20140912 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DARES SALAAM. · ; CIVIL REVISION NO. 47 OF 2007 I ' YASMIN MOHAMED HUSSEINGIKASSAM (as Guardian ofNabil Mohamed Hussein Kassam, and Abdulaziz Mohamed Bussein Kassam, Minors) ........................... APPLICANT . VERSUS. AFZAL SAMEJA ......................... ;~ ..... ·............................... RESPONDENT RULING 1/12/2011 & 12/9/2014. This is a ruling in respect of preliminary objection (PO) lodged by the respondent in this app1ication, AFZAL SAMEJA against the application· filed before this court by the applicant, YASMIN MOHAMED HUSSEING KASSAM (as Guardian of Nabil Mohamed Hussein Kassam and Abdulaziz Mohamed Bussein Kassam, who are Minors). The application is seeking for the following orders; 1. That ~his Honourable court may be pleased to call for the record of the RM's Court of Dar es salaam, at Sokoine (lower court) in Misc. Civil• Cas.e No. 3 of 2006 for purpose of 'satisfying itself as to legality, propriety and or regularity of the proceedings therein and in pa:ry:icular the ruling and orders of the court dated 3rd September, 2007·,. and if not so satisfied, make an' order nullifying and · quashing the same. 2. Anfother 1 or such relief this court may deem fit to grant. 3. costs be provided for. Page 1 of 11 1 The application is made by way of chamber su1nmons under s. 43 (2) and 44 (1) (a) and (b) of the Magistrates' Courts Act, Cap. 11, R. E. 2002, s. 95 of the Civil Procedure Code 1966 and any other enabling provisions of the law. It is supported by the= affidavit of one Sy Ivester Eusebi Shayo, counsel for the applicant. .. · ):'he PO raised by the respondent is footed on the fallowing four point; . · a) That in so far as the applicant-w~s ·a party to the proceedings before the lower court, she has an automatic right of appeal and cannot invoke revisional jurisdiction. · b) That in so far as revisional proceedings were initiated by the applicant then the application ought to have been accompanied ~ith a drawn order. c) That in so far as the applicant has been pursuing similar and or related re1nedy in High Court Civil case No. 80 of 2003, then it· is prudent that the present proceedings be stayed pending finalisation of the initiated proceedings in that case. d) That in so far as the order complained of has already been enforced by the demolition of the suit premises then this application has already been overtaken by events and its determination wiil not serve any useful purpose. ·1 • The applicant did not concede to the PO, and the parties were ordered to 1nake their respective arguments in writing. They accordingly filed the same. The applicant was represented by Mr. Shayo learned counsel as hinted earlier while the respondent was advocated for by Mr. Rutabingwa, learned counsel. In deciding this matter, I opt for the following scheme; I will test the first point of PO [numbered a) herein above] by considering the law, record and the arguments by the parties and make a finding. If need arises, I will also cqnsider the rest of the points of PO. Reasons for this plan are that, according to the circumstances of the case ·and t~~ anatomy of the application, the first ground of PO will be capable of disposing of the entire application in case it will be upheld. Page 2 of 11 •' l " .J. I In s_upport of the first ground of f O the learned counsel for the responde1't submitted thus; before the lo'Yer court the present respondent successfully applied against the present applicant, for vacant possession regarding··.premises on plot No. 12 Tandamti Street, Kariakoo area, Dar es salaam. The lower court exerciseq its original jurisdiction; hence any party aggrieved by its decision hacJ,::a right to appeal to thfs court. That right was. not blocked in ariy way so_ that the applicant could be justified to file this· application for revision. The learned counsel also submittep that, the procedure used by this court in revising decisions made by subordinate courts is similar to the procedure used by the Court of Appeal of Tanzania (CAT) in revising decisions' of this court. He added that, the law is to the effect. that, an application for revision is incompetent where a right to appeal exists and the applic~nt fails to exercise that right. He ctt~d the CAT decision in Maira, Sanze · and