UNREPORTED CASE LAWS
NOTE: THIS PAGE IS UNDER CONSTRUCTION THOUGH YOU CAN ACCESS SOME MATERIALS
TANZANIAN UNREPORTED CIVIL -CASES. 20.02.2006 BACK
1. ADOPTION
2. ADULTARY
3. AFFIDAVIT
4. AFFILIATION
5. AMENDMENT
6. ARBITRATION
7. CHAMBER APPLICATION
8. CERTIORARY & MANDAMUS
9. CIVIL PRISONER
10. COMPANY
11. COUNSEL AS A WITNESS
12. DAMAGES
13. DEBENTURE
14. DECLARATION
15. DEFAMATION & FALSE IMPRISONMENT and MALICIOUS PRO
16. DIVORCE & DIVISION OF MATRIMONIAL ASSETS
17. DISQUALIFICATION OF A JUDGE/MAGISTRATE
18. DMS’/RMS’ JURISDICTION 19. EX – PARTE JUDGMENT
20. EXTENSION OF TIME/LIMITATION
21. INHERENT POWER OF THE COURT
22. INJUNCTION
23. INTEREST & COSTS
24. GANISHEE ORDER
25. JUDGMENT NOT SIGNED BY ASSESSORS.
26. JURISDICTION/ PRELIMINARY OBJECTION
27. LABOUR
28.LAND DISPUTES
29. LEAVE TO APPEAL TO THE CAT
30. LEAVE TO DEFEND
31. LOCUS STANDI
32. MALICIOUS PROSECUTION (See defamation)
33. MORTGAGE/ LOAN
34. MOTOR ACCIDENTS
35. NATURAL JUSTICE
36. OBJECTION PROCEEDINGS
37.PAYMENTS /RELIEFS – IN FOREX
38. PETITION AGAINST CITY
39. POWER OF ATTORNEY
40. PLACE OF SUING
41. PRESUMPTION OF MARRIAGE
42. PRIVITY OF CONTRACT
43. PROBATE & ADMINSTRATION
44. PROCEDURE
45. REFERENCE
46. REPRESENTATIVE SUIT
47. RES JUDICATA/SUB JUDICE
48. REVIEW
49. REVISION
50. RULING/ORDER
51. SALE OF MATRIMONIAL HOME
52. SECURITY FOR COSTS
53. SPECIFIC PERFORMANCE
54. STAMP DUTY
55. STAY OF EXECUTION
56. SPECIFIED PUBLIC CORPORATION
57.SUMMONSTOAPPEAR
58. TAXATION
59. TRIBUNAL
60. VALUATION REPORT
61. VERIFICATION
62. VICARIOUS LIABILITY
63. WANT OF PROSECUTION
64. WILLS
65. WINDING UP – COMPANIES
66. WITHDRAWAL OF SUIT.
AFFIDAVITS.
(a) Civil Case No. 8/96 – Inspector Sadiki and others vs Gerald Nkya. CAT at Dar.
“The proper way to contradict the contents of the counter- affidavit of the respondent
was not by making statements from the bar but was by filing a reply to the counter –
affidavit”. See also Civil Application No. 95/03.
(b) Misc. Civil Application No. 15/97 – OTTU vs AG and others. HC at Dar.(Katiti, J).
“ The expression, “affidavit” , unfortunately despite its being a lawyers everyday tool, is not defined by any statute, I could lay my hands on. But the lexicon meaning of the expression “affidavit” is that it is a sworn statement in writing, made especially under oath , or affirmation before an authorized Magistrate or Officer.”
(c) Civil Appeal No. 38/97 – Faizen Enterprises Ltd vs Africarries Ltd. CAT at Dar. -Ex- parte proof cannot be made by an affidavit. It has to be oral.
(d) Civil Application No. 8/99 – SGS Societe General de Survillace SA vs TRA. HC at Dar. - See five principles of affidavits - Quotes several cases on this subject
(e) Civil Application No. 39/99 – Dar Education and Office Stationery vs NBC Holding Corporation and others. CAT at Dar. - Objection that the affidavit contains arguments instead of facts and also contain prayers (Quotes Uganda vs Commissioner of Prisons Ex- parte Matovu [1966] EA 516
“ If that is the case, could it in the name of justice, be said that advancing arguments in an affidavit is so offensive as to cause an application to be struck out and thereby deny this final Court of justice an opportunity to determine the matter on merits? Forms and procedures are handmaids of justice and should not be used to defeat justice( per Biron J in General Marketing Co Ltd vs A.A Sharrif[1980]TLR 61 at 65. -I hold the same view with respect to prayers contained in the affidavit. Prayers have to made in court at the hearing otherwise there is no point of making the application. So making them prematurely in an affidavit should not be a reason for avoiding determination of the application. -Sworn and affirmed – does not make difference.
(f) Tanzania Breweries Ltd vs Robert Chacha (Number not seen), (No. 10/99?) HC at Dar (Katiti, J). - Jurat attestation undated contrary to section 8 of the Notaries Public and Commissioners for Oaths, Cap. 12. See also Civil Case No. 208/00. - Drawer never endorsed his name on the document he drew – contrary to section 44 of the Advocates Ordinance, Cap. 341. - Such document is not an affidavit at all, not even approximately in law.
(g) Land Case No. 7/2004 – Teekay Ltd vs NHC. HC (Land Division) at Dar (Longway,J). -Affidavit – the jurat does not state the person who identified the deponent to the Commissioner for Oaths and whether the Commissioner for Oaths had personal knowledge of the identifier. I see however that the flow is not fatal and I agree with the respondent’s counsel that the same is rectifiable. Accordingly I agree that the objection is valid and that the application is struck out with leave to file it within 14 days.
(g) Civil Application No. 76/99 – The University of Dar vs Mwenge Gas and Luboil Ltd, CAT at Dar. - Followed Salima Vuai Foum vs Registrar of Cooperative Societies and others (1995) TLR 75.
(h) Civil Application No.40/98 – Mustapha Raphael vs East African Gold Mines Ltd, CAT at Dar. “ An affidavit is not a kind of superior evidence. It is simply a written statement on oath. It has to be factual and free from extraneous matter such as hearsay, legal arguments, objections, prayers and conclusions. See the case of Uganda vs Commissioner of Prisons, ex-parte Matovu [1966]EA 514” Quotes Order XIX Rule 3(1) of the CPC, 1966.
(h) Civil Case No. 208/00 – Zanzibar Hotel Ltd vs Costa Bujara. HC at Dar. Jurat must show/state what place and on what date the oath or affidavit is taken – S. 8 Cap. 12- Notaries Public and Commissioner for Oaths Ordinance. See also Tanzania Breweries Case, No (f) above.
Rubber Stamp cannot salvage this situation Affidavit should not contain prayers - see Order XIX Rule 3(I) of the CPC, 1966.
(j) Civil Application No. 31/00 – Benedict Kimwaga vs Principal Secretary, Ministry of Health. CA at Dar. “ If an affidavit mentions another person, then that other person has to swear an affidavit. However, I would add that that is so where the information of that other person is material evidence because without the other affidavit it would be hearsay. Where the information is unnecessary, as is the case here, or where it can be expunged, then there is no need to have the other affidavit or affidavits.” See also Civil Application No. 13/02.
(k) Civil Application No. 8/01 – DDL E. International ltd vs THA and others. CAT at Dar.
“ The applicant’s affidavit is defective because of the errors in the verification clause. The question is whether such defect was fatal thereby warranting the dismissal of the application or whether the court has discretion to grant leave sought to amend the affidavit and thus cure the defect. (After quoting Salima Vuai’, The University of Dar vs Mwenge Luboil Ltd ) ……If the court has such discretion in relation to an affidavit which is in law incompetent for lacking a verification clause, a fortiori it has discretion in relation to an affidavit which, as in the present case, contains a verification clause but is defective merely because of errors in the said verification clause.”
(l) Civil application No. 21/01 – Ignazio Messina vs Willow Investments SPRL. CAT at Dar.
-An affidavit which is tainted with untruth is no affidavit at all and cannot be relied upon to support an application. - “ The rules governing the form of affidavits cannot be deliberately flouted in the hope that the court can always pick the seed from the chaff, but that would be abuse of the court process. The only assistance the Court can give in such a situation is to strike out the affidavit.”
(m) Civil Application No. 141/01 – D.T.Dobie (T) Ltd vs Phatom Modern Transport (1985) Ltd. CAT at Dar. “ As stated in Matovu’s case, an affidavit should state facts, and facts in my view, do not include controverted evidence in a suit.” The Court has power to order amendments to an affidavit and it will always do so if no injustice would be occasioned to the other party. I propose to order so in this case.”
(n) Civil Application No.13/02 – NBC Ltd vs Superdoll Trailer Manufacturing Co. Ltd. CAT at Dar. -Affidavit which mentions another person is hearsay unless that other person swears as well. See also Civil Application No.31/00. - One Mr. Mkongwa, advocate, asserted that he commenced and prosecuted this suit on the instructions of Dr. Nkini who in turn had been authorized or instructed by NBC (1997) Ltd to commenced the proceedings……Dr. Nkini however, did not file an affidavit in reply to confirm the averment by Mr. Mkongwa. Therefore, Mr. Mkongwa’s averment was clearly hearsay, and it could not be relied on as proof of the assertion that the proceedings and this judgment was given, with the knowledge of the applicant Bank”.
(o) Civil Application No.95/03 – Tanzania Breweries Ltd vs Edson Dhobe and 18 others. CAT at Dar. “ The proper way to contradict the contents of the counter- affidavit ….was by filing a reply to the counter- affidavit”. See also Civil Application No. 8/96.
(p) Misc.Civil Case No.14/04 – Ultimate security Ltd vs The Minister for Labour. HC
at Dar (Mihayo, J). - Ex- parte Matovu’s case is binding upon our courts - “Courts in this country have not departed from the respect they have on East African Court of Appeal decisions. These decisions are binding on our courts unless our Court of Appeal of Tanzania has categorically departed from such a o the East African Court of Appeal and declared it bad law.”
(q)Kubach & Saybook Ltd vs Hasham Kassam & Sons Ltd[1972]HCD 228 HC at Dar. “A court will not act upon an affidavit which does not distinguish between matters stated on information and belief and matters deposed to from the deponent’s own knowledge or as regards the former which does not set out the deponent’s means of knowledge of his grounds or belief.”
(r) Standard Goods Corp. Ltd vs Harackchand Nathar& Co.(1950)EACA 99 “ It is well settled that where an affidavit is made on information, it should not be acted upon by the court unless the sources of information are specified”.
(s) Uganda vs Commissioner of Prisons, Ex-parte Matovu [1966] EA514 at 520 “….The Affidavit sworn to by the counsel is also defective. It is clearly bad in law. Again as a rule of practice and procedure, an affidavit for use in court, being a substitute for oral evidence, should only contain elements of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true. Such an affidavit must not contain an extraneous matter by way of objection or prayer or legal arguments or conclusion. The Affidavit………... should have been struck out.”
(t) Salima Vuai Foum vs Registrar of Cooperative Societies and Three Others [1995]
TLR 75 CAT. - Where an affidavit is made on information, it should not be acted upon by any court unless the sources of information are specified. - As nowhere in the affidavit, either as a whole or in any particular paragraph, is stated that the facts deposed or any of them, and if which ones, are true to the deponents own knowledge, or as advised by his advocate, or are true to his information and belief, the affidavit was defective and incompetent, and was properly rejected by the Chief Justice.
(u) Civil Application No. 50 /03 – Sinani Umba vs. National Insurance Corporation
and Another CAT at Dar.( Nsekela, JA). It is now settled law that whenever the High court refuses an application for leave to appeal to this Court, the decision of the High Court refusing leave must be attached to an application under Rule 46 (3) (see: Edward Marealle Vs. Marealle Clan and Akilei Marealle (1992) TLR 275; Civil Application No. 8 of 2001 DDL Invest international Ltd. V. Tanzania Harbours Authority and Two others (unreported). I do read anything in Rule 46 (3) which demands a notice of appeal and a letter applying for copies of proceedings, judgment, decree and other records to be attached to an application for leave to appeal to this Court. What is required is a copy of the decision against which it is desired to appeal and nothing else. In the court occasion to see. I am therefore satisfied that the application was accompanied by the Ruling of the High Court refusing leave to appeal. This objection, therefore fails. As regards paragraph 6 of the affidavit in support, it is the contention of Mr. Nsemwa that the source of information on the contents of paragraph 4 has not been sufficiently disclosed. It will be recalled paragraph 6 reads in part as under –
“ and the contents of paragraph 4 deposed on advice from my advocates which said advice I verily believe to be true. There is considerable merit in this complaint. It is true that the affidavit in question was drawn and filed by Kashumbugu, Sekirasa & Co. Advocates. And in his oral submissions Mr. Kashumbugu elaborated that the information was from his firm of advocates.
The question is was this sufficient disclosure of the source of the deponents’ information? I do not think so. A blanket reference to “my advocates” is, in my considered view, insufficient disclosure. The deponent should have specifically mentioned the name of the advocate who was the source of the information / advice in paragraph 4. It is trite law that an affidavit must depose to facts either within the deponent’s personal knowledge or obtained an information the source of which are set out therein. There is no paragraph in the who affidavit, which discloses the source of information in paragraph 6 - the verification clause. Having said that, what are the consequences? Without paragraph 4, the remaining paragraphs cannot stand on their own, should the applicant be allowed to amend the affidavit? There is no hindrance in principle to such a course of action being taken (See: Civil Application No 8. of 2001 DDL Invest International Limited and Tanzania Harbours Authority and Two others (unreported). The snag herein however is that Mr. Kashumbugu was insistent that the verification clause was not defective and consequently did not advance any circumstance to move the Court to exercise its judicial discretion. In the result, I am constrained to uphold the preliminary objection and strike out the application with costs.
(v) Civil Application No. 56 /04 – Unyangala Enterprises Ltd 75 Others Vs Stanbic Bank (T) Ltd CAT at Dar (Ramadhani, JA). Mr. Lugano JU. Mwandambo, learned adovate for the respondent, filed a counter affidavit. He had two main attacks: One, Mr Mwandambo pointed out that the affidavit in support of the application was largely hearsay. The learned advocate elaborated that three people have been named in the affidavit but they have not filed any affidavit and that this is contrary to Kighoma Ali Malima vs. Abas Yusuf Mwingamo, Civil Application No. 5 of 1987 (unreported) and John Chuwa Vs. Anthony Ciza [1992] T.L.R.233. The second matter is that the South Law Chambers has other advocates besides Mr. Kasikila and Mr. Mwandambo wondered why those others could not attend. Mr Kasikila gave some explanation as to the effect that the absence of the advocates in their chambers but that should not detain me here. As for the affidavits of the three people, Mr. Kasikila admitted that he was not aware of those decisions. It is a matter of great pity that Mr. Kasikila did not know of the requirement of filing affidavits of all persons whose evidence is material to the matter in dispute. His affidavit contains a lot of hearsay evidence and, so it cannot be relied upon. But even if I were to accept as Gospel trust what Mr. Kasikila said about the unavailability of other partners in their Chambers , one wonders why their clerk did not come to give the explanation to the Court instead of relying on the applicant himself. For the above reasons I find that the application is devoid of any merit and I dismiss it with costs.
(w) Civil Revision No. 90/03 – Omari Ally Omary vs. Idd Mohamed and others. HC
at Dar (Massati J)- From the authorities contained in the decision of the court of appeal in Lalago Cotton Ginnery and Oil mills Company Limited Vs. LART (Civil Application No. 8 of 2003) Phantom Modern Transport (1985) LTD. V.D.T. Dobie (TANZANIA) LTD. Civil Reference No. 15 2001 and 3 of 2002, and MANORLAL AGGARWAL Vs. TANGANYIKA LAND AGENCY LTD. & OTHERS Civil Reference No. 11 of 1999 the position of the law can safely be summarized as follows:
As a general rule a defective affidavit should not be acted upon by a court of law, but in appropriate cases, where the defects are minor, the courts can order an amendment by way of filing fresh affidavit or by striking out the affidavit. But if the defects are of a substantial or substantive nature, no amendement should be allowed as they are a nullity, and there can be no amendment to a nothing.
I have no doubt in my mind that those paragraphs contain legal arguments, conclusions and prayers. Mrs. Muruke learned Counsel has submitted that those paragraphs were curable. It was held in the MATOVU case and approved by the Tanzania Court of Appeal in LALAGO COTTON GINNERY AND OIL MILLS COMPANY LTD. Case and PHANTOM MODERN TRANSPORT (1985) LTD. Case, both cited by learned counsel that affidavits containing extraous matters by way of objections or prayers or legal arguments or conclusions were incurably defective. On the premises I find and hold that the counter affidavit filed by the Respondents are incurably devective and are accordingly struck out. Like what the court of appeal of Tanzania did in the LALAGO case I will give time to the Respondents to file proper counter affidavits before I proceed to consider the application for revision on merit. However, the Application shall have his costs on the preliminary objection. The respondents are to file proper counter affidavits within two weeks from the date of this ruling.
(x) Commercial Case No. 297 /2002 - M/S Rubya Saw Mill Timber Vs. M/s Consolidated Holding Corporation – HC at Dar. (Kimaro, J).
- The jurat and contents of the affidavit filed in support of the Chamber Application is being challenged. The challenge has been brought by way of a preliminary objection by Mr. Mwandamo, Learned Advocate for the respondent in this case. The Chamber Application is asking for orders for setting aside a dismissal order, made by this court on 9th July, 2003. It has been filed under Order IX rule 9 (1) and (2) as well of section 95 of the Civil Procedure Code, 1966. Mr. Maira is the Learned Advocate who filed the application for the applicant.
- The plaintiff’s suit was dismissed because of lack of prosecution. On the date it was called for trial, no witness turned up. The trial of the case was fixed two months earlier and Mr. Maira is on record that he would have brought three witnesses. On the date of the trial Mr. Maira was present without presence of any of the three witnesses. The suit was then dismissed. The affidavit was sworn by Mr. Ladislaus Kulwa Msilanga who says he is the Chief Executive Officer of the applicant. The preliminary objection raised by Mr. Mwambambo is that the application is incompetent as it is supported by an affidavit which is incurably defective.
- I said earlier the challenge is focused on the jurat of attestation and the content of the affidavit of Ladislaus.
- What is wrong with the jurat of the attestation? Mr. Mwandambo said it contravenes Section 8 of the Notaries Public and Commissioner for Oaths Ordinance, Cap. 12. Mr. Mwandambo’s observation is that it does not meet the requirement as presented in the above quoted provision.
Whereas the attestation clause displays 11th June, 2003 as the date when the affidavit was sworn at Mwanza, the facts deposed in the affidavit relate to a court order issued on 9th July, 2003 Mr. Mwandamo said the above discrepancy is clear evidence that the affidavit does not truly state the date on which it was made, hence offending the mandatory requirements of the law. The concluding remarks are that the affidavit as it is, is not an affidavit at all in law, and cannot be used in any manner whatsoever in these proceedings.
- Mr. Maira’s simple reply is that the affidavit was made on 11th July, 2003 but it was inadvertently typed 11th June 2003. Mr Maira’s opinion is that this is a mistake which is curable.
- The attestation clause whose jurat is being challenged reads as follows:-
“ Solemnly sworn by the said Ladislaus Kulwa Msilanga at Mwanza this 11th day of June, 2003. Before me Signature Commissioner for Oaths.”
- Besides the signature for Commissioner for Oaths, there is a stamp of W.K.Butambala, Advocates before whom the affidavit was sworn.
- It is also important for me to explain what is a jurat. The definition given by The Backs Law Dictionary and reproduced in the case of Wananchi Marine Products (T) Ltd Vs Owners of Motor Vessels High Court Civil Case No. 123/96 DSM Registry) (Unreported), (the decision of Kalegeya, J) is as follows:
“ Certificate of Officer or person before whom writing was sworn to. In common use term is employed to designate certificate of competent administering officer that the writing was sworn to by a person who signed it. The clause written at the foot of an affidavit stating when, where, and before whom such affidavit was sworn”.
Let us look at the contents of section 8 of the Notaries Public and Commissioner for Oaths Ordinance, Cap. 12:
“ Every Notary Public and Commissioner for Oaths before whom any Oath or affidavit is taken or made under this Ordinance shall state truly in the jurat of attestion at which place and on what date the oath or affidavit is taken or made”
The provisions of Section 8 of Cap 12 have been verified; The attestation clause has also been displayed. The arguments of the Counsel have also been exposed. Now what is the position of this court? Mr. Mwandambo’s argument is correct. The jurat of attestation in Mr. Ladiuslaus Kulwa Msilanga’s affidavit is defective. The date given in the attestation clause does not rhyme with the date of the order which is sought to be set aside. I am not impressed by Mr. Maira’s explanation that the date in the attestation clause was inadvertently typed. There is no evidence at all to support the explanation given by Mr. Maira. Mr. W.K. Butambala was the only person who could have told this court when the affidavit was sworn before him. There is nothing from him. Under the circumstances, giving such an explanation after the mistake has been pointed out by someone else does not assit Mr. Maira. The records remain as presented in court. The provisions of Section 8 of Cap. 12 requires the affidavit to state truly in the jurat of attestation the place and the date when the affidavit was sworn. The date displayed in the affidavit as the date when the affidavit was sworn, can not be true because in the body of the affidavit there is reference to matters which took after the date of the swearing of the affidavit . This is a contravention of Section 8 of Cap12. It is a defect which is incurable.
In the case of D.P. Shapriya & Co. Ltd Vs. Bish International - Civil Application No. 53 of 2002 (CAT) (DSM) (unreported). Hon. Justice Ramadhani J.A said:-
“ The section categorically provides that the place at which an oath is taken has to be shown in the jurat. The requirement is mandatory; Notary Public and Commissioners for Oaths shall state truly in the jurat of attestation at what place and on what date the oath or affirmation is taken or made”
- The second issue raised by Mr. Mwandambo is on the contents of the affidavit. The contention by Mr Mwandambo is that paragraph 6 of the affidavit contains prayers and this is contrary to the requirements of Order XIX Rule 3 of the Civil Procedure Code, 1966. The response from Mr. Maira is that what is contained in the affidavit is only a direction to the court to take into consideration the prayers requested for in the Chamber Application.
“ That I have worked tirelessly in prosecuting my case and that I have not in anyway negligent or indolent. Thus in interest of justice I pray that the court may be pleased to raise the dismissal order and allow the action to proceed to finalization on merit”.
- With greatest respect to Mr. Maira, I do not agree with his explanation on the contents of paragraph 6 of the affidavit.
Order XIX R3 (1) of the Civil Procedure Code 1966 reads and I quote:
“Affidavit shall be confined to such facts the deponent is able of his own knowledge to prove, except in interlocutory application, on which statements of his belief may be admitted”.
-I join Mr. Mwandambo’s submission that para 6 of the affidavit includes a prayer which is not a face which the deponent can prove or explain about his belief on the matter. It is true that inclusion of a prayer in an affidavit has been held to be improper and renders the affidavit defective. Ther are a lot of supporting authorities on the matter. Among then is the famours Case of Uganda Vs Commissioner of Prisons Ex – parte Matovu [1966] EA 514 which has been followed by the Court of Appeal in several cases. One of such cases being Phantom Modern Transport (1985) Limited Vs. D.T. Dobie & Company (T) Ltd Civil Reference No. 15 of 2001 and 3 of 2002 (unreported).
Given the defects noted in the affidavit, the affidavit offends the Law. Consequently, it cannot be acted upon by this court. It is struck out.
- The application before this court is by way of Chamber summons. Order XLII Rule 2 of the Civil Procedure Code 1966 requires any Chamber Summons to be supported by an affidavit. Since the affidavit was struck out it means that the Chamber Summons is not supported by any affidavit as required by the law. It is struck out with costs.
(y) Civil Revision No. 7/05 - Loans and Advances Realization Trust vs Patrick K. Mungaya & 46 Others. HC.
. He called on this court to hold that the said signature was a forged one and if it is held so, then it amounts to fraud and therefore, fraud vitiates everything. He sought authority of this court, Mihayo J. in Tanzania Breweries Ltd. vs Alloyee Muyai Civil Revision No. 9/04 (unreported - Dar es Salaam Registry) where his lordship said in his ruling that “comparing of signatures is a duty of the court”. He held it as settled law. The learned counsel further called upon this court to compare the signature appearing in the counter affidavit to those in the documents filed in Employment Cause No. 20/02 by Patrick Mungaya.
- The learned counsel ended his submissions by saying that in view of the defferences in the signatures, which lead to forgery, whose consequence is to vitiate everything, then all the proceedings in the lower court be declared a nullity so that the decree and the garnishee order for the tune of shs. 208,723,360/= be declared illegal, nullity and void.
(z) Civil Case No. 18/01 - Hilmary Protas Mpangalla vs Global Securities Finance & Insurance Corporation Ltd.
- A preliminary objection has been raised by Mr. E.D Kisusi learned Advocate for Global Securities Finance and Insurance Corporation Ltd the first respondent/defendant in Civil Case No. 18 of 2001 to the effect that the affidavit of Hilmary Protas Mpangala is incurably defective. The defect is on the jurat of attestation which did not state truly at what place the affidavit was made contrary to the mandatory provisions of Section 8 of the Notaries Public and Commissioners for Oath Ordinance Cap. 12. Mr. Msafiri learned Advocate for the applicant/ plaintiff has conceded to the defect but argues that it is within the Court’s discretion to allow an amendment and has cited a number of authorities in support.
- In my humble view, adopting the decision of the Court of Appeal of Tanznania in the Case of D.B. Shapriya & Co. Ltd. V. Bish Innternation B.C. Civil Application No. 53 of 2002 (Ramadhani, J.A.) the requirement to state the place at which an oath is taken is a mandatory one. The omission makes an affidavit incurably defective. Accordingly I uhold the objection raised and I will struck out the application for not being supported by a proper affidavit. Costs to be costs in the cause.
(aa) Civil Revision No. 29/97 - NIEMCO LIMITED VS MILO CONSTRUCTION COMPANY LTD HC at Dar (Mackanja, J).
Mr Chandoo, learned counsel for the applicant, contends that the respondent cannot be heard to challenge the affidavit by statements from bar as no counter affidavit was filed. Well, I think both Mr. Mchora and Mr. Chandoo are in error in respect of what they argue. Mr. Mchora repeatedly refers to the affidavit evidence as being pleadings. Those not pleadings; an affidavit contains evidence. So its contents must be countered by evidence in a counter affidavit, by cross – examining the deponent or by the adduction of oral evidence or by taking all the three courses of action simurilaneously. Mr Chandoo, on the other hand, is not correct in contending that Mr. Mchora is not entitled to attach the counter affidavit from the bar. Learned counsel has a right to examine evidence and to comment on its veracity. This is all that Mr. Mchora has done. This he can do although in saying so I do not mean that Mr. Mchora’s submissions in this regard stand in for evidence.
(bb) 0
AFFILIATION
(a) Civil Appeal No. 181/04 - Dafroza Mangosongo vs Aron Mwalatungila HC (Mlay, J.)
- The appellant made an application under section 3 and 5 of the Affiliation Ordinance in the District Court of Temeke, seeking orders declaration that the respondent is the putative father of her child and for the maintenance of the child. The District Court duly issued summons to the respondent and after hearing evidence from both parties, the District Court declined to grant the orders prayed for. Being aggrieved by that decision the appellant has appealed to this court on the following grounds:
- The matter which is the subject of this appeal, is governed by the provisions of the Affiliation Ordinance Cap 278. Section 3 of the Ordinance provide as follows:-
“ 3 Any unmarried woman who may be with child or who may be delivered of a child may –
(a) before the birth of child, or
(b) at any time intern twelve months from the birth of the child, or
(c) at anytime after the birth of a child upon proof that the man alleged to be the father of the child has within twelve months next after the birth of the child paid money for its maintenance; or
(d) at any time within twelve month next after the return to Mailand Tanzania of the man alleged to be the father of the child.
- Make application, by complaint on oat to a magistrate, with jurisdiction in the place in which she resides, for a summons to be served on the man alleged by her to be the father of the child, and if such application be made before the birth of the child the woman shall make a deposition upon oath stating who the father of the chilld is, and subject tto the provisions of section, 4 such magistrate shall there upon issue summons to the person alleged to be the father of the child to appear before a magistrate on some day to be named in the summons.”
- In the applicnt’s affidavit in support of the application in the District Court, the appellant and alleged that she developed a relationship with the respondent in 1998 and that the said relationship was blessed with one child born on 23/1/2003. The application was filed on 9/9/2003, some nine months after the said child was born. On the basis of the affidavit, the application was therefore brought within twelve months from the birth of the child, therefore bringing brining the application within the privisions of Section 3 (b) of the Affiliation Ordinance.
- After the amn alleged to be the father of the child has been summoned in accordance witth section 4 of the Ordinance, section 5 provides for the measures to be taken before on order of maintenance can be made against the alleged father of the child. The relavant part of the provisions of section 5 are as follows:-
- (1) After the birth of a child, on the appearance of the person summoned under this Ordinance, on proof that the summons was duly served on that person …… a magistrate shall hear the evidence of the mother of the child and any other evidence which she may produce, and shall also hear any evidence tendered, by or on behalf of the person alleged to be the father.
(2) if the evidence of the mother is corroborated by other evidence to the satisfaction of the Magistrate, he may adjudge the person summoned to be the summoned father of the child.
(3) ………………………………………………………………………………..
……………………………………………………………………………….
(10) ………………………………………………………………………………..
- In terms of section 5 of the Affiliation Ordinance, the magistrate is required to hear evidence from the mother of the child and any other evidence which the mother of the child may produce and also, to hear evidence from the person alleged to be the father. Before the Magistrate can adjudge the person to be the putative father of the child, sub – section (2) of section 5 requires that the evidence of the mother be corroborated by other of evidence, to the satisfaction of the Magistrate.
- According to The Oxford Dictionary of Law “ Corroboration” has been defined as evidence that confirms the accurancy of the that evidence “in a material particular”.
- In the appellant’s case the magistrate who heard the application found her evidence to be weak and the evidence of the two witnesses she called, the magistrate found that PW1 who was the “husband” of the appellant did not state that the respondent had sexual relationship with the appellant. As for the second witness who was the Welfare Officer, the magistrate found that the testimony did not prove that the respondent and the appellant had sexual relationship. Although the trial magistrate did not state so categocally, in effect, the magistrate did not find any corroborative evidence in the evidence of the two witnesses clled by the appellant.
- Revisting the testimony of the appellant in the District Court, she stated that she started a love affair with the respondent in 1998 and at the end of April her husband found them away from their home and severely beat up the appellant and from that time they separated. The appellant alleged that she then started life with the respondent and after a short time she became pregnant. She alleged that she told the respondent above the pregnancy but the respondenet expressed doubt as their rlating had been for as short time.
- In short the appellant gave evidence that after nine months she delivered a baby by operation and her mother came to take her to Kilwa where she stayed for there years. After she had recovered she then came back to Dar es Salaam to seek maintenance from the respondent but found that the respondent had already shifted to same other place. She testified that trace the respondent through his aunt but when the respondent showed up she denied that the pregnancy was his. It was at this juncture that the appellant decided to go the Welfare Officer and subsequently to the District court. The applicant’s evidence in court, differs materially from her evidence in her affidavit.
- On the appellant’s evidence in the District Court, it appears that she had a love affair with the respondent in 1998 and conceived soon thereafter and after giving birth, she went to Kilwa where she stayed fro three years before she came back to pursue maintenance from the respondent. It follows from that evidence that the application the District Court was filed after three years after the child was born. The bing the case, the application was filed will beyond the period prescribed by Section 3 of the Affiliation Ordinance. In the circumstances of the appellant, she was required to file the application either “ before the birth of the child” or ‘at anytime within twelve months from the birth of the child” in terms of …….. paragraph (a) and (b) of Section 3 paragraphs (c) and (d) of the section did not apply as there was no evidence that the respondent had paid any money for the maintenance of the child or gone outside Mailand Tanzania and returned. The application have been filed three years after the birth of the child contrary to the provisions of section 3 of the Affiliation Ordinance, the application was incompetent and should have struck out.
- Coming back to the appellant evidence, it was not corroborated by the evidence of her ex – paramour PETER THOBIAS. Peter Thobias testified that the applicant was her concubine and that when they were living together, they got a doughter Agness Peter. The Witness testified that he lived together with the respondent from 1994 to 1997 when they separated. He said he did not know of any relationship between the appellant and the respondent. This evidence did not support the appellants evidence that she separated from her ex – paramour in 1998 after he had found out her love affair with the respondent. The witness did however support the appellants evidence that at the material time they were tenants in the same house with the respondent.
- At the hearin of this appeal the appellant has argued that the fact that they were tenants in the same house as the respondent should have been taken into account as circumstantial evidence. The respondent did not deny the fact that he was a tenant in the same house in which the appellant and her paramour were living. He however testified that he was also long with his wife. It was also not alleged that the appellant and the respondent mere the only tenants in the house. In the circumstances the mere fact that the Appellant was living in the same house as the respondent with his wife, does not confirm the appellants evidence that the respondent is the father of the child. In the absence of evidence that the respondent was the only male tenant in the house, it does not even prove that he was the only person who had the opportunity to make the appellant pregnant.
- There was the evidence of the Welfare Officer BEATRICE NGUNULWA who narrated the complaint made to her by them appellant. She stated that the respondent first denied to have met the appellant but later admitted to have had sexual relationship with here but denied to have made the appellant gregnant. The Welfare Officer testified further that they called for the child and satisfied themselves that the child looks like the respondent but as there was no agreement between the parties the matter was forwarded to court. Can this evidence be considered as corroboration of the appellant’s evidence? As the respondent denied to have admitted before the Welfare Officer that he had a sexual relationship with the respondent. The Welfare Officer’s evidence also needs to be corroborated with some other evidence, which is lacking. Evidence which needs to be corroborate cnnot be used to corroborate some other evidence. The appellant has complained that the District Court should have ordered blood tests to be taken. However section 5 of the Affiliation Ordinance requires the magistrate only to “ hear the evidence of the mother of the child and any other evidence which she may produce” The law requires that the mother of the child should give and produce the evidence. It is not for the court to look for evidence which will support the mother’s evidence.
- In the circumstances and for the reasons given above, this appeal has not merit. There was no evidence upon which the District Cour t could have adjudged the respondent tobe the putative father of the child, Since the application was filed some three years after the birth of the child the application was filed contrary to the law and was therefore incompetent. As the application was incompetent the proceedings in the District Court are a nullity and are so declared and for that reason, the appeal is dismissed.
4. AMENDMENTS
(a) Dhanji Ramji vs Malde Timber Co. [1970] EA 422 While the amended pleading is conclusive as to the issues for determination, the original pleading may be looked at if it contains matter relevant to the issues. The amendment does not in my view replace the pleading for all purposes.
