20071204 TZCA Zanzibar

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR ZNZ CIVIL APPLICATION NO 6 OF 2005 BETWEEN ZANZIBAR SHIPPING CORPORATION AND MKUNAZINI GENERAL TRADERS RULING 03 & 7 December, 2007 KILEO, J.A.: Preliminary objection has been raised to an application filed by Zanzibar Shipping Corporation for leave to appeal to this Court l agair:ist the Ruling and Order of the High Court of Zanzibar (Kihio, J.) in Civil Case No. 19 of 2002 dated 09/06/2004. Zanzibar M.M. Law Chambers filed the preliminary objection on behalf of the respondent. At the hearing of the preliminary objection, the respondent was represented by Mr. Mbwelezeni and Mr. Mnkonje, learned advocates. Mr. Ukongwa, learned advocate, represented the applicant. A brief history leading to the matter before this Court may be helpful in better appreciation of the issues involved. On 19th Day of December 2001 an Award was made with regard to a dispute between the parties that was submitted to . ., . ,. 2 arbitration. According to what can be gathered from the Ruling of Duarado, J. dated l st day of July 2002, the applicant had disputed the Award. However, its grievance was found to be without substance and the terms of the Award were upheld. On 11 .03. 2003, which was some eight months later, the applicant filed an application for extension of time within which to file an application for review of the Ruling of Duarado, J. mentioned above. The application for review should have been filed within 90 days of the decision sought to be reviewed, hence there was a delay of about five months. Kihio, J. found that no sufficient cause had been shown for the delay and he dismissed the application by his ruling delivered on 09/06/2004. The applicant's application in the High Court for leave to appeal against the decision by Kihio, J. was unsuccessful and the present application was filed. Three points of objection have been raised to the application: - (a) The application is not maintainable being based 017 an incompetent application for leave. (b) The application is not maintainable as it seeks to appeal against orders which are not appellable or reviewable. (c) The application 1s not maintainable as the amendment is improperly done contrary to the rules. 3 Submitting on the first ground of objection, Mr. Mnkonje, learned counsel for the respondent argued that the application for extension of time made in the High Court was misconceived because it was based on a ruling, which was not reviewable. What Mr. Mnkonje was saying in effect is that since Duarado's decision of l /7 /2002 was not reviewable in the first place, an application for extension of time to do that, which was not allowable by law, is not maintainable. Mr. Mnkonje pointed out that review of an Award under section 14 of th~ Arbitration Decree may be made only under two situations: - - Where an arbitrator or umpire has misconducted himself; or - Where the arbitration or award has been improperly procured. The learned counsel submitted that the above scenario does not arise in the present case. On the second ground of objection, Mr. Mnkonje argued that in terms of Rule 7 of Order L of the Civil Procedure Decree once an application for review of an award is rejected, the applicant is not allowed to appeal. The learned counsel reasoned that, that being the case, by analogy, if an order rejecting an application for review is not appellable, then an order rejecting extension of time for review is also not appellable. At first Mr. Mnkonje was also of the view that Judge 4 Kihio's decision was not appellable on account of the provisions of section 5 ( 1) (b) (i)-(vii) of the Court of Appeal Rules, 1979. However, when the provisions of section 5 ( 1) (c) were brought to his attention he conceded that Judge Kihio's decision was appellable with leave of the Court. On the third ground of objection the learned counsel for the respondent submitted that the amended application is not properly before the Court because the provisions of Rule 18 of the Court of Appeal Rules were not complied with. The said rule provides as follows: "18-( 1) Where any person obtains leave to amend any document, the document itself may be amended or, if it is convenient, an amended version of the document may be lodged. (2) Where any person lodges an amended version of a document, he shall show clearly- (a) any words or figures deleted from the original, by including those words or figures and striking them through with red ink, so that what was written remains legible; (b) any words or figures added to the original, by writing them in red ink or underlining them in red ink." 5 Mr. Mnkonje contended that in so far as the words that were added to the original document are not in red ink as required by law, then the application cannot be taken to be properly before the Court. He asked the Court, in view of the preliminary points of objection raised to dismiss the application with costs. In responding to arguments advanced on the first ground of objection, Mr. Ukwonga contended that the objection is misconceived because there has never been an application for review of the Award before the court. He pointed out that what the applicant was seeking