Company Advocates v. Tanzania Revenue Authority·; Civil Application No. 101 of 2000 (unreported) to fortify the argunient. He contended further that, the application at hand is incompetent for the applicant's failure to appeal against the decision of the lower court. He thus urged this court to dismis~ the application. In his replying submissions, the learned counsel for the applicant argued tliµs; the procedure for revisions befor_e this court is different from the procedure for revision before the CAT. The difference is based on the fact that the former procedure is governed by ss. 43 and 44 of 1 Cap. 11 and s. 79 of Cap. 33 while the later is guided by s. 4 of the Appellat~.}urisdiction Act, Cap. 141 R. E. 2002 and rule 65 of the Court of Appeal .Rules, 2009. The two laws have different wordings. The learned c,:o_µnsel also submitted that, the right of revision in the High Court is independent of the right of appeal and a party to court proceedings may apply for revisions though the right of appeal exists too. · Furthermore, the learned counsel for the applicant charged that the revisional right under s. 43 and 44 of Cap. 11 is· wider than the revisional right under s. 79 of Cap. 33, he cited the following precedents to support Page 3 of 11 II this point; Zabron Pangamaleza v. Joachim Kiwaraka & another [1987] TLR 140 (CAT), Abdu Hassan v. Mohamed Ahmed [1989] TLR 181 (HC), Kampuni ya Uchukuzi Mwanza Limited ,-,v. Gabriel C. Riwa [1986] TLR 40 (HC) and Southern Esso v. Peoples Bank of Zanzibar and another [2001] TLR. 43 (HC). The learned counsel also distinguished the case of Maira,· Sanze and• Company Advocates (supra) on the ground that it interpreted the Court of Appeal Rules and not ss. 43 and 44 of Cap. 11. He also argued that, the respondent failed to cite any authority showing that a revision preferred before this court under ss. 43 and 44 of Cap. 11 w~s rejected on grounds that an applicant has a right to appeal. ·· In his rejoinder sub1nissions, the learned counsel for the ;respondent reiterated his submissions in chief and added that, no any pre~edent cited by the applicant's counsel decided that a party to cou1t procee_dings may apply for revision before this court while the right of appeai•'exists. He added that the legal stance that revisional powers of this court under ss. · 43 an~ 44 of Cap. 11 are wider than its revisional powers under s. 79 of Cap. 33 does not mean that the revisional right can be exercised where the right of appeal exists. The learned counsel also submitted that, the re1narks in Mulla, the Code of Civil Procedure, 16th Edition,·. Vol. 1, at pate 1222 supports the stance ·that a party cannot apply for revision before the High Court unless there is no any other remedy available for hitn. He also cited a decision of. this court in the case of Mahmud . Shamte v. Mary Shamte, Civil Revisin no. 57 of 2004, at Dar es salaam (unreported) where it was held that at any rate, a revision of the lower court's decision should not be used as a substitute to an appeal which has been struck out. I now engage myself in testing the first ground of PO. :According to the arguments _by the parties who are ably represented~ it is not disputed that the· applicant had a right of appealing against the lower court decision, but she did not wish_ to exercise that right. In my view, the parties are justified in believing s·o because, from the record and their respective arguments, it is not disputed that' both the applic~nt and the appellant were parties before the lower court. The lower ~ourt heard Page 4 of 11 I • I ; ' I both of th·e~ and ultimately made a ruliJg (dated 2/9/2007) grantinK the application before it. From the impugned ruling of the lower court, it is clear th~t- a preliminary objection based on various points (the point of jurisdiction inclusive), had been raised by the present applicant, and they were decided by the lower court in that same ruling. The lower court t?us d~cided th_e application ~n m~rits. _Whl.ether or not that decision .