(b) Eastern Radio Service vs R.J. Patel [1962] EA 818 “ Logic and common sense requires that an amendment should not automatically be treated as if it, and nothing else, had ever existed.” (c ) Civil Application No. 5/99 – Damas Ndaweka vs Ally said Mtera. CAT at Arusha. -“A party cannot be permitted to defeat a preliminary objection notice of which has already been lodged. There are decisions of this Court to that effect, including Mtale vs Karmali [1983] TLR 50 where it was held that a notice of motion seeking extension of time to file a supplementary record of appeal is no answer to an objection regarding the competence of the appeal.” “The position is that once the notice of appeal is lodged, the time to remedy the deficiency complained of lapses and Rule 92(3) cannot be called in aid.” (d) Civil Appeal No. 58/97 – Kanjibhai M. Patel vs Dahyabhai F. Mistry. CAT at Mwanza. “The Court has held on a number of occasions that once an objection is taken to the competence of an appeal, it would be contrary to the law to entertain a prayer the effect of which is to defeat the objection. If such prayers were entertained, rule 100 which permits preliminary objection would be negated.” (e) Civil Application No. 76/99 – The University of Dar vs Mwenge and Luboil Ltd. CAT at Dar. -An unverified affidavit is no affidavit in law and is therefore incapable of being amended. -[ After quoting Salima Vuai’s case] I take it that by using the word “amended” this Court meant that the deponent can, if circumstances justify it, grant leave to the deponent to file an affidavit having a verification clause. I hold this view because I take to be an undisputed proposition of law that something which is null and void is incapable of being amended. You cannot amend nothing.” (f) Civil Case No. 252/00 – Rhino Security Guards Services Co Ltd vs NIC (T) Ltd. HC at Dar (Ihema, J). -“ It is my considered view that the chamber application under reference forms part of the pleadings and would ipso facto come under the purview of Order VI Rule 17 of the CPC, thus amenable to be amended as argued by the applicant’s counsel. As to the question of the notice of preliminary objection, I think that in the normal order of procedure a notice of p.o. takes precedent and would be heard at the earliest opportunity during trial……” (g) Civil Application No. 8/01 – DDL E. International Ltd vs THA and others. CAT at Dar. The Court has power to order amendment of an affidavit without a verification clause. (h) Civil Appeal No. 43/01 – James Kabalo Mapalala vs British Broadcasting Corporation. CAT at Dodoma. “The legal position in our country is that amendment to the pleadings is not allowed after delivery of judgment”. The expression “at any stage of the proceedings” should not be extended to cover the time after delivery of judgment. (i) Civil Appeal No. 61/01 – Edward Masanja Ng’ahwani vs AG and another. CAT at Dar. “ An amendment duly made, with or without leave, takes effect not from the date when the amendment is made, but from the date of the original document which it amends…..Thus when an amendment is made to the writ, the amendment dates back to the date of the original issue of the writ and the action continues as though the amendment had been inserted from the beginning, the writ as amended becomes the origin of the action……..” In the context of the present case the amendment dates back to the date of the original petition. Since the second respondent had dully replied to the original petition, the if he opts, as he has done, not to reply to the amended petition, his reply to the original petition becomes equally a reply to the amended petition which takes effect on the same date as the original petition, more so as it is conceded that there is no specific provision of the law requiring the respondent to file a reply to the amended petition.”
(j) Civil Application No. 141/01 – D.T Dobie (T) Ltd vs Phantom Modern Transport (1985) Ltd. CAT at Dar. The Court has power to order amendments to an affidavit and it will always do so if no injustice would be occasioned to the other party. I propose to order so in this case. (k) Margovind Swai vs Juthalal Velji[1969] HCD 278, Said J. -“ The application of the defendants to amend their affidavit should be granted subject to the payment of costs of the other side up to date. If a party can amend his pleadings by leave of the court so as to be able to correct errors by omission or commission, there is no reason why he should not be allowed to amend his affidavit by correction of errors or by supplementing what has been omitted in it.” Leave to amend granted. (l) Nimrod E.Mkono vs State Travel Services Ltd and Masoo Saktay [1992] TLR 24 CAT. “Coming to the amendment of the WSD without leave of the court we agree that this offended the clear provisions of Order VIII Rule 13 of the CPC but it is also our considered view that that this lapse on the part of the respondents did not prejudice the appellant/plaintiff, this is especially so when taking into account that the plaintiff had been given leave to amend his plaint. We would like to mention, if only in passing, that justice should always be done without undue regard to technicalities.” (m) George Shambwe vs AG and Another[1996]TLR 334, CAT. “The principles upon which amendments to pleadings should be made needed to be re-affirmed. Amendments sought before the hearing should be freely allowed if they could be made without injustice to the other side and there was no injustice if the other side could be compensated by costs. Pg 340 “ We need also to reaffirm the principles upon which amendments to pleadings should be made. These were stated by the Court of Appeal for Eastern Africa in the case of Eastern Bakery vs Castelino [1958] EA 461. That Court stated at page 462:- “It will be sufficient for the purpose of the present case, to say that amendment to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs”. (n) Agrovert and Construction Ltd vs Salum Said Kleb [1995] TLR 168 (HC), Mwaikasu, J. “In determining this application, the first reference point is the provision under Order 6 rule 17 of the CPC. It is there provided as follows and I quote :- “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties”. As I take it, the important of the provision under rule 17 of Order 6, CPC above quoted is that though a court has been vested with a discretion to grant an amendment as applied for by either party, such discretion may only be exercised where the amendment appears to the court to be necessary for the purpose of determining the real question in controversy between the parties. To the same effect was the decision of their Lordships in the case of Australian Steam Navigation Co. Ltd vs Smith and Sons [1889] 14 AC 316 at 319, where they had this to say:- “Their Lordships are strong advocates for amendment where it can be done without injustice to the other side, and even where they have been put to certain expenses and delay, yet if they can be compensated for that in anyway, it seems to their Lordships that an amendment ought to be allowed for purpose of raising the real question between the parties. That however is in the discretion of the court.”. 5. ARBITRATION. (a) The City Council of Dar vs Taj Mohamed [1968] HCD 247, Georges, J. -“The High Court may order a stay of proceedings to permit arbitration only if application is made “at any time after appearance and before filing a written statement, or taking any other steps in the proceedings”. [Quoting Arbitration Ordinance, Cap. 15 S. 6; citing New Zealand Insurance Co. Ltd vs Andrew Spyron [1962] EA 74]The procedure set forth in section 18 of the Second Schedule of the Civil Procedure Code does not apply to the High Court. [ Citing Civil Procedure Code, S. 64]. The court doubted whether the latter procedure would permit a stay if it were applicable. (b) Motokov vsAuto Garage Ltd and others[1970] EA 249 Georges, J. [After quoting S. 6 of the Arbitration Ordinance, Cap. 15] The tem “step in the proceedings” is not easy to define. I would hold that any application to a court for an order in respect of the proceedings can be described as a step in the proceedings. In Chapell vs North[1891]Q.B.252 the respondent in argument argued that steps must mean steps which advance the proceedings and suggested that a mere summons for particulars would not be such a step. In that case there had been a summons for particulars of a counter-claim. WILLS,J. was of the view that:- “ the summons for particulars of the counter- claim was a step taken in those proceedings, and that consequently, had nothing else supervened the summons would have been sufficient to take away the jurisdiction of the court.” With this view. I agree. © Civil case No. 106/98 – Covel Mathews Partnership vs TRC. HC at Dar.( Katiti, J) -“It follows in my view that where there is an arbitration agreement in the contract the arbitration process is a condition precedent to a right to sue….Under the circumstances, the court may stay proceedings until an arbitrator has first heard the case.”. -“It seems to be the law therefore that where the plaintiff who is a party to an arbitration clause by-passes such agreement and commences proceedings in the High Court and where similarly the defendant enters appearance each cannot subsequently apply for stay under Rule 18 as they have already breached the agreement and contravened the said rule.” -“The legal position seems to be that where parties have subsequently expressed their desire to have the matter resolved through arbitration other than through court action the court may use its inherent jurisdiction to give a chance to arbitral process first and therefore may order a stay and such stay of the High court proceedings and such order being an agreement of the parties to submit de novo to arbitration till the arbitration process has come to an end.” (d) Civil Application No. 70/99 – Shinyanga Region Cooperative Union(1984) Ltd vs Pan African Corporation Ltd. CAT at Dar. Appeal in a matter where the High Court has remitted the matter to the arbitrator for reconsideration, needs leave of the court.
(e) Construction Engineers and Builders Ltd vs Development Corporation [1983]TLR 13 CAT – Mwakasendo, JA. -On being served with a copy of the plaint, the respondent immediately made an appearance before the High Court and applied for the stay of the action in terms of section 6 of the Arbitration Ordinance. The application was granted. On appeal against the Order of stay, the appellant argued that the learned High Court Judge wrongly exercised his discretion to order a stay because the difference between the parties were not within the scope of the arbitration clause and that the dispute raised question of law only which were not within the competence of the arbitrator. Held:- Where proceedings are instituted by one of the parties to a contract containing arbitration clause and the other party, acting pursuant to the arbitration clause, applies for a stay of proceedings, the court has to decide the precise nature of the dispute and whether the dispute falls within the terms of the arbitration clause. Where it is clear that the parties to a contract have agreed to submit all their disputes or differences arising “under” the contract to an arbitrator, the dispute must go to arbitration unless there is good reason to justify the court to override the agreement of the parties. On Question of law. -I therefore do not think that it can be enough to say as a question of law of a serious kind will arise here the court ought not in the exercise if its discretion to interfere. This is not a case in which questions of law can be kept apart from the facts of the case. If, for instance, it been merely a question of law arising upon the construction of certain words in a lease or contract of sale or what not, I can quite conceive that the court might say - as the court done in one or two cases – that there is only one question of law here, and that it is idle to refer that ot arbitration, because the first thing the arbitrator would undoubtly do would be to refer that to the court for the decision of the court as to the question of law. -Quoting Heyman vs Darwins Ltd [1942] A.C.356 (House of Lords). An arbitration clause is a written submission, agreed to by the parties to the contract and, like other written submissios to arbitration, must be construed to its language and in the light of the circumstances in which it is made. If the dispute is whether the contract which contains the clause has ever been entered into at all, that issue can not go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he was ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for example, the making of such contract is illegal), the arbitration clause cannot operate, for on this view the clause itself also is void. But in situations where the parties are at one in assessing that they entered into a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances have arisen which have discharged one or both parties from further performance, such difference should be regarded as difference which have arisen “in respect of” or “with regard to” or “under” the contract, and an arbitration clause which uses those or similar expressions should be construed accordingly. -If it appears that the dispute is whether there has been a binding contract between the parties, such a dispute cannot be covered by an arbitration clause in the challenged contract. If there has never been a contract at all, there has never been as part of it an agreement to arbitrate. The greater includes the latter. Further, a claim to set aside a contract on such grounds as fraud, duress or essential error cannot be a subject matter of a reference under the arbitration clause in the contract sought to be set aside. Again, an admittedly binding contract containing a general arbitration clause may stipulate that in certain events the contract shall come to an end. If a question arises whether a contract has for any such reasons come to an end I can see no reason why the arbitrator should not decide that question. (f) Civil Case No. 198/95 – Vocational Education vs Ghana Building Contractors, Varsan Dewji Ramji and Company HC at Dar (Kyando, J).
- This is an application for stay of proceedings pending arbitration. The application is by Chamber Summons supported by an affidavit of Morgan Manyange, the Acting Director General of the applicant, first defendant. The first respondent/plaintiff which opposes the applicant, has filed a counter – affidavit sworn by Asobenye Kasotobela Malakaruka the Managing Director of the first defendant both parties are represented by council Mr H. Mbuya Learned Advocate represents the Applicant and Mr Kayange represents the Respondent. Councels have failed written submissions.
- Mr. Mbuya then proceeds to submit that the essence of any arbitration clause of is that the parties have chosen their own tribunal, He refers to Denney Bellarny 91938) 2 LL E.R. 262 in relation to this. He then says that the Court of Appeal of Tanzania had the opportunity to interpret an arbitration clauses “ identical to that quoted above” he says that was in the case of CEB V. SUDECO C.A) Civil Appeal No. 23 of 1993 (unreported). He reproduces the following passage from the judgement of the Court of Appeal in that cases:-
“The employer and contractor in this case by their agreement which follows closely the standard R.I.B.A. form contract, have chosen to submit their disputes or differences as to the construction of the contracts as to any matter or anything of whatever nature arising thereunder or in connection therewith to arbitration. On the authorities reviewed above, it seems to us that the operation of the arbitration clause in the contract to which this case relates does not depend on the question whether the dispute that has arisen includes both fact and law or is merely limited to either fact or law. If it is clear from the submission, as it is clear in this case, that the parties have agreed to submit all their disputes or differences arising under the contract to an arbitration, then the dispute must go to arbitration unless there is some good reason to justify the Court to override the arrangement of the parties”.
Mr. Mbuya submits that the principle in the two cases above is that the parties should be bound by their own agreement and not to try to get out of it. He submits that the affidavit of Manyanga read together with the plaint disclose materials sufficient for the court to stay the proceedings pending reference to arbitration. He says even the counter asffidavit acknowledges that the architect has withheld a certificate “which the plaintiff claims to be entitled “. He submits that withholding of a certificate is a matter which is expressly reserved for reference to arbitration under clause 36 of the contract between the partiesd. He concludes by stating therefore that the suit is premature and should be stayed as provided for under section 6 of the Arbitration Ordinance.
I agree, of course, that where there is an arbitration clause in a contract the parties have chosen their own tribunal. If it is clear from the submissions therefore that the parties have agreed all their disputes or differences arising under their contract to an arbitration, then the dispute must go to arbitration, unless as the Court of Appeal said in the CEB V. SUDECO cse (supra) there is some good reason to justify the court to override the agreement. However, existence of an arbitration clause in a contract does not in itself lead to an automatic stay of proceedings pending arbitration. Nor do I think the existence of a conflict, leading up to commencement of legal proceedings, between parties to a contract containing an arbitration clause automatically raise the implecation that there is a dispute or difference between them which must be referred to arbitration. This, I think is not the law, and in regard to this we have Section 6 of the Arbitration Ordinance itself which provides that the court can only order stay of the proceedings if it is satisfied, inter-alia, thet ther is no sufficient reason, why the matter should not be preferred in accordance with a submission. There are also two cases discussed in CEB VSUDECO (supra) by the Court of Appeal. These are the cases of Barnes v. Young (1898) ICh 414 and Green V. Howell (1910) I Ch 495. Though the contracts to which these cases rlated contained arbitration clauses and conflicts arose between the parties in rlation to the contracts the courts, after examining and determining the nature of the disputes involved, decided against staying proceedings. Then in the CEB vs SUDECO case the Cours of Appeal of Tanzania stated guidelines on what things are to be decided before decided to stay proceedings pending arbitration. The court said:-
“Where proceedings are instituted by one of the parties to a contract containing on arbitration clause ……… and the other party acting pursuant to the arbitration clause applies to the High Court for satay of proceedings, the first thing to be decided is the precise nature of the dispute which has arisen and the next question is whether the dispute is one which falls within the terms of the arbitration clase”
(My underscoring)
I am bound by these guidelines and I propose to follow them in this case. Is there a dispute in the present case sufficiently brought out to warrant this court to stay the proceedings commenced by the first respondent/ plaintiff? In the GEC Vs. SUDECO cases the court of Appeal was able to determine the point upon an examination of the plaint. In the instant case Mr. Mbuya, as already seen, submits that the affidavit of Manyanga read together with the plaint of disclose materials sufficient for the court to stay the proceedings pending reference to arbitration. Again as seen, Mr. Kayange contends that there is no dispute or difference worth reference to arbitration in the case.
I have examined the plaint carefully but I am unable to discrern in it a dispute worth reference to arbitration. Mainly, as Mr. Kayange states, the suit is for payment of money for work done. There is no issue of no works having been not done “regularly and diligently” as was the situation in the GEC Vs. SUDECO cases, for example. I set no issue of this king in the plaint.
6. CHAMBER APPLICATION (a) Abubakar Mohamed Mlenda vs Jumanne Mfaume[1989] TLR145. HC at Dar. Omission to cite a proper provision of the law in the chamber summons is not fatal to the application. (b) Charles Mhiso vs Grace Njau and Another [1997] TLR 107 HC at Dar(Msumi,J). It was true that a chamber summons without a court seal was of no legal effect but it was not good law that such defect should be ground for dismissal of a suit. © Civil Case No. 210/89 – Transport Equipment Ltd vs Devran Valambhia. HC at Dar.(Rubama, J). “I associate myself with the finding and hence holds that the combining of several applications into one is proper.” (d) Misc. Civil Application No. 99/93 – Abdul Masumai vs Awaichi Awinia Massawe. HC at Arusha (Mushi, J). “One application supported by one affidavit cannot support three distinct applications and by lumping the three matters in one application as is in the present one makes the whole application incompetent as it is not possible for the court to properly determine them.” (e) Misc. Civil Cause No. 29/96 – Phil M. Kleruu vs NHC. HC at Dar (Nsekela, J) “Again it is my considered opinion that this error of quoting a wrong subsection is not fatal to the application. What is important in a matter of this nature is that substantial justice must be done.” (f) Civil Case No. 347/98 – The Executive Officer of the Association of Tenants IPS Building vs Property Bureau (T) Ltd. HC at Dar Chamber application not signed by the Registrar and also not sealed with the seal of the court is defective, [Quoted Kaur and others vs City Auction Mart[1967] EA 108 – which stated that such omission amount to non compliance with a fundamental statutory requirement]. (g) Misc. Civil Application No. 191/01 – Director of Building, Ministry of Works vs Pius Kassuga. HC at Dar(Ihema, J). “ Equally it has been settled by courts in this jurisdiction that a wrong citation of the law renders an application incompetent.” (h) Civil application No. 64/03 – Citibank Tanzania Ltd vs TTCL and Four others. CAT at Dar. The applicant was required to cite the relevant provision from which the courts derives the power to hear and determine the application. If a wrong citation of a law renders an application incompetent, I have not a flicker of doubt on my mind that non- citation of the law is worse and equally renders an application incompetent. It hardly needs to be overemphasized that in a notice of motion, an application must state the specific provision of the law which the applicant wants to move the court to exercise its jurisdiction. (i) Misc. Land Case No. 15/04 – Joseph Kisinane Njau Tarimo and 2 others vs Rose E. Tarimo and 4 others. HC(Land Division) – Dar (Kileo, J). Application can be filed under section 78(6) of the Land Registration Ordinance without there being a main suit. Refer. Chrisma Ltd vs Emma Tsimon (1964) E.A 369. Mwaluko, Advocate – Section 78(6) of the Land Registration Ordinance under which the application has been brought does not require that there be a main suit in order for an application of this kind to be made but rather that the court is given powers to give directions as it deems fit for the advancement and interest of justice in order to enable caveats filed to continue being in force. (Court) – The provision which .provides for the filing of caveats, does not distinguish between a legal and an equitable interest and I do not think that it was the intention of the legislature in passing this legislation to exclude equitable interests from its application. If it had that intention, then no doubt it would have expressly so stated. (j) Civil Case No. 159/86 - Rashid Hussein vs Boniface Nyamuhanga & Another HC at Dar ( Ihema, J).
- The record shows that the respondents did not file a counter affidavit as ordered. Mr. Kiwango learned advocate capitalizes on the respondent’s failure to file a counter affidavit “to be take to mean that they (respondents) have conceded to the application. As such Mr. Kiwango submits that the prayers sought in the chamber summons/application be granted. The learned advocate calls in support the authority by Chipeta, J. (retired) in the case of Frederic Selenge and Another Vs Agness Mesele [1983] TLR 99. Mr. Luguwa has neither controverted this proposition nor alluded to it in his written submissions filed on 28/12/2004. I will therefore adopt what Mr. Justice Chipeta (retired) observed in the above case to determine the matter before me to the effect that in the absence of “ a counter – affidavit to rebut the facts contained in the learned counsel’s affidavit, all things being equal, the lower Court, in this case the court, ought to act on the basis of these facts deponed to, unless they were on the face of it palpably false” I have read the affidavit of Rashid Hussein the deponent and I find the facts deponed to contain no palpable falsehood on the face of it. Accordingly I will allow the application and order. (i) extension of time is granted to file an application to set aside the order of dismissal of the suit as well as the order for grant of leave to proceed exparte. The application to be filed on or before 24/02/2005.
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- 7. CERTIORARI & MANDAMUS -Limitation is Six months Refer- De Smith, Judicial Review of Administrative Actions. (a) Misc.Civil Cause No. 144/93 – Workers of Tanganyika Textile Industries Ltd vs Registrar of The Industrial Court of Tanzania and others. HC at Dar (Kalegeya,J). -Application for leave to file an application for orders of certiorari and mandamus - “ I should out rightly point that seeking leave to file an application for prerogative orders requires the applicant to merely raise arguable points. He is not required to prove the alleged errors for, that proof would only be required, during hearing of the main application if leave is granted. Regard being had to the statement and the attached supporting document”. (b) Misc. Civil Application No. 68/94 – Sylvester Cyprian and 210 others vs DSM University. HC at Dar (Kyando, J). “Certiorari is used to bring up into the High Court a decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed i.e. it is declared completely invalid, so that no one need respect it. As for mandamus it is a command issued from the High Court ordering the performance of a public legal duty. Both certiorari and mandamus are discretionary remedies and courts assume a free discretion to grant them in suitable cases and withhold them in others.” © Civil Appeal No. 14/95 – Mecaiana Establishments vs The Commissioner of Income Tax and six others. CAT at Dar. -“ From the clear and unambiguous words of that sub-section,[to wit, S.17A(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance], the requirement to summon the Attorney General as a party in proceedings for prerogative orders is when leave for application to institute those proceedings is sought. Thus after leave has been granted to institute those proceedings, then there is no requirement for summoning the AG as a party.” - “ It may be necessary to point out here that as the Chief Justice has not made rules to govern theses proceedings, the High Court has been following the procedure obtained in England. A party first makes an application for leave to apply for prerogative orders. After leave has been granted, the party then proceeds to file an application for the prerogative orders. The requirement of summoning the AG as a party is for the first stage of seeking leave. That requirement is absent in the second stage of application for prerogative orders.” -“Government proceedings, on the other hand, have to be instituted by or against the AG. That is the clear provision of S. 9 of the Government Proceedings Act, 1967. Since application for prerogative orders can be proceeded against any party, not necessary the AG, as we have seen above, then they are not in the nature of the Government Proceedings which must be against or by the AAG only.” (d) Misc. Civil Cause No. 36/96 – Ernest Gwebe Makobe vs The Director of Immigration Sservices. HC at Dar (Katiti, J). -“The courts will not act on mere assertion that the question of National Security were involved. Evidence is required that the decision under challenge were in fact founded on those grounds.” (e) Misc. Civil Cause No .39/97 – Josiahn Barthazar Baizi and 138 others vs AG and others. HC at Dar ( Makanja,J). - “……Uberrima fides is required and leave will not be granted if there has been a deliberate misrepresentation or concealment of material facts in the applicant’s affidavit….” (f) Misc Civil Cause No. 7/99 – THA vs Minister for Labour and AG. HC at Dar. “ The applicant is only required to raise an arguable point on what could be an error or related in the decision being challenged” (g) Civil Application No. 13/99 – Hasham Madongoand others vs The Minister for Trade and Industries and AG. CAT at Dar. -“ The Court of Appeal cannot be moved to exercise original jurisdiction to grant leave or extension of time in which to apply for the orders of certiorari and mandamus. To do that, would in effect indirectly be involving the Court in matters of original jurisdiction, in which it has no jurisdiction.” (h) Alfred Lakaru vs Town Director [1980] TLR 326 HC at Arusha ( Maganga,J) - “…..I have formed a firm view that this application must be dismissed on the ground that it is incompetent and misconceived. The jurisdiction of the High Court to make orders of mandamus or any other prerogative writs is given by S. 2 (2) of the JALO, Cap. 453. The order of mandamus is defined in Hasbury’s Laws of England ( Third Edition Vol. 2) at page 84 as follows:- “the order of mandamus is an order of most extensive remedial nature, and is in form, a command issuing from the High Court of justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his nature of a public duty. Its purpose is to supply defects of justice…” The application was incompetent and misconceived as the affidavit filed in support of the application did not disclose any of the conditions precedent for the issue of an order of mandamus, namely:- legal right must exist duties must be public right must be in the applicant application must be made in good faith demand of performance must precede the application there must exist the possibility of enforcement , and no other legal remedy. As it is mandatory to obtain leave to file the application and no leave was sought or granted before filing the application it was incompetent. The principal in granting orders of mandamus is that, “ except where the delay is duly accounted for, mandamus will not be granted unless applied for within a reasonable time after the demand and refusal to do the act.” (i) Republic Ex-parte Peter Shirima vs Kamati ya Ulinzi na Usalama, Wilaya ya Singida, The Area Commissioner and the AG.[1983] TLR 375 HC at Dodoma (Lugakingira, J). - The practice of seeking leave to apply for prerogative orders has become part of our procedural law by reason of long user. - The existence of the right to appeal and even the existence of an appeal itself, is not necessarily a bar to the issuance of prerogative orders, the matter is one of judicial discretion to be exercised by the court in the light of the circumstances of each particular case. - Where an appeal has proved ineffective and the requisite ground s exist, the aggrieved party may seek for, and the court would be entitled to grant, relief by way of prerogative orders”. (j). Sanai Murumbe and another vs Muhere Chacha [1990] TLR 54 CAT at Mwanza. -An order of certiorari is one issued by the High Court to quash the proceedings of and decisions of a subordinate court or tribunal or public authority where, among others, there is no right of appeal. - The High Court is entitled to investigate the proceedings of a lower court or tribunal or public authority on any of the following grounds apparent on the record:- (1) taking into account matters which ought not to have taken into account (2) not taking into account matters which it ought to have taken into account (3) lack or excess of jurisdiction (4) conclusion arrived at is so unreasonable that no reasonable authority could ever come to it (5) rules of natural justice have been violated (6) illegality of procedure or decision. (k) Jana Yusuph vs Minister for Home Affairs [19990] TLR 80 HC at Dar (Kyando, J). - If an administrative authority is acting within its jurisdiction or intra vires, and no appeal from it is provided by statute, then it is immune from control by a court of law. But if it exceeds its power, or abuses them so as to exceed them, a court of law can quash its decision and declare it to be legally invalid.
(l) Misc. Civil Cause No. 42/04- Sugar Board of Tanzania vs Minister for Land and others HC at Dar (Massati, J.)
- He submitted that the Commissioner for Labour did not valuate any of the tests set out in the MURUMBE case. He again referred to a decision of this Court in JAMAL YUSUPH VS MINISTER FOR HOME AFFAIRS (1990) TLR. 80 and submitted that the Labour Commissioner acted within his powers and so is immune from the control of the courts of law. On the premises Mr. Nzowa submitted that the application lacks merit and should be dismissed.
- From the submissions of the parties, there is, I think, no dispute that the High Court has jurisdiction to issue an order of certiorari to quash the proceedings of and decisions of a subordinate court or tribunal or public authority where, on the face of the record it:-
(a) has taken into account matters which it ought not to have taken into account.
(b) Had not taken into account matters which it ought to have into account.
(c) Lacks jurisdiction, or has acted in excess of jurisdiction.
(d) Has arrived at a conclusion so unreasonable that no reasonable authority could ever come to it.
(e) Has violated rules of natural justice and if
(f) The decision is illegal a contrary to procedure.
- These requirements were set down by the Court of Appeal in SINAI MURUMBE AND ANOTHER VS MUHERE CHACHA (1990) TLR 54; a case cited by Mr Nzowa learned Counsel for the 4th Respondent and supported by Mr. Mpoki, learned counsel.
- In the present case the remedy of certiorari is sought to quash the decision of the Labour Commissioner dated 19/3/2004 forwarding the dispute between the Applicant and the 4th Respondent to the Industrial Court for inguiry. It is contended by the 4th Respondent that the Labour Commissioner did not make any decision which could be reviewed by the High Court. The Applicant contends that was a decision judicially reviewable by the High Court. That is the question that I will have to determine first in this matter because:
“ The remedy of certiorari has to bring up to the High Court and quash something which is a determination or a decision”
HALSBURY’S LAW OF ENGLAND (eth ed.) Vol. 1 (1) p. 214 paragraph 114. HALSBURY’S gives a number of examples where certiorari has been issued and some in which it has not. From those examples it is clar that whether a particular action is a determination or a decision for the purposes of certiorari would depend on its effects on the rights of the parties. OSBORN’S CONCISE LAW DISCTIONARY – 7th ed. By Roger Bird and p. 116 defines the word “determine” to mean (1) To come to an end (2) To decide an issue or appeal. The concise Oxford Dictionary defines the two term as follows:
“decision …….. a settlement (of questions etc) conclusion, formal judgment, making up one’s mind, resolve, resolution decided character”.
And the term “determination” to mean
(3) Law cessation of estate or interest
(a) Conclusion of debate judicial decision, fixing of date
And the term “determine” means
“ settle decide dispute, person’s fate, come to a conclusion give decision ……(esp. law …. Bring up or come to an end”
- In one example cited in HALSBURY’S LAWS OF ENGLAND at p. 215 (opcit) in THE KING VS POSTMASTER GENERAL exparte CARMICHAEL (1928) 1 kb 291, a certificate of medical examination for purposes of Workman’s Compensation was quashed by way of certiorari on the ground that it was not issued by an unauthorized person. LORD HEWART E.J. said this at p. 297.
“…..I am satisfied that when I look at the part which a certificate of this nature must play in the making of any claim for compensation by a post office whether suffering from telegraphc cramp that the certificate of the certying surgeon is of the nature of a judicial act and is a fit subject for certiorari. Mrs Carmichael never received or been given the opportunity of receiving a certificate from the only surgeon whoc could lawfully give a cerificat …..the certificate is a judicial decision to which a proceeding by way of certiorari would apply” (Emphases minie).
- From the above example, it is, I think clear, to me, that for a decision or determination to qualify for review by way of certiorari, it must be of such a character as to affect the rights of a party or parties, in a decision which is about to be made by a body of persons to whom the decision is issued, and who are charged with a statutory duty to consider it in decision.
- Coming back to the subject at hand it is true that the 2nd Respondent issued a letter to the Chairman, of the Industrial Court of Tanzania asking the court to conduct an inquiry as to, among others, whether the dispute was properly dealt with under S. 8 (a) of the Industrial Court Act 1967 as amended. Section 8 of the Act requires the Court on receipt of the reference from the Labour Commissioner to.
“ inquire into the matter referred to it and make an award or advise the Labour Commissioner accordingly” (emphasis mine).
- Which means the final determination or decision of the dispute between the parties rests with the Industrial Court, and since the Labour Commissioner’s letter does not express any opinion on any of the subjects referred to the Court it cannot be said the Industrial Court would be influenced by the Commissioner’s reference unlike in the RE EXPARTE CARMICHAEL’S Case. So in my view the reference by the Labour Commissioner to the Industrial Court dated 19/3/2004 is not a decision the determination which is subject to judicial review by way of certiorari. It is like a preliminary inquiry whose nature is not a determine or decide but to prepare for a trial that will lead to a decision or determination.
- It follows therefore that this application must fail and fails on this ground alone. I will proceed to dismiss it and other that the Industrial Court proceed with its inquiry, where the Applicant has also raised the preliminary objections in that Court; as he did in the lower tribunals. The Respondents shall hve their costs in this application.
(m) Miscellaneous Civil Cause No. 42/04 - Sugar Board of Tanzania vs Minister For Labour HC at Dar (Massati, J)
- First and foremost I must commend all counsel for their industry and able legal arguments in this application.
- From the submissions of the parties, there is, I think, no dispute that the High Court has jurisdiction to issue an order of certiorari to quash the proceedings of and decisions of a subordinate court or tribunal or public authority whee, on the face of the record it:-
(a) has taken into account matters which it ought no to have taken into account.
(b) Had not taken into account matters which it ought to have taken into account.
(c) Lacks jurisdiction, or has acted in excess for jurisdiction.
(d) Has arrived at a conclusion so unreasonable that no reasonable authority could ever come to it.
(e) Has violated rules of natural justice and if
(f) The decision is illegal a contrary to procedure.
There requirements were set down by the Court of Appeal in SINAI MURUMBE AND ANOTHER VS MUHERE CHACHA (1990) TLR 54; a case cited by Mr Nzowa learned Counsel for the 4th Respondent and supported by Mr Mpoki, learned counsel.
In the present case the remedy of certiorari is sought to quash the decision of the Labour Commissioner dated 19/3/04 forwarding the dispute between the Applicant and the 4th Respondent to the Industrial Court inquiry. It is contended by the 4th Respondent that the Labour Commissioner did not make any decision which could be reviewed by the High Court. The Applicant contends that was a decision judicially reviewable by the High Court. That is the question that I will have to determine first in this matter because.
“ The remedy of certiorari has to bring up to the High Court and quash something which is a determination or a decision”
HALSBURY’S LAWS OF ENGLAND (4th ed.) Vol. 1 (1) p. 214 paragraph 114. HALSBURY’S gives a number of examples where certiorari has been issued and some in which it has not. From those examples it is clear that whether a particular action is a determination or a decision for the purposes of certiorari would depend on its effects on the rights of the parties. OSBORN’S CONCISE LAW DISCTIONARY – 7th ed. By Roger Bird and p. 116 defines the word “determine” to mean (1) To come to an end (2) to decide an issue or appeal. The concise Oxford Distionary defines the two term as follows:
‘decision …. A settlement (of questions etc) conclusion, formal judgment, making up one’s mind, resolve, resolution decided character”.
And the term “determination” to mean
(3) Law cessation of estate or interest
(a) Conclusion of debate judicial decision, fixing of date and the term “ determine” means “ settle decide dispute, person’s fate, come to a conclusion give decision ….. (esp. law ….. bring up or come to an end”.
In one example cited in HALSBUY’S LAWS OF ENGLAND at p. 215 (opcit) in THE KING VS POSTMASTER GENERAL exparte CARMICHAEL (1928) 1 kb 291, a certificate of medical examination for purposes of Workman’s compensation was quashed by way of certiorari on the ground that it was not issued by an unauthorized person. LORD HEWART E.J. said this at p. 297.
“ …….. I am satisfied that when I look at the part which a certificate of this nature must play in the making of any claim for compensation by a post office whether suffering form telegraphic cramp that the certificate of the certifying surgeon is of the nature of a judicial act and is a fit subject for certiorari. Mrs. Carmichael never received or been given the opportunity of receiving a certificate from the only surgeon who could lawfully give a certificate …. The certificate is a judicial decision to which a proceeding by way of certiorari would apply” (Emphases mine).
- from the above example, it is, I think clear, to me, that for a decision or determination to qualify for review by way of certiorari, it must be of such a character as to affect the rights of a party or parties, in a decision which is about to be made by a body of persons to whom the decision is issued, and who are charged with a statutory duty to consider it in their decision.
- Coming back to the subject at hand it is true that the 2nd Respondent issued a letter to the Chairman, of the Industrial Court of Tanzania asking the court to conduct an inquiry as to, among others, whether the dispute was properly dealt with under S. 8 (a) of the Industrial Court Act 1967 as amended. Section 8 of the Act requires the Court on receipt of the reference form the Labour Commissioner to.
“inquire into the matter referred to it and make an award or advise the Labour Commissioner accordingly” (emphasis mine).
Which means the final determination or decision of the dispute between the parties rests with the Industrial Court, and since the Labour Commissioner’s letter does not express any opinion on any of the subjects referred to the Court it cannot be said that the Industrial Court would be influenced by the Commissioner’s reference unlike in the RE EXPARTE CARMICHAEL’S Case. So in my view the reference by the Labour Commissioner to the Industrial Court dated 19/3/2004 is not a decision the determination which is subject to judicial review by way of certiorari. It is like a preliminary inquiry whose nature is not to determine or decide but to prepare for a trial that will lead t a decision or determination.
- It follows therefore that this application must fail and fails on this ground alone. I will proceed to dismiss it and order that the Industrial Court proceed with its inquiry, where the Application has also raised the preliminary objections in that Court, as he did in the lower tribunals. The Respondents shall have their costs in this application.