is review of the order of Duarado J. dated l /7 /2002. The learned counsel maintained \ that what was before Duarado, J. was not an application for review of the Award, but rather an application for setting aside the Award and that it is a misconception to construe the application before Duarado, J. as an application for review of the Award. Mr. Ukongwa argued further that the respondents' objection has been made on what is not before the Court. Mr. Ukongwa's arguments on the second ground of objection need not detain me because Mr. Mnkonje did concede in the end that Judge Kihio's decision in refusing to grant extension of time within which to apply for review would be appellable irJ terms of section 5(1) (c) of the Appellate Jurisdiction Act. 6 On the last ground of objection Mr. Ukongwa submitted that they complied with what they were required by the order that was given by Nsekela, J.A. on November 2006 by bringing into the notice of motion the grounds thereof, which were otherwise in the affidavit. The learned advocate pointed out that they have neither deleted nor removed anything from the original notice of motion. Now, in order to answer the first and second grounds of objection, one has to, I think, look closely at the nature of the application for which extension of time to file was being sought. In his submission, Mr. Mnkonje made several references to review of Award. The question is, was the intended application for which an extension of time within which to file was sought ' an application for review of an Award? Mr. Ukongwa submitted, and I think he is right that the extension of time sought was not for filing an application for review of the Award but rather for filing an application for review of judge Duarado's order of declining an application for setting aside the Award. Indeed, the decision made by Duarado, J. on l /7 /2002 was not on an application for review. It was on an application to set aside the Award. I need not reiterate that the extension of time sought, which was rejected by Kihio, J. on 9/6/2004 was for filing an application for review of the decision that Duarado J, made on l /7 /2002, not for review of the 7 Arbitration Award, as Mr. Mnkonje would like this Court to think. The application for extension of time was made under rules 92, 95 and 129 of the Civil Procedure Decree. Rule 7 of Order L of the Civil Procedure Decree is not applicable because the application for review has not been tabled before the court as ' yet. This provision comes into play only when an application for review has been made and rejected. Section 14 of the Arbitration Decree is also not applicable because the application before the court for which extension of time was sought was for review of a decision declining an application for setting aside an award; it was not an application for extension of time to file an application for review of an award. In the circumstances I find both the first and second grounds of abjection to be lacking in merit. Turning to the third ground of objection, Mr. Mnkonje contended that the amended notice of motion is not properly before the Court for non- compliance with Rule 18 of the Court Rules. It is true that Rule 18 (2) (b) requires that any additions to the original document, be it in words or figures, be written or underlined in red ink. This was not done. However, even as admitted by Mr. Mnkonje himself, the mere fact that the grounds for the application were not written or underlined in red ink did not prejudice his client in any way. This Court has . 8 held before, that merits of the dispute should take precedence over obsession with strict compliance with procedural rules. The observation made by Samatta, J. A. as he then was in Civil Application No. 47 of 1996, VIP Engineering and Marketing Ltd v. Said Salim Bakhresa Ltd. (unreported) is very pertinent. He stated as follows with regard to rules of procedure: - " While the importance of litigants complying with the rules of procedure cannot be overemphasized, it must not be forgotten that there is danger of consumers of justice losing confidence in the Courts if judicial officers are obsessed more with strict compliance with procedural rules than what the merits of the disputes before them are. To stray into that error is to aid the judicature's gave diggers." Substantial justice should always be a judicial officer's focus. Since the respondent was not prejudiced by the applicant's ' failure to write or underline the grounds for the application in red ink, then the third ground of objection to the application also lacks merit. In the end, I find all three grounds of preliminary objection to be lacking in merit and I hereby overrule all of them. The application for leave to appeal against the Ruling and Order of the High Court in Civil Case No. 19 of 2002 dated 9th June 2004 9 is found to be properly before the Court. ·The preliminary objection is dismissed with costs. DATED at ZANZIBAR this 4th Day of December 2007. E. A. KILEO JUSTICE OF APPEAL ~: 1•f,l/"'7\,, .. l- ~ • 1 • ~!Jf/:t,~at is a true copy of the original. I ·. _., ~· ;_ -~ \" -':;.,:{;. ~ }":' ''i:if',··i ------·~~- . ' =-~- n "~-~ •"~. it-=~-' ·r -- i I I- 'I l f f t;