~as nght, is not an issue to be decided in this forum. . Themain issue according to thb argume,nts by the parties is therefore . .reduced to this; whether or ~of the applicant in the· matter under di$c'Ussion could file the application for revision the way she did, amid the., existence of her right of appeal. As indicated previously, the applicat16n is preferred under ss. 43 (2) and 44 (1) (a) and (b) of Cap. 11, s. 95· _of Cap. 33 and any other enabling provisions of the law. However; I will take it that, the applicant is essentially applying for revision under ss. 43 (2) and 44 (1) (b) of Cap. 11 though she also cited s. 95 of Cap. 33 as.enabling law. This view is based on the grounds that, s. 43 (2) of Cap. 11 directs that appeals, revisions and references of civil nature from the District Court or. Resident Magistrates Court lie to this court. S ..4.4 (1) (a) of Cap. 11 does:not give this court revisional powers, it only gfv.~s it supervisory role of giving directions to subordinate courts in t~e form of guidance, see Director of Public Prosecution v. Elizabet~ Michael Kimemeta· @ Lulu, CAT Criminal Application No. 6 of 2012, at Dar es salaam (unreported).S. 44 (1) (b) of Cap. 11 is the actual section that vests this court with revisional powers related to matters arising from subordinate courts. S. 95 of Cap. 33 does not apply here because,· it only applies where there is not law guiding a particular situation, see the decision by the CAT in the case of Aero Helicopter (T) Ltd vi'F.N. Jansen [1990) TLR 142. In the matter under discussion however, as hinted before s. 44 (1) (b) of Cap. 11 takes over, hence s. 95 of Cap. 33 becomes displaced. . .. ,...... , In my further view, and according to the provisions of s. 43 (2) of • Cap. 11, appeals and revisions from a Resident Magistrates' Court must only be those authorised by the law. It niust also be born in mind that, appeals ~rom those same proceedings are also governed by ss. 70-76, Page 5 of 11 Order XXXIX ( appeals from original decrees) and Order XL (appeals from orders) of Cap. 33. Again, rev.isions of such proceedings are also • controlled bys. 79 of Cap._33. . . ·. 1 ~ The provisions of s. 44 (I) (b) of Cap. 11 under :which this application was mainly based; read and I quote for a readymade p reference; "In addition to any other powers in that behalf conferred upon the High Court, the High Court may, in any proceedings of a civil nature determined in a district court or a court of a resident magistrate on application being made in that behalf by any party or of its own n1otion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order ~µerein as it sees fit" The generality of all the above cited provisions of law is, in my construction, that the legislature intended to create the right of appeal differently from the right of revision. It also enacted different laws to be followed by an aggrieved party to court proceedings who wants to exercise either of the two rights, where the law authorises him/her so to do. It is for this reason that the law clearly categ9rises which· r,natters are appealable and which are not. It also categorically guides as to which matters are subject to revision. Moreover, tqe law is to the effect that, every Act of parliament is deemed to be a public Act and shall be judicially noticed as such, and every section of an Act takes _effect as a substantive enactment without introductory words, see ss. 22_ and 23 of the Interpretation of Laws Act, Cap. 1 R. E. 2002. In my view therefore, the legislature intended to create two parallel legfll lines for seeking rights that do not meet, though they heed to the same designation, i. e. they all intend to dispense justice by way of correcting defects embodied into. the decisions or proceedings of lower courts. In so doing, the legislature . specified which matters will be revisable and which will be appealable. The legislature did not, in my view, intend to make revisable ma~ers appealable or appeala~le matters Page 6 of 11 . ,','1 I revisable, otherwise it could not have bothered to enact rules of appeal differently from the rules ·of revision. This particular view is based on the understanding that, every law is enacted for a specific purpose, and no iaw can be enacted purposelessly or for cosmetic intent. It follows therefore that, to accept the applicant's argument that the right to appeal an~ the right to revision can be exercised interchangeably or altema#vely, will amount to stretching the construction of the above cited legal provisions beyond their elasticity and against the legislative purpose. 