-
-
8. CIVIL PRISON.
(a) Civil Case No. 88/87 – Omari Mzee Mtumweni vs said Issa Magenza. HC at Dar (Mackanja, J). “ Civil prison which the applicant seeks is one of the ways in which a money decree may be executed. It is a most draconian and repressive way of forcing a debtor to meet his civil liabilities. In my view, however, this mode of execution should be the last resort. It should be employed if all other means have failed. Specially, if the judgment – debtor has dispatched or disposed of property in order to defeat the execution of the decree. It is not an appropriate remedy in a situation such as this one where no prior attempt has been made to employ other civilized ways for forcing a judgment debtor to satisfy a decree in terms of Order XXI Rule 9 to 21 of the Civil Procedure. This instant application would fail.” (b) Civil Case No 210/ 89 – Transport Equipment Ltd vs Devram Valambhia . HC at Dar (Rubama,J). “ For the reasons detailed above, I find Mr. Frank T. Kejo, Principal Secretary, Ministry of Defence and National Service has failed to show cause why he should not be detained as a civil prisoner due to his refusal to comply with a lawful order of this court. However, I bear in mind the principle propounded in Re Maria Anne Davies (1888) 21Q.B.D 236, 239qouted with approval in Kasturila Laraya vs Mityana Staple Company Ltd and another (1958) , “Recourse ought not to be had to process of contempt in aid of a civil remedy where there is any other method of doing justice. ……It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched, and exercised, if I may say so, with the greatest anxiety on the part of the judges to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject. I say that a judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that, necessary though it be, it is necessary only in sense in which extreme measures are sometimes necessary to preserve men’s rights, that is, if no other pertinent remedy can be found…” Bearing the above in mind and to very limited extent the position of Frank T. Kejo notwithstanding the observations of Mustafa, J.A in I.G Lazaro vs Josephine Magomera, Civil Appeal No. 2/96 (unreported), “I think perhaps only the President of the Republic and judges in the performance of their official duties are immune from court process; those provisions are specifically contained in the Constitution of the Republic” rather than commit him to civil imprisonment, I give three weeks to Frank T. Kejo to comply with the lawful order of this court as contained in the Garnishee Order sent to him © Civil case No 282/98 – Tata Holding (T) Ltd vs Monani Trading as Anchor Enterprises. HC at Dar (Katiti, J). -The mandate for arrest and detention of the judgment debtor, in execution process by the court, resides in the provisions of section 44(1) of the CPC, while rules 38,39 of ORDER XXI of the Code, provide for the legal modalities for appearance before the court before, by the judgment debtor if necessary, before the detention order, is passed. - For purposes of execution process, where the arrest and detention of the judgment debtor becomes necessary, and a decree for payment of money is exceeding One Hundred Shillings, the court shall not impose more than six months civil prison, nor will the aggregate of such period, where there has been a release and retention exceed six months…….the execution court can, or may only continue the detention of the judgment debtor, for only a maximum period of six months and no more……” (d) Commercial Case No. 40/00 – Swedish vs Suchak & Sons Ltd. HC, Commercial Division, at Dar (Nsekel,J). -“Order XXI Rule 10(2) lays down the particulars which every application for execution of a decree must contain. Clause (j) of the rule requires that the mode in which the assistance of the court is required should be stated. In other words, the decree-holder must state which of the five modes of execution mentioned in that clause he wishes to invoke for the purpose of execution.” “There is no application before this court under order XXI rule 10(2)(j) (iii) which is one of the modes in which assistance of the court can be sought to make an order for the arrest and detention of the judgment debtor in a civil prison. It is my humble opinion that the Chamber Summons filed by the decree holder on 16/7/2000, is not a substitute for non –compliance with Order XXI rule 10 (2) (j) (iii) . Application is dismissed with costs.
9. COMPANY. (a) Civil Case No. 235/92 – Intertec (EA) Ltd vs B&S International. HC at Dar (Katiti, J). “ Since the plaintiff Company was not incorporated in the country of origin, and since under S.32 of the Companies Ordinance, Cap.212, a foreign Company can only have a place of business in this country if it is incorporated in the country of origin, the plaintiff’s company has no place of business is this country in law.”
(b) Civil Revision No. 7/04 - Sophia Mponda , Mohamed Stambuli vs Khamis Slim Kheri HC at Dar (Ihema J,)
- I agree that there are apparent errors in law on the decision of the learned Resident Magistrate to confirm that she acted in the exercise of her jurisdiction with material irregularity for this court to invoke the provisions of section 79 (1) of the Civil Procedure Code 1966. First it is a settled principle of law that a company once estamblished assumes its own legal status with powers to sue and be sued; it owns its property separate from those of its directors and or shareholders. Equally a Director cannot be held liable for the company’s indebtedness, as such a director’s property cannot be held or attached to meet the company’s liabilities. This position of the law universally accepted finds its original in the famous and justly celebrated case of Solomon Vs Solomon & Co. [1897] A.C. 22 Secondly the objectors being non parties to the original prodceedings cannot have their property attached at the stage of execution. At any rate there is nothing in the consent settlement order allowing the decree holder to attach the property in question. The house wa therefore improperly attached.
- In the event I will allow the revision proceedings, quash and set aside the decision of G.K. Mwakipesile learned Resident Magistrate ordering the execution to proceed. I will order the lifting of the attachment on house No. 449 Block 8 Ujiji Street Mwananyamala on the reason that the said house does not belong to the judgement debtor and that Mohamed Stambuli is not one of the judgement debtor upon whom the decree holder can proceed for excution. The decree holder is advised to find other atternative measures to prosecute his rights against the judgment debtor on the basis of the consent settlement order dated 13.02.2003.
10. COUNSEL (a) Trade and Industries. CAT at Dar. “ It is settled principal that negligence or inaction on the part of the does not constitute sufficient reason for extending of time”. (b) Matrimonial Cause No. 3/01 – Paola Civil Application No. 13/99 – Hashim Madongo vs The Minister of Abdullah vs Mohamed Norman Abdullah. HC at Dar (Muro,J). “ A statement made a person not called as a witness, which is offered in evidence to proof the truth of the facts contained in the statement is hearsay and is not admissible. Counsel should refrain from turning themselves into witnesses of facts when making submissions.” © Civil Application No. 135/02 – Emma Kichikukea vs Anna M. Mbaga and another. CAT at Dar. -“Advocates of less than five years practice normally have no right of audience in the Court of Appeal.” -“Mr. Lugaziya has no right of audience in this Court for the time being unless he obtains prior permission of the Chief Justice”.
11. DAMAGES. (a) Zuberi Augustino vs Anicet Mugabe[1992] TLR 137 CAT at Dar or Civil Appeal No. 10/92 CAT. “ It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved.”
(b) Civil Case No. 187/93 – Frank Madege vs the A.G. HC at Dar (Bubeshi, J). - “ The underlying principal in assessment of damages has its origin in the speech of Lord Blackburn in the case of Livingstone vs Rawyards Coal Co. (1880)5 App’ Cas. 25 where he defined the measure of damages as :- “that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting compensation or reparation.” General Damages are such as the jury may give when the judge cannot point out any measure by which they are to be assessed except the opinion and judgment of a reasonable man.” General Damages are such as the law will presume be the direct natural or probable consequence of the action complained of….” In an action for personal injuries, the damages are always divided into two main parts. First, there is what is referred as Special damages, which has been to be specifically pleaded and proved. This consists of out of pocket expenses and loss of earnings incurred down to the date of the trial, and is generally capable of substantially exact calculation. Secondly, there is General damages, which the law imputes and is not specifically pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to continuing or permanent disability compensation for loss of earning power in the future…..” © Civil Appeal No. 5/97 – Tanzania Saruji Corporation vs African Marble CO. Ltd. CAT at Dar. “ The position is that general damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of. The defendant’s wrong doing must, therefore, have been a cause, if not the sole, or particularly significant, cause of the damage.” (d) P.M. Jonathan vs Athuman Khalfan [1980] TLR 175 at 190 HC at Dodoma, (Lugakingira, J). “The position as it therefore emerges to me is that general damages are compensatory in character. They are intended to take care of the plaintiffs loss of reputation, as well as to act as a solatium for mental pain and suffering. Exemplary damages, on the other hand, are a punishment to the defendant for misconduct which general and even aggravated damages cannot reach , and as a reminder that tort does not pay. They should be recoverable from any defendant whose outrage deserves punishment . It may be anomalous to use the civil court for criminal purposes but I do not desire to express myself on that issue. I would only add that where the defendant is a servant of the people and commits wrong under the guise of his power, or where the defendant is motivated by expctations of gain, that would be reason for the court to take an even more serious view and to award such exemplary damages as the occasion would require.” (e) Civil Appeal No. 45/98 – The Judge i/c High Court Arusha and A.G vs Munuo N.I.N Munuo Ng’uni. CAT at Arusha. “ We have held in Cooper Motor Corporation Ltd vs Moshi/Arusha Occupation Health Services [1990] TLR 96 at 100 that it suffice in the case of general damages merely to aver that such damages has been suffered……Only general damages can be asked for by a “mere statement or prayer of a claim” and this is what has been done in this case. It is clear that this Court excluded asking specific damages by a mere statement or prayer.” Monthly income has to be signed by the auditor. (f) Civil Case No. 377/98 – Major Bernard Mwenzetu (RTD) vs The Chief of Defence Forces and the AG. HC at Dar (Bubeshi,J). The plaintiff asked for general damages to be assessed by the court for pain and suffering, mental and emotional anguish and disability –Tshs 40million. Special damages have to be specifically pleaded and proved. As to general damages this is the domain of the court. (g) Civil Case No. 205/99 – Nyakato Soap Industries Ltd vs NBC Holding Corporation. HC at Dar ( bubeshi, J). -“As a rule, general damages are by nature within the discretion of the court.” (h) (Employment)Civil Case No.481/99 – Hilal Hamad Rashid and 4 others vs The Permanent Secretary and AG. HC at Dar (Kyando, J). “ …In Valentine Eyakuze vs The Editor of Sunday News and Two others [1974] TLR 49 in which the plaintiff, kin an action for libel, demanded shs. 200,000/= as general damages, Mfalila, J (as he then was) remarked:- “…..The plaintiff should close his statement of claim ( in the plaint) simply with the words “And the plaintiff claims damages against the defendants a and each of them”. The plaintiff is not bound to specify the amount which he claims as damages, nor should he do so, for if he claims a small sum he is exposed to the trial to the suggestion that he does not value his character highly, while if he claims a large sum, there is room for the taunt that he is after money’. Non statement of the amounts of general damages is a proper approach not only in libel or slander actions but in all cases in which general damages are claimed. It should in such cases, be left to the court to determine the quantum of damages to be recovered. Interest on general damages is only due after the delivery of judgment because then the amount is known. (i) Commercial Case No. 57/00- Philemon Joseph Chacha vs South African Airways(Proprietary) Ltd. HC-Commercial Division (Kalegeya, J). “A complaint on the failure to give the quantum of damages claimed is not justified. Why? Apart from the clear answer provided by Prof. Fimbo that general damages are always at large unless claimed are special damages, it is sufficiently explained that these are damages that allegedly are likely to be incurred.” (j) The Cooper Motor Corporation Ltd vs Moshi/Arusha Occupation Health Services [1990] TLR 96. CAT at Arusha. General damages need not be specifically pleaded, they may be asked for by a mere statement or prayer. Whether the assessment of damages by a judge or jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case……Before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law(as taking into account some irrelevant factor or leaving out of account some relevant one), or short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a whole erroneously estimate of the damage. (k) Civil Appeal No. 80/02 – The AG vs Roseleen Kombe (as Administratrix of the late Lieutenant General Imran Hussein Kombe, deceased). CAT at Dar. The principles governing assessment of damages under the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance, Cap.360. There are three stages in the normal calculation, namely:- to estimate the lost earnings, that is, the sums which the deceased probably would have earned but for the fatal accident. to estimate the lost benefit, that is, the pecuniary benefit which the dependants probably would have derived from the lost earnings, and to express the lost benefit as an annual sum over the period of the lost earning. to the appropriate multiplier which, when applied to the lost benefit expressed as an annual sum gives the amount of the damages, which is lump sum. This is the normal practice followed in assessing damages in fatal accident cases which has been recommended for the sake of uniformity and certainty. (l) (T) Ltd vs A. Cooper Motors Corporation I.C.C [1991] TLR 165 (CAT). “It was wrong for the trial court to award special damages which were more than what the respondent had claimed.”
(m) Civil Appeal No. 108/04 - J.D Shirima vs Aidan Nguguru – HC at Dar (Massati,J).
- The award of general damages is a matter of discretion of the trial court and they are intended to take care of the plaintiff’s mental pain and suffering (See Haji Associates Company (t) Ltd and Another vs, John Mundwa (19860 TLR 107. I have no doubt in my mind that the Respondent was greatly disturbed by the trespass especially when the Appellant declined to obey an order of demolition of the encroaching structures.
- It is the law also that an appellate court should not interfere with the award of damages by a lower court unless it is shown that the trial magistrate acted on wrong principles or that the amount was too excessive in the circumstances.
- After taking into account all the principles set out above, I am of the unshakeable view that the Respondent is entitled to general damages and the trial magistrate did not act on wrong principles in assessing the damages and the amount assessed cannot be said to be excessive in the circumstance I would also dismiss this ground of appeal.
- In his last ground of appeal, the Appellant argues that the Commissioner for lands ought to have been made a party. It was therefore wrong to have left him out, and therefore there should be a trial denovo. Mr. Tadayo submitted that this was not a case of double allocation but simple trespass to land. The Commissioner for Land did not authorize the encroachment. Mr. Massawe did not seek to rebut this argument.
- I think Mr. Tadayo, is on firm grounds. On the facts of this case the Commissioner for Lands could not have been and is not a necessary party. I the appellant thought he was, he was at liberty to apply before the trial court to join him as a necessary or third party. This is permissible under O.1 of the Civil Procedure Code 1966. But R. 13 Order 1 of the Civil Procedure Code 1966, also calls upon the parties to raise objections as to non joinder or misjoinder at the earliest possible opportunity.
- Therefore, this objection should have been taken at the trial court, and it is therefore too late in the day to raise it at this stage. Besides, Under r. 9 of Order 1 of the Civil Procedure Code 1966 no suit could be defeated by reason of misjoinder or non joinder. For these reasons therefore I also think that the fifth ground of appeal also lacks substance.
(n) Civil Appeal No. 210/03 – Ubungo Plaza Ltd vs Christopher Mduma. HC at Dar (Oriyo,J).
-On the claims for special damages, it is a trite principle of law that where special damages are claimed, they must be proved in evidence, (see COOPER MOTORS CORPORATION (T) LTD VS ARUSHA INTERNATIONAL CONFERENCE CENTRE (1991) TLR 165; JIMA MISANYA AND ANOTHER VS LISTA NDURUMA (19830 TLR 245). Were the special damages under ( a) and (c) proved to the required standard in law? For the damages under (a) the Valuation Report provided a basis; but did not specify the value of the cracks in the block boundary only and the value or loss caused by the appellants activities. There was no evidence at all adduced on the special damages claimed under (c) . This court is mindful of the legal principle that in order for an appellate court to interfere with an award of damages by a lower court it must be shown that the lower court acted on wrong principles or that the amount was too excessive in the circumstances (see this court’s decisions in MBARAKA WILLIAM VS ADAMU KISSUTE AND ANOTHER (1983) TLR 358 and TANESCO VS IBRAHIM FORD, C/A 99/99, DAR ES SALAAM Registry, unreported). In this case I am satisfied that the trial court awarded excessive sums as special damages and based on wrong principles; without evidence in proof. The trial court erred on this aspect and the appellate court has to interfere with the award.
- On the claims of general damages under (b) and (d); they were also awarded as prayed. Let me make here a remark or two on general damages. It is trite law that General Damages are limited to those claims that the law will presume to be the direct, natural or probable consequences of the act complained of (see Court of Appeal decision in AFRICAN MARBLE CO. LTD VS TANZANIA SARUJI CORPORATION, Civil Application No. 38/93 unreported and a decision of this court in 1. THEO MUSHI. 2. THE GUARDIAN LTD VES DR. WILSON MUTAGABWA, C/A No. 28/01, Dar es Salaam Registry, (unreported). Secondly, general damages are usually not quantified in a suit. The claimant should merely include it in the statement of claim and leave it to the court to do the assessment based on the facts and the legal principles above (see THE COOPER MOTOR CORPORATION LTD VS THE MOSHI/ARUSHA OCCUPATIONAL HELTH SERVICES, (1990). Thirdly is that whereas interest on general damages is chargeable from the date of judgement; interest on special damages may be charged from the date the cause of action arose or the date the suit was filed as the case may be (see Court of Appeal decision in SAID KIBWANA AND ANOTHER VS ROSE JUMBE, Civil Appeal No. 6/93, Arusha Registry, unreported and this court’s decisions in TANESCO VS IBRAHIM FORD (supra); THEO MUSHI and ANOTHER VS DR MUTAGABWA (supra).
-By awarding the general damages as prayed; the trial court erred by not assessing the general damages before awarding the same. However, even if the trial court had properly directed itself and assessed the general damages due under (b) and (d) above; the record lacked material evidence upon which the assessment of general damages would have been based. Further, the claim of Shs. 25 mmillion in the plaint was for general damages for trespass and wrongful interference. But at the trial, the sum of Shs. 25 million was claimed as a special damages being cost of PW 3’s property sold to the respondent; according to the testimonies of PW .1 and PW. 3. Was the contradiction accidential or was the claim of shs. 25 million a fabrication of the respondent? Under these cirecumstances it was impossible for any judicious mind to assess the general damages payable under (b) and (d). Accordingly the awards of general damages granted under prayers (b) and (c) are set aside.
(o) Civil Appeal No. 86/04 – Lawrence Cheyo , Nundwile Cheyo vs Simon Peter Mroso HC at Dar (Manento, JK).
- As to the last issue of special damages, I agree with the learned advocates that special damages are to be pleaded and proved. The evidence was to the effect that special damages were pleaded in the amended plaint. The respondent in his evidence, though briefly, said that he suffered damages to the time of shs. 500,000/= due to the destruction of his wire fence. He did not prove the costs of constructions or the value of the wires used and the cement poles, yet there were such wire fence. That was a fact which the 1st appellant did not refute in any way. Then, if there was physically a wire fence on the plot, it could not just be there, without someone erecting it. It was erected by the respondent and some money must have been used, even if there were no vouchers and the persons who built it. A fact remains as it is. Due to failure to prove the costs incurred, I would just half it and grant damages of shs. 250,000/= being the costs of the destroyed wire fence.
- Before I pen off, I would like to comment that the negligence or rather irresponsibility of the land officers in granting allocation of one plot to more than one person, causes much hardship to the parties, who instead of developing the plots, they waist both time and money in courts. If the Ministry for Lands and Urban Developments, together with Local Authorities responsible for the offering of those plots don’t’s take stern actions to any land officer double allocating a plot, then, the general public will be entitled to believe that there are corrupt motives in the minds of the officers responsible for the land allocation. There are several cases involving double allocations of plots and the same is being repeated, mainly because those land officers hand not been held responsible for their negligence or malpractices intentionally done. I believe the people responsible in the land allocations have register, which are to be up to date at all times. In these registers, all payments for land fees are or should be recorded for ease follow up of land rent defaulters.
Besides, the remarks above, and except for the variation to the special damages, the the appeal is dismissed with costs before this court and the court below.
(p) Civil Appeal no. 108 of 2004 – J.D. Shirima Vs Aidan Nduguru HC at Dar (Massati, J).
-it is not disputed that the Respondent had claimed general damages to be assessed by the court. The present case is founded on trespass to land. It is a settled principle of the law of torts, that trespass to land is actionable per se, ie without proof of damages. (See WINFIELD AND JOLOWICZ ON TORT (11th ed) p. 336) So, with or without proof of actual damage, the Respondent is entitled to damages. (See also REVOCASUS L. KIDAHA V. NATIONAL HOUSING CORPORATION (1988) TLR. 59.
- The award of general damages is a matter of discretion of the trial court and they are intended to take care of the plaintiff’s mental pain and suffering (See HAJI ASSOCIETES COMPANY (T) LTD AD ANOTHER VS. JOHN MLUNDWA (1986) TLR 107. I have no doubt in my mind that the Respondent was greatly disturbed by the trespass especially when the Appelant declined to obey an order of demolition of the encroaching structure.
- It is the law also that an appellate court should not interfere with the award of damages by a lower court unless it is shown that the trial magistrate acted on wrong principles or that the amount was too excessive in the circumstances.
- After taking into account all the principles set out above, I am of the unshakeable view that the Responsent is entitled to general damages and the trial magistrate did not act on wrong principles in assessing the damages and the amount assessed cannot be said to be excessive in the circumastances I would also dismiss this ground of appeal.
(q)
12. DEBENTURE (a) Shinyanga Regional Trading Co. Ltd vs NBC [1997] TLR 78 CAT at Dar.
The trial court had erred in describing the instrument as a debenture contract or agreement; there was no such thing as a debenture contract or agreement in law. A debenture was simply a document issued by a company as evidence of its indebtedness which was normally secured by a charge over its property and could only be made and issued by one side, namely the borrowing company. Sections 79 and 80 of the companies Ordinance, Cap. 212 were quite clear as to the registration of charges and the consequences of non-registration, namely that if the charge was not registered within 42 days it became void and the loan so secured became immediately payable. In the present case the debenture had not been so registered and it was accordingly void. Even if the debenture had been properly registered and valid at the time of the sale of the go down by the respondent it would make no difference on the validity of the sale by the respondent as under the debenture the respondent had no direct power of sale.
13.DECLARATION. (a) Civil Appeal No. 53/97 - Mariam Suleiman Hassan Vs Suleiman Mohamed Hassan. CAT at Dar (Matrimonial). The prayer was for a declaration that all the properties involved in the suit were acquired through monies of the appellant and that the appellant is the sole owner of the properties. We agree with the learned judge trial that weighed on balance, the appellant as owner of the majority shares in the project is entitled to be awarded at a higher proportions than the respondent.
14. DEFAMATION; FALSE IMPRISONMENT & MALICIOUS PROSECUTION. (a) Naiman Moiro vs Nailejiet Zablon [1980] TLR 274. CAT at Arusha. When a person is under a normal or social duty to make certain statements and does make statement which appear to be defamatory the defence of qualified privilege would be available provided such statements are made without malice. A person whose character or conduct has been attacked is entitled to answer such attack and any defamatory statements he may make about the attacker will be privileged provided were published bonafide. Falsehood is one of the factors which constitute defamation but is not per se a factor which constitutes malice. Copying letters to different persons does not amount to communication unless there is evidence that the persons to whom the letter has been copied have received. (b) P.M Jonathan vs Athuman Khalfan [1980] TLR 175 HC at Dodoma (Lugakingira, J). Since the defendant did not mention any names to the Permanent Commission of Enquiry, it is impossible to find that the communication was understood in a defamatory sense, or if it was, that it was understood to refer to the plaintiff; such communication was not actionable publication. Where the plaintiff directly or indirectly, procures publication of matter which he knows to be defamatory of himself, the maxim volent fit non injuria would apply, and the publication would not be publication in law. In order for a statement to be absolutely privileged it must be made in the course of a trial or judicial hearing and must have relevance to the case at hand. In writing to the Chief Justice the defendant did not do so in the course of a judicial proceedings; he only communicated to him in his capacity as an administrator. Qualified privilege can be called in aid when the occasion is used honestly and without malicious motive. The statement by the defendant, during the trial he also wanted the plaintiff arrested and, if possible prosecuted or detained proved that his communication to the Chief Justice was actuated by malice. © Civil Case No. 4/90 – Dr. Richard Kisenge vs Julius Mutalemwa and T.H.B. HC at Tabora (Korosso,J). What is defamation? Defamation is defined as the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of the right thinking members of the society or tends to make him be shunned or avoided. I note that too that defamation be a slander or libel depending on whether the defamatory statement is verbal or written. The essentials of defamation are common to both slander or libel. These essentials must be proved by the plaintiff in order to succeed. These are:- that the statement is defamatory that the defamatory statement referred to the plaintiff that the defamatory statement was made malicious What is False Imprisonment? Entails the unlawful restraint o fa person ‘s liberty of movement so that he cannot go where he wills and that the imprisonment must be complete…. [Quoting Meering vs Grahame White Avion Co. Ltd[(1920) 122 D.T 4 “ a person could be falsely imprisoned when he is asleep or when he is in a drunken state”. False Imprisonment – is an extremely serious one in that it is a direct violation of constitutional provisions of our Constitution which unequivocally guarantees from of movement to all citizens. (d) Civil Appeal No. 40/92 – T.H.B. vs Dr. Kisenge. CAT at Mwanza. according to Halsbury’s Laws of England, 4th Ed. Vol. 28 paragraph 111, the defence of qualified privilege lies where, “……..the person who makes a communication has an interest or duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is made, has corresponding interest or duty to receive it”. The branch Manager had interest and duty to report such suspect ed theft in an attempt to recover or protect the moneys of his employer, the appellant bank. Indeed we think it would be odd if he did not do so because then he would be inviting suspicion upon himself. Likewise the police whose functions in the society include the detection of crime, had a corresponding duty to receive such report, investigate the allegation and, if the evidence so warrants, prosecute the suspect. The defence of qualified privilege would be defeated if, in reporting the suspected theft to the police, the branch Manager did so with malice. (e) Civil Appeal No. 15/81 - Jandu and others vs David Kwanga. HC at Dar ( Lugakingira, J). It is imprisonment where a person is deprived of liberty to go wheresoever he pleases, whether he is confined at the same place oar led in a particular direction by the person affecting the arrest. The burden of establishing want of reasonable cause in suits for malicious prosecution rests on the plaintiff. There is no significance difference between “reasonable” and “probable” cause. Reasonable and probable cause is an honest belief in the guilty of the accused based upon a full conviction, found upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. Certainly it is not necessary that the defendant should himself conduct the prosecution; it is sufficient that he should have signed the charge and expressed to the police his willingness to attend court and give evidence against the accused. It is settled law that once imprisonment is established the onus shifts to the defendant to show that it was justifiable. (f) Civil appeal No. 1/94 – Peter Ng’homango vs Gerson Mwanga and the AG. CAT at Dodoma. The most important question to be determined is what actually the defendant reported at the police station against the plaintiff. (g) (PC) Civil Appeal No.71/97 – Khadija Abdul vs Fatuma Mwai. HC at Dar ( Nsekela, J). The report that Fatuma Mwai made to the police was not false for it resulted in the appellant’s conviction. (h) Civil Appeal No. 76/99 – Grace Ndeana vs NBC Holding Corporation. CAT at Dodoma. The respondent bank as the principal is liable for the utterances of the agent. The words “kukopa ni harusi kulipa ni matanga” were defamatory. They were neither justified nor necessarily to proclaim the sale of the mortgaged property.” (i) Civil appeal No. 67/ 01 – James F. Gwagilo vs The AG. CAT at Dar. In order to maintain an action for malicious prosecution a plaintiff has to prove among other things, that the prosecution was undertaken without reasonable and probable cause and was actuated by malice. In Hicks vs Faulkner (1878) QBD 167 cited by Kyando, J; reasonable and probable cause was defined as an honest belief in the guilty of the accused, but current thinking is that it is enough if the defendant believes there is reasonable and probable cause for prosecution. See Tempest vs Snowden[1952] 1KB130. By virtue of Section 3(1) of the Government Proceedings Act, 1967, the Government is subject to all those liabilities in tort to which it would be subject if it were a private person of full age and capacity, and this liability is not conditional upon the identification of the primary tortfeasor. Malice in the context of malicious prosecution is an intent to use the legal process for some other than its legally appointed and appropriate purpose. The appellant could prove malice by showing for instance, that the prosecution did not honestly believe in the case which they were making, that there were no evidence at all upon which a reasonable tribunal could convict, that the prosecution was mounted for a wrong motive and show that motive, etc.
(j) Civil Appeal No. 33/02 - Tulakela Chengula vs Angumbwike Lameck HC at Dar (Ihema, J).
- It may be of interest to put on record the genesis of the case. The appellant and respondent were husband and wife and in the course of their marriage serious misunderstandings ensued between them resulting in the respondent chasing away the appellant from the matrimonial home. As efforts to reconcile the parties failed the respondent is reported to have locked the matrimonial home after changing locks and prohibited the appellant from visiting the matrimonial home. The appellant then reported the incident to the Police at Buguruni whereof the respondent was arrested and charged with the brawling in the Buguruni Primary Court, but was subsequently acquitted, hence the suit for malicious prosecution.
- Aruing the appeal Mr. Katemi citing in support the case of Evans Cestines & others Vs. Deogratias Paul [1982] TLR 347 contended that for a case of malicious prosecution to be established for elements must be proved in unison namely: (1) the plaintiff was prosecuted by the defendant
- (2) the prosecution terminated in the plaintiff’s favour
- (3) the prosecution was without reasonable and probable cause
- (4) the prosecution was malicious.
- It is Mr. Katemi’s submission that the case of the respondent at the trial lacks the first, third and fourth elements listed above. The secision the appellant of reporting the incident of being locked out so to speak from te matrimonial house argues mr. Katemi suggests that probable and reasonable cause existed.
- I think taking into account the totality of the estimony rlating to the charged relationship between the parties I accept Mr. Katemi’s contention that the act of the appellant to report the incident to the Police was minded a reasonable and probable cause. For the testimonyseems to suggest that at that time divorce proceedingshas not been concluded as the parties had been referred to their church leadership for reconciliation. The rights of the parties over the division of matrimonial properties had not been determined. It would be safe to conclude that the prosecution was not malicious nor unjustified. At any rat the appellant was mere complainant and not the prosecutor. However one views the respondent’s prosecution, whether by the appellant or the police, no unity of action exists to consiture malicious prosecution. Accordingly I will hold that the trial Magistrate erred in law and fact in holding that malicious prosecution existed, above all by the appellant. I will therefore allow ground one of appeal. This holding makes consideration of the second ground redundant and unnecessary. In the final analysis I allow the appeal with costs, set aside the judgment and decree of the Ilala District Court.
(k) Civil Appeal No. 39/05 – Sunflag (T) Ltd vs Yerome Wambura & Four Others CAT at Arusha.(Ramadhani, J.A),
- The appellant company, which was represented by Mr. Maro, learned advocate, had eight grounds of appeal but dropped ground 5 and consolidated the remaing ground as follows: Grounds 1,2 and 6 which claimed that there were probable and reasonable grounds for the prosecution of the respondents. Grounds 3 and 4 were argued together that the prosecution was not actuated by malice. Grounds 7 and 8 claimed that the learned judge applied wrong principle in assessing general damages.
- As for probable and reasonable grounds for the prosection of the respondents, Mr. Maro referred us to the decision of this Court in James Funke Gwagilo vs The Attorney General, Civil Appeal No. 67 of 2001, (unreported), where it is said, on page 10, that “the current thinking is that it is enough if the defendant believes there is reasonable and probable cause for the prosecution” He went further to point out that the author of Halsbury’s Laws of England, 3rd Ed. Volume 25 in paragraph 700 goes further to say that
The presence of reasonable and probable cause does not depend upon bonafide belief in the existence of such facts as would justify prosecution.
- Mr. Mwaluko, learned counsel for the respondents, questioned whether there was such evidence at the trial. He pointed out that there was no evidence of who packed the T – shirts into the boxes. There was no evidence of whether the respondents knew that some of the boxes on the lorry contained T-shirts.
- Mr Maro relied on the evidence of the only witness who was brought by the appellant company, Vincent Lukindo Mchana, the personnel manager of the appellant company. But by and large this witness told the court what he heard from the general manager. Mr. Maro conceded that there are a number of loose ends left hanging. A part from what Mr. Mwaluko pointed out it was not shown whther it was the duty of the respondents or some of them to pack mosquiteo nets into the boxes or whether their job was just to load the packed boxes onto the lorry. Mr Maro conceded that it was not clear whether or not the T – shirts were found in boxes labeled mosquito nets.
- Winfield and Jolowicz on Tort 15th ed. (199) at page 684 quotes Lord Devling in Glinski v. McIver [1962] A.C. 726 at 766-767, as giving perhaps the most helpful definition or reasonable and probable cause:
…….. means that there must be cause (that is, sufficient grounds …) for thinking that the plaintiff was probably guilty of the crime imputed: Hicks v. Faulkner [(1878) 8 Q.B.D 167]. This does not mean that the prosecutor ha sto believe in the probability of conviction: Dawson V. Vasndau [(1863]. The prosecutor has not got to test the full strength of the defence, he is concerned only with the question of whether there is a case fit to be tried. As Dixon J. (as he then was) put it, the prosecutor must believe that ‘ the possibility of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted [Commonweatlth Life Assurance Society Ltd. V. Brain (1935) 53 C.L. R. 343, at 382].
- Surely, no conscientious prosecutor would believe that a charge of theft was warranted where such questions as have been asked above cannot be answered. It is no wonder that on 5th July, 1999, the public prosecutor prayed to withdraw the charge under section 98 (a) of the Crimonal Procedure Code, 1985 for lack of evidence.
- We agree with MSOFE, J., as he then was, that there were no reasonable and probable cause for prosecuting the respondents. We, therefore, dismiss grounds 1,2 and 6.
- Was there malice in the prosecution of the respondents? Mr. Mwaluko referred us to Halsbury’s Laws of England 3rd Ed. Vol. 25 p. 356 and paragraph 696 that:
The malice which a plaintiff in an action for damages for malicious prosecution or other abuse of legal proceedings has to prove is not malice in its legal sense, that is, such as may be assumed from a wrongful act done intentionally, without just cause or excuse, but malice in fact – malus animus – indicating that the defendant was axtuated wither by spite or ill will against the plaintiff, or by indirect or improper motives.
Phipson on Evidence, 14th ed. (1990) at p. 359 paragraph 16 – 22 puts it even clearer;
In actions for malicious prosecution, the defendant’s negligence in not making proper inquiries, or his want of reasonable and probable cause for the proceedings, is evidence of malice, though it does not necessarily import it. So, his reckessness as to whether the charge be true or false, or a corrupt motive in instituting the charge, although coupled with an honest belief in its truth, will constitute malice; while the mere fact that the honest belief was not based on reasonable grounds is no evidence of malice.
Invariably, though not always, where is no reasonable and probable cause, there will be malice. Here the appellant was obviously reckless in not making proper inquiries. We agree with Mr. Mwaluko that there was malice. So, we dismiss grounds 3 and 4.
Did the learned judge apply correct principles in assessing damages? What are those principle?.
Mr. Maro referred us to Hosia Lalata vs. Gibson Zumba Mwamsote, [1980] T.L.R. 154 were SAMATTA, J., as he then was, quoted Diplock, J. in Berry vs. British Transport Commission [1960] 3 All E.R. 322:
There are three sorts of damages, any of which would be sufficient ground to support this action [i.e. the action for malicious prosecution]. (1) The damage to a man’s fame, as if the matter whereof he is accused be scandalous …… (2) The second sort of damages, which would support such an action, are such as done to the person; as where a man is put in danger to lose his life, or limb, or liberty ……. (3) The third sort of damages, which will support such an action, is damages to man’s property, as where he is forced to expend his money in necessary charges, to ecquit himself of the crime of which he is accused.
- We may say that going through the record of appeal there is no evidence to support the last two sorts of damages outlined above, that is, damage to person or to property. So, we are left with the first category; damage to a man’s fame.
- Mr. Maro pointed out, and correctly so, in our considered opinion, that the learned judge took into account other extraneous matter:
In the instant case, I am taking a position that plaintiffs suffered loss of employment and income due to the malicious prosecution. It is also possible that in the light of defendant’s words in Exh. P4 that they will be “pleased to answer any enquiries… under private and confidential cover …. “ the plaintiffs are likely to continue suffering loss of employment.
- We agree with Mr. Maro that as a result of those considerations the learned judge came up with an assessment that is on the high side. We think that an award of shs. 2,000,000/= for each of the respondents will meet the justice of the case. So, we allow grounds 7 and 8 to the extent described here.
