ . ·, ' ' of the High 'Court unless such decision or order has the effect of finally determining the criminal charge or suit." ( emphasis added) Under Section 4 (3) of the Appellate Jurisdiction Act, 1979 as amended by Act No. 17-of 1993, the-Court is empowered to call for and examine the record of any proceedings before the High Court for i" the purpose of satisfying itself· as to the correctness, legality or propriety of any finding, order or any other decision and as to the regularity of any proceEfdings of the High Court. Mr. Tenga, very I. seriously complained th 9t the proceedings in the High Court were fraught_. with irregularities rendering them ··difficult to follow. ,. , l 7 .,~ •• f .d . Consequently remedial measures by way of revision were imperative without waiting for a fin~:I decision at the end of the trial of the suit. - r . " It is evident that Section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 as amended bars appeals or applications for revision against any preliminary or interlocutory decision or order of the High Court _unless such decision or order has the effect of finally determining the suit. So the first. hurdle that the applicant has to jump over is whether or not the application for revision is competent. · It is common ground th_at so far the High Court has not made any preliminary or interlocutory decision or order in · respect of this matter. A question we'.:ask ourselves, does section 5 (2 (d) of the Appellate Jurisdiction Act as amended bar all applications for revision even where the High Court has ·not made any interlocutory order or decision? With respect, we do not think so! - Assuming, without 'deciding anything since we do not have the full facts placed before us, if the purported irregularities are in fact present, should the proceedings in the suit still continue unremedied? This Court, in Civil '. , . Revision No. 1 of 1999 between (1) Fahari Bottlers Ltd. (2) Southern Highlands Bottlers Ltd. v. The Registrar of f. I 8 C()mpanies (2) The National. Bank of Commerce (1997) Ltd. (unreported) made the following pertinent observations: · "It is obvious.to us that the proceedings in the High. Court .¥Jere affected by confusion and that _the COJlfusion. was. deepen~d by . the .;· changes of :·;judges who:·; presided over the proceedings.:: Three judges were .involved at ' · various stages of ttne proceedings. When such a situat-ion occurs, there :is .likely to be confusion, LJnless the succeeding judges thoroughly study the record of · previous proceedings.·'. This does not seem to have been done in this case. Moreover, no reasons are given on the record to explain change of judges, especially when the individual calendar system requires that once a case is assigned to an individual judge or magistrate, it has to continue before that particular judge or magistrat.~ .to its final conclusion, unless •1# • ' - . there are gobd reasons for doing otherwise. The system is_ meant not only to facilitate case mana9emenf · by trial judges or magistrates, but also to ;promote accountability on their_ part. The un_explained failure to observe this 9 • procedure in(this case is certainly irregula·r, to say the. lea·st. Such ir.regularities. and . the accompanying confusion in our view are not amenable t~ . the . appellate ·process . for remedy. Th.ey are amenable to the revisional . process." This Ruling was delivered on .the 12.3.99 some three years before Act No. 25 of 2002 came into force. The prohibition brought about by Act No. 25 of 2002 was in respect of appeals or applications .I• . for revision against any _interlocutory decision or order of the High Court unless such dec·ision ·. or order has the effect of finally ·determining the suit. There is no interlocutory decision or order which is being sought to be revised. There is a. serious general complainLby the applicant thaf so far the proceedings in the High Court are in a state of confusion and being conducted in a haphazard il manner. Apparently the parties do not know what Court Order to follow! \· I• . . . 1, r· - '. 10 With this backgro,0nd informa~ion, though scanty. for obvious reasons since we are on,ly dealing with the preliminary objection, we are of ~he view that Sec~i,on 5 (2) (d) of the Appellate Judsdiction Act, 1979 as amended, is \not applicable to such proceedings. We therefore overrule the Rreliminary objection with costs. Hearing of the. substantive application ; for revision . will be heard on a date to be fixed by the Registrar. ,:: DATED at DAR ES ~ALMM this lih day of May, 2005. J.A. MROSO JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL ~ ' S.N. KAJI JUSTICE OF APPEAL I certify that this i~; a true copy of the original . . ,· :~, •. ( S.M. R A YIKA ) REGISTRAR