1he effect o{ accepting that argument will be to invite chaos in courts for, aggrieved parties to court proceedings facing similar circumstances will resort to distinct procedures of seeking remedies. For that reason, the law in our jurisdiction will neither be certain, nor consistent, .. nor predictable, nor uniform. Certainty, consistence, predictability and uniformity are the basic characteristics of good law, see also: remarks in my ruling dated 07/06/2011 in the case of Nicholaus .Outa v. Julius Outa, High Court of Tanzania, Misc. Land · C~se Appeal No. 86 of 2008, at Mwanza (unrepotted). The ~bove views are supported by the "Purposive Approach" . style of statutory construction. The approach requires courts to adopt such a construction as will promote, the general legislative purpose underlying th~ statute. Wh.enev.er the strict interpretation of a statute gives rise to an absurd and unjust situatio"n, the judges can and should us.e thei.r good sense to r.emedy it, by reading words if necessary, so as to do· what Parliament would have done had they had the situation in 'mind. This approach is based on th~_ ~·nglish le~al practice, but is ~lso applicable· in our law, see the CAT's decision in the case of Goodluck Kyando Page 7 of 11 v. Republic, Criminal Appeal No; 118 of 2003, ·at Mbeya (unreported), following its previous decision in Joseph Warioba v. Stephen Wassira and Another [1997] TLR 2 72 and the English decision in Nothman v. London Borough of Barnet [1978] 1 ALL ER. 1243 (as per Lord Denning. MR). It follows thus that, a party aggrieved by any d~cision or proceedings of a lower_ court, must first determine which farum between an appeal on one hand and a revision on the other, will avail him with a proper remedy depending on the circumstances of his case: Furthermore, that aggrieved party must first be sure whether that remedy he chooses is .authorised by the law or not. In other words, if he elects fo~ a revision, he must assure himself that the matter is legally revisable, and if he chooses an appeal he must as well guarantee himself that the,matter is in fact appealable in law. For this understanding the· CAT once held that a right to appeal can only be founded on the relevant statutes and any party who seeks to avail himself of that right must strictly comply with the conditions prescribed by the statutes; Ludovick K. Mbona v. National Bank Of Commerce [1997] TLR 26 (following the Court of Appeal for Eastern Africa in the case of Harn am Singh.· Bhogal t/a Harnam A. Singh & Co v. Jadva Karsan [1953] 20 EA.CA 17). I would also add immediately here that a right for revision to this court under s. 44 (1) (b ). of Cap. 11 can only be founded· on the relevant provisions of the law and any party who seeks to ava~l himself of that right must strictly comply with the conditions prescribed by 'the law. In the Abdu Hassan case (supra) for instance, it was held that:such right for revision is exercisable only where it appear that there has been an error material to the merits of the case involving injustiGe. · I also had an opportunity of going through all the authorities cited by the parties in this matter. I will however, not put much reliance upon· , them because, none of them considered an issue similar to the one under consideration, i. e. whether or not a right of revision under s.. 44 ( 1) (b) of Cap. 11 is exercisable when the right of appeal exists. The Maira, Page 8 of 11 • ... A.,. .. ,• ,•· I Sanze and Company Advocates case (~upra) int~rpreted the Court of Appeal Rules which _do not apply in the matter under discussion as rightly atgued by the learned counsel for the applicant. The Zabron Pangam_aJeza case (supra), Abdu Hassan case (cited above) and the Kampuni ya · Uchukuzi Mwanza_ Limited case (supra) mainly 6 discussed ~nd decided that revisional powers of this court under s. 44 ( 1) (b) of Cap. 11 are wider than its powers under s. 79 of Cap. 33. Furthermore, the Southern Esso case (supra) . case discussed and decided on revisional powers of the High Court of _Zanzibar the law of which does not apply in the matter._ at hand. Again, the remarks in Mulla, the Code. of Civil Procedure, 16th Edition, Vol. 1, at pate 1222 (supra) did not specifically discuss the provisions of s. 44 (1) _(b) of Cap. 11 and the right of appeal in Tanzania. As to the Mahmud Shamte