- 15. DIVORCE & DIVISION OF MATRIMONIAL ASSETS. (a) Matrimonial Cause No. 3/91 – Pius Msekwa vs Erica Mwaisango. HC at Dar
(Kyando, J). Civil Procedure Code does not apply generally to matrimonial proceedings …..Nor do they apply as a matter of practice as Mrs Mulebya contends. They apply to specific situations in the Act and Rules. Thus for instance in S. 80 (3) of the Act it is provided that save to the extent provided in any rules made under the Act, the provisions of the Civil Procedure Code relating to appeals shall not apply to appeals under the Act. I am, however, of the opinion that it is impracticable to refer the matter to Conciliation Board on one point, which is that of long separation of the parties, to wit, 9 years. (b) Civil appeal No. 44/93 – Hemed Tamim vs Renata Mashayo. CAT at Dar [1994] TLR 197 (CAT). Both the District Court and the High Court found that the presumption under section 160 (1) had been rebutted but the High Court held correctly that following this rebuttal the court had the power and jurisdiction to make the same consequential orders as in the dissolution of marriage or separation. The order for division of matrimonial assets is one of such order. Consequently the learned judge ordered equal division of the house at Kiwalani which was acquired by the parties during or in the course of their relationship. However, having found that the parties were not dully married, the learned judge should not have ordered the restoration of the Primary Court order regarding the dissolution of marriage for quite obviously there was no marriage to dissolve. © (PC) Civil Appeal No. 66/97 – Bilali Ismail vs Agness Shayo. HC at Dar (Bubeshi, J) When the children reach the age of 7 years, the appellant may apply to the court to have the issue of custody of the children reviewed, and in particular to have the children under his custody if he so wishes. The children will have to be interviewed to find out where they would wish to stay. (d) Civil Revision No. 7/98 – Alhaj Amiri Sadiki vs Rukia Sadiki. HC at Dar (Katiti, J). There is no limitation for invoking the inherent powers of the court, under section 151. It is trite law, the mandatory provisions, have to be obeyed strictly, or fulfilled exactly. Thus failure to refer the matrimonial difficult to the Board, to get certificate that, it has failed to reconcile the parties makes divorce incompetent. See Shillo Mzee vs Fatuma Ahmed[1984] TLR 112. (e) Civil Appeal No. 84/98 – Charles Manoo Kasare and Another vs Apolina Manoo Kasare. CAT at Mwanza. - The respondent as a wife cannot be discounted from the business even if she did not make direct contribution to the business. Her wifely services during the life of her late husband, from 1967 to 1992, a period of about 25 years, would in itself entitle her to a share in the propertie acquired. - The value of the property has to be pleaded and or controverted in the pleadings. (f) Civil Appeal No. 41/95 – Isidori Balaga vs Chezalina Balaga. CAT at Dar. The law regarding distribution of matrimonial assets between spouses is clearly set out under Section 114(1) and (2) of the Law of marriage Act, 1971, to wit, custom of the community which the parties belong; extent of contribution made by each party in money, property or work towards the acquiring of the assets. In deciding the question of distribution of matrimonial assets between spouses childrens’ interest is a subsidiary consideration as the matter only concerns the spouses.
(g) Civil appeal No. 48/96 – Iddi Ramadhani vs Zainabu Mohamed. HC at Dar (Chipeta,J). A finding that marriage has irreparerably broken down can be based on the totality of the evidence and the conduct of the parties- e.g. desertion, talak, cruelty etc. Parties shall have free access to the children at all reasonable times. (h) Civil Appeal No. 53/97 – Suleiman Hasssan vs Mohamed Hassan. CAT at Dar. The respondent’s contribution by way of procuring the land and supervision of the hotel building cannot be discounted. In the absence of any other cogent evidence to prove the extent contribution of the appellant, we think the learned judge was justified in basing the assessment on the documents reflecting money transfers by the appellant to either Zanzibar or Japan for the purchase of the motor vehicles which were received by the respondent in Zanzibar. In our considered view, the vehicles were purchased for the purpose of facilitating the construction of the hotel. Weighed on balance, the appellant as owner of the majority shares in the project is entitled to be awarded at a higher proportion than the respondent. Application forms for loans of shs. 250,000/= and 150,000/= respectively from the Peoples Bank of Zanzibar, Exhibits D3A and D3B, do not tell whether the loans were in fact granted Consequently, it is our view that the respondent’s claim that he had money loaned from the Bank (PBZ) was not supported by any credible evidence. In a situation such as this, where, the actual value of the investment and the exact contribution of both the appellant and the respondent still remained uncertainable, it was important to lay the basis of the award. Otherwise, the award may well be seen to be arbitrary. In that situation, in order to ascertain the actual value of the investment…..an evaluation of the project would be ideal. However, we are told that, now the hotel is in a very dilapidated condition, hence evaluation will not serve any purpose. What should be the criteria for awarding the appellant’s claim in the circumstances. We think that the amount claimed in the plaint would be a fair and practical basis for the award claimed. In the pleading the amount claimed is 150m shs. This was not controverted, what was disputed is the extent of the contribution each of the parties made for the investment. It possible for married couples to have personal shares in joint ventures as was the case here. (i) Civil Application No. 177/00 – Hasifa Mpangule vs Ismail Omary. HC at Dar (Muro, J). No one should be allowed to benefit from her own wrong. Where a spouse commits a matrimonial misconduct which reduced to nothing her contribution towards the welfare of the family assets she or he would not be entitled to a share in the property. The appellant had sold one of the matrimonial house without consent of the respondent and had appropriated all the proceeds. Also the appellant was the cause of the break up of the marriage due to her adulterous acts.
(j) (PC) Civil appeal No. 2/86 – Laurent vs Onesmo Ombeni. HC at Dar (Maina,J). The parties lived together for nine years, from 1976 till 1985. There was no marriage contracted between them. Merely staying together does not in my view mean marriage. Under the Law of Marriage Act, there are procedures to be followed before a marriage is contracted. There are monogamous and polygamous marriages as defined in the Law of Marriage Act. If the relationship between the parties could be called marriage what type of marriage was it, in the absence of a marriage ceremony? I am aware of S. 160 (1) of the Law of Marriage Act…….that presumption is rebuttable. It is not automatic. The parties were not married and therefore the question of divorce does not arise. Distribution of assets can only be considered where there was a valid marriage and then a divorce. See Section 114 (1) Law Marriage Act, 1971. (k) Bi Hawa Mohamed vs Ally Sefu [1983] TLR 32 CA at Dar. The power of the court to divide matrimonial assets is derived from Section 114 (1) of the Law of marriage Act, 1971. It is apparent from the citation and wording of Section 114 that the assets envisaged thereat firstly be matrimonial assets, and secondly, they must have been acquired by them during the marriage by their joint efforts. In our considered view, the term “matrimonial assets” means the same thing as what is otherwise described as “family assets”. Under paragraph 1064 of Lord Hailsham’s Halsbury’s Laws of England 4th Ed. P.. 491 it is stated:- “The phrase “family assets” has been described as a convenient way of expressing an important concept, it refers to those things which are acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole. The family assets can be divided into two parts (1) those which are of capital nature, such as the matrimonial home and the furniture in it (2) those which are of a revenue producing nature such as the earning power of the husband and wife.” We are satisfied that the “joint efforts” and work towards the acquiring of the assets” have to be construed embracing the domestic “efforts” or “work” of husband and wife. The principle which guide the court in determining the shares of husband and wife in matrimonial or family assets are spelled out under sub-section 2 of section 114 which states:- (2) In exercising the power conferred by subsection (1), the court shall have regard: a) to the custom of the community to which the parties belong. b) to the extent of the contributions made by each party in money, property or work towards the acquiring of the assets. c) to the needs of the infant children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division. The appellant was paid a sum of shs.18,000/= to set up some family business, but she did not use the money for the purpose it was intended. She squandered it away. The significance of this is that first, the money can be regarded as an advance made by the respondent towards the future needs of the appellant. Secondly, the squandering of that money can be regarded as a matrimonial misconduct which reduced to nothing her contribution towards the welfare of the family and the consequential acquisition of matrimonial or family assets. As was said in the English case of Martin vs Martin [1976]3 All ER 629 by Cairns, L.J. “………such conduct must be taken into account because one spouses cannot be allowed to fritter away assets by extravagant living or reckless speculation and then to claim as great a share of what is left as he would have been entitled to if he had been entitled to if he had behaved reasonably”. (l) Matrimonial cause No. 3/01 – Paola Abdallah vs Mohamed Abdallah. HC at Dar Muro,J). There is no specific provision which provides for an order of injunction against one of the spouses in respect of the occupation of the matrimonial home. Civil Procedure Code does not generally apply to matrimonial proceedings except for these provisions specifically applied by the rules to wit, rules 28,29,34,35,38 and 45. Under common law, an injunction restraining spouse from entering the matrimonial home may be granted where it is convenient and just. It was held in Silverstone vs Silverstone (1953) AllER 556 that the wife had a right to be in the matrimonial home while the petition was pending. The court had power to protect that right and to prevent the husband from occupying the home. Injunction would be granted. In the case at hand there was no affidavit to support the allegations by the petitioner. In another English case of Boyt vs Boyt (1948) 2AllER 436 it was held that the court had jurisdiction to grant an injunction to restrain the husband from entering the premises. The court went on to hold that such jurisdiction was one which should be exercised with care, especially where it involved breaking up of the matrimonial home. In that case also, there was evidence of the wife by way of affidavits that the husband was cruel. (m) Shillo Mzee vs Fatuma Ahmed [1984] TLR 112 . HC at Tanga (Sisya, J). In the absence of the Certificate from a Conciliation Board, a petition for divorce becomes premature and incompetent. An injunction under section 138(1) of the law of Marriage Act, 1971 can only lie where a matrimonial proceeding is pending before the court making the order. (n) Ramadhani Omari vs Fatuma Mahumbi [1983] TLR 227. HC at Dodoma (Lugakingira,J). Volenti non fit injuria or “lakujitakia halina majuto…..”The principle behind this is that a party should not be rewarded for his wrong. It similarly follows, in my view, that a woman cannot claim or receive compensation for maintaining a child she has willfully removed or kept from the father’s custody……To put it differently and shortly, a woman should not claim or receive compensation for a burden willfully incurred……Since the respondent was a willful deserter, and took or kept the children in those circumstances, that decision was manifestly sound. (o) Ramesh Rajput vs Sunanda Rajput [1988] TLR 96 CAT at Dar. The most important factor in custody proceedings is the welfare of the child. An infant child of two should be with the mother unless there are strong reasons to the contrary. The sum fixed as maintenance was manifestly excessive and was not supportable by on any evidence. There was no investigation as to the means before the order was made. There was some evidence by the husband that his monthly net income was shs. 3,200/=.
(p) Jerome Chilumba vs Amina Adamu [1989] TLR 117. HC at Dar Maina, J). In a case for maintenance, it is important for a trial court to find out the income of the person sued in order to be able to decide the amount to be paid. It is unfair and unreasonable to give one child one third of the salary, and the appellant, his wife and other three children to share the remaining two-thirds of the salary. All the appellant’s children and other dependants are entitled to equal share of the salary for their maintenance ……I have considered all the circumstances in this case including the appellants salary and a number of dependants ……the respondent to be paid shs.600/= p.m for maintenance of the child. NB. The appellant’s contention is that he cannot afford to pay the amounts awarded by the lower courts considering his income and the people who depend on him. The primary court did not even consider the appellant’s ability to pay the amount awarded. No effort was made by the trial Primary court to find the incomes of the parties. The amount of shs. 1,000/= was awarded arbitrary. In a case of maintenance, it is important for a trial court to find out the income of the person sued in order to be able to decide the amount to be paid. The Primary court erred in ordering the appellant to pay shs. 1,000/= monthly without even finding out the appellant’s income and ability to pay. (q) Festina kibuta vs Mbaya Ngajimba [1985] TLR 44 (HC) Kazimoto, J. In deciding what amount of maintenance should be paid the court should hold an inquiry as to the means of both parents in order to arrive at a just decision; where applicable the court should take into account the customs of the parties and the conditions prevailing at any particular time…..Since the appellant was a wealth man, maintenance is fixed at Tshs. 250/= per month from 1977.
® PC Civil Appeal No. 123/04 – Saidi Athumani vs Sikitu Juma HC at Dar (Manento, JK).
- This is a second appeal. The appellant Saidi Athumani and the respondent, Sikitu d/o Juma had married in 1992 bu sometimes in the year 2001 their marriage life was not a happy one. The husband now the appellant issued a “talak” to the respondent. The matter reached the primary court where it was found as a fact that the marriage had broken irreparably. The appellant and the respondent could not live as a wife and a husband any more. Unfortunately, the marriage between the parties was not blessed with any child. Therefore, there was no issue of custody. However, the respondent demandd a share in a house they jointly built at a place called Makangarawe. That was the issue which received cold hands from the appellant.
- From the evidence before the trial primary court, the decision of the appellante district court and submissions made before this court, I agree with the two courts below that, the house in question was built during the subsistence of the marriage between the appellant and the respondent, Therefore, it is/was the a matrimonial home.
- Secondly, it was the issue of the contribution by the parties towards the erection of that house. The primary court awarded the respondent one third (1/3) value of the said house while the district appellate court raised it to half (1/2) of the value of the house. The primary court took into consideration the evidence that the appellant had another house which he sold and so he used part of the money in the building of the house. There were no reasons given by the appellate district court when varying the award of the trial court.
- It was in the submission of the respondrnt that when they married, the appellant had no paid employment. That then justifies that he had his money which he got before marrying the respondent, and according to the appellant’s evidence, that money was from the sale of house he owned and sold before the marriage with the respondent. Therefore, the appellants contribution towards the building of the house of section 114 of the Law of Marriage Act, 1971, the appellant is entitled to a bigger share, therefore , the assessment reached by the trial primary court met the end of justice in this case. The respondent is therefore entitled to (1/2) of the value of the house is quashed and set aside. The order of the primary court that the respondent be paid one third (1/30 of the value of the house is restored. Each party to meet his own costs. (s) Civil Appeal No. 205/04 -Asha Rashid vs Rashid Shomary HC at Dar (Kalegeya, J).
- Although the law does not expressly provide for a divorce decree to be passed by simple consent (as is generally permissible in other Civil actions) as was done here, equally, there is no countering provision of the law. It is logical however, regard being had to the nature of this special relationship (Marriage) that a trial be conducted to determine, among others, who is a guilty party to the break – up as this may have an impact on division of property . In this case however, parties are happy with the decree for divorce passed uing the exceptional and novel procedure. And as that in itself does not form part of the appeal grounds preferred, I will leave it at that having so observed.
- The above said, indeed, the Appellant’s complaints are fully justified.
- The appellant’s prayers in her petition are very categorical. They are quoted in full at the beginning of this judgement. They are itemized as (a) to (g). Having dealt with (a) (divorce) by using consent as a short – cut the Magistrate was expected to embark on trial for the other prayers. The record however displays total lack of command of the process; casualness and laxity unexpected to be exhibited by the court as demonstrated below
(t) Civil Appeal No. 139/02 - Eliester Philemon Lipangahela vs Daud Makuhana. HC
(Oriyo J,)
- With due respect to the learned trial magistrate, she was in obvious error by requiring evidence on the extent of direct, financial contribution by the appellant towards the acquisition of the assets. There is uncontroverted evidence of PW1, PW2 and PW3 that the appellant, in addition to her housewifely duties she also engaged in the business of selling “burns” and “vegetables”. By making this requirement against the appellant, the trial court contravened the letter and spirit of SECTION 114 (2) (b) and (d), the Law of Marriage Act and the various interpretations made by courts in decided cases.
SECTION 114 (2) provides:-
“2 in exercising the power conferred by subsection (1), the court shall have regard
(a) ………………………. N/A
(b) to the extent of the contributions made by each party in money, property or work
toward the acquiring to the assets:
(c) N/A
(d) To the needs of the infant children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division” (emphasis supplied).
Under subsection 2(b0, the law recognizes spouses contributions in terms of money, property or work. The appellant’s contribution towards the acquisition of matrimonial assets was in terms of work, that is, including household chores, bearing and rearing o fchildren, making the home comfortable for the respondent and the issue. In addition to her dometic duties, the appellant engaged herself in the sale of buns and vegetables. Undoubtedly, whatever the appellant earned in the business, it went into the maintenance of the family and the assets. The matrimonial home at Ukonga Kipunguni was built during the marriage of parties and qualifies in law as a matrimonial asset acquired by the parties joint efforts; the appellants contribution being partly in the form of household chores and indirectly in monetary terms.
- The appellant referred this court to the cases of BI HAWA MOHAMED VS ALLY SEFU [1983] TLR 32 and MOHAMED ABDALLAH VS HALIMA LISANGWE [1988] TLR 197 in support of her entitlement to a share of the matrimonial assets. I am in total agreement with her that the two decisions are good law on the meaning and the parameters of Section 114 of the Law of Marriage Act.
- Pursuant to the provisions of Section 114, Law of Marriage Act and the above cited court decision; the appellant is entitled to a share of the matrimonial assets.
- Before I conclude, I wish to place on record the fact that the above judgment was determined on merit notwithstanding the provisions of Act No. 15 of 1980 which amended Section 80 of the Law of Marriage Act which deals with appeals in matrimonial matters. I am conscious that an appeal is a creature of statute and this court’s powers to determine the appeal is derived from Section 80 above. Act 15 of the 1980 does not provide for appeals from the corts of Resident Magistrate to this Court. Notwistanding the amendment, the concurrent jurisdiction of Resident Magistrates Courts and District Magistrates Courts was left undistrurbed by the amendment above. It is the view of this Court that the situation created by the amendment must have been a result of an oversight, typing error, etc; on the part of the draftsman. Obviously the omission to provide for right of appeal from the Resident Magistrates dexisions could not be intentional or deliberate as it contravenes the rules of natural justice and Article 13 of the Constitution of the United Republic of Tanzania, 1977, as amended. It is time the legislature took steps to rectify the anomaly.
(u) Civil Appeal No. 151/01 – Damas Mfoi vs Hilda Machange HC at Dar (Luanda J,).
-At to the issue of M/vehicle the evidence on record is loud and clear tht Damas Mfoi alias Dr. Damas Munishi gave it as a gift to Hilda without any condition attached. A gift given cannot be revoked by reversing the decision. I quite agree with the trial court finding that this is not a matrimonia asset. But owing to the aforemention reason the M/vehicle belongs to her by virtue of being a gift.
- in now turn to the 4th ground. Mr. Shayo bitterly compained that the court didinot show how it arrives at a figure of Tshs. 100,000/= per months as maintance. And indeed the said his client is not capable in paying that amount. Damas is jobless. He submitted that Hilda should be ordered to maintain the child as she has the means. She conducts a grocery. If that is the position to pay Damas want to have custody of child? But Damas has properties which general income. One of such property is a house sitated at Mbezi which he claimed it has no tenant at the time being. Hild said Damas rented the house and gets money. Whatever the position Damas is not destitute. The amount assessed by court is not on the high side. I uphold that amount or Tshs. 100,000/= per month as maintenance.
(v) Halima Athumani vs Maulidi Hamisi [1991]TLR 179) HC(Mwalusanya, J).
- The appellant successfully applied for divorce at Utemini Primary Court in Singida District, agains her husband, the respondent. She sought divorce on the ground of cruelty on the part of her husband. The trial Court was satisfied that the husband had treated his wife with cruelty and granted the application for divorce. The respondent successfully appealed to the District Court. The district magistrate reversed the decision of the Primary Court for two reasons. First, that as the couple was Islamic, the body that attempted to reconcile them had no jurisdiction as it was not an Islamic body. Second, that the Marriage Conciliatory Board did not certify that it failed to reconcile the parties. The appellant appealed to the High Court.
A. Held: (i) The mere fact that the Board that reconciled the parties was not a Moslem Conciliatory Board did not render the reconciliation a nullity;
(ii) under section 101 (f) of the Law of Marriage Act the court may dispense with reference to a Marriage Conciliatory Board if it is satisfied that there are extraordinary circumstances which make reference to the Board impracticable;
(iii) the appellant had succeeded to prove that the marriage was broken down beyond repair.
16. DISQUALIFICATION OF A JUDGE/MAGISTRATE. (a) Civil Appeal No. 13/99 – Laurian Rugaimukamu vs IGP & The AG. CAT at Dar. An objection against a judge or magistrate can legitimately be raised in the following circumstances:- One if there is evidence of bad blood between the litigant and the judge concerned. Two, if the judge has close relationship with the adversary party or one of them. Three, if the judge or member of his close family has an interest in the outcome of the litigation other than the administration of justice. A judge or magistrate should not be asked to disqualify himself or herself for flimsy or imaginary fears. (b) Commercial Case No. 67/00 – Joyce Beda Mpinda vs CRDB Ltd and others. HC Commercial Division at Dar (Dr. Bwana, J). Quoted Civil Appeal No 13/99 (supra).
17. DM’s/RM’S JURISDICTION (a) John Agricola vs Rashid Juma [1990] TLR 1. HC at Mwanza (Mwalusanya, J). The case was filed in the RM’S Court because the District Court has no jurisdiction to hear such cases. However the case in the RM’S court was heard and tried by a Senior District Magistrate. In the High Court Munyera, J was very brief and held:- “I have no intention of going into the merits of the case as there is fatal irregularity apparent on the face of the record in the sense that the case was filed in the Resident Magistrate but was tired by a District magistrate. Section 6(1) of the MCA,1984 reads, Subject to the provisions of S.7, a Magistrates’ Court shall be dully constituted when held by a single Magistrate being:- (a)…. (b)…. © in case of a court of a resident magistrate, a resident magistrate. While a District Court can be presided over by a resident magistrate, a resident magistrate’s court can not be presided over by a district magistrate. I am in complete agreement with observations of Mr. Justice Munyera. Application for leave to appeal dismissed with costs. (b) William Rajabu Mallya and two others vs R [1991] TLR 83. CAT at Arusha. If a case is designated for a particular court, the it should be heard by a member of that court notwithstanding that a member of some other court has substantive jurisdiction over the offence and could hear it. Because the Principle District Magistrate presided over the court of resident magistrate when he was trying this case, the court was not duly constituted within the the meaning of section 6 (i) (c) of the Magistrates’ Court Act, 1984. © Thomas Elias and others vs R [1993] TLR 263. CAT at Arusha. -The Principal District Magistrate, the in terms of jurisdiction had the power to try the case for such offence as the law stands under the Magistrates Courts Act, 1984, was not competent to seat and preside over the case in the court of the Resident Magistrate. - Proceedings and deliberations of a court which is not properly constituted are a nullity. - The provisions of S.387 and S.388 of the Criminal Proceedings Act, 1985, cannot be invoked to cure such a defect because the irregularities, errors and omissions curable under the provisions are of such a nature as not to have occasioned a failure of justice and, more importantly, they musty proceed from a trial by a court of competent jurisdiction. 18. EXTENSION OF TIME/ LIMITATION. (a) Civil Reference No. 9/91 – Principal Secretary, Ministry of Defence and National
Service vs D. Valambhia. CAT at Dar. -In some cases a point of law may be of sufficient importance to warrant extension of time, while in others it may not. - In the case before us, however, the point at issue, in effect, is the illegality or otherwise of the garnishee order against the Government. - We think that where, as here, the point of law at issue is the illegality or otherwise of the decision being challenged, that is sufficient importance to constitute “sufficient reason” within the meaning of Rule 8 of the rules for extending time. To hold otherwise would amount to permitting a decision, which in law might not exist, to stand. - In our view when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purposes, to ascertain the point, and if the alleged illegality be established, to take appropriate measures to put the matter and the record right. (b) Misc. Civil Case No. 83/92 – Mary Kimaro vs Khalfan Mohamed. HC at Dar. (Mwaikasu, J). -No doubt, a copy of proceedings along side with a copy of judgment are necessary for the purpose of framing a sound memorandum of appeal. It is from the time of the supply of both such documents that the limitation of time for appeal runs. (c ) Civil Application No. 13/91- D.P. Valambhia vs Transport Equipment Ltd. CAT at Dar. (Application to extend the time in which to serve notice of appeal) -This Court has held on a number of occasions that lapses of a minor nature on counsel’s part may be excused, but where counsel’s conduct amounts to negligence or inaction leading to non-compliance with a mandatory statutory requirement, this Court will not be easily moved to condone (accept) the conduct. See also Misc. 2/98 Mrs. Mwanahamis Kiangi vs Coretha Kapingu.
(d) Civil Case No. 210/89 – Transport Equipment Ltd vs D.P Valamhia. HC at Dar (Rubama, J). This Court has discretionary power under section 93 and Order 17 R..(1) of the Civil Procedure Code, 1966 to accede on not to accede to the plaintiff company’s application. For the court to exercise its discretion in favour of the applicant, the applicant must adduce sufficient cause to move it to that end. The rules of Court must prima facie be obeyed and in order to justify extending the time during which some step in procedure requires to be taken there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time- table for the conduct of litigation.
(e) Civil Case No. 128/93 – Amos Shavu vs T.A Msonge and two others. HC at Dar (Bahati, J).
This is an application for extension of time to file notice of appeal and memorandum of appeal. According to rule 76(2) of the Tanzania Court of Appeal Rules, the 14 days begin to run from the date of the decision. …….But on application for extension of time I have no doubt that he would have been granted extension of time more so because no fault of his, he became aware that judgment had been delivered on 15/6/95 although judgment was delivered on 8/6/95. There is no doubt that even where the ex-parte judgment is delivered the other party has a right of appeal. It is for the above reasons that I will grant this application more so since the applicants were late for only a day in filing the notice of appeal. (f) Misc. Civil Cause No.135/95 – Blue Line Enterprises Ltd vs East African Development Bank. HC at Dar (Katiti, J). (Land mark on extension).
It seems trite law that extension of time must be for sufficient cause and:- that extension of time cannot be claimed as of right. that the power to grant this concession is discretionary, which discretion is to be exercised Judicially, upon sufficient cause being shown – which has to be objectively assessed by the court. that extension of time will not be granted, where a counsel’s mistake is not bonafide, if the counsel has not acted with care, and caution, or if the mistake proceeds from negligence, or want of reasonable skill. It is in my view, a trite established principle of law, that a mistake committed by the court, cannot be allowed to prejudice a litigant. We do not think that the presence of an arguable case alone, should be sufficient reason to extend the time. Besides, all cases which come to court are arguable. Indeed if this were desired the legislature would have said that extension of time shall be automatic regardless of the cause of delay provided there is an arguable case and the mischief would be not to care about the limitation and consequently its practical policy effect. On the other hand, even if there was deserving legal points for consideration, on appeal to this Court, at the stage when the matter was before the learned single judge, it was not possible then, to have a meaningful assessment of the prospects of the intended appeal. (g) Civil Application No. 8/96 – Inspector Sadiki and others vs General Nkya. CAT at Arusha. Error of a law clerk in the Chamber of the learned advocate does not constitute “sufficient reason” under rule 8, to extent the time. (h) Civil Appeal No. 8/96 – Nicholaus Kamunga vs Mika Meliyar. CAT at Arusha. - On limitation the appellate magistrate observed, and correctly, that the question was not raised at the trial……..We think in those circumstances the learned appellate magistrate was justified in dismissing the issue of limitation and, similarly, the same cannot be raised before this Court. (i) Civil Appeal No. 2/98 – Mrs Mwanahamis Kiangi vs Mrs Coretha Kapingu. CAT at Dar. Delay of one day is fatal especially where no sufficient reason for the delay is given. The inadvertence on the part of the advocate was such that even though it led to the application being out of time for only one day, was, in our considered opinion, not a minor or slight lapse……was of a fundamental nature. Worse still, there was no explanation given for the delay. (j) (PC) Civil Appeal No. 76/98 – Yusufu Mputo vs William Muhode. HC at Dar (Ihema, J). District judgment was delivered on 2/3/98 and was certified on 6/3/98 and appeal filed on 22/6/98. In terms of the provisions of section 25 (1) of the MCA,1984 the appellant was required to file his appeal within thirty days after the date of the decision or order of the District court. In my considered view the decision or order or decision was available to the appellant on 6/3/98 for appeal purposes after certification but instead the appellant took his time until 22/4/98 to collect the certified copy of judgment of the court. It follows in my view that the time of appeal started to run after certification i.e. 7/3/98. The appellant should have filed his petition of appeal in the District court of Kinondoni on or before 7/4/98 i.e within thirty days. (k) Civil Reference No.14/98 – Allison Sila vs THA.CAT at Dar. It is settled that where the time limited by the rules has expired, sufficient reason should be shown for the delay. The appellant’s absence from the country at one time and also his advocate’s indisposition and temporary absence from the country at another time did not constitute sufficient reason for the purpose of rule 8. It is worse in the instant case where the applicant was in Dar es Salaam and in good health. Other considerations, such as the merits of the intended appeals, would come in after the applicant has satisfied the court that the delay was for sufficient cause. It does not seem just that an applicant who has no valid excuse for failure to utilize the prescribed time, but tardiness, negligence or ineptitude of counsel, should be extended extrar time merely out of sympathy for his cause. After all, no appeal is ever put forward without a claim to its merits. It would of course be a different matter where the point or points raised in the intended appeal go to the root of the decision being challenged. In that case the Court has a duty to expunge an illegality and put the record right and will enlarge the time for that purpose as it did in the Ministry of Defense vs Valambhia [1992] TLR 185. The points raised in the instant case do not touch on the legality, but the correctness of the decision by Bubeshi, J. We wish to observe, though, that where an application is made before the expiration of the prescribed time, the merits of the intended appeal could well be a relevant and compelling factor in the determination of such an application. This case again does not fall in the category. (l) Principal Secretary, Ministry of Defence and National Service vs D.P. Valambhia[1992] TLR 185. CAT at Dar. Where, as here, the point of law at issue is the illegality or otherwise of the decision being challenged, that is of sufficient importance to constitute “sufficient reason” within the meaning of rule 8 of the rules for extending time. When the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point, and, if the alleged illegality be established, to take appropriate measures to put the matter and record right. (m) Civil Application No. 13/99 – Hashimu Madongo and others vs The Minister for Trade and Industries. CAT at Dar. It is settled principle that negligence or inaction on the party of the counsel does not constitute sufficient reason for extending time. (n) Civil Appeal No. 60/99 – M/S Fidahussein &Co Ltd vs THA. CAT at Dar. It is trite principle that even though a point of law was not raised and argued before the trial court, it can be allowed on appeal. Under the provisions of section 43(f) of the Law of Limitation Act, 1971, proceedings based on the Act, are expressly excluded from the application of the Law of Limitation Act, 1971. So, the applicable law is section 67(b) of the Act, Dr. Mapunda stressed. In personal injury actions time begins to run from the date of the plaintiff’s knowledge. (o)Civil Appeal No. 80/99 – THA vs Mohamed R. Mohamed. CAT at Dar. Extension of time to file a WSD must be made within the expiration of the 21 days. This Court has said in a number of decisions that time would be extended if there is an illegality to be rectified. However, this Court has not said that time MUST be extended in every situation. Each situation has to be looked at on its own merits. In this case the defence has been grossly negligent and surely cannot be heard now to claim that there is a point of law at stake. Besides the point of law given by Mr. Mnzava is that the suit is time barred. The lower court can deal with that matter suo motto. This court is duty bound to see that rules of court are observed strictly and cannot aid any party who deliberately commits such lapses. To do so, in the present case, would defeat the whole reasoning behind amending the Civil Procedure Rules in 1994. (p) Civil Appeal No. 69/99 – Caritas Kigoma vs K.G. Lewis Ltd. CAT at Mwanza. In considering the application for extension of time, what was relevant and important for consideration was whether “sufficient cause” had been shown by the appellant, the appellant in this matter, for the delay in applying to set aside the ex-parte judgment.
(q) Civil Application No. 113/99 – Anwar Z. Mohamed vs Saidi M. Masuka. CAT at Dar. [Quoting Civil Application No. 109/99] The Constitutional point intended to be raised on appeal may be well important, but all the same, this Court being a creature of statute, rules pertaining to all applications should be strictly adhered. Unfortunately on this case there was no compliance with the time limit granted on extension, the constitutional issue notwithstanding. I am still of the view that these remarks apply with equal force. The important constitutional point, raised has, as it were, missed the opportunity of being considered on appeal to the court. The respondent, the appellant in the intended appeal has once again defaulted in complying with the rules. (r) Civil Application No. 44/00 – African Marble Ltd vs Tanzania Saruji Corporation. CAT at Dar. The application for the extension of time is made to a single a Judge while that of revision is made to the Full Court. (s) Commercial Case No. 18/00 – Haase General Enterprises Ltd Fredy Rwegasira and others. HC ( Commercial Division) (Nsekela, J). Time to file WSD can be extended after the lapse of 42 days if there is a sufficient cause. (t) Civil Application No. 64/00 – Victor Bush vs Ami Tanzania Ltd. CAT at Dar. It is common knowledge that this Court is a creature of statute and the attendant rules. The rules are as it were, the vehicle upon which the court machinery is operated. It is imperative therefore that the rules particularly those whose provisions are of a mandatory nature going to the root of the matter are strictly complied. Rule 43(a) which provide for leave to appeal to this court falls under the category of rules whose provisions are of a mandatory nature. Under this rule application for leave to this Court has to be made within 14 days of the decision, failure to which the Court is empowered to exercise its discretion in an application such as this under rule 8 to extend the time if sufficient reason is shown. I agree with Mr. Kariwa that ignorance of law is not a defence in law. In any case the applicant in the High Court were represented by an advocate. So the claim of being ignorant of the procedural rules in processing the appeal or seeking leave to appeal is without foundation. Finally, as to the point of law in the intended appeal- Again this need not delay me any longer. What is required is an explanation why no leave was sought within the prescribed period of 14 days of the decision. Instead of furnishing reason for the delay, the Court is being moved to admit an application out of time because an important point of law is involved. To the contrary, if an important point of law was involved as the applicant urges the Court to accept, it was expected of the applicants to lodge the application well within the prescribed time so that the point of law involved would be dealt with on appeal. In any case, as Mr. Kariwa contended, the issue on the point of law has been raised from the bar, it did not feature anywhere in the application, I reject it.
(u) Civil Application No. 58”A”/01 – Yero Transport asesrvises Ltd and another vs The AG and others. CAT at Dar. Failure of a party’s advocate to check the law is not sufficient ground for allowing an appeal out of time. (v) Civil Application No. 95/03 – Tanzania Breweries Ltd vs. Edson Dhobe & 18 Others CAT at Dar (Munuo JA) Mr. Kifunda also cited the case of Aboud S. Aboud and Another vs William Mbaraka, Civil Application No. 30 of 1993, Court of Appeal ofTanzania [unreported] in which the Court held; “ We agree with Mr. Mselemi’s submission that the Law of Limitation Act, 1971 does not apply to the proceedings in this Court. However that does not mean that there is no time limit for an interested party to bring an application under Rule 40. An interested party cannot be allowed an indefinite delay in making such application. There must be finality to the proceedings. In the circumstances we think that an interested party may make such application under Rule 40 before execution of the decree is complete. Once the decree has been executed and the rights of the parties have finally been settled, we think they should no longer be disturbed. (w) Civil Appeal No. 91/01 – Haji Shomari vs. Zainabu Rajabu CAT at Dar (Nsekela, JA). - As stated before, Civil Case No. 52 of 1998 between the appellant Haji Shomari and the respondent Zainabu Rajabu, was instituted on the 15.10.98, some twenty – one years after the death of the appellant’s father on the 30.5.77. Under section 9(1) of the Law of Limitation Act, 1971, (the Act) , right of action in respect of the appellant’s house accrued on the date of the father’s death. The sub-section provides as follows:- “ 9 (1) Where a person institutes a suit to recover land of a deceased person, whether under the will or intestacy and the deceased person was, on the date of his death, in possession of the land and was the last person entitled to the land to be in possession of the land, the right of action shall be deemed to have accrued on the date of death” (emphasis added). Therefore in terms of section 9 (1) of the Act, the right of action accrued on the date of the father’s death, the 30.5.77. However, at that time, the appellant could not institute a suit to recover the said house since he was only nine years old, and therefore a minor in terms of section 2 of the Age of Majority Act. We hasten to add at this juncture that the exact date of the appellant’s birth was neither disclosed on the pleadings nor in the evidence adduced during the trial. Section 2 of the Age of Majority Act provides as follows- “ (2) Every person domiciled in Tanzania shall attain full age and cease to be under any disability of minority at the beginning of eighteenth anniversary of the day on which he was born”. (emphasis added). Under item no. 22 of the First Schedule to the Act, the period of limitation prescribed for a suit to recover land is twelve (12) years. The right of action accrued on the 30.5.77 and the appellant instituted the suit on the 15.10.98 a little over twenty one years after the death of the appellant’s father. Needless to say, it was hopelessly out of time. This brings into play section 15 of the Act which reads:- “ (15) if of the date on which a right of action for a suit or an application for the execution of a decree accrues, the person to whom it accrues is under a disability, the action may be brought at any time before the expiry of the period of limitation prescribed for such action computed from the date when the person ceased to be under a disability or dies, whichever event first occurs” (emphasis added). When the right of action accrued in 1977 when the appeallant’s father died on 30.5.77, he was nine years old and therefore under a disability. He attained the age of eighteen years in 1986, and this is the year when his disability ended and the period of limitation commenced to run. As mentioned earlier on, during the trial in the District Court, the respondent ahd raised preliminary objections on points of law including one to the effect that the suit was time – barred. The District Court (Matitu, D.M.) dismissed this preliminary objection, but the High Court (Ihema, J) reversed this decision in the exercise of its revisional jurisdiction. The learned judge held that when the appellant instituted the suit on the 15.10.98, it was time – barred. It is trite law that a preliminary objection on a point of law is disposed of on a pure point of law based on ascertained facts. There is kno need to call for evidence. In the words of Sir Charles Newbold, P. in Mukisa Biscuit Manufacturing Co. Ltd. Vs West End Distributors Ltd. (1969) EA 696 at page 701 - “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It Cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial jdiscretion”. (We have already reproduced paragraph 3, 4 and 5 of the plaint wherein the appellant stated that when his father died, he was nine years onld, and hence a minor who could not institute the suit a that time. The respondent, in her written statement of defence, did not controvert this fact. Therefore according to the pleadings, in 1977 when the appellant’s father died, the appellant was nine years old.) Thus, in terms of section 2 of the age of Majority Act, he attained the age of kmajority in 1986. This is the year when the period of limitation kcommenced to run. This is the year when the period of llimtation commenced to run. Under item no. 22 of the First Schedule to the Law of Limitation Act, the period of llimitation prescribed for a suit to recover land is twelve (12) years. As stated before, the suit was instituted on the 15.10.98, which was the twelfth year since the appellant attained the age of majority. Before the High Court, Mr. Luguwa learned advocate for the respondent, submitted that the appellant should have instituted the suit on or before the 6.698. the learned judge agreed with him in the following words- “ I find this submission by Mr. Luguwa to be forceful and as the respondent has not (sic) bothered to substantiate the exact date in 1998 when he attained the age of majority. I am persuaded to rule in favour of the applicant’s submission that Haji Shomari attained the age of majority on 6th June, 1986 and that time started to run against him on 7th June, 1998. With the greatest respect to the learned judge, we are unable to agree with him that the appellant attained the age of majority on the 6.686. In the pleadings, there is no reference whatsoever regarding the date on which the appellant was born. What was pleaded was that the appellant’s father died on the 30.5.77 when the appellant was nine years old. On the facts as ascertained, the appellant reached the age of majority in 1986 and therefore in 1998, the twelve years had not expired. This means tht when the suit was instituted in the district Court on the 15.10.98, the suit was not time barred. In the result, we set aside the decision of the High Court and order that the hearing of the suit to continue in the District court . Costs to be in the cause.
(x) PC Civil Appeal No. 155/04 – Petro Haule Vs Flora M’Mbungu HC at Dar (Chande J).
-Whether or not the appeal had been filed in or out of time and consequently competent or incompetent, depends on the application of section 19 (1) (2) and (3) of the Law of Limitation Act, 1971, the requirements of section 25 (1) (b) of the Magistrates Court Act, 1984 and the facts and circumstances of this case.
The Law of Limitation provides:
Section 19 (1) In computing the period of limitation for any proceedings, the day
from which such period is to be computed shall be excluded.
(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgement, the day in which the judgement complained of was delivered, and the period form or sought to be reviewed, shall be exclude.
(3) While a decree is appeal from or sought to be received, the time requisite for obtaining a copy of the judgement on which it is founded shall be excluded (emphasis mine).
Connection on a similar verbatim section of the Indian Law of Limitation Act, 1908, learned Author Chitaley and Rao in the Indian Limitation Act, (1908), Vol 1 1938, at pp. 504 – 505. “The date on which the copy is ready should be excluded as time requisite for obtaining it. But any delay of the party subsequent to that late in taking delivery of the same is net time “requisite for obtaining a copy” and consequently the time between the date on which the copy is ready and the date on which it is actually taken delivery of the party cannot be excluded.
In the absence of a notice or a communication to the party of the date on which the copies are ready for delivery, the delay in taking delivery cannot be counted against the appeallant. Where however, under the rules of a court the copying establishment is unlikely to tell the exact date on which copies will be ready and the appellant is not guilty of undue delay in taking delivery, the period between the date of which being ready and date of taking delivery shall be excluded”.
Since no proof of notification or communication that the certified copy was ready for delivery to the appellant has been offered, and no evidence of ordernes or negligence has been demonstrated as was the situation in Tanesco’s case which involved a “delay syndrome” and the fact that the appellant did in fact request a copy of the ruling on 20/07/2004, the very short period between the date the court certified a copy of the ruling, i.e. 27/07/2004 and the day he obtained that copy, ie. 29/07/2004 cannot be counted against him.
(y) Civil Case No. 436/99 - Ramadhani Chalamila vs Saab Scania Tanzania HC at Dar (Kalegeya, J).
Starting with whether these was an application known in law, made by the Applicant, with respect to Mr. Mwakipesile, I failed to comprehend the gist of his complaint. He rightly (as did the Respondents) observed that in terms of 0.43 CPC an application can be made by way of Chamber Summons supported by an affidavit or orally. And, that is the position of the law.
0.43 (20 provides that,
“Every application to the …….. shall, unless otherwise provided, be made by a Chamber Summons supported by affidavit:-
Provided that the court may where it considers fit to do so, entertain an application made orally”.
On this, I quoted what Mr. Kidifu submitted purposely. There are no particular magic words that have to be employed in an oral application. What is required is for the intending party to make representations, moving the court. And the court would entertain the application or reject if after the making of such representations to move the court but the court was yet to entertain or reject the application. That latter stage was not reached (and indeed cannot be the immediate next step where the other party is present because he has right of audience) as Mr. Mwakipesile objected and the court ordered that arguments be made by way of written submissions.
And, 0.22 Rule 3(1) CPC also relied upon by Mr. Mwakipesile does not support him. The relevant part of 0.22 Rule 3 CPC reads as follows:-
“O.22, Rule 3(1) where ………. A sole Plaintiff or sole surviving plaintiff dies and the right to sue survives, the court on application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the case.
2) Where within the time limited by law no application is made under sub – rule 1, the suit shall abate so far as the deceased Plaintiff is concerned, and on application of the defendant, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased Plaintiff”.
Now, does Mr. Mwakipesile doubt that what Mr. Kidifu submitted is a befitting oral application? As already said, I hold that legally it is. And in terms of 0.22 Rule 3(1) CPC it was made in that behalf – On behalf of Hassan to be caused to be joined to the suit as the deceased’s legal representative.
That settled, we move to the main part of the dispute. It is trite law and Counsel are agreed, that an application to be so joined as prescribed under 0.22 Rule 3 CPC has to be made within 90 days. This is clearly set out in the Law of Limitation Law, Act No. 10 of 1971, First Schedule, Part III, item 16. Unfortunately, it leaves a grey area as it does not offer guide on the starting point regarding the counting of the said 90 days.
-In my considered opinion, the India position as pointed out by Mr. Mwakipesile is very unrealistic regard being had to our Tanzania prevailing situation. It is not unknown to witness how Probate and Administration matters dilly – dally in courts for months if not years not to speak of the ruling paractise (though unbacked up by law nor desirable) of 90 days advertisement in the Government Gazette of Probate causes before letters of Administration are granted by the Court. This period in itself, added to the burial ceremony and grieving period, deciding by members on who should make an application, goes well beyond the 90 days prescribed under the schedule. I thus hold that the law does not envisage the counting of the 90 days from the time of death of the deceased Plaintiff.
- The question however, remains unanswered. When does it commence?
- In my considered view, time should start to run from the date the person seeking to be joined as a personal legal Representative of the deceased Plaintiff is appointed by the court. Only then can we legally say that we have a person who can legally stand in the shoes of the deceased.
- In the current situation, Hassan was appointed way back 6/5/2002. Whatever subsequent action that was taken can not bring him within the prescribed period. This is why I termed the matter unfortunate at the beginning of this ruling. Ismail’s letter dated 9/8/2004 and received by the court on 10/8/2004 was merelyt aimed at activating the record. But even if it was to be taken as an application it was over 28 months after the appointment. The oral application by Mr. Kidifu on 16/6/2005 obviously was beyond that over 38.5 months after appointment.
- I syhmpathise with Applicant’s Counsel but more specifically with Mr. Hassan and family for this difficult situation they find themselves in. As rightly submiutted by Mr. Mwakipesile, S. 15 and 25 of the Law of Limitation Act do not aid Hassan for he was not under the disability in terms of the provisions, and in any case, even if presenting a probate cause was to be taken as a disability legally recognized, it was removed the moment he was appointment (6/5/2002). Neither can S. 93 and 95 of the CPC as these are just saving provisions to bridge the gap where there are no specific provisions of the law addressing the issue. And, the Applicant’s moral sentiments in their submitting pleadings that an order should be made for the sake of justice can not hold water because when it comes to limitation of time, unless otherwise prescribed, the court cannot extend even a second. And, it is no wonder, that notwithstanding the gallant fight put up to defend Mr. Hassan’s plight, the Applicants Counsel had the humility of inferably conceding the defeat when he wrote in his submission.
“The Counsel submitted that in both ways, this application is out of time. We don’t dispute this submission and we leave this matter to the court to decide.
However sympathetic, this court cannot grant what is against the law. For reasons stated, the application to have Hassan joined as a legal Representative of Ramadhani Chalamila, deceased Plaintiff, is hereby dismissed for being out of time. However, regard being had to the nature of the case and surrounding circumstances I make no order as to costs.
(z) Civil Appeal No. 108/04 – J.D. Shirima vs Aidan Nduguru – HC at Dar (Massati, J)
-However, unfortunately, the plea of limitation is being raised for the first time in this appeal. It was not raised at the trial, According to RUSTOMJI “THE LAW OF LIMITATION AND ADVERSE PROSSESSION” Vol. 1 (1938) at p. 35.
“ It is clear however that limitation is not a question of jurisdiction and therefore it cannot, for that reason, be pleaded for the first time at a later stage. The general rule is that points of limitation should not be allowed to be raised for the first time in appeal where they involve a decision upon questions of fact.
And on p. 36; it was noted:
“But in order that the plea of limitation may be given effet to when raised for the first time in appeal, it is necessary that the facts showing that the suit is time barred should be apparent on the record”
From the above passages, which I find highly persuasive I take it to be the position of the law that, generally, a plea of limitation, although a point of law, may not be entertained on an appeal, unless on the facts on record it is glaring that the suit was time barred, and the facts which the defendant must establish to substantiate the new points were neither proved nor admitted.
In the present case, the Defendant did not plead limitation in his defence. In answear to paragraph 8 of the plaint, which alleges that the encroachment took place sometimes” in 1997, the Appellant simply said in paragraph 5 of his Written Statement of Defence; that:
“It 1997 boundaries of my plot marked with beacons already been there …….”sic)
- In their respective testimonies the Respondent simply said when he went to collect the survey ors to show him his boundaries in 1997. he discovered that the Appellant had emcroached on to his land. That is when he asked the authorities to write to the Appellant. This testimony is not consistent with his pleading in paragraph 5, Even in cross examination by the Defendant, the Respondent admits the encoreaching structures had been in existence even before he purchased the plot. And the Defendant completely avoided the question when did he put up the structures in dispute, apart from saying he obtained a building permit in 1984. No wonder therefore, the trial court did not make any finding of fact, as to the date of encroachment. This means for this plea to be entertained at this stage further investigation is needed to extablish facts showing that the suit is time barred or otherwise . And this court is placed in a much less advantageous position than the court below. I would for the above reasons decline to entertain the plea of limitation at this stage. The first ground of appeal therefore fails.
(aa) Civil Revision No. 29/97 - NIEMCO LIMITED VS MILO CONSTRUCTION COMPANY LTD. HC at Dar ( Mackanja, J).
- Now the principale behind section 14 of the Law of Limitation Act, No. 10 of 1971, is that its application should advance substatioal justice when negligence, nor laxity, nor laches, nor indolence, nor want of bona fides, is imputed on the applicant. All that is required here is that sufficient cause for failure to appeal in time or to apply for revision in time has been shown. In this matter the delay was caused by the failure by the trial court to furnish the applicant with the necessary papers in time. Add that surely, was a circumstance beyond the control of the applicant. Since it has not been shown by the respondent that the applicant is guilt of any of the factors I have mentioned, the application for extention would succed.
(bb) Civil Appeal no. 108 of 2004 – J.D. Shirima Vs Aidan Nduguru HC at
Dar (Massati, J).
- However, unfortunately, the plea of limitation is being raised for the first time in this appeal. It was not raised at the trial. According to RUSTOMJI “ THE LAW OF LIMITATION AND ADVERSE POSSESSION” V ol. 1 (19380 at p. 35.
“ it is clear however that limitation is not a question of jurisdiction and therefore it cannot, for that reason, be pleaded for the first time at a later stage. The general rule is that points of limitation should not be allowed to be raised for the first time in appeal where they involve a decision upon questions of fact.
And on p. 36; it was noted:
“But in order that the plea of limitation may be given effect to when raised for the first time in appeal, it is necessary that the facts showing that the suit is time barred should be apparent on the record”
- For the above passages, which I find highly persuasive I take it to be the position of the law that, generally, a plea of limitation. Although a point of law, may not be entertaind on an appeal, unless on the facts on record it is glaring that the suit was time barred, and the facts which the defendant must establish to substantiate the new points were neither proved nor admitted.
- In the present case, the Defendant did not plead limitation in his defence. In answer to paragraph 8 of the plaint, which alleges that the encroachment took place sometimes” in 1997, the Appelant simply said in paragraph 5 of his Written Statement of Defence; that:
“in 1997 boundaries of may plot marked with beacons already been there …..” (sic).
(cc) Civil Appeal No. 108/04 – J.D. Shirima vs Aidan Nduguru HC at Dar (Massati. J).
- Coming to the gist of the application, it cannot, I think, be gainsaid, that for an application for extension of time to succeed, under S. 14 (1) of the Law of Limitation Act 1971 the Application must show reasonable or sufficient cause for the delay in doing the thing that is sought to be done. There is also no doubt that S. 14 (1) of the Law of Limitation vest discretion in the Court to extend time, but as WINDHAM C.J. (as he then was) said in DAPHINE PARRY VS MURRAY ALEXANDER CARSON [1963] E.A. 546 in exercising its powers under this provision the provision should receive a liberal construction, so as to advance substantial justice, when no negligence, nor inaction not want of bona fide, is imputed to the applicant.
- In the present cse the Applicant’s ground for extension of time is the discovery of new evidence. According to Mr. Massawe , this piece of evidence is vital to the Applicant’s case. And I have closely looked at Annexture A. But what is missing from both Mr. Massawe’s affidavit and Annexture aitself is an equally vital information “where and for how long has Annexture A been in existence?. What is in the annexture is the mere fact that it is a certified copy from some official records which strongly suggests that it has been in existence before, but how long before, the Applicant has left this Court and everyone guessing. The affidavit of the certifying officer would have gone a long way in assisting the Court.
- However, assuming that this public document was in existence at the time the Applicant filed his defence in the trial Court as can be gleaned from his line of defence, then it was negligent on the part of the Applicant or his Counsel not to have begun digging up such evidence at that stage. But if the document was drawn up after the institution of the suit I do not see how it would have affected the results of the case. That is where Mr. Tadayo is right in stating in paragraph 7 of his counter affidavit that the reason for extension of time is self defeating.
- All said, I find, and hold that all the circumstances in this case lead to the consclusion that there was some negligence or inaction on the part of the Applicant or his Counsel in tracing the additional evidence, and appreciating its weitht to his defence. Therefore the Applicant has not shown reasonable or sufficient cause for extension of time.
- As to the merits or legality of the intended application for review the position of the law is that it is of little relevance if the Applicant cannot show good cause for his delay which, as I have held above, the Applicant here has not.
- in the event, I find no merit in the application for extension of time and I dismiss it with costs.
(dd) Civil Appeal No. 101/02 - Joseph Mtenga vs Jumuiya ya Maendeleo Msigani – Mbezi – HC at Dar (Mlay, J).
- The first issue for consideration in this appeal is whether the appeal is in time. According to the record, the judgment of the District Court was delivered on 18/6/2002, a fact which is acknowledged by the appellant in his written submissions. The “memorandum of appeal” was filed on 7/8/2002, a fact which is also not disputed by the appellant. From 18/6/2002 to 7/8/2002 which the appeal was filed it is a period of (50) fifty days.
- Section 25 (1) (b) of the Magistrate Courts Act provides that any person “aggrieved by the decision or order of the District Court in the exercise of its appellant or reisional jurisdiction may, within thirty days after the date of the decision or order, appeal here from to the High Court. ………
Provide that the High Court may extend the time for filing an appeal enter before or after such period of thirty days has expired ………..
- The prescribed time within which to file an appeal form the decision of the District Court exercising its appellate powers over proceedings originating form the Primary Court, is thirty days. The present appeal was filed were beyond the prescribed period of thirty days. The appellant has attributed the delay to the time he took to obtain a copy of the judgment. The Civil Procedure Appeals. In proceedings Originating in Primary Court) Rules 1964, GN 312 of 1964, do not require that a petition of appeal should be accompanied by a copy of the judgment or order being appealed from. Regulation 4 may requires the petition of appeal to set out the grounds of appeal and to be signed by the appellant. Regulation 5 (1) provides that when a petition of appeal to the High Court is filed in the District Court, the District Court shall cause the date of filing to be endorsed on the petition before dispatching it to the High Court. There is no requirement for a copy of the judgment or order of the District Court being appealed form, to be attached to the petition of appeal. If, for any reason the appellant is late in filing the appeal within thirty days, the appellant has to move the High Court to exercise its powers under the proviso to section 25 (1) (b), to extend the times. In the present appeal no such extension of time has been sought by the appellant or obtained.
- This appeal is therefore out of time and as the result it is improperly before this court and it is accordingly struck out.
- The appellant appears to have attempted to file the appeal directly in the High Court and di actually pay filing fees. Section 25 (3) of the Magistrate Court Act, 1984 provides that:
“ Every appeal to the High Court shall be by way of petition and shall be filed in the District Court from the decision or order of which the appeal is brought”.
It would therefore have been improper for the appellant to have filed the appeal directly in the High Court. The appeal was properly filed in the Kinondoni District Court.
In the final analysis, the appeal being out of time and improperly before this court it is struck out. As the respondent did not file any documents or submission, I make no order as to costs.
19. EX- PARTE JUDGMENT. (a) Civil Case No. 128/93 – Amos Shavu vs T.A. Msonge and others. HC at Dar (Bahati, J). There is no doubt that even where ex-parte judgment is delivered the other party has a right to appeal. (b) Civil Case No. 336/89 – The Registered Trustees of Masjid Mabox Mtoni Sokoni vs Abdulbari and six others. HC at Dar (Kalegeya, J). Bereaved is a sufficient reason to set aside the ex-parte judgment. (c) Civil Case No. 208/93 – Star Transport Co. Ltd vs NBC. HC at Dar (Kaji, J). An appeal to the Court of Appeal against an ex-parte decree/judgment made by this court in the exercise of its original jurisdiction does not require leave by this court as per S. 5(1) (a) of the Appellate Jurisdiction Act, 1979. Leave to appeal to the Court of Appeal out of time against a decree made by this Court exercising its original jurisdiction can only be granted by the Court of Appeal itself under Rule 8 of the Court of Appeal Rules, 1979. (d) Civil Appeal No. 38/97 – Faizen Enterprises Ltd vs Africarrier Ltd. CAT at Dar. Case cannot be proved by affidavit But what is beyond our comprehension is the plaintiff’s counsel other prayer or application that he be allowed to prove his case ex-parte by affidavit. How can anyone prove his entire case by affidavits and whose affidavit anyway? And most important, under what provision can this be done? Was counsel’s application to proceed ex-parte by affidavit meant to hide the fact that even the plaintiff was in no position to proceed with the hearing. But we think more important is the consideration that in this case the plaintiff would be required to prove its entire case not isolated or individual facts by affidavits. In the circumstances we think that this order should not be used to allow absent plaintiffs to proceed ex-parte. (e) Civil Case No. 283/98 – Aqya Agencies (T) Ltd vs Murtazaali Tayabali. HC at Dar (Kyando, J). The on 5/110/99 Miss Sheikh did not appear, but she was aware that she was required to appear in the case on that date for she sent a letter to the court stating that she would be traveling to Zanzibar and would not appear in this court then. If she had chosen to be diligent therefore, soon upon her return from Zanzibar she would have checked to find out what happened to the case on 5/10/99. Had she done so in good time she would have discovered that it (the suit) had been dismissed and she would have taken the necessary measures in time, to have it restored. She seems, however, to have remained quite until the time for bringing this application had expired. There is no good explanation for this inaction and consequent delay. (f) Comas Construction Company Ltd vs Arrow Garments Ltd [1992] TLR 127. CAT at Dar. - A party who fails to enter appearance disables himself from participating when the proceedings are consequently ex-parte, but he has to be told when the judgment is delivered so that he may if he wishes, attend to take it as certain consequences may follow. - Without disclosing when the applicant got to know the existence of the judgment it is not possible to gauge the extent of the delay. (g) Kulwa Daudi vs Rebeca Stephen [1985]TLR 116 HC at Mwanza (Mwalusanya, J). - The ex-parte judgment in this case offended against the law because it was entered into without calling upon the plaintiff to prove her case as provided for under Order 14 Rule 2(b) of the Civil Procedure Code. (h) Land Case No. 83/2004 – Jackson B. Benedict vs Air Tanzania Holding Corporation. HC(Land Division) at Dar (Longway, J). Air Tanzania Holding Corporation have filed an application seeking to set aside this Court’s judgment and decree against them entered on 28th June, 2004. -I have gone through the arguments by learned counsels and observe there to be no dispute that according to the court record, the applicant/defendant was dully served on the 25th May, 2004. I also observe that on the first mention on the 17th June, 2004, the applicant/defendant entered no appearance and no WSD was filed. The position was the same on the 24th June, 2004 when the judgment in default was entered on the strength of Order 8 Rule 14(1) of the CPC and read together with the amendments in GN. 422/94. It is also observed that the summons that weree served to the applicant/defendant were requiring them to file WSD ‘within 21 daysof service’ which period elapsed. It is further observed from the learned counsel’s submission that the facts of service and non appearance are admitted and that no application for extension of time to file the WSD was made orally or otherwises, nor was there attempt of a notification sent to court informing the court of their mishandled/misplaced ‘summons whihch incident disabled them to file pleadings.’ In my considered view this reason affords the applicanat/defendant no satisfactory excuse in the face of the provisions of Order 8 Rule 14(1) of the Code as amended by GN 422/94. I smell a lack of diligence on the part of the applicant/defendant. Granted that the matter was of extreme urgency, still it is our view that the Attorney General’s Office in Tabora could have been served with the notice of hearing without causing delay. This is so, having regard to the fact that the High Court building in Tabora is within easy reach from the Attorney General’s Office there. The notice could be effected physically by court process server or by telephone, failure to which, the matter could well be heard the next day, when, as shown in the affidavit the learned judge personally handed over a copy of the ruling to the Principle State Attorney, we see no reason why he did not make a similar effort to notify the Principal State Attorney by telephone or by physical contact as he did the next day when he delivered a copy of the ruling. The would accord with the principle of natural justice which the learned judge commendably underscores in the course of his ruling when he states:-
“ Natural justice requires that even a poor peasant at least he be consulted before a decision affecting his life is made. In court he deserves at least to be heard.,,,”
- From this, it appears to us that this cardinal principle of justice was, with respect to the learned judge, applied in the reverse in so far as the Attorney General was concerned. This, we are convinced, was not fair and was done in such circumstances that raise doubts and suspicion as to the reasons behind it.
(h) Civil Appeal No. 187/01 – Director of Msimbazi Centre ves Ibrahim K. Njohoe t/a Limemo Security Guard HC at Dar (Luanda J,)
- This appeal arises from decision and order of the Dar es Salaam Resident Magistrate court sitting at Kisutu. The said court entered exparte judgment aginst the Director Msimbazi Centre and refused to extend time for filing an application to set aside that judgment.
- The background history giving rise to this appeal is this Ibrahim K. Njohole t/a Lumemo Security Guard (hereinafter referred to as the Respondent) through Mr. Kashumbugu Larned counsel instituted The Director, Msimbazi Centre (hereinafter referred to as the Applicant) for branch of contract. It is has been alleged in the plaint that the Appellant unlawfully terminated the contract entered between the Appellant and the Respondent whereby the latter undertook to provide security services and the former to pay for those services. As the appellant terminated the contract, hence the suit for damages.
- The record shows that the Appellant through Mr. Shayo from a law firm known as mbuya, Shayo & Co. Advocates filed their written statement of defence. In the written statement of defence the appellant contended that the termination was lawfull. The Respondent replied to the written statement of defence.
- On a number of occasions when the case was fixed for heary neither Mr. Shayo nor the appellant himself appeared. The Respondent the court ordered the case to proceed exparte. The Respondent gave evidence and judgment was entered in favour of the Respondent. Judgment was entered on 22/2/2000. The same was delivered in the presence of the Respondent in absence of the Appellant. It was on 18th July, 2000 when the Appellant name to know that exparte judgment had been entered against him. The appellant know it because the Respondent has a court decree and demanded payment. The appellant thus filed two applications, namely an application for stay of execution and an application to seek an extension of time within which to set aside the exparte judgment. The applicaton for stay of execution was granted. The trial court refused to extend time within which to apply to set aside the exparte judgment, hence this appeal.
- As regards to the first ground Mr. Rutabingwa vigorously attacked the finding of the trial court in that neither his client nor Mr. Mbuya, learned counsel were negligent in making appearance. If any thing it was Mr. Mbuya’s chamber which was to blame. He cited Kinoge A. Dhalah Vs Telephone Thomas Civil Application No. 17 of 1992 CAT (unreported) where it was held, inter alia that a dilatoriness counsed by an advocate in taking appropriate step should not be placed upon his client.
- Submitting on the second ground, Mr. Rutabingwa said the trial learned Resident applied applied double standards. The learned magistrate find out and held that failare to issue notice to the appellant as ordered by court was a good cause in ordering stay of execution. But the same is not a good cause for extending time to file an application to set aside an exparte judgments.
- Arguing the third ground of appeal namely failure to give notice at the time of delivering judgment to the Appellant, Mr. Rutabingwa said that was wrong. He cited Cosmas Contruction Co. Ltd Vs Arrow Garments Ltd [1992] TLR 127 where the court of Appeal of Appeal of Tanzania held inter alia, that a party who fails to enter appearance when the proceedings are conducted exparte, has to be told when the Judgment is delivered so that he may, if wishes, attend to take it as certain consequences may follow. However, the case cited above doens not say the consequence of failure to inform the judgment - debtor.
- I now move to the third ground. The record shoes that the appellant was not around. And this is because he was not given notice. Indeed this goes contrary to the holding of cosmas case cited supra. The question is what is its effect? The said case did not give sanctions to such failures. On my part I think the question one is to ask himself is whether the omission occasioned miscarriage of justice. I am of settled mind that the omission in this case did not occasion any miscarriage of justice.
- As to the second and first ground I have this to say. In the first place it is true tht the trial court issued such order on 11/10/99.
- And the trial court, when considering the application for stay of execution, observed tht non compliance with the order was a good cause. Bu the same court when deciding to grant extension of time to set aside exparte judgment did not consider it as sufficient reason for the application. In dismissing the application, the trial court said, I quote:-
“ the applicant (Appellant) were aware of the suit. Why did’t them (sio) take a follow up? Court records shows that the defendants appeared in court for the last time 7/6/99 and exparte judgment was delivered on 22/2/2000. On the strength…….
- It is true that the appellant were aware of the case. But the case was handled by Mr Shayo who neither appeared in court nor informed the court his withdrawal from the conduct of case. If further appears Mr. Shayo who was with Mr. Mbuya did not even inform the Appeallant tht he had established his own law firm. In the light of the foregoing, the Court Order which directed the Appellant be informed was relevant. All these show that the blame lies squarely on Mr. Shayo. The Appellant shouldnot, be punished for no fault of his. They wsere not negligent.
- Taking the totality of the above facts. I allow the appeal in that extension of time to file an application to set aside exparte judgment is hereby granted with costs. The case is remitted to the Resident Magistrate court of Dar es Salaam for hearing. The same be placed before another magisgrate. 20. GARNISHEE ORDER. (a) Civil Appeal No. 33/92 – The Principal Secretary, Ministry of Defence and National Sercice vs D.P. Valambhia. CAT at Dar. A garnishee order cannot be directed against the government even where the government was a party in a contract, leave alone where, as it was in this case, the government was not a party. The garnishee order against the government and the subsequent notice to show cause directed to the Principal Secretary, Ministry of Defence and National Service were irregular and contrary to the law. [Quoting Felix Rutazengelwa vs CRDB [1996]TLR 382, “The law of Tanzania regarding garnishee orders is like that of England and that under the English law there is a right to appeal against garnishee orders.” 21. INHERENT POWER OF THE COURT. (a) Civil Case No. 210/89 – Transport Equipment Ltd vs D.P. Valambhia. HC at Dar (Rubama, J). On Section 95 of the CPC,1966 the Court of Appeal in Aero-Helcopter (T) Ltd vs F.W. Jensen, Civil Case No. 12/90 CAT (unreported), stated:- “It is to be remembered that the inherent power of the court under section 95 of the Code is exercisable where the law has made no provision governing the particular matter at hand…..”. (b) Civil Application No. 18/93 – Transport Equipment Ltd vs D.P.Valambhia. CAT at Dar. The inherent jurisdiction of a court is by its nature not a creature of statute, though it may be embodied or re-stated in a statute. Inherent power of the court is that which is necessary for the proper and complete administration of justice and such power is resident in all courts of superior jurisdiction and essential to their existence. While accepting the proposition that the Court of Appeal of Tanzania, as was the Court of Appeal for East Africa, has limited inherent jurisdiction within the exceptions stated in SMANI’s case, we are satisfied that there is also inherent jurisdiction to review its decisions wherever such decisions are based on manifest error on the face of the record resulting in miscarriage of justice as was the situation in BWOGI’s caase. (c) Ryan Investments Ltd vs USA [1970]EA 675 CAT at Nairobi. It is only where there is a specific remedy provided by the law that the inherent jurisdiction of the court cannot be invoked. Strictly speaking the judge was correct in saying that no application can be made under S.97 of the Civil Procedure Act, as it does not create jurisdiction but merely makes it clear that the inherent powers of the court are not affected by the enactment of the Act. It was apparent that the application in fact invoked the exercise of the court’s inherent powers. Such an application can be made if no other remedy is available, and a remedy be provided if the interest of justice so require. The practice has risen in East Africa of citing S.97 aforesaid, or the corresponding section in territories other than Kenya, when the intention is to invoke the court’s inherent powers, and although this may not be technically correct it should not be used as a reason for refusing to exercise the court’s inherent powers in a proper case, when it is clear that those powers are in fact being invoked. (d) Civil Revision No. 7/98 – Alhaji Amiri Sadiki vs Rukia Sadiki. HC(Matrimonial) at Dar (Katiti,J). I cannot avoid conceding that the inherent power jurisdiction of the court , is meant for the court to act ex debito, i.e they are such powers, as are meant to enable the court, to pass such orders for the ends of justice, as may be necessary, considering the rights which are conferred upon the parties, by substantive law. In this light, it does not appear consistent with justice, if the court fails to correct injustice, simply because of lapse of time, and where the other party cannot be said to be prejudiced. The interpretive of S.151 of the Indian Code of Civil Procedure, identically worded as our s. 95 of our Code. Thus:- that when a court is called upon to exercise its inherent power, such power is not affected by law of limitation as limitation affects the actions of the parties, and not of the court. that any party has liberty to apply to the court to invoke its inherent power. that the party praying to invoke its inherent powers, must have been diligent and not been a victim of laches, as to prejudice the opposite party.
22. INJUNCTION. (a) Atilio vs Mbowe [1969] HCD 284, HC at Dar (Georges,C.J). It is generally agreed that there are three conditions which must be satisfied before such an injunction can be issued:- 1. there must be a serious question to be tried on the facts alleged, and the probability that the plaintiff will be entitled to the relief prayed. 2. that the court’s interference is necessary to protect the plaintiff from the kind of injury which may be irreparable before his legal right is established. The court must be satisfied that the damage which the plaintiff will suffer will be such that mere money compensation will not be adequate 3. that on the balance, there will be greater hardship and mischief suffered by the plaintiff from withholding of the injunction than will be suffered by the defendant from granting of it. (b) NBC vs Dar es Salaam Education and Office Stationery [1995]TLR 272 CAT at Dar. Where a mortgagee is exercising its power of sale under a mortgage deed the court cannot interfere unless there was corruption or collusion with the purchaser in the sale of the property. Order 37 Rule 1 was inapplicable in the circumstances of the case because there was no court decree in execution of which the house was sold. Order 37 Rule 1 would not be applicable in this case on account of the fact that the house was mortgaged in which case it could be in execution of the mortgage without resort to a court decree. © Civil Appeal No. 41/99 - Augustino Lyatonga Mrema and another vs Abdallah Majengo and others. CAT at Dar. The effect of rule 4 of Order 37 is to make it compulsory for the giving of notice to the opposite party in all cases except in situations covered by the exception to the rule. The requirement to give notice is clearly mandatory and it cannot be disputed that the onus of satisfying the court that there is good cause for dispensing with it will lie with the applicant. Not only did the respondent’s Chamber summons fail to refer to Rule 4, but the first respondent’s affidavit contained no grounds for dispensing with such notice. Without the respondents satisfying the court as to the necessity of dispensing with the notice under the exception to rule 4, the court had no power to grant ex-parte the injunction against the appellants. (d) Civil Application No. 110/99 – Tanzania Union of Industrial Commercial Workers vs TIPER. CAT at Dar. An appeal lies against an order granting or refusing an interim or interlocutory injunction. (e) Civil Case No. 30/00 – Suryakant D. Ramji vs Savings and Finance Ltd and others. HC(Commercial Division) at Dar (Kalegeya,J). Principles of granting injunction [quoted Atilio vs Mbowe principles] and added that the requirement that, “there should exist a probability that the matter would be decided in the plaintiff’s favour” should not be exaggerated and taken to unproportional limits otherwise that would be tantamount to giving verdict prematurely and in any case the court would not be in possession of full evidence at that stage. The controlling limb should be the existence of a serious triable issue. (f) Civil Application No. 5/95 – The University of Dar vs Silvester Cyprian and 210 others.CAT at Dar. “Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purposes of keeping things in the status quo till the rights can be decided, or for the purpose of obtaining some directions of the court as 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” (g) Misc. Civil Appeal No. 6/01 – Kinondoni Municipal Council vs Rehema Nyenza. HC at Dar Kimaro, J). Under Order XL(1) (r ) the interim ex-parte order issued under Order XXXVII of the CPC, 1966 is appellable. (h) Misc. Civil Appeal No. 9/89 – Arusha Municipal Council vs Tango Transport Co. Ltd. HC at Arusha (Mushi, J). On principles of granting injunction [quoted Atilio vs Mbowe[1969]HCD 284] Quoted also Alloys Anthony Duwe vs Ally Juu ya Watu [1969] HCD 268 where it was stated “….the granting of a temporary injunction is a matter of discretion of the court…….The court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it, there is a probability that the plaintiff is entitled to a relief, but the test is whether matters should not be preserved in the status quo until that question can be finally decided”. Order 37 Rule 1 is very clear, “Where in any suit it is proved by affidavit or otherwise” – The rule is very specific that there must be a suit between the parties before an order for temporary injunction can issue. This is in accord with the logic because a temporary injunction is a holding order pending another order and the other order come from the main suit between the parties. (i) Civil Application No. 180/04 – Alliance Insurance Corporation Ltd vs. Commissioner of Insurance CAT at Dar (Munuo, JA). Dr Kapinga, learned advocate, brought a Notice of Motion under Rule 3 (2) and 45 (1) (2) of the Tanzania Court of Appeal Rules, 1979 seeking a restraint order against the respondents on the grounds that:- the intended appeal has good chances of success; if the restraint order is not granted, the applicants will suffer substantial and irreparable loss not capable of being atoned by monetary compensation. On the balance of convenience, there are good and sufficient reasons for granting the sought restraint order, and on common – sense and balance of advantage, the restraint order ought to be granted.The applicants further prayed that costs abide the result of the intended appeal. In his written submission, Dr. Kapinga contended that the Court should grant a restraint order because:- the intended appeal has good chances of success; if a restraint order is not granted, the applicants will suffer irrerable loss not capable of being atoned by monetary compensation; on the balance of commonsense, convenience and advantage, there are sufficient reasons for granting a restraint order; and on common – sense and balance of advantage, the restraint order ought to be granted. The applicants further prayed that costs abide the result of the intended appeal.