case (cited above), I will come to it later. Nevertheless, in other occasions this court had an opporu+nity _q_f testing a _similar issue. In the case of Kenedy Kamwela v. Sophia Mwangulangu·and another, High C:ourt Misc. Civil Application No. 31 of 2004, at Mbeya (unreported) ~or instance, this court (Othman, J as he then was) ~eld that, following the existence of s. 44 ( 1) (b) of Cap. 11 ands. 79 of Cap. 33, a revisional right cannot exist where there is a right of appeal. In so deciding, this court distinguished its previous decision in Lazarius · Dancan Mwaisaka case, High Court Misc. Civil Application No. 31 of 2004, at Mbeya (unreported) where this court (Mackanja J, as he then was) had held that revisiohal right could exist in the presence of a right of appeal. I totally agree with the holding in the Kenedy Kamwela case (supra) for the reasons I have given earlier. In fact, I would go further and hold that tliough I agree with the applicant's. argument that revisional powers of this court under s. 44 ( 1) (b) of Cap. i 1 are wider than those under s. 79 of Cap. 33, I do not agree ·with him ·_that such wideness makes .a revisional right as an alternative _right to th~ right of appeal. For this reason,_ I hold that a revisional right, . whethe,r under s. 44 (1) (b) of Cap: 11 or under s. 79 of Cap. 33, cannot be an alte~ativ·e right to the right of appeal. This view is also supported by the followip.g cases of this court; Mahmud Shamte case (cited Page 9 of 11 above), Tanzania Railways Corporation v. Commisioner for Sales Tax High Court, Civil Revion No. 40 of 1996, at Mwanza (unreported) and Tarime District Council v. Wilson .E. Awour High Court Civil Revivion No. 6 of 1999, at Mwanza (unreported). Though in these precedents it was not clear as to which provisions ,of the law were discussed (i. e. between s. 44 ( 1) (b) of Cap. 11 and s. 79 of Cap. 33), my view is that whichever provision of law was at issue in those cases the position remains the same, that a _right of revisioh is not an alternative to a right of appeal to this court. ·I so decide because, these provi~ions (s. 44 (1) (b) of Cap. 11 and s. 79 of Cap. 33) are the only provisions of law vesting this court with revisional powers as I hinted previously. The Tanzania Railways Corporation case (supra) and the Tari me District Ocuncil case (cited above) were decided by a single Judge of this Court (Masanche J, as he then was) following the case of Israel Mwakalabeya v. Ibrahim Mwaijumba, High Court Misc. Civil Application No. 21 of 1991, at Mbeya (unreported, by Mchome, J as he then was) which had held, and, I quote, for· a swift of reference, the pertinent part of it which was also quoted by Masanche J, in his both cc;i_~es (supra); · "The right to invoke the Courts powers for revision is not an alternative to appealing. Where the order complained agai_nst is appealable, the court will not use its powers for; the right of appeal is the remedy open to the aggrieved party. Even where . the time for appealing has expired, a party has the remedy 'to appeal out of time." · · I totally subscribe to this reasoned remark, which fonns a good guidance g to parties to proceedings like the applicant in the matter at hand. Having observed as above, I answer the issue _negatively to the effect that the applicant in the matter under discussion could pot file the application for revision the way she did, amid the existence of her right of appeal. I thus uphold the first point of PO. In 1ny view, the legal effect of this irregularity .committed by the applicant is that, it renders the Page 10 of 11 I " application incompetent for being impfoper before this court. The remedy· is thus to strike it out and not tof dismiss it as proposed by the respondent. This finding thus~ reliefs me from testing the rest of the p·oints of PO since the first point is capable. enough to disposing of the entire matter as I hinted earlier. I therefore, strike out the application. However, I will not order costs to follow. event. Fallowing the circumstances of this case, in which the appli~ant litigates for minors, and following the fact that the matter has .been disposed of at its embryonic stage, I order that ~ach party shall bear his own costs. Ordered accordingly. JHK.UTAMWA JUDGE 12/9/2014 '' ····•' ... -•. I Page 11 of 11 " "