In his written submission, Dr. Kapinga contended that the Court should grant a restraint order because:- the intended appeal has good chances of success; if a restraint order is not granted, the applicants will suffer irreparable of being atoned by monetary compensation; on the balance of commonsense, convenience and advantage, there are sufficient reasons for granting a restraint order. He further contended that the applicants would suffer irreparable loss ranging between 2 and 13 billion Tanzania shillings in that if the first Respondent refused to renew the insurance licenses of the applicants, they would – Lose their entire business they currently have if they close their insurance companies as a result of the 1st Respondent enforcing his decisions and directives in his letters ….. by denying the applicants certificates and registration as insurance companies”. On the contrary, contended Dr. Kapinga, no loss whatsoever will be suffered by the first Respondent if the restraint order is granted for the Respondents made no attempt to demonstrate how they would suffer loss if the restraint order is granted. Hence, on the balance of commonsense, convenience and advantage, the Court should grant the sought restraint order. Dr. Kapinga cited the case of Tanzania Cotton Marketing Borard vesrs Cegecot Cotton Company SA (19970 TLR 63 at Page 68 wherein a single Judge had the following to say on the principle of balance convenience: “ …… when the Court is in boubt, having taken the various factors into account, the matter is decided on the balance of convenience”. The Respondent’ counsel also referred to the case of the State of Assam versus M/s M.S. Associates AIR 194 G A V 105 where it was held that:- “ While granting a temporary injunction, not only the three ingredients, but in addition to it, public interest, and or loss to community. By exercising equitable jurisdiction to give benefit to somebody, the large interest cannot be sacrificed”.
Civil Appeal No. 210/03 – Ubungo Plaza Ltd vs Christopher Mduma. HC at Dar (Oriyo, J).
-Having stated the above, I will now turn to consider the Court statutory powers to award interest on judgment debts is contained in SECTION 29 AND order XX rule 21, Civil Procedure code. Order XX rule 21 prescribes interest rates applicable to judgment debts from delivery of judgment until satisfaction to be in the range of 7% and 12% The rate of interest applicable to judgment debts prior to delivery of judgment is awarded at the discretion of the court; at a rate the court considers reasonable. In the present case the trial court awarde interest on (a) to (d) at the commercial rate from the date of filing suit to the date of judgment and interest on the decretal sum at the court rate (7% - 12%) from date of judgment until satisfaction. The trial court erred in ganting interest on general damages prior to the date of judgment. It is a general legal principle that interest on general damages is only due after delivery of judgment. The reasoning behind being that before delivery of the judgment which awarded the general damages, the plaintiff was not entitled to any particular amount of money which could have attracted interest. In other words, the court’s discretion to award interest on damages prior to the delivery of the judgment; is limited to special damages whereby there is proof that such sums were actually incurred or expended. (see court of appeal decision in ROSE JUMBE, supra). In view of the foregoing, the interest granted on a – d before judgment was faulty and is set aside.
24. INTEREST & COSTS. (a) Abrogast Fundi vs Masudi Zaidi [1980]TLR 125. HC at Dar (Lugakingira,J). Costs are awarded as re-imbursement for expenses reasonably incurred. There are therefore two considerations in this regard: the cost must have been reasonably incurred. The trial court never addressed itself to this consideration with the result that it allowed some claims which were either dubious or unreasonable, in most instances there were no receipts furnished. In one instance the receipts clearly forged. In other instances, the respondent did not have to make the trips he made. (b) Civil Appeal No. 41/92 – NBC vs D.M. Investment CO. Ltd. CAT at Mwanza. New interest rate not applicable due to two reasons:- 1.No directive was shown that BOT had issued 2.The other party was not notified of any change. (c ) Misc. Civil Cause No. 21/96 – The Commissioner of Income Tax and another vs Tropex Ltd and another. HC at Dar (Kyando, J). Under S.30 of the CPC, 1966 – costs must follow the event. When they are not to do so, reasons must be stated by the court and there must be then a clear statement that costs are not to follow the event. In the present case there is no statement that costs are to follow the event. Amount of costs are within the discretion of the taxing master and the court will only intervene in exceptional cases ….where the fees awarded is manifestly excessive or if a wrong principle was applied. (d) Commercial Case No. 56/00 – ULC(Tanzania) Ltd vs NIC and PSRC. HC(Commercial Division) at Dar (Dr. Bwana,J). The issue of claims of interest …..It is a well respected in judicial circles that judges of the court should seldom give conflicting decisions over similar issues unless it is absolutely necessary. The rate of interest to be awarded for the period prior to the delivery of judgment is set at the discretion of the court. The rate which it considers reasonable. There are thus two divisions of interest under Tanzania law – These two correspond to the period for which interest is awarded. The first period covers the whole of that period up to delivery of judgment. The second period is the period from delivery of judgment to final satisfaction. The rate to be awarded for the first period is entirely at the discretion of the court, whereas the rate to be awarded for the second period is also at the discretion of the court but within set limits i.e between 7% and 12% per annum.
(e) Commercial Case No. 52/04 - Tanzania Breweries Limited vs Richard K. Chengula t/a African Tours and General Business HC at Dar (Kalegeya, J).
- The claim before us is aptly cevered whether we look at it from the aspect of subsection (2) or the amendments introduced by Act 4/2004. And, I don’t subscribe to Mr. Ukongwa’s submission that in determining the pecuniary jurisdiction, interest should not be considered. Yes I would agree with him where it is not computed hence not disclosed. However, where, as in this case, the interest is specifically disclosed and claimed it forms basis for determination of the pecuniary jurisdiction of the Court in relation to the claim. This objection also fails. 25.JUDGMENT NOT SIGNED BY ASEESSORS. (a) Civil Appeal No. 9/88 – Saidi Kipengel;e vs Salama Hassani. HC at Dar (Bahati, J). The record ought to show clearly what each assessor said and his signature against his view should have been appended. This was not done. In my opinion there was an irregularity on the party of the trial magistrate which is fatal to the proceedings as it offends the provisions of section 7(1) and (2) of the MCA. I would allow the appeal on this ground. For avoidance of doubt it is stated that the proceedings in the Primary court are declared null and void because of the failure on the part of the Primary Court Magistrate to comply with section 7(1) and (2) of the MCA,1984. The respondent/plaintiff is at liberty to institute fresh proceedings in the Primary court on the same fees. If such proceedings are instituted they should be dealt with another magistrate and with a different set of assessors. I make no order as to costs. (b) Civil Appeal No. 133/91 – Caroline Hamis vs Harith Hemed. HC at Dar (Mkude,J). At the foot of the judgment appears only the signature of the presiding magistrate. The signatures of the two assessors who set with him do not appear anywhere in the record. It is obvious from the record of the trial that the presiding magistrate, out of ignorance, acted contrary to the law in the way he treated the two assessors who sat with him. Assessors in the primary court are an integral part of the court and so they take part in the decision. They do not just give opinion as they used to do in the past. They must take part in the judgment of the court and in the absence of a dissent they must sign the judgment of the court. This is clearly set out in the Magistrate’s Court (Primary Courts) (Judgment of Courts) Rules, 1987 published as GN No. 2 of 1988. Furthermore as the judgment he wrote was his and not of the majority and, particularly because it has not been signed by the other members of the court it is contrary to law and therefore void. I order that the case be tried de novo before another magistrate with different assessors. Costs of this appeal will abide the outcome of the new trial. (c) Civil Appeal No. 36/95 – Petrol Mtumbi vs Jibu Sikitu. CAT at Dodoma. Section 7(1) of the MCA, 1984 provides:- “In every proceeding in the Primary Court, including a finding, the court shall sit with not less than two assessors”. A Primary Court was unlawful constituted, and, therefore, had no jurisdiction, when one assessor absented himself for a portion of the proceedings but rejoined latter and stayed on up to the conclusion. (d) Mohamed S. Amiri vs Said Ngapwela[1992] TLR 342. HC at Dar (Mkude, J). The trial magistrate erred when he purported to sum up to the assessors in what he called hukumu and also erred when he failed to record the unanimous decision of the court and call upon the assessors to sign with him. For the reasons, I declare the trial a nullity and order that the case be tried de novo before another magistrate sitting with different assessors. (e) Agness Maloda vs Richard Mhando[1995]TLR 137. HC at Dodoma(Msofe,J). Since assessors are part of the court the magistrate has to consult with them and when a unanimous decision is reached he prepares a judgment which all of them have to sign or where the decision is not unanimous, the majority have to sign. In the instant case the magistrate summed up to assessors contrary to the express provisions of Rule 3(3) of GN No. 2 of 1988. 25. JURISDICTION/PRELIMINARY OBJECTIONS. (a) Civil Appeal No. 39/92 – DSM City Council and others vs C.M. Mundebe and another. HC at Dar (Mwaikasu, J). In terms of S. 22 (2) of the Land Ordinance, Cap.113, it is only the District Court presided over by a District Magistrate which has power to entertain a suit arising out of matters concerning land registered under the Land Registration Ordinance or matters relating to Right of Occupancy granted under the Land Ordinance, Cap.113. (b) Civil Appeal No. 33/92 – The Principal secretary, Ministry of Defence and National Service vs D.P. Valambhia. CAT at Dar. Like in our set up today both the High Court and the then Court of Appeal had concurrent jurisdiction over the matter but the applicant must go to the High Court first. (c) Misc. Civil Cause No. 7/95 – Philip Anania Masasi vs Returning Officer Njombe Constituency, A.G. and Jackson Makweta. HC (Election) at Songea (Samatta, JK). - As I apprehend the law, want of, or defect in, verification does not make a pleading void, it is a mere irregularity which is curable by amendment. See Mogha’s Law of Pleadings, 14th Ed. At p.58. (d) Civil Appeal No. 37/95 – Chisewo Maswaga vs Elias Chalo. CAT at Dodoma. The primary court had no power to convert into an original suit a matter brought to it from a Ward Tribunal by way of appeal. In terms of the provisions of section 20 of the Act, the Primary Court could only deal with the matter as an appeal and not as a fresh suit. Subsequent proceedings on appeal to the District Court and High Court were also a nullity as they were based on proceedings which contravened the law. It is ordered that the matter i.e Civil Case No. 14/92 from the Ward Tribunal be heard by the Primary Court in terms of the law. (e) Civil Application No. 47/96 – VIP Engineering & Marketing Ltd vs Said Salim Bakhressa Ltd. CAT at Dar (Samattta, JA). Advocate (Dr.Tenga) conceded that the Notice of Motion does not follow the terminology of Form A to the First Schedule to the Rules….as it does not disclose the grounds of the application. He went on to submit that the provisions of Rule 45 of the Rules do not require that a notice of motion follow exactly the terminology of Form A. What the rule requires, he submitted, is that the notice of motion should in substance be in the Form A. The Advocate drew my attention to the respondent Co. was made aware of the grounds of the application as they were stated in the supporting affidavit …..and indeed the respondent has replied the said grounds in his counter- affidavit……hence the respondent has not been materially prejudiced by the failure to disclose the grounds in the Notice of Motion. Dr. Tenga urged me to grant leave to the applicant company, if necessary to amend the Notice of Motion by disclosing the grounds of the application in it. “I have carefully considered the submissions addressed to me by both counsels. There can be no rational dispute over the fact that procedural rules are enacted to be complied with. Usually there is a legal principle behind every procedural rule. But those rules differ in importance. Some are vital and go to the root of the matter, these cannot be broken. Others are not of that character and can, therefore, be overlooked provided there is a substantial compliance with the rules read as a whole and provided no prejudice is occasioned. In my judgment, Rule 45 of the Rules belongs to the former class. That rule makes it mandatory for a Notice of Motion, save as provided for under sub –rule (3) thereof, to be substantially in the Form A in the First Schedule to the rules. The Notice of Motion filed in the present application is certainly not substantially in that form because a very vital part of the Form A – grounds of the application- was omitted”. However, I hold that the grounds of the application were disclosed in the affidavit and hence allow the applicant to amend the Notice of Motion by stating therein the ground or grounds of application. See also Civil Appl. No.66/98. (f) Civil Appeal No. 58/97 – Kantibhai M. Patel vs Dahyabhai F.Mistry. CAT at Mwanza. The Court has held on a number of occasions that once an objection is taken to the competence of the appeal, it would be contrary to the law to entertain a prayer the effect of which is defeat the objection. If such prayers were entertained, rule 100 which permits preliminary objection would be negated. (g) Civil Case No. 293/88 – NOTCO (T) Ltd vs Freightwings International Ltd. HC at Dodoma. Application for further and better particulars It is no answer to a request for further and better particulars to say that there is no legal duty to supply them since the point raised is one of law. Where the defendant contends that the suit or application is misconceived he must specify or particularize why he contends that the suit or application is misconceived. If he relies on any facts for those purposes he must state those facts in his pleading, if it is merely the position in law which he relies on, he must set out with sufficient particulars the position in law upon which he ultimately bases his submission”. (h) Civil Application No. 66/98 – Miroslav Katik Vesra vs Ivan Makobrad. CAT at Dar. Our understanding of rule 45(1) and (2) is that the grounds of the application are matters of substance, they go to the very root of the matter. For that reason and also the wording of sub section (1) of rule 45 indicates, it is a mandatory requirement to state the grounds in the Notice of Motion substantially in the manner indicated in Form A. It being a mandatory requirement under this rule, it goes without saying that failure to state the grounds in the Notice of Motion is, as contended by Mr. Mselem, fatal to the application. In our understanding, the Court in its decisions in these cases has consistently held the view that the irregularities and omissions involved in these cases were not merely procedural, they were of fundamental nature going too the root of the matter. In that situation the Court has further held, the non-conformity with rule 45(1) would be a breach of a mandatory requirement. Furthermore, as regards the mandatory requirement under rule 45(1) to state the grounds of the application in the Notice of Motion we have restated the legal position in general. In the instant case, while it is undisputable that the grounds were not stated in the Notice of Motion; such grounds can be gleaned from the accompanying affidavit sworn by Mr. Keasaria, counsel for the applicant. In that case, we are inclined to the view that though the grounds were not stated in the manner required under rule 45(1) such were made known to the respondent through the affidavit. Consequently, we think the respondent cannot be said to have been prejudiced by the applicant’s failure to state the grounds in the Notice of Motion. See also CivilApplication No.46/97 (supra). (i) Civil Appeal No. 45/98 – The Judge i/c High Court, Arusha and A.G vs N.I.N Munuo Ng’uni. CAT at Arusha. It is trite law that procedural irregularity should not vitiate proceedings if no injustice has been occasioned. Rules should not be used to thwart justice Rules of procedures are handmaids of justice and should not be used to defeat justice. Article 107A of thee 13th Amended Constitution states:- “ In the determination of civil and criminal matters according to law, the courts shall have regard to the following principles, that is to say:-
(a)…………………………… (b)…………………………… ©……………………………. (d)………………………….. (e) administering justice without being constrained unduly by technical requirements, which are capable of preventing justice from being done. A court should take liberal approach to rules of practice and procedure where basic rights and freedoms are invoked, so as to give to the complainant a full measure of his rights. (j) Civil Case No. 295/98 – Universal Supplies Agency Ltd vs The Minister for Lands and Human Settlement and others. HC at Dar (Kyando, J). Under the law a village council of a village government of a registered village is a legal person and has to be sued in its own name. It is therefore wrong to sue the Chairman of the village council as the plaintiff has done in this case. I strike out the name of the Chairman of the village council from the suit and substitute for it the name of the village council itself. (k) Civil Reference No. 3/99 – The Minister For Labour and Youth Development vs Gasper Swai and 67 others. CAT at Dar. We think that failure to raise the matter in High Court or before the single Judge of this Court does not preclude us from considering it. The point raised by Mr. Lyimo is one of law which taking judicial notice of the laws of this country, is clearly discernible. (l) Civil Appeal No. 60/99 – M/S Fidahussein & Co Ltd vs THA. CAT at Dar. It is trite principle that even though a point of law was not raised and argued before the trial court, it can be allowed on appeal. (m) Civil Application No. 42/99 – Shahida A.Kassam vs Mahed M.G. Kanji. CAT at Dar. So, in preliminary objection a party tells the court “The existing circumstances do not give you jurisdiction”. It cannot be gainsaid that the issue of jurisdiction has always to be determined first. Moreover, a notice for directions filed by Prof. Shivji is a novel practice. It is tantamount to objection filed against another preliminary objection. The aim is pre-empt a preliminary objection filed in accordance with the Rules. We share that concern and we add that this emerging practice of countering a preliminary objection by another preliminary objection encapsulated in some innocent-sounding phrases, should be nipped in the bud. Quoting Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696 at p. 700:- “So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arise by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Again at p. 701, Sir Charles Newbold, P. said:- “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. (n) (PC)) Civil Application No. 63/99 – Mwalimu Abbas vs Mwinjuma Mohamed. HC (Probate & Administration) at Dar (Manento, J). As the pleadings show the application for the appointment of the administrator of the estate of Abbas Mwallimu is for a registered Right of Occupancy, in Plot No. 39 Block “0” Congo, Street Kariakoo Area in Dar es Salaam. Kariakoo area is a surveyed area and the Offer of a Right of Occupancy was issued under the Land Ordinance, Cap. 113 of the laws, so by the proviso of section 63(1) of The Magistrate’s Courts Act, 1984 Primary Courts Magistrates have no jurisdiction in civil proceedings in respect of immovable property relating to land held on Government Lease or of a right of Occupancy granted under the Land Ordinance Therefore then, both the Primary court and the District court magistrates erred in law in entertaining such proceedings and making orders upon hearing the evidence, The work of the court is to appoint an administrator only and not to distribute the estate.. It has therefore powers to appoint and revoke the said administrator. (o) Civil Reference No. 5/00 – Rashidi A. Sinani vs Oman International Club and others. CAT at Zanzibar. The Notice of Appeal in respect of Misc.civil application No.6/98, was filed in this Court on 17/04/98, and the application for stay of execution was filed in the High Court on 20/04/98, that is three days afterwards. It follows, therefore that the High Court had no jurisdiction to entertain that application for stay of execution. (p) Commercial Case No.7/00 – CRDB Bank Ltd vs NBC Holding Corporation and others. HC(Commercial Division) at Dar (Kalegeya, J). [Quoted Mukisa Biscuits case (supra) and stated that the principle (on p.o.) pronounced by the Court of Appeal for Eastern Africa in that case remains unchallenged and is fully applied by courts of this land. (q) Commercial Case No. 24/00 – Kiganga and Associates Gold Mining Co Ltd vs Universal Gold N.L. HC(Commercial) at Dar (Kalegeya, J). The rules governing the filing of suit in the Commercial Division registry apart from the obvious one of lack of filing fees, recognize only two impediments which can block the filing of suit - where the dispute is not a commercial case, and where the intended suit concerns a commercial matter which is pending before another court or Tribunal of competent jurisdiction or which falls within the competency of the lower court. In suits involving companies, verification endorsed with the phrase “Principle officer of the defendant conversant with the facts of the case” and dully signed are not defective at all entailing an order for amendment. ® Civil Case No. 30/00 – Suryakant D. Ramji vs Savings and Finance Ltd others. HC (Commercial) at Dar (Kalegeya, J). The eleven categories enlisted under rule 2 of the High Court Registries (as amended by GN 141of 1999) defining what a “Commercial case” is are not exhaustive as amply portrayed by the opening paragraph thereof running as under:- “Commercial case means a civil case involving a matter considered to be of commercial significance including but not limited to……”. -There are other disputes falling under the definition though not enlisted. …..In the modern world with continuing business ……a closed definition would have been undesirable if not impossible. So each case has to be looked at on the basis of its own particular facts. - As defined in the Black’s Law Dictionary, (6th Ed. p. 270 ) the word “Commercial is a generic term for most all aspects of buying and selling”. (s) Commercial Case No.57/00 – Philemon J. Chacha vs South African Airways (Proprietary) Ltd and others. HC(Commercial) at Dar (Kalegeya,J). -The undisputed principle of law is that a cause of action is a bundle of facts which give a person a right to redress or relief against another and which of necessity must be proved if he has to succeed in his action. As to how this has to be determined the court has only to look at the plaint and its annextures. The cause of action has no relation to the defence that may be set up nor the reliefs prayed for. (t) Civil Application No. 40/00 – COTTU (T) OTTU Union and another vs Hon.Iddi Simba and others. CAT at Dar. As to the meaning of preliminary objection – [quoted Mukisa Biscuits (supra)]. (u) Civil Appeal No. 113/00 – Hotel Karibu vs Anyosisye Kasebele. HC at Dar (Kimaro, J). Where an individual trades by a business name, the suit has to be filed against the individual and his business name. The suit cannot be filed only against the business name. A building cannot be sued. (v) Civil Case No. 370/00 – Jenga Y. Mapina vs Blanket Manufactures & PSRC. HC at Dar (Kileo, J). In a nutshell, I consider the anomalies apparent in the matter to be merely technical and I find that it would not be in the interest of justice to strike out the suit on that account alone. The provision of article 107A (2) (e) of the Constitution of the United Republic of Tanzania enjoins courts not to be slaves to technicalities when determining citizen’s issues. The relevant provision states as follows:- “(2)Katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzungatia sheria, mahakama zitafuata kanuni zifuatazo, yaani (e) kutenda haki bila kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka.” Translated in English this would read as follows:- “In adjudicating cases of both civil and criminal nature the court shall, subject to the law, administer substantive justice without undue regard to technicalities”. (w) Civil Case No.252/00 – Rhino Security Guards Services ltd vs NIC (T) Ltd. HC at Dar (Ihema, J) - In the normal order of procedure a notice of preliminary objection takes precedent and would be heard at the earliest opportunity during trial. (x) Civil Case No. 259/00 – Maulidi K. Zinga vs The Principal Secretary, Ministry of Education and Culture and two others. HC at Dar (Bubeshi,J). Primary Schools are under District or Municipal Councils, hence suits against them has to be against the respective Councils, and not The Ministry of Education. The provisions of Order XXXI R.(1) are mandatory in that every suit by a minor shall be instituted in his name by a next friend. (y) Misc. Civil Cause No. 4/01 – Issa Omary vs Masood Issa. HC at Dar (Luanda,J). The issue may be raised at any stage as the issue of jurisdiction goes to the root of justice. So the issue of jurisdiction may be raised at any stage. (z) Civil Application No. 78/01 – Stanbic Bank (T) Ltd vs Jayant Patel & another. CAT at Dar. - So far the respondents have done what the law enjoins them to do. Until such time that the record is ready, there is nothing more that the respondents can do to expedite the appeal. - In the case of Transcontinental Forwarders Ltd vs Tanganyika Motors Ltd [1997] TLR 328, this Court held inter-alia:- “That the present respondent, who had applied to the registry for a copy of the proceedings sought to be appealed against and had not been furnished with any, had complied with the Rules by copying his letter to the relevant parties – there was no legal provision requiring him to keep reminding the registry to forward the proceedings and once Rule 83 was complied with the intending applicant was home and dry”. (aa) Civil Application No. 100/01 – Matsushita Electric Co. Ltd vs Charles George t/a C.G. traders. CAT at Dar. A notice of appeal filed in this Court does not automatically stop the lower court from proceeding with execution. Therefore, the respondent properly applied for a garnishee order and the High Court correctly granted it. As there is still no stay of execution order, there is nothing to stop the High Court at Tabora from ordering the whole amount deposited in court or any portion of it to be released to the respondent. The rationale behind Rule 9 is that the successful party should be able to enjoy the fruits of the judgment. However, the import of paragraph (b) of sub-rule (2) of Rule 9, as properly spelt out by my learned brother, Kisanga, J.A in Aero-Helicopter vs F.V.Jansen, and reiterated in a number of decisions of this Court, is to empower this Court and this Court Only to order a lower court to stay execution. This is so in this case regarding garnishee order. I am of the considered opinion that once a notice of appeal is filed under Rule 76, then this Court is seized of the matter in exclusion of the High Court except for applications specifically provided for, such as leave to appeal, provision of certificate of point of law or execution where there is no order of stay from this Court. (bb) Civil Application No. 103/01 – Janeth D. Mmari vs International school of Tanganyika and another. CAT at Dar. According to rule 44, Whenever applications may be made either to the Court or to High Court, it shall in the first instance be made to the High Court……. If an applicant is unsuccessful in the High Court, the door is open to this court for a “second bite”, as it were, by filing a fresh application. There is a difference between dismissal and struck out. If an application is struck out, one cannot go to the court of Appeal for a second bite. Quoting Ital African Transporters vs Giafa M. Beder Civil Application No. 5/98 (unreported) CAT at Dar (Kisanga,J.A). “Kileo,J struck out the application for being incompetent in that the application was not properly before her, and that rendered her without jurisdiction to hear it. In other words, the purported application was something which did not exist in law and which therefore, she could not entertain. So, that in law, there had been no application to the High Court for leave to appeal. The purported application before me, therefore, is not properly before me because it contravenes the provisions of Rule 44 of the Court of Appeal Rules which require that such applications be made before the High Court first. In terms of that Rule the applicant must have made a valid application to the High Court before coming to knock the door of this Court, it is not enough merely to show, as in this case, that a purported application was made to the High Court”. (cc) Civil Revision No. 127/01 – M.Mmarealle vs Ibrahim Kajembo. HC at Dar (Kimaro, J). It is until such institutions which are conferred with exclusive jurisdiction on land matters become operative, that the District and Court of Residents’ Magistrates will cease having jurisdiction on land matters. For the time being, they have jurisdiction to entertain those cases. (dd) Civil Appeal No.84/01 – Freeman Mbowe and AG vs Alex Lema. CAT at Dar. Whether the decision of the Full Bench overruling a decision of three members of the Court operated retrospectively. Interlocutory decisions in the instant case (election) does not come within the scope of Article 83(4) which provides for appeal as of right to this Court, that decisions is appealable with leave. Statute altering procedural provisions governs matters already instituted, so also court decisions should have the same effect. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. (ee) Civil Appeal No. 118/01 – Hassan Hassan vs Consolidated Holding Corporation. CAT at Dar. While it could not be denied that procedural rules were made to be complied with, yet those rules differ in importance. Some are vital and go to the root of the matter…..others are not of that character and can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice is occasioned. Rule 104 of the Court Rules indeed allows this Court to authorize amendment of a Notice of Appeal or a Memorandum of Appeal at any time (my emphasis). So, in my considered opinion, it is still open for the respondent to apply, as it did, for necessary amendment …(despite the notice of Preliminary Objection). (ff) Juma Ibrahim vs K.G. Kaarmali [1983] TLR 50 CAT (Full Court- 3Judges). A notice of Motion seeking an extension of time to file supplementary record of appeal was not the proper way to answer an objection regarding the competency of the appeal. (gg) Civil Application NO.15/02 – BOT vs D.P.Valambhia. CAT at Dar. The aim of a preliminary objection to save the time of the court and of the parties by not going into the merits of an application because there is a point of law that will dispose of the matter summarily. (hh) Znz Civil Application No. 2/03 – Harish A. Jina vs Abdulrazak J.Suleiman. CAT at Zanzibar. The Court is not properly moved if a wrong provision of law is cited in a Notice of Motion. It follows therefore that the application has been filed by a Notice of Motion under an inapplicable section of the law. Consequently, as the Court was not properly moved, the application is likewise, incompetent. To allow a correction on the hearing date is to pre-empt the preliminary objection against that error. The failure by the applicant to comply with Rule 45(2) of the Rules was sufficiently grave to render the application incompetent, even if the applicant were to cite the correct provision for revision. (ii) Civil application No. 61/03 – TTCL vs Tri-tel Communication Tanzania Ltd. CAT at Dar. Error of a date in the Notice of Appeal is fatal. (jj) Civil Appeal No 64/03 - Citibank Tanzania Ltd vs TTCL and others. CAT at Dar. As to the meaning of preliminary objection (quotes Mukisa Biscuit case). When a preliminary objection is raised which in effect says that the existing circumstances do not give the court jurisdiction, this objection has to be considered and determined first before going into the merits of the application itself. In Abdul A.Suleiman vs Nyaki Farmers Cooperative Ltd and another[1969] EA 409 the Court of Appeal for East Africa observed that the rules of the Court of Appeal did not specifically require that a particular order and rule under which an order is sought be stated in the notice of Motion but that it was the usual practice and the one which should be followed. The applicant was required to cite the relevant provision from which the Court derives the power to hear and determine the application. If a wrong citation of law renders an application incompetent, I have not a flicker of doubt on my mind that non- citation of the law is worse and equally renders an application incompetent. It hardly needs to be overemphasized that in a notice of motion, an applicant must state the specific provision of law under which the applicant wants to move the Court to exercise its jurisdiction. It is common knowledge that rules of procedure being handmaids of justice, should be complied with by each and everybody…….whether the case involved a Constitutional right as the appellant urged or not, so long as the provisions of Rule 83(1) are mandatory going to the root of the matter there is no way in which the appellant could be exempted from complying with the rule. In similar vein, since the applicant did not cite a specific subsection under section 4 of the Appellate Jurisdiction Act, 1979 as amended, under which this Court could exercise its revisional jurisdiction, the application is misconceived and incompetent. (kk) Civil Application No. 87/03 – Ingoma Holdings Ltd vs Kagera Cooperative Union (1990) Ltd. CAT at Dar (Munuo,JA). -Although the Commercial case No. 55 of 2003 sought injunction orders against the respondent landlord, the learned judge (Dr.Bwana,J) dismissed the application on a preliminary objection on lack of jurisdiction by observing:- “As it is very evident from the above quoted paragraphs of the Affidavit and Counter-Affidavit, the central issue herein is the question of payment of rent- its payment and how much. I have equally perused through the pleadings and I get the impression that the whole conflict hinges upon one party claiming for higher rent (failure of which eviction is threatened) while the other believes the original terms of the lease agreement are not being complied with…” -That being the situation – is this a fit suit for this court? Although the lease agreement between the parties concern commercial arrangements, yet this is a case that may be governed by the provisions of the Civil Procedure Code (Amendment of First Schedule) rules 1999(GN 140/99) where Order IV r. 3 states:- “No suit shall be instituted in the Commercial Division of the High Court concerning a commercial matter which is pending before another court or tribunal of competent jurisdiction or which falls within the competency of a lower court. I therefore hold that the application before me (and the intended plaint annexed) can be best dealt with by relevant Regional Housing Tribunal. Likewise it would be odd for this court to issue injunctive reliefs of the matter to be determined by the Housing Tribunal. Both should be dealt with thereat since the Tribunals have jurisdiction to issue such reliefs. All considered, this Application is dismissed in its entirety. No order as to costs. It is my considered view that the order of the Commercial Case No. 55/03 is not capable of being stayed because it simply and rightly directed the applicant to file the rent dispute in the Regional Housing Tribunal which deals with assessment of rent. (ll) Civil Application No. 98/03 – Esmail Choka vs National Transport Corporation. CAT at Dar (Munuo, JA). -Mr. Lyimo refrerred to the case of 21st Century Food and Packing Ltd vs Tanzania Sugar Producers and others, Civil Appeal No. 91/03 (unreported) in which the Court of Appeal departed from its decision in William Loitiame and similar previous decisions by stating:- “…….We therefore, are of the considered opinion that we ought to depart, and we do so, from all the previous decisions treating notices of appeal as invalid because they were not signed by the Registrar or Registrar of the High Court under Rule 76 and 86. It is equally clear to us from the authorities we have cited that to “cause” something to be done does not mean that a statutory authority must do that thing personally. On the contrary, as Lord Gddard , C.J in Shave vs Rosner said to “cause” involves a person, who has authority to do so, ordering or directing another person to use it”. This again is a departure from the previous decisions of this Court that the endorsement has to be personally by the Registrar or the Registrar of the High Court as defined in Rule 2. The Court continued:- “The Hon. Chief Justice for example, has many powers in the appellate jurisdiction. However, the Rules in their wisdom have foreseen the responsibility of the Chief Justice to be in a position to act personally in all instances. Hence rule 2 (1) defines the Chief Justice in these terms:- “means the Chief Justice of the Court of Appeal of the United Republic of Tanzania and, in relation to the hearing of any appeal or to the delivery of judgment on an appeal, includes the presiding Judge of the Court as constituted for the appeal.” It is our considered opinion that if the functions of the Chief Justice do not always have to be performed personally by the Chief Justice, there is no reason why the functions of the Registrar must always be executed personally by the Registrar or the deputies unless it is provided so explicity by the Rule concerned. We are of the considered opinion that the Registrar should indicate by administrative directions which of the Registry Officers would act under rule 15, and possibly other rules which have not been dealt with in this ruling.” -Furthermore the Court observed that: “The Court made an oversight in treating Rule 15 as imposing a duty on the Registrar to “cause” a document “to be lodged”. Rule 15 requires the Registrar to “cause” a document to be endorsed . That oversight caused this Court to come to the conclusion it did and continued the mixing up of the lodging function of the appellant with the endorsement role of the Registrar and treating them as one and the same thing……” - I quoted the above holding in the 21st Century Food and Packing Ltd in extensor to show why the Court departed from its decision in William Loitiame and similar previous decisions. For practical efficacy, the Court observed, the Notice of Appeal and other appeal documents do not have to be endorsed or signed by the Registrar personally just as the Hon. Chief Justice does not have to discharge all the appellate duties personally for it would be impossible to do so without blocking a smooth administration of justice. As the Court observed in the 21st Century (supra), the Registrar should by administrative directive, delegate administrative functions like endorsing or signing Notices of Appeal and other documents to other registry officers. (mm) Commercial case No. 27/03 – Haji A. Ukwaju t/a Wajenzi Enterprises vs NMBand Joseph Musiba. HC (Commercial Div.) at Dar (Dr. Bwana,J). -Whether the provision of Act No. 25 of 2002 have made this court loose its jurisdiction in cases of commercial nature whose pecuniary value is below shs. 100m/- and shs. 150m-respectively. -Further the court is being asked to examine the constitutionality of the said amendment. -It is Mr. Kabakama’s views that this court has no jurisdiction to such cases. He bases his arguments on the provisions of the Act itself and S. 7 and 13 of the CPC, 1966. On his part Mr. Maira submits that this court the said recent amendments to the 1984 Act do not change the pecuniary jurisdiction of this court. He relies on the provision of Article 107A and 108 of the Constitution of the United Republic of Tanzania. -The claim in this matter was for at shs. 27.4m/- Court -It is a settled principal of that Constitution of a Country is the Supreme (or Basic) Law of the Land. All other laws must be in conformity with the Basic law or else they are null and void ab initio. The Civil Procedure as the name connotes regulates procedures of a Civil nature before a court of law. -It is my considered view that the provisions of S. 7 and 13 of the CPC and the recent amendment to the 1984 Act all in all do not oust the jurisdiction of this court to hear cases whose pecuniary value per se is below specified limitations. The recent amendments do not expressly (Art.108 (e) of the Constitution) prohibit the filing of such cases in this court. It is my view that what those provisions have done is to set new ceilings for cases that are to be tried by by Districts and courts of Resident Magistrates. The jurisdiction of this court has therefore not been affected. -Quoting Mulla In Code of Civil Procedure commenting on s. 15 of the Indian Civil Procedure Code which pari material with s. 13 of the our CPC, “The object of the section in requiring a suit in court of lowest grade competent to try it is that the courts of highest grade shall not be overcrowded with suits. This section is a rule of procedure not of jurisdiction and whilst it lays down that a suit shall be instituted in the court of the lowest grade it does not oust the jurisdiction of lower courts the higher grades which they possess under the courts constituting them.” - It is my considered and strong view that what was intended by the amendments to the 1984 was to raise the ceiling of the pecuniary jurisdiction of the Subordinate Courts but not to out the jurisdiction of this court. (nn) Civil Revision No. 8/00 – COWI Consult (T) Limited vs Pius Kuhangaika and 2 others. HC at Dar (Jundu J). Quoting a decision of the High Court in Civil Revision No. 37/03 by Luanda, J. “-I am of the settled mind that time cannot start to run from the decision which in the 1st place ought not to be entered. Time cannot start to, run from a decision which is a nullit. A party who is aggrieved with that decision may apply for revision, notwithstanding the time in making such application has lapsed.” (oo) Civil Appeal No. 37/01 – Tanganyika Cheap Store vs NIC(T) LTD. CAT at Dar (Nsekela JA). The issue is whether or not the Deputy Registrar had competence to sign the decree, under order XLIII rule 1(d) of the CPC, 1966. We are of the settled view that the Deputy Registrar had no competence to sign the decree under Order XX rule 7. A Deputy Registrar is not a judge for if he was one, he would obviously have signed the decree as a Judge and not as a Deputy Registrar of the High Court. The use of the word “shall” in Order XX rule 7 indicates that there is no room for other person to sign the decree. Quoting Robert John Mugo ( Administrator of the Estates of the late John Mugo Maina) and Adam Mollel (unreported), “We also agree that a decree in appeal which is not signed by a judge as required by Order 39 Rule 35(4) invalidates the purported decree. This is because such signature is mandatorily required and it authenticates the decree”. In Civil Case No. 68 of 1998 between Ndwaty Plhilemon Ole Saibull and Solomon Ole Saibul (unreported), the decree was also signed by the Registrar and not the judge who decided the appeal. The decree was found to be invalid and the appeal was incompetent and struck out for that reason. We should point out here that in Mugo’s case, the decree was under Order XXXIX rule 35 (4), it was a first appeal whereas in Saibull’s case, it was a second appeal originating from a decision of a Primary Court. In Saibull’s case the Court stated:- “The requirement that a decree must be signed by the judge who made the decision is rooted in sound reason, namely, that the judge who decided the case or appeal is in the best position to ensure that the decree has been drawn in accordance with the judgment”. With respect, the same reasoning applies to decrees under Order XX rule 7. As explained before, we are of the firm view that since Order XX rule 7 specifically authorizes a Judge to sign a decree, the Deputy Registrar was not competent to sign a decree herein. We construe Order XX rule 7 as being mandatory. In case the judge concerned was not available, then Order XX rule 8 would come into play and such a decree will be signed by a successor judge. Our inevitable conclusion therefore is that the decree on page 130 of the record of appeal is invalid. It is for this reasons that we ordered that the appeal be struck out with costs. However, we direct the appellant be put in a position whereby he can easily re- institute his appeal in this Court if he so desires within 14 days from the date of obtaining the decree from the High Court. (pp) Julius Petro vs Cosmas Raphael [1983] TLR 346 (HC) Mwalusanya,J. The CPC, 1966 does not apply to the High Court when hearing appeal originating from the Primary Courts. It applies to the High Court, Resident Magistrates’ Courts and District Courts when they exercise original civil jurisdiction and also applies when the High Court hears appeal originating from the District Court or Resident Magistrate’ Court. (qq) Land Case no. 13/03 - Furjan Sharif vs TANOIL Lubricants Ltd and Two others. HC(Land Division) – Longway,J (Dar es Salaam). -Mr. Kalolo submitted that in terms of section 19 of the Act No. 6 of 1991 this court had no jurisdiction entertain a suit relating to non-performing asset transferred to LART because section 19(1) of the Act provides: “The Tribunal shall have exclusive jurisdiction to hear and determine all matters arising under this Act or relating to any non-performing assets transferred to the Trust under this Act.” -This Tribunal under section 18 of the Act it is provided: “There is hereby established a Tribunal which shall be known as the Lart loans Recovery Tribunal”. Which has all the powers of the High Court and applies the Civil Procedure rules. The court was referred to the Land case No. 8 of 2003- HENRY EZEKIEL CHANIMBANGA & OTHERS vs TANZANIA POSTAL BANK & OTHERS on a similar issue as in the present case; and the case of TANZANIA BREWERIES LTD vs TRA, No. 260 of 2001(unreported) on the view that; “Courts would not normally entertain a matter for which a special forum has been established, unless the aggrieved party can satisfy the court that no appropriate remedy is available in the special forum.” -(Court)-I am satisfied that so long as the loan advanced to the first defendant and guaranteed remain unpaid, the provision of section 3 of Act No. 6 of 1991 came into play and the loan became a non performing asset and so the need to assign it to LART. This having been done, the matter fell under the mandate of the Tribunal as provided for under section 19(1) of the Act. (rr) Misc. Land case No. 10/2004- CRDB bank vs Karim Shungu Kiherile. HC (Land Division) at Dar (Longway, J). Application seeking from this Court leave to file a suit in this court whose claim is below the pecuniary jurisdiction of this court on the ground that the District Land and Housing Tribunal has not yet started operations is rejected because section 37 of the land Act, 2002 does not allow such a situation. (ss) Misc.Land Case No. 11/2004 – Capital Enterprises Ltd vs Mohamed M. Nahdhi. HC (Land Division) at Dar (Longway, J). -The applicant seeks leave of this court to file a case in this court against the respondent on matters affecting his tenancy. The leave is sought by reason that the Housing Tribunal has not been functioning since October, 2003. -In considering this application, I must I agree wholly that the non functioning of the district and Housing Tribunal since October, 2003 has caused a sizeable measure of discomfort and inconvenience to members of the public. I believe this is due to some legal technicalities. It is not disputed that the Act No. 2 of 2002 provides for the jurisdiction of the District Land and Housing Tribunal…….. The jurisdiction of this court in part VI of the Act in similar fashion provided in section 37 (a) and (b). The intended matter it is noted without dispute, is one which is under the Rent Restriction Act 1984, to which this court has no original jurisdiction. (tt) Land Case No. 7/2003 – Michael Mwailupe vs CRDB bank Ltd. HC (Land Division) at Dar (Kileo, J). Mr.Msemwa raised a p.o that as the centre of the dispute is the overdraft facility, the suit falls within the perview of the commercial court and not this court. -Responding to Mr. Msemwa’s submission, Mr. Rweyongeza for the plaintiff submitted that the objection was misconceived in that in the first place, there is no mandatory obligation on a party with a commercial matter to institute it in the Commercial Court. He made reference to GN No. 140 of 1999, which amended the CPC in Order IV rule 1 by adding sub rule 3 and 4. Sub rule 4 of Order IV r 1 now read as follows: “(4) It shall not be mandatory for a Commercial case to be instituted in the Commercial Division of the High Court”. In terms of Order IV r 1(4) the Commercial Court does not have exclusive jurisdiction to hear and determine cases of a commercial nature. Mr. Rweyongeza also pointed out the provisions of Order IV r. 1 of the CPC as amended by GN No. 140 of which sub rule 3 stipulates as follows: “(3) No suit shall be instituted in the Commercial Division of the High Court concerning a commercial matter which is pending before another court or tribunal of competent jurisdiction or which falls within the competency of a lower court”. -Mr. Rweyongeza also drew support from the case of ULC(T) Limited vs J.W.Ladwa (1979) Ltd & Others in which my learned brother Dr. Judge Bwana in Commercial Case No. 30/2002 found that in view of the mandatory provision of sub section (3) of Order IV r. 1 a subsequent Commercial case of the same parties, same cause of action couldn’t stand in the Commercial Court where such case is also pending in another court of competent jurisdiction. -Finally Mr. Rweyongeza argued that in terms of the provisions of section 167 of the Land Act issues of mortgages are within the exclusive jurisdiction of the Land Division of the High Court. -It is my considered opinion that when land becomes the collateral in a loan agreement and an issue arises where the court is required to determine whether or not the sale of the land in issue was proper in recovery of the loan, then the Land Division of the High Court would be the proper court to determine such issues. -Mr. Msemwa argued that the land in dispute was just a security to the loan and that the plaintiff could have pledged any other security like a motor vehicle to secure the loan. II would say, in responses to that where another type of property, other than land is pledged as security, that might make the matter to be of pure commercial nature and the Land Division would not be the proper place for it. However, in this case land was the security and therefore, in my considered opinion, the suit has not been wrongly instituted in this court. Just before I conclude my ruling I wish to make one small observation. It might possible that a matter may sometimes consist of both commercial and land elements. ….I consider that the interest of justice would be best served if the law would make the provision of an option for a party who has a matter comprising of both commercial and land elements to either file it in the Land Division of the High Court or the Commercial Division of the High Court. (uu) Land Case No. 109/2004 - Ernest A. Mosha vs Cyriacus Katunzi and Another. HC(Land Division) at Dar (Longway, J). Both defendants in this matter raised preliminary objections. The 1st defendant submits that the plaintiff has no locus standi or capacity to sue and that this court lacks jurisdiction to enquire into the matter, so the plaint be dismissed. On the other hand the 2nd defendant submits that the plaint has no pecuniary jurisdiction pleaded so it should be struck out with costs. Parties were allowed to file written submissions. Ms. Mmasi for the plaintiff started her reply to the defence submissions by raising objection to the fact that the counsel for the 1st defendant contravened Order VIII rule 2 of the CPC,1966 as was found by Nsekela ,J (as he then was) in the case of CRDB Bank Ltd vs Noorally K.J. Dhanani and another, Commercial Case No. 102/2001 where like in the present case the 1st defendant in that having pleaded the point of law objected, filed a separate document of notice of preliminary objection. This Lordship had found it improperly before the court. Learned counsel sought this court to follow the his lordship’s view. The court was also urged to look at what constitutes a prelimainary objection as held in the case of Mukusa Biscuits Manufacturing Company Ltd (1969) E.A 698 by Law, J.A. and Bank of Tanzania vs Devran P. Valambhia CA, Civil Application No. 15/2002 by Ramadhani J.A On the above the learned counsel submitted that the 1st defendant’s objection was were misconceived and untanable in because they could not in their nature dispose of the suit summarily at its preliminary stage. I have made a careful consideration on the submissions by counsels on the preliminary objections raised by the defence. Before I look at them and rule, let me take up the issue that was raised by Ms. Mmasi in her reply submissions that the 1st defendant’s objections were not pleaded un the plaint, but raised in a separate notice, therefore contravened Order VII rule 2 of the CPC, 1966 and that the same be disregarded. Learned counsel buttressed her submissions with the case of CRDB versus Noorally K.J. Dhanani & Another, Commercial Case No. 102/2001 in which His Lordship Nsekela, J (as he then was) had this to say:- “This ‘Notice’ I have referred to is not part and parcel of the defendant’s pleadings. It is my considered view that whatever preliminary point of law the defendant wanted to raise for the court’s consideration should have been in the written statement of defence. This piece of paper called ‘Notice’ in my humble view contravenes Order VII rule 2 of the CPC, 1966 and should be discarded. It is not properly before me to adjudicate upon”. -I have been persuaded by my learned brother’s course of action as a correct and proper action and which I therefore adopt to emulate. The 1st defendant’s written statement of defence’s 19 pargrph , that is excluding the 1st paragraph, plead issues which indeed, call for evidence to be adduced upon as submitted by the conusel for the plaintiff and on my part, I see nothing in the nature of the objections in the notice, pleaded as required by Order VIII rule 2 of the CPC, 1966, so the said notice of preliminary objection being improperly before the court is not entitled to be entertained, and is therefore disregarded, the objections is dismissed with costs. -No pecuniary figure mentioned on the plaint by which the court can assume jurisdiction- not fatal and can be cured by amendment. (vv) Land Case No. 113/2004 – Aikangai Alhponce Riwa vs Kinondoni Municipality and Others. HC (Land Division) at Da (Rugazia,J). The 3rd defendant in this case through his advocate Mr. Mpoki has raised two preliminary objections as follows:- The suit is bad in law, as the plaintiff did not issue a statutory notice of intention to sue the Municipal Council as provided by the law. The applicant/plaintiff has no cause of action against the 3rd defendant. Court- To cut the long story short, I find and hold that the said notice was served and this is in view of the fact that there is no format under the law which a notice should take. (ww) Civil Appeal No. 103 /98 – Rashid Abdallah El Sinani vs. Mussa Haji Kombo and Another. CAT at Dar (Lubuva, JA, Mrosso JA, and Msoffe, JA) Dr. Lamwai learned advocate who represents the respondents, raised an oral preliminary objection to the appeal. The point of objection was that the record of appeal shows that the appeal was against decisions of Dahoma, J. But the decrees (two of which ought to be orders, not decrees) were signed by Dourado, J. who was not competent to do so. That being the case, the record could not be said to contain a valid decree recognized in law and it followed, according to Dr. Lamwai, that the appeal was incompetent and should be struck out. Mr Lamwai Patel, learned advocate for the appellants, objected strongly to the preliminary objection which did not conforn to Rule 100 of the Court Rules, 1979 which requires that a respondent who intends to take a preliminary objection to an appeal has to give reasonable notice to the Court and to the other party to the appeal. He submitted that he had been taken by surprise by Dr. Lamwai because there was no notice at all, let alone a reasonable one. He said, rightly, that the appeal record had been with Dr. Lamwai since 1998 and, therefore, that there was no excuse for not having taken the preliminary objection much earlier. He believed that the preliminary objection which was taken without prior notice was one of Dr. Lamwai’s delaying tactics. He asked the Court to strike out with costs the oral preliminary objection and proceed with the hearing the appeal. Dr. Lamwai conceded that there should have been reasonable notice as required by Rule 100 of the Court Rules but explained that the record of appeal contained so many unnecessary documents that the point of law he had raised escaped his notice until the night just prior to the hearing date when it came to his attention. Secondly, he considered that as an officer of the Court it was his duty to bring to the attention of the Court the fact that in law there was no competent appeal before it. The Court considered the submissions from both counsel and was of the view that it was important to consider the preliminary objection raised by Dr. Lamwai but since Mr. Patel, and perhaps Dr. Lamwai himself, needed time to prepare for arguments on the point raised it was prudent to allow for sufficient time. In the event the Court adjourned the hearing of the preliminary point and the appeal to the next sessions of the Court. Rule 100 of the Court Rules empowers the Court to adjourn such hearing. Mr. Patel conceded that the purported decrees should have been signed by Dahoma, J. who had given the decisions – and not by Dourado, J. However, he argued that it was not his fault that after they were drawn up and sent to the High Court Registry, they were taken to the wrong judge who signed them. He said the fault should lie with the court registry staff. He cited the decision of this Court in 21st Century Food and Packaging Ltd v. Tanzania Sugar Producers Association and Two Others, Civil Appeal No. 91 of 2003 (unreported) as authority that a party should not suffer the consequences of faults or errors committed by court registry personnel. The appellant’s appeal should not be declared incompetent because the decrees (or orders in the case of two of the decisions by Dahoma, J) were taken by court staff to Dourado, J. who signed them. He prayed that the Court should overrule the preliminary objection and hear the appeal on merits. It would appear that Mr. Patel knew all along that the record of appeal did not contain a legally acceptable decree, yet he did nothing to rectify the position presumably because he believed he could get away with it my simply passing the buck, as it were. We think that Mr. Patel could have put things right as soon as he realized that he did not get firm the court what he needed by writing to, or seeing, the registrar of the High Court to complain that the wrong document – a decree signed by a judge other than the one who had given the decision – had been supplied to him and demand to be provided with the proper decree to enable him prepare a correct record of appeal. That he did not do and we have no qualms about laying responsibility squarely in his hands for the undesirable turn out of events. What has bothered us however is whether the appeal has to be declared incompetent in which case it will be struck out or it can be declared incompetent in which case it will be struck out or it can be salvaged by allowing the appellant, through his advocate, to file a supplementary record which would contain a valid decree. This Court held that the filing of a supplementary record subsequent to a preliminary objection would not cure the already existing defect on the appeal. Its said:- …… the supplementary record of appeal lodged by the appellant … in the case before us makes no difference to the incompetence of the appeal which was already defective by the time the Notice of Objection was lodged. So, that being the legal position, once it is accepted that a preliminary objection has already been raised regarding the lack of a valid decree in the record of appeal, we cannot now allow Mr. Patel to file a supplementary record containing a proper decree signed by Dahoma, J. What then should follow?. To answer that question we have to answer another question what happens to an incompetent appeal?. In Robert John Mugo (Administrator of the Estate of the Late John Mugo Maina) v. Adam Mollel, Civil Appeal No. 2 of 1990 (unreported) a decree in appeal was signed by a District Registrar instead of the judge who passed it, as required under order 39 rule 35(4) of the Civil Procedure Code, 1966, which is in pari material withi Order 46 Rule 35 (4) of the Civil Procedure Decree. This Court said:- We …… agree that a decree in appeal which is not signed by a judge as required by Order 36 Rule 35 (4) invalidates the purported decree. Then the Court concluded:- Therefore, for the reasons stated above, we are bound to sustain the preliminary objection made by counsel for the respondent …. With that end in view, we hereby direct that the appeal be struck out from the register under Rule 82 with costs…… In civil Appeal No. 43 of 1996 - Dr. Fortunatus Lwanyantika Masha v. Dr. William Shija and Another (unreported), an objection was taken to the appeal inter alia because the record of appeal did not contain the drawn or extracted order in appeal. The Court sustained the preliminary objection, holding the appeal incompetent. It said – The law as it now stands is stands is that failure to extract the decree or order in terms of Rule 89 (1) (h) and (2)(v) of the Court of Appeal Rules renders the appeal incompetent …. The finding that an appeal is incompetent has constantly resulted in striking our such appeal ….. In Robert John Mugo, this Court opined that there is no difference between extracting an invalid decree, as was the case in our present appeal, and failure to extract a valid decree, as was the case in Dr. Masumbuko R. M. Lamwai cases or the Fortunatus L. Masha case. In all such cases the appeal is incompetent and is struck out. (xx) Civil Appeal No. 73/02 – William Loitiame vs. Sheri Naftal CAT at Dar (Ramadhani, JA). Mr. Sang’ ka’s first preliminary objection was that the appeal is incompetent as it requires leave to appeal under Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979, and that has not been obtained. Mr. Sang’ka submitted that an order of this Court cannot override the categorical provisions of the Act. The learned advocate submitted that thought this Court gave thirty days within which to institute a new appeal, still the appellant had to obtain leave to appeal. Mr. Sang’ka referred us to another decision of this Court in Robert John Mugo vs. Adam Mollel, Civil Appeal No. 15 of 1991. Like the present appeal, in that appeal an earlier appeal, Civil Appeal No. 2 of 1990, between the same parties was struck out because the record of appeal did not contain a copy of extracted decree. Then this Court gave 21 days for obtaining a decree and after which, 14 days were prescribed for lodging a notice of appeal. That was done and hence the new Civil Appeal No. 15 of 1991. At the hearing of new appeal, Mr. Lobulu, learned advocate, filed a preliminary objection arguing that the directions given in the ruling in Civil Appeal No. 2 of 1990 were subject to the Rules of the Court, and that the new appeal required extension of time within which to lodge a notice of appeal considering the date the judgment of the High Court was delivered, so, Civil Appeal No. 15 of 1999 was struck out also. Mr. Sang’ka prayed that we do the same in this appeal. The appellant, a layman, merely said that I was not given further instructions apart from what was read to me in the ruling of 14th October, 2001. What Mr. Sang’ka has submitted is just a tip of the iceberg. It must have been a slip for this Court to extend time within which to institute the appeal. After striking out the notice of appeal in that Civil Appeal No. 62 of 1999, there was then nothing before the Court on which to extend time within which to do anything. The Court also overlooked the requirement of leave to appeal and did not provide for it. The appellant rightly said that he was not given any further instructions apart from instituting the appeal within thirty days, which he religiously observed. In our considered opinion Robert John Mugo appeal was easier. What was involved was a Rule requiring an extension of time within which to file a notice of appeal after the expiry of fourteen days from the date the judgment of the High Court was delivered. Rule 3 (1) could remedy the situation. It provides:- The practice and procedure of the court in connection with appeals and intended appeals from the High Court , and the practice and procedure of the High Court in connection with appeals to the Court shall be as prescribed in these Rules, but the court may at any time, direct a departure from these Rules in any case in which this is required in the interest of justice. (emphasis supplied). The situation which confronts us in this appeal is a requirement, not of the Rules, but of the provisions of the Appellate Jurisdiction Act, 1976, to which Rule 3 (1) cannot be applied. So, we have to uphold the preliminary objection that leave to appeal was required but was not obtained. (yy) Arusha Civil Application No. 5/02 – Sunflag (T) Ltde vs. Yerome Wambura & 4 others CAT at Arusha (Nsekela JA). Mr Maro, learned advocate for the applicant, submitted that the Notice of Motion had been brought under Rule 9 (2) (b) of the Court Rules. He conceded however that in the Notice of Motion, the specific sub rule had not been mentioned, but on reading the nature of the order being sought, it was clear that Rule 9 (2) (b) was intended. The learned advocate implored the Court to proceed to adjudicate upon the matter since his learned friend was not been properly moved by citing Rule 9 when read together with the order being sought in the Notice of Motion. On his part Mr. Mwaluko, learned advocate for the respondents, submitted that the application before the Court was incompetent. He was of the view that Rule 9 covers a number of issue and so the applicant was enjoined to specify the particular provision under which the Notice of Motion was made. Fortunately, this issue is not virgin territory, for it has been traversed before. This Court has stated in no uncertain terms that it is imperative to cite the relevant provision of the law from which the Court derives the power to hear and determine the application. (See: Civil Application No. 20 of 1997, National Bank of Commerce and Sadrudin Meghji (unreported); (ZNZ) Civil Application No. 2 of 2003 Harish A. Jina and Abdulrazak J. Suleiman (unreported); Civil Application No. 64 of 2003, Citibank Tanzania Limited and Tanzania Telecommunications Co. Ltd. And four others (unreported) An identical situation arose in Abdulhamed Ramadhani Mjombo and three others vs. Ali Salim Ali and two others, Civil Application No. 4 of 2004 (unreported) in which the complaint was to the effect that the Court was not properly moved to exercise its powers to grant a stay order because the specific provision under Rule 9 was not cited. In the course of its Ruling, this Court had this to say. ‘On reading the contents of Rule 9 above, it is obvious that it is not dealing with one matter only. It deals with several matters such as when sentence of death or corporal punishment has to be carried out; release on bail; suspension of warrant of distress and stay of execution. It is therefore important for an applicant to be very specific in moving the Court to exercise its jurisdiction in any particular situation. This court has consistently held that in applications, the applicant has to cite the relevant provision from which the Court derives the power to hear and determine the application” (see: Civil Appeal No. 45 of 2000, Mbeya – Rukwa Autoparts & Transport Ltd. and Jestina George Mwakyoma (unreported) As stated above, Rule 9 deals with a number of different situations and is not limited to applications for stay of execution only in civil proceedings. In the result that for the above reasons, the notice of motion is incompetent and is accordingly struck out. As the issue as to the competence of the notice of motion was not raised by Mr. Mwaluko, but it was raised by this Court at the commencement of the hearing, it is ordered that each party is to bear its own costs in this Court. (zz) Civil Appeal No. 202/01 - Tanzania Telecommunication Co. Ltd vs Jackson Mhando HC at Dar (Oriyo, J).
- Parties argued the respondent’s preliminary objection in writing. Having considered the submissions filed by parties and the chronological order of events of the steps taken by the appellant after the ruling on 10/5/2001; I am fully satisfied that the appeal was filed within time. On the second limb of the respondent’s preliminary objection that the main suit was concluded; there is some merit on the point. The respondent’s reply to the memorandum of appeal was filed on 30/1/2003 when the provisions of Act 25 of 2002 had become operational. This piece of legislation amended several laws including the Civil Procedure Code Act, 1966 and the Magistrates Court Act, 1984. One effect of the amendment is to disallow appeals, revisions, etc; against preliminary or interlocutory orders unless the effect of such orders are to finally determine the relevant suit. Under the said registration the present appeal would have become incompetent; had the subject matter not been an issue of jurisdiction which has to be satisfied before any court entertains a matter before it.
- However, it has been pointed out that the appeal was filed on 18/7/2001. Act 25/02 become operational sometime in December, 2002, well after the said appeal was lodged. Therefore, this appeal having been filed within time and before Act 25/02 become effective; it is competently before this court. The respondent’s preliminary points of objection under the circumstances have no merit and must fail. (aaa) Civil Appeal No. 180/02 – National Housing Corporation vs R.C. Dave HC at Dar (Oriyo,J).
-it is trite law that Notice of Preliminary point of Objection by party should always be given in advance of the trial; otherwise the court has discretion to reject it. The objection here was not preceded by Notice; but since it is a point of law, the court cannot reject it; as courts of law are supposed to take judicial notice of the laws as enacted.
- The respondent submitted that the appellant would have had a right of appeal against the trial court’s decision if the latter had rejected and not dismissed the appellant’s application of the appellant was dismissed by the trial court for failure of the appellant to advance sufficient reasons; it was decided on its merits.
- ORDER XL RULE 1 (C), Civil Procedure Code Provides:-
“ 1. An appeal shall lie from the following orders under the Provisions of Section 74, namely.
(a) Inapplicable
(b) Inapplicable
(c) An order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit” (emphasis supplied).
- The applicable law confirms the respondent’s submission that the relevant order of the trial court not appealable, it could only be revised. Apparently, the appellant was aware of the legal position as evidenced by its letter to the trial court dated 30/8/02, asking to be supplied with copies of documents for the purpose of seeking revision in the High Court. The letter states in part:-
“……. We intend to file an application for revision in the High Court “.
It is on the foregoing that I uphold the respondent’s preliminary point in that the order or the trial court was not appealable. The appeal is therefore incompetent. It is struck out with costs. (bbb) Misc. Civil Cause No. 28/95 – Ultimate Security Ltd vs The consiliation Board of Dar es Salaam and Others. HC at Dar (Oriyo, J).
- Under normal circumstances I would have rejected this ground out rightly because it was raised for the first time in written submissions. But being a point of law, it can be raised at anytime even in the highest court of the land: in appeal, etc.
(ccc) Commercial Case No. 52/04 - Tanzania Breweries Limited vs Richard K. Chengula t/a African Tours and General Business HC at Dar (Kalegeya, J).
- I will start with the complaint on alleged lack of cause action. With greatest respect to Mr. Ukongwa, I have failed to comprehend why he fronted this preliminary objection. I am so saying because as he quite will knows, in determinging the existence of a cause of action we simply look at the plaint and annextures. As was rightly stated by Mr. Mbuya when he made reference to Dharssi case and as guidedly stated in Jeraj Shariff and Company Vs. Chotai Fancy Stores (1960) EA at page 375.
“ the question whether a plaint discloses a cause of action must be determined upon a perusal of the plaint alone, together with anything attached so as to form part of it, and upon the assumption that any express or implied allegations of fact in it are true”.
- Now, in paragraph 3 of the Plaint the Plaintiff’s claim shs. 56,128,557 being outstanding balance of prince of beer and empty crates supplied to the Defendants. In para. 7 the Plaintiffs, allege that the outstanding amount has attracted shs. 99,408,759.10 as interest at 25% rate p.a. in paragraph 8 they indicate the total sum claimed as shs. 155,837,316.10. Any one reading the plaint gest to know that sum indicated in para. 8 is as a result of adding the principal sum and interest together. -We turn to pecuniary jurisdiction. Again, with respect to Mr. Ukongwa, the objection on this cannot stand either.
- Act No. 4 of 2004 (written Laws, (Miscellaneous Amendments) Act, amended S. 2 of the the Magistrates’ Courts Act, 1984, by among others, defining what a “commercial case” is (infact it simply uplifted the definition oa a “commercial case” reflected in Rules 2 of the High Court Registries Rules, 1984, as amended vide GN 141 of 1999). The Act (No. 4 of 2004) went on to amend section 40 by additing immediately after subsection (2) the following new subsection:-
“ (3) Notwistanding subsection (2) the jurisdiction of the District Court shall, in rlation to commercial cases, be limited:-
(a) In proceedings for the recovery of possession of immovable property, to proceedings in which the value of the property does not exceed fifty million shillings and
(b) In the proceedings where the subject matter is capable of being estimated at a money value, to proceedings in which the value of the subject matter does not exceed thirty million shillings”
- Subsection (2) referred to remain intact extended the District Court’s jurisdiction to amounts not exceeding 150 million in value, of matters whose subject matter are immovable and shs. 100 million to those whose monetory value can be ascertained.
- Now, reading the said subsection together with the amendments introduced by Act 4/2004 it is as clear as dayling that a District Court cannot try a Commercial case whose monetary value exceeds shs. 30 million.
- I should pose here and observe that Mr. Ukongwa, with respect, by his argument, earns himself a status of blowing hot and cold at the sametime.
- While he urges that Act 4/2004 simply provides the jurisdiction of the District Courts and not the High Court, he at the sometime relies on the same S. 40 which was amended, to impress that the High Court’s jurisdiction is above shs. 100 million. However, nowhere in the said section reference is specifically made to the High Court.
- In amending S. 40, Act 25 of 2002 had pushed up the District Court’s jurisdiction to shs. 100 million. Prior to the amendments vide Act 4 of 2004 but after the coming into force of Act 25/2002 however, in its wisdom, the Legislature found it necessary to limit the District court’s jurisdiction in commercial matters hence the amendments vide Act 4 of 2004.
- As Mr. Ukongwa well knows, the High Court has unlimited jurisdiction unless the Constitution or any other law expressly provides otherwise (Article 108 of The Constitution of the United Republic of Tanzania). Now, what is excluded by S. 40 as being triable by the District Courts automatically falls under the High Court’s jurisdiction.
(ddd) Civil Application No. 1/05 - Method Kimomogoro vs Board of Trustees Tanapa CAT at Arusha. ( Ramadhani J.A)
- Before starting hearing the application, Mr. Mwaluko, learned advocate for the respondent, made an informal application to be allowed to file a supplementary counter – affidavit stating that the respondent has already filed an application to extend time within which to institute the appeal. The learned advacate argued that there is a serious point of law at stake in the intended appeal, that is, could an advocate who has not even appeared in a case file a bill of costs. For that reason he asked that time should be extended as was the case in Principal Secretary, Ministry of Defence vs. Devram Valambhia [1991] TLR 185.
- Mr. D’souza, learned counsel for the applicant, submitted that the move was to preempt the preliminary objection which this Court has rejected in a number of its decision, like Board of Trustees of NSSF vs. Kilimanjaro Bazaar Ltd. Civil Appeal No. 16 of 2004. Mr D’souza also submitted that there is no illegality which is sought to be remedied in the appeal. He referred me to paragraph 8 of the counter – affidavit of one Richard Nsimba which merely say that there are “arguable issues”.
- I refused to allow the filing of a supplementary counter – affidavit and reserved my reasons to the present time. The Notice of motion seeking the extension of time was filed on 27th June, 2005, that is, after the notice of motion for this application had been filed and two days before the hearing of this application.
- This Court has said in a number of times that it will not tolerate the practice of an advocate trying to preempt a preliminary objection either by raising another objection or trying to rectify the error complained of. Admittedly, we have said that this Court would not brook an illegality pass by.
(eee) Commercial Case No. 53/05 - Tanzania Red Cross Society vs Dar es Salaam City Council, Ilala Municipal Council, Kinondoni Municipal Council and Temeke Municipal Council HC at Dar (Massati, J).
- Through the service of M/S NDANZI & CO. ADVOCATES the TANZANIA RED CROSS SOCIETY (hereinafter referred to as the “Plaintiff”) instituted a suit against the DAR ES SALAAM CITY COUNCIL, ILALA MUNICIPAL COUNCIL, KINONDONI MUNICIPAL COUNCIL and TEMEKE MUNICIPAL COUNCIL. (hereinafter referred to the 1st,2nd,3rd and 4th Defendants respectively) to claim from them jointly and severally a sum of Tshs. 37,446,112.16 being the agreed price for service rendered by the Plaintiff to the defunct DAR ES SALAAM CITY COMMISSION, the predecessor of the Defendants.
- The defendants denied liability through Mr. Tasinga, Mr. Ponela, Mr. Manyangu and Ms. Kakolwa, learned solicitors for the 1st, 2nd, 3rd and 4th Defendant respectively. Apart from denying liability generally, Mr. Tasinga pleaded through what he terned as “PRELIMINARY OBJECTION” two preliminary objections namely:-
(1) That the Plaintiff’s claims are time barred and
(2) That the Plaintiff has no cause of action against the 1st Defendant
- Apparently Mr. Tasinga paroceeded to treat this document as a Written Statement of Defence and so after the notice, proceeded to counter the contents of the plaint. Mr. Ponela for the 2nd Defendant also raised, a preliminary objection that the suit was time barred. This he did in his Written Statement of Defence. Mr. Manyangu, for the 3rd Defendant did not file/raise any preliminary objection, but MS. Kakolwa for the 4th Defendant raised an objection that the suit did not disclose any cause of action against the 4th Defendant. This, she did in a separate “notice of preliminary objection” filed one day after filing her Written Statement of Defence.
- The defendants’ Written Statement of Defence, and in particular, the preliminary objections proded Mr. Ndanzi, to file a reply. In the said reply Mr. Ndanzi attacked the manner in which the 2nd and 4th Defendants’ written statements and preliminary objections were filed. He said the 2nd Defendants’ statement of defence was filed out of time, whereas the 4th Defendant’ preliminary objection was ectopic to the Written Statement of Defence which should have carried it. At the close of the pleadings the parties agreed that the preliminary objections be argued in writing. This ruling is in respect of those objections.
- I am not unaware of the condemnation by the Court of Appeal of Tanzania of the practice of raising “preliminary objections against preliminary objection” (see Mukisa Biscuit Manufacturing Co. Ltd VS West End Distributors Ltd (1969) E.A 696; followed in Shahid Abdul Hassanali, KassamVS Nahedi Mohamed Gulamali Kanji Civil Application No. 42 of 1999) (unreported) CitibankTanzania LimitedVS Tanzania Telecommunications Co. Ltd & Others (Civil Application No. 64 of 2003 (Unreported). I am also aware of the general principle of law that points of law, and particularly on jurisdiction, may be raised at any time (see ANWAR Z. MOHAMED VS SAID SELEMANI MASUKA Civil Reference No. 18 of 1997) (Unreported). What has however, taxed my mind considerably, is, given that preliminary objections may be raised at anytime, should the Court not be concerned with how those objections landed in Court? This is the essence of Mr. Ndanzi’s preliminary objections to the 2nd and 4th Defendants’ preliminary were proper.
- Unfortunately, neither of the above named defendants addressed themselves t that issue. In fact the 4th Defendant filed no submission at all. On the other hand, the 2nd Defendant submitted on the merits of the objection. I will come to that aspect later. Mr. Ndanzi, learned Counsel for the Plaintiff, also we nt straight into the merit of his objection, thus taking the propriety ot its existence for granted. So, as it were, the learned Counsel left me with no assistance on this fine but not unimportant point.
- On the available authorities, I have no doubt in my mind that preliminary objections on points of law excepting those of which the Court can take cognizance whether or not the parties have raised them (such as limitation or jurisdiction) on the maintainability or otherwise of a suit mut be pleaded in the written statement of defence in terms of ).VIII rule 2 of the Civil Procedure Code 1966. The providions of the rule are as clear as full moonlight, but authorities on this also abound.
- In S.N. SHAH VS C.M. PATEL [1961] E.A 397 (C.A.K), a point of law was not pleaded but raised in Counsel’s closing speech. It was held that it must have been raised in the defence and could not be entertained if raised in a closing speech. I held a similar view in SIMON MBAWALA VS YUSUF AMANI CHANDE (Civil Revision No. 134 of 2002 (unreported). In Commercal Case No. 102 of 201, (Unreported) CRDB BANK LIMITED VS NOORALLY K. DHANANI & SHIRAZI H.K.J. DHANANI Nsekela, J (as he then was) said that a “Notice of preliminary objection conceived out of a written statement of defence was not part of the defendants’ pleadings, and such notice is deemed not to be properly before the Court, and so should be discarded. I deduct from these decisions that although preliminary objections on points of law may be raised at anytime, save for such objections as res judicata and limitation which should normally be raised at the trial, preliminary objections should not only be proper (i.e. pure points of law whose decisions would finally dispose of the matter (MUKISA BISCUIT MANUFACTURING CO. LTD VS WEST END DISTRIBUTORS LTD [1969], E.A. 696 but must also be properly before the Court, and or pleaded in accordance with the rules of procedure. And in particular in the case of objections against suits, a preliminary objection is said to be properly before the Court if it is pleaded in the written statement of defence. It is in the light of my above observations that I will now turn to consider whether the 2nd and 4th preliminary objections are properly before the Court.
- Let me begin with those of the 4th Defendant. As Mr. Ndanzi, learned Council, has quite correctly observed, the 4th Defendant’s preliminary objection is contained in a separate document bearig the title “Preliminary Objection” and filed, not only separately, but on a different date from the Written Statement of defence. On the authority of the above cited cases I find and hold that the said preliminary objection is not properly before the Court. It is accordingly struck out.
- On the other hand, the 2nd Defendant’s preliminary objection is pleaded in his Written Statement of Defence but Mr. Ndanzi’s central propostion is that the Written Statement of defence itself was filed out of time and so not properly before the Court. He benchmarked himself on the Court’s records. He said according to the record, on 5/7/2005 the Court ordered all the defendants to file their Written Statements of Defence on or before 11/7/2005. Contrary to the said order, the 2nd Defendant filed his defence on 12/7/2005, a day out of the time scheuled by the Court. Mr. Ponela, learned Counsel, submitted that since he was served on 21/6/2005, 21 days lapsed on 12/7/2005. Therefore the 2nd Defendant filed his defence on the 21st day, and cannot be said to have filed it out of time. Although not strictly a preliminary point of law, the question whether the Defendant filed his defence within the time ordered by the Court is one of fact, but which the Court can gather from the records, and need not be proved by the parties.
It is true as Mr. Ndanzi, has submitted, that on 5/7/2005 the Court ordered that all the Defendants file their Written Statements of Defence by 11/7/2005 and that the Defendants were served on 21/6/2005. Even Mr. Ponela acknowledges this date of service. The learned Counsel, however, submits that, the order of the Court, notwithstanding, he was entitled as of right, to file his defence on the 21st day which to him was on the 12th day of July 2005. With respect, I do not agree with Mr. Ponela. That argument is clearly contrary to O.VIII rule 14(1) of the Civil Procedure Code 1966, as amended by GN 422. The summons for filing a Written Statement of defence just requires the defence to be filed within 21 days of service but does not sspecify the date, beause that would count from the date of service. On 5/7/2005, the Court fixed a specific date for filing the defence. This may have been right or wrong but it was a lawful order of the Court. If the 2nd Defendant thought he needed more time, the best way was for him to apply for extension of time. To adopt such of his attitude and decide to do what the Court has ordered, as and when he felt like doing, would lead to chaos in the administration of justice and that is hardly tolerable. I therefore fully subscribe to Mr. Ndanzi’s submission and the authorities cited on this point.
Consequently, I will proceed to hod that the 2nd Defendant’s Written Statement of Defence is not properly before the Court, and so also the preliminary objection raised therein. It is accordingly also struck out. As to the consequences of this finding I will turn to it later in my ruling.
I find Mr. Ndanzi’s argument on the first sub issue, interesting and attractive. It is quite true, that as a matter of principle, no subsidiary legislation can override the provisions of a principal legislation. There is also no doubt that the Limitation Act is a principal legislation, and GN 257 of 1999 is a subsidiary legislation. But it does not, in my view, follow what if a subsidiary legislation provides a period of limitation different from the one fixed by the Law of Limitation then the Law of Limitation should always prevail. This is because it is expressly provided by S. 43 of the Law of Limitation Act that the Act shall not apply to:-
(f) any proceeding for which a period of limitation is prescribed by any other Written Law, save to the extent provided for in section 46.
Section 46 of the Act provides:
46. Where a period of limitation for any proceeding is prescribed by any other written law, and subject to the provisions of section 43, the provisions of this Act shall apply as if such period of limitation had been prescribed by this Act.
- What I understand from the underline words is that the other provisions of the Act, (other than such period of limitation, prescribed by such other written law). May be brought in force as if the period of limitation was prescribed by the Act. In other words the comined effect of ss. 43 and 46 of the Law of Limitation Act is that if the period of limitation is set by any written law then that peiod of limitation, and not the one set in the Law of Limitation Act shall apply but the other provisions of the Law of Limitation may be applied too, unless that other law provides to the country. And the term “Written Law” is defined by S. 4 of the Interpretation of Laws and General Clauses Act (Cap 1) to mean:-
……..” All Act for the time being force and all subsidiary legislation for the time being in force, and includes the Acts of the Community and all applied laws”.
- So, Ss. 43 and 46 of the Law Limitation Act contemplates and validates periods of limitation prescribed by subsidiary legislations. Therefore the question of the Law of Limitation Act overriding those of GN 257 of 1999 does not arise.
- However, the Law of Limitation Act was meant to set periods for instituting “proceedings” which are defined in Ss. 2 of the Act to mean:-
“ …… a suit, an appeal, or an application, and includes proceedings under customary law”.
- Such proceedings are instituted in Courts of law. Toescape from the ambit of the Law of Limitation Act, that other written law must, in my view also seek to set a period of limitation for instituting “ proceedings” as defined. The requirement to submit claims to the Minister in this case was, in my view merely administrative. It cannot be taken to have set a period of limitation for instituting proceedings. That period cannot in my view, be taken to be at par with the periods set by the Law of Limitation Act. It is for the above reasons, and not the one advanced by Mr. Ndanzi, that I find and declare that the Law of Limitation Act 1971 would apply in the present case and the period of limitation for instituting the suit is 6 years.
- A period of limitation begins to count from the date of the accrual of the cause of action. A date of accrual of cause of action is, as demonstrated by Counsel in their pleadings and submissions, a question of fact, which cannot be resolved in an argument on a preliminary objection. At this stage I think one cannot go beyond the pleadings, and a plea on limitation can only arise from the pleadings of the Plaintiff. According to paragraph 6 of the plaint, the Plaintiff’s suit is based on an account stated as at 30th July 2000. in my view any objection on limitation could only be benchmarked from this date. I don’t’s see where from the plaint did the 2nd Defendant get the date of March 1999.
(fff) Civil Appeal No. 36/04 - NBC Holding Corporation vs Mazige Mauya and Mwahamisi M. Bilali CAT at Dar ( Munuo, JA).
- We think it is pertinent to reiterate the provisions of Order XXXIX Rule 35 (4) which states, inter alia:
- Rules (4) the decree shall be signed and dated by the Judge or Judges who passed it.
- Provided that where there are more Judges than one and there is a difference of opinion among then, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree. The court has in numerous cases struck out appeals for non – compliance with the above provision of the law. In Robert John Mugo (Administrator of the Estate of the late John Mugo Maina) versus Adam Mollel – Civil Appeal No. 2/1990 (unreported ) the observed.
“ …..a decree in appeal which is not signed by a judge as required by Order 39 Rule 35 (4) invalidates the purported decree. This is because such signature by a judge is mandatorily required and it authenticates the decree”
Again, in Ndwaty Philomen Ole Saibul vs Solomon Ole Saibul – Civil Appeal No. 68 of 1998 (unreported), the Court stated:-
“ The requirement that a decree must be signed by the judge who made the decision is rooted in sound reason, namely, that the judge who decided the case or appeal is in the best position to ensure that the decree has been drawn in accordance with the judgment”.
- The present appeal, as was the case in Tanganyika Cheap Stone cited supra, lacks a valid decree and thence suffers from non- complanance with the provisions of Order XXXIX Rule 35 (4) of the Civil Procedure Code, 1966 so the invalid decree renders the appeal incompetent.
- For the reasons stated above, we strike out the incompetent appeal. We order that the appellant, if he so deems fit, re – institutes the appeal within 14 days obtaining a valid decree from the High Court.
- With regard to pending appeals not yet scheduled for hearing, parties would be well advised to resort to Rule 92 (3) of the Court of Appeal Rules, 1979, to rectify and regularize the same in conformity with the law.
- We make no order for costs because we raised the matter suo motu.
(ggg) Civil Appeal No. 83/04 – Tanzania Revenue Authority vs Tango Transport co. Ltd CAT at Arusha (Ramadhani, JA.).
- When this matter came up for hearing, Mr. Sang’ka learned counsel for the respondent, raised a preliminary objection, which he had given due notice, containing two grounds; but he dreopped the second ground. The objection was that:
The supplementary certificate of delay forming part of the record of appeal is
improper and incompetent as it was erroneously made.
- Mr. Sang’ka pointed out that the record of appeal contains a certificate of delay and also a supplementary certificate of delay and that both have been made under Rule 83(1) of the Rules of Court of Appeal. The learned advocate pointed out that the certificate of delay was issued on 19th March, 2004, certifying that 104 days were used in the preparation of the proceedings while the latter was issued on 21st May, 2004, indicating that 167 days were used.
- Mr. Sang’ka pointed out further that after the certificate of delay was supplied, one Mr. Salele, a legal counsel for the appellant, wrote a letter on 4th May, 2004, to the District Registrar, the High Court of Tanzania at Arusha, complaining that certain exhibits which were supplied had not been stamped and numbered, and that that hindered the preparation of the record of appeal. So, the letter asked for the rectification of that omission and the supply of a supplementary certificate of delay. The DR complied.
- Mr. Sang’ka submitted that there is no Rule providing for the issuance of a supplementary certificate of delay. He emphasized that there is only Rule 83(1) providing for a certificate of delay
- To go back to the preliminary objection, we agree with Mr. Sang’ka that the document titled supplementary certificate of delay is a trespasser in the corridors of the Court, of Appeal and as with all impostors it ought to be evicted with due dispatch. Here we do just that. What remains in the records of appeal is the certificate of delay by whose own prescriptions the appeal is out of time. Therefore, we strike it out with costs.
(hhh) Civil Appeal No. 88/04 - Majembe Auction Mart Ltd vs Tango Transport Co. Ltd, and Tanzania Revenue authority. CAT at Dar (Ramadhani, J.A).
- When this matter came up for hearing, Mr. Sang’ka learned counsel for the 1st respondent , raised a preliminary objection, which he has given due notice, containing three grounds:
(i) The memorandum of appeal is bad in law for mis-joiner of the 2nd applicant.
(ii) The redress being sought under paragraph (b) of the memorandum of appeal is incompetent and cannot be entertain at this stage of the proceedings.
(iii) The supplementary certificate of delay forming part of the record of appeal is
improper and incompetent as it was mistakenly made.
- When we came to writing this ruling we came up against a legal tangle Mr. Sang’ka is on record as the learned adovate for the first respondent, that is, for TANGO Transport Co. Ltd. However, his two gounds of preliminary objection, and particularly the second one, are on behalf of the 2nd respondent, Tanzania Revenue Authority, whose counsel was Mr. J.S. Beleko, learned advocate.
- After the erudite submission by Mr. Sang’ka we gave an opportunity to Mr. Beleko to address the Court but he was categorical that he had nothing to say. If Mr. Beleko had told the Court that he was adopting all the Mr. Sang’ka had submitted, we would not be in any difficulty at all. But as already pointed out he did not say anything. The question that has taxed our minds is the legality of Mr. Sang’ka speaking on behalf of a party who is not his client and who si represented by a counsel of his own choice. We have no doubt that is improper.
- So, we have come to a considered opinion that we ignore all that Mr. Sang’ka submitted on ground two which is solely on behalf of the 2nd respondent as it were. However, as it is our considered view that ground three, the validity of the supplementary certificate of delay, would dispose of the matter, we are going to confine ourselves to that ground only.
- Mr. Sang’ka pointed out that the record of appeal contains a document titled “Supplementary Certificate of Delay” as filed under Rule 83(1) of the Rules of Court of Appeal. The learned advocate submitted that rule provides for a certificate of delay and not for a supplementary certificate of delay.
- There is no dispute that the certificate of delay that is in the record of appeal is titled supplementary carificate of dalay. It, therefore, presupposes that there is an earlier certificate of delay which is not contained in the record of appeal but only referred to in the letter from Mr. Kishaluli to Dr. So, what we have is supplementary certificate of delay. The question is whether that is the same as the certificate of delay required under Rule 83(1).
- Provide for a “supplementary” document and that is a supplementary record of appeal under Rule 92. But a supplementary record of appeal is totally different form the record of appeal under Rule 89. The two documents are distinct like oil and water. If this sis so for documents which are specifically provided for by the Rules, it is even more so, in our considered opinion, for something which is not even provided by the Rules.
- So there is no certificate of delay and, therefore, the appeal ought to have been instituted with sixty days from the lodging of the notice of appeal, that is, from 15th December, 2003. As institution was on 22nd June, 2004, the appeal is obviously out of time. We, therefore, strike it out with costs to the 1st respondent since Mr. Beleko did not associate himself in anyway with the preliminary objection.
- We have two observations to mae: One, the question for consideration in compliance with rules of the Court is not whether or not the other party has been prejudiced. There are quite a few rules if breached would not prejudice the other party in any way, yet this Court enforces them to the letter. We have in mind, for instance, the failure to include in the record of appeal a copy of a decree whicl there is a copy of the judgment from which the decree is to be extracted. That does not prejudice the other party in any way except that rules are there to be observed. See Godwin Ndewesi & Another vs. Tanzania Audit Corporation [1995] TLR 200 citing with approval Ratnam vs. Cumarasamy & Another [1964] 3 All ER 933.
- Two, we agree with Mr. Sang’ka that the provision of Rule 3 with regard to departures from the rules is available to this Court only.
That Rule provides as follws:
The practice and procedure of the Court in connection with appeals and intended appeals from the High Court, and the practice and procedure of the High Court in connection with appeals to the Court shall be as prescribed in these Rules, but the Court may at any time, direct a departure from these Rules in any case in which this is required in the interest of justice (Emphasis is ours).
By definition in Rule 2, “ the Court” is the Court of Appeal.
(iii) Msc. Appl. No. 29 (A) of 05 – Tanzania Revenue Authority vs Panoni Co. Ltd HC at Dar ( J.J. MKWAWA,J)
- I wish to begin by saying that Mr. Kyabukoba’s failure to counter Mr. Waisaka’s argument does not ipsofacto mean that he concedes defeat on that point and that I should uphold that objection. This court has times without number reiterated that justice should not be defeated on account of the inefficiency, inexperience of one of the parties in the proceedings (See: HASSAN SELAMANI VS. THE GENERAL MANAGER, M/S TACONA LTD (1978) L.R.T. No. 42 and A.S.P.J.C. MASELE VS.R (1978) (RT No. 59).
-In the instant application there is no interlocutory decision or order which is essentially being sought to be revised. The gravamen of Mr. Kyabukoba’s complaint is that the lower court is not competent to entertain the main suit and the applications that have subsequently mushroomed. In essence, he is questioning the competence of that of that Court in entertaining such matters. In other words he is challenging the jurisdiction on that court.
It is now settled principle that the question of jurisdiction is fundamental and not one of mere technicality. (See MUKISA BISCUT MANUFACTURES CO. LTD VS. WEST END DISTRIBUTORS LTD (1969) E.A. 696 at pg. 700 – 701 and S.AH. KASSIM V. M.M.G. KANJI – Civil Application No. 42 of 1999 – C.A.T. – yet not reported).
It is plain from the foregoing decisions that a preliminary objection is an issue which raises a pure point of law and which if argued and decided as such will dispose of the matter.
In the instant case it can not be said, by any stretch of imagination that the matter if argued and decided.
In the result, I also over rule this preliminary objection.
(jjj) Civil Application No. 163/04 – VIP Engineering and Marketing Ltd vs Mechmar Corporation (Malaysia) Berhad of Malasysta CAT at Dar (Nselela J.A),
- Mr. Kesaria’s preliminary objection 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 appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision or order of the High Curt unless such decision or order has the effect or finally determining the criminal charge or suit” (emphasis added).
- it is evident that section 5 (2) (d) or the Appellate Jurisdiction Act, 1979 as amended bars appeals or applications for revision against any preliminary or interlocutory decision or order of te 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 that 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 interlocutiry 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 purpoted 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 vs The Registrar of Companies (2) The National Bank of of Commerce (1997) Ltd. (unreported) made the following pertinent observations.
“ It is obvious to us that the proceedings in the High Court were affected by confusion and that the confusion was deepened by the chages of judges who presided over the proceedings. Three judges were involved at various stages of the proceedings. When such a situation occurs, there is likely to be confusion, unless the succeeding udges thoroughly study the record of previous proceedings. The does not seem to have been done in this case. Moreover, nor reasons are given on the record to explain change of judges, especially when the individual calendar system reuires that once a case is assigned to an individual judge or magistrate, it has to continue before that particular judge or magistrate to its final conclusion, unless there are good reasons for doing otherwise. The system is meant not only to facilitate case management by trial judges or magistrates, but also to promote accountability or their part. The unexplained failure to observe this procedure in this case is certainly irregular, to say the least. Such irregularities and the accompanying confusion in our view are not amenable to the appellate process for remedy. They 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 for revision against any interlocutory decision or order of the High Court unless such decision or order has the effect of finally determining the suit. There is no interlocutory decision or orer which is being sought to be revised. There is a serious general complaint by the applicant that so far the proceedings in the High Court are in a state of confusion and being conclucted in a haphazard manner. Apparently the parties do not know what court order to follow!.
- With this background information, though sacanty for obvious reasons since we are only dealing with the preliminary objection, we are of the view that Section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 as amended, is not applicable to such proceedings. We therefore overrule the preliminary objection with costs. Hearing of the substantive application for revision will be heard on a date to be fixed by the Registrar.
(kkk) Misc. Civil Revision No. 2/04 – Tanzania Revenue Authority vs Hill breeze Filling Station HC at Dar (Mkwawa, J).
- Mr. Kyabukoba, learned counsel for the Applicant submitted to the following effect:-
One, that pursuant to the loud and clear provisions of section 7 of the Tax Revenue Appeal Act, 2000 (Act No. 15 of 2000) ordinary courts are barred from entertaining claims that emanate from matters governed by The Customs & Excise Management Act, 1977 and/or what are covered under the First Schedule to the Tanzania Revenue Authority Act 1995. in otherwords, the Board has exclusive original jurisdiction in dispute, emanating form Revenue laws administered by the Tanzania Revenue Authority.
In support of his stance he invited me to follow the decision in the case of MOHSIN SONJI VS (1) COMMISSIONER FOR CUSTOMS AND EXCISE AND (2) COMMISSIONER FOR TAX INVESTIGATION - Commercial case No. 287 of 2001 – Commercial Division of the High Court Dar es Salaam which in his view though not binding on me is of persuavive value. Two, that the ex – parte decision of the subordinate court had in effect fanalized/determined the decisive issue in the main suit in that the fuel which is the subject matter was released.
- in rebuttal, it was submitted by Mr. Waisaka, learned counsel for the Respondent, if I may paraphrase as follows:-
One, the provisions of section 7 of the said Act No. 15 of 2000 do not bar institution of civil suits under the law of Torts or other branches of civil law.
Two, in the instant matter the complaint was not in respect of tax matters. The claim was based under a tortuous act. Hence, section 7 of the said Act is inapplicable.
- Three, the application was made pre – maturely as no decision had yet been made on the prayers in the main suit.
- I am grateful to both learned counsel for their illuminating arguments in support of their respective stance.
- The vital question for consideration and decision is whether or not there is, in the instant matter, an irregular exercise or non – exercise of jurisdiction the illegal assumption of jurisdiection. In the instant case, I venture to say, having carefully read and considered the import of section 3 and 7 of Act No. 15 of 2000 that what was before the court for consideration and decision in the main suit, wasemanating from revenue laws administered by the Tanzania Revenue Authority. Hence, it is only the Board that had exclusive orginal jurisdiction.
- In the light of the foregoing, it is plain that the subordinate court had exercised jurisdiction not vested in it by law; hence, a fit case for revision under Section 79 of the civil procedure code, 1966. (SEE: MATEMBA VS YAMLING (1968)E.A. 643 and MOSHI TEXTILE MILLS VS B.J. DEVOEST ( 1975) L.R.T. No. 17.
- Further trite principle that courts would not normally entertain a matter which a special forum has been established unless the aggrieved party can satisfy the court that no appropriate remedy is available in the special forum. (See: section 7 (1) of athe C.P.C 1966 and ATTORNEY GENERAL VS. LAHAY AKONAAY AND JOSEPH LOHAY (1995) T.L.R. 80 at pg. 96 the latter is a decision of the Court of Appeal of Tanzania).
- In the instant case the instant Respondent had not shown any reason/ ground that had established that no appropriate remedy was available in the Board. Hence, the trial court had illegally assumed the jurisdiction that it did not have.
- Before I pen off, I wish to make a wake – up call for the subordinate courts not to entertain matters that are exclusively in jurisdiction of the Board stipulated under Act Nol 15 of 2000.
- All in all, for the reasons, I have stated, I hereby allow the application. Pursuant to my revisional poweres I hereby set aside the order of the trial court as prayed. I also condemn the Respondent to pay costs of this court and those below. It is so order.
(lll) Commercial case No. 287/01 – Mr. Mohsin Somji vs Commissioner for customs and Excise Commissioner for Tax Investigations – HC at Dar (Nsekela J.).
- The defendants have in my view correctly invoked Order VIII rule 2 of the Civil Procedure Code, 1966 by pleading in the Written statement of defence that this suit is not maintainable in law. Their main objection is based on lack of jurisdiction by this court to entertain the suit. Since the question of jurisdiction has been squarely raised, it has to be dealt with now, for if it is found that this court has in fact no jurisdiction to entertain the suit, that will be end of the matter in this court. In Mukisa Biscuit Manufacturing Co. Limited vs West End Distributors Ltd (1969) EA J.A. at page 700 stated the principle in the following words:-
- So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, aand which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”.
- Under this provision, the out shall have jurisdiction to try all suits of a civil nature save those which are either expressly or impliedly barred. A statute can therefore expressly or by necessary implication bar the jurisdiction of civil courts in respect of a particular matter. A statute may specifically provide for ousting the jurisdiction of the civil courts. In the case or Firm of Illuri Subbaya Chetty and Sons vs State of Andra Predesh AIR 1964 SC 322 the Court had occasion to construe section 9 of the Indian Civil Procedure Code (1908) which is in pari material with section 7 (1) above. The Court state as follows at page 324 –
“in dealing with the question whether Civil Court’s jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there mus be a remedy in the ordinary civil court’s to a citizen claiming that an amount has been recovered from him illegally and that such remedy can be held to be barred only on very clear and umistakable indications to the contrary. The exclusion of the jurisdiction of civil courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that evect or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not be itself necessarily exclude the jurisdiction of the Civil courts to deal with a case brought before it in respect of some of the matters covered by the statute’.
The question that I now pose is, is there a statute which either expressly or by necessary implication bars an aggrieved party such as the plaintiff in this suit to have recourse to the civil courts? The answer to this will depend on a correct interpretation of section 7 of the Tax Revenue Appeals Act, 2000 (the Act). It provides as follows:-
“ 7 The Board shall, subject to section 12 have sole original jurisdiction in all proceedings of a civil nature in respect of disputes arising from revenue laws administrered by the Tanzania Revenue Authority”.
- Section 3 defines the Board as the Tax Revenue Appeal Board. It is clear on reading sections 3 and 7 together that the Board is a specific forum that has been designated by the Act for the vindication of civil disputes arising from revenue laws administered by the Tanzania Revenue authority. The board is a special forum established for that purpose. The language used in section 7 of the Act is very clear and unambiguous. The Board has “sole” original jurisdiction. The First Schedule to the Tanzania Revenue Authority Act, 1995 contains the laws administered by the Tanzania Revenue Authority which include the Customs and Excise Management Act 1977 and the East Africa Excise Management Act, 1970. Under section 3 of the Act “revenue” menas taxes, duties, fees, levies, fines or other monies imposed by or collected under the law or the specified provisions of the laws set out in the First Schedule to the Tanzania Revenue Authority Act, 1995. The gist of the plaintiff’s case, as stated before, is in paragraphs 8,9 and 10 of the plaint. The Customs & Excise Department in its letter to the plaintiff dated 14.11.2001 (see annexture E to the plaint) notified the plaintiff that there was a short collection of Shs. 10,335,655/= and demanded from him to pay the additional import tax, excise duty and VAT. The plaintiff is disputing this alleging tht “the demand for the alleged tax is lawful as the second defendant is not empowered under the law to demand, impose, assess and collect taxes ….” The plaintiff is protesting the payment of the additional tax and in terms of section 5A of the Tanzania Revenue Authority Act, 1995 as amended, such grievance should be placed before the Tax Revenue Appeals Board and not the ordinary civil court. I am of the settled view that the legislature in its wisdom, intentionally used the word “sole” in section 7 of the Act before “original” This means that the Board has exclusive jurisdiction in disputes emanating from revenue laws administered by the Tanzania Revenue Authority. On receiving the notification from the Customs and Excise department on the 14.11.2001, the plaintiff should have followed the prescribed procedure under the Act. (see Burka Coffee Estate & Another vs Tanzania Revenue Authority (Civil Case No. 28 of 1998, High Court of Tanzania, Arusha District Registry (unreported); Tanzania Breweries Company Ltd vs Tanzania Revenue Authority, Commercial Case No. 260 of 2001, High court of Tanzania Commericial Division (unreported). The plaint was filed on the 30.6.2001. this Act provides for a speciall forum to itigate revenue disputes under laws administered by the Tanzania Revenue authority. The procedures prescribed under the Act do provide an adequate remedy to the plaintiff (see: sections 12,13,14 and 15). This is my considered view that the provisions of Tax Revenue Appeals Act do provide an adequate remedy when tax disputes are referred to the Tax Revenue Appeals Board which is a special forum for such matters. The Court of Appeal in the case of Attorney General vs Lohay Akonaay and Joseph Lohay (1995) TLR 80 at page 96 made the following pertinent observations.
‘………… courts would not normally entertain a matter for which a special forum has been established unless the aggrieved party can satisfy the court that no appropriate remedy is available in the special forum”.
Lastly, the plaintiff invited me to invoke sections 21 (1) and 95 of the Civil Procedure Code 1966 and transfer the proceedings to the Tax Revenue Appeals Board. With all due respect. I decline the invitation. The Board is not a court as defined in section 3 of the Civil Procedure Code, 1966.
- In the premises, I do hereby strike out with costs Commercial Case No. 287 of 2001. This court has no jurisdiction to entertain this suit. It is accordingly.
(jjj) Commercial Case No. 72/2004 - Njake Oil Company Limited vs Tanzania Revenue Authority HC at Dar (Kimaro, J).
- A careful consideration of the pleadings, objection and the submissions by the Advocates leave no doubt that, the arguments presented by Mr. Primi are correct. Although the plaintiff’s claim is for damages, one has to ask where do those damages arise from. The plaintiffs pleadings (paragraphs 4-14) show that the plaintiffs cause of action is rooted in tax assessment made by the defendant. Before a decision is made on whether the plaintiffs are entitled to those damages, there must be proof that the seizure was not lawful. The question whether the seizure was lawful or not is not a matter which falls within the jurisdiction of this court. Section 7 of the Tax Revenue Appeals Act, 2000 is worded in clear terms. It is the Tax Revenue Appeals Board which has sole original jurisdiction in all proceedings of a civil nature in respect of disputes arising from revenue laws administered by the Tanzania Revenue Authority. So long as the damates which the plaintiff is claiming are rooted in tax assessment by the defendant, any dispute arising out of that tax assessment must be dealt with by the Board first, before it can be dealt with, in any other forum. All the decisions relied up on by the defendant in their submission confirm the position stipulated above.
I entirely disagree with the Advocte for the plaintiff that the plaintiff’s claim can be disassociated with the tax assessment. As stated earlier, the claim for damages emanates from the tax assessment. This court would only have jurisdiction to entertain the suit where the Tax Appeals Forums say that the assessment for tax was unlawful and fail to award damages arising out of the unlawful act by the defendant.
Under the above circumstances I uphold the objection and dismiss the plaintiff’s suit with costs.
(kkk) Civil Case No. 140/2004 - Mohamed Madahason & Others vs . Tanzania – China Friendship Textle Co. Ltd. HC at Dar (Kalegeya, J).
- The first leg should not detain us much. Order VII (1) of the Civil Procedure Code requires the plaint to state, among others, facts showing that the court has jurisdiction. The current plaint is totally silent on this. I was all out to allow the Plaintiffs rectify this obvious flaw by allowing an amendment as expressly legally allowed in terms of Rule 11 (c ), proviso, of the same Order but my hands are clogged by resultants of the 2nd preliminary objection.
- The 2nd preliminary objection is on jurisdiction. The Defendants urge that this being a “trade dispute” the High Court has no jurisdiction and rely on Tambueni Abdallah & 89 others vs. NSSF, (CA) Civil Appeal No. 33 of 2000.
- Without beating about the bush, this objection is meritorious. The Plaintiffs’ argument is that the meaning of a “trade dispute” should not be over – stretched to cover just a debt between Employer and Employee as is the gist of the present claim.
- Well their restrictive interpretation of the term” trade dispute” cannot go with eventhe least interpretative mend of the obvious, clear wording which flows as under:
“ any dispute between an employer and employees or an employee in the employment of that employer connected with the employement or non – employement or the terms of the employement, or with the conditions of labour of any of those employees or such an employee”.
- Paragraph 5 of the plaint cannot be easily taken out of the said interpretation as proposed. The said paragraph reads:
“ The plaintiffs thus severally claim the sum of Shs. 1,088,730,000/= being arrears of salaries ( to each Plaintiff Shs. 10,000/= for each month) payable by the Defendant to the Plaintiffs severally …. For work done and services rendered by the Plaintiffs as employees of the Defendant at request during the period between 1/4/1997 up top 31st March, 2003 plus interest thereon at the bank rate of 20% per annum until judgement…”
- I am not persuaded by the Plaintiffs’ interpretative approach. The simmering dispute is “trade dispute” pure and simple.
- That said, what action should I take – strike out the case as urged by Defendants or order to have the matter filed in Labour Division of the High Court as urged by the Plaintiffs.
- I do appreciate that Order VII, Rule 10 (1) of the Civil Procedure Code provides:
“ The Plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted”, but the current situation stands against the Plaintiffs. Though the law is place, there is no Labour Division of the High Court in operation.
- For reasons discussed, the preliminary objections stand upheld and the suit is struck out accordingly.
(lll) Commercial Case No. 287/01 – Mr. Mohsin Somji vs Commissioner for Customs and Excise Commissioner for Tax Investigations. HC at Dar ( Nsekela, J).
- The defendants have in my view correctly invoked Order VIII rule 2 of the Civil Procedure code, 1966 by pleading in the Written Statement of Defence that this suit is not maintainable in law. Their man objection is based on lack of jurisdiction by this court to entertain the suit. Since the question of jurisdiction has been squarely raised, it has to be dealt with now, for if it is found that this court has in fact no jurisdiction to entertain the suit, that will be the end of the matter in this court. In Mukisa Biscuit Manufacturing Co. Limited vs, West End Distributor Ltd (1969) EA 696 Law J.A. at page 700 stated the principle in the following words-
“ So far as I am aware, a preliminary objection consists of a point of law which ha sben pleaded , or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”.
- Under this provision, the court shll have jurisdiction to try all suits of a civil nature save those which are either expressly or impliedly barred. A statute can therefore expressly or byt necessary implication bar the jurisdiction of civil courts in respect of a particular matter. A statute may specifically provide for ousting the jurisdiction of the civil courts. In the case of Firm of Illuri Subbaya Chetty and Sons vs State of Adra Predesh AIR 1964 SC 322 the Court had occasion to construe section 9 of the Indian Civil Procedure Code (1908) which is in parimateria with section 7 (1) above. The Court stated as follows at page 324 -
“ In dealing with the question whether Civil Courts’ jurisdiction to enterain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a rmedy in the ordinary civil court’s to a citizen claimimg that an amount has been recovered from his illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of civil courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provideds for certain remedies may not by itself necessarily exclude the jurisdiction of the civil caouts to deal with a case brought before it in respect of some of the matters covered by the statute”.
- The question that I how pose is, is there a statue which either expressly or by necessary implication bars an aggrtieved party such as the plaintiff in this suit to have recourse to the civil courts? The answer to this will depend on a correct interpretation of section 7 of the Tax Revenue Appeals Act, 2000 (the Act). It provides as follows:-
‘ 7 The Board shall, subject to section 12 have sole original jurisdiction in all proceedings of a civil nature in respect of disputes arising from revenue laws administered by the Tanzania Revenue Authority”.
- Section 3 defines the Board as the Tax Revenue Appeal Board. It is clear on reading sections 3 and 7 together that the Board is a specific forum that has been designated by the Act for the vindication of civil disputes arising from revenue laws administered by the Tanzania Revenue authority. The Board is a special forum established for that purpose. The language used in section 7 of the Act is very clear and unambiguous. The Board has “sole” original jurisdiction. The First Schedule to the Tanzania Revenue Authority Act, 1995 contains the laws administered by the Tanzania Revenue Authority which include the Customs and Excise Management Act 1977 and the East Africa Excise Management Act, 1970. Under the section 3 of the Act “revenue” means taxes, duties, fees, levies, fines or other monies imposed by or collected under the law or the specified provisions of the laws set out in the First Schedule to the Tanzania Revenue Authority Act, 1995, The gist of the plaintiff’s case, as stated before, is in paragraphs 8, 9 and 10 of the plaint. The Customs & Excise Department in its letter to the plaintiff dated 14.11.2001 (see annexture E to the plaint) notified the plaintiff that there was a short collection of Shs. 10,345,655/= and demanded from him to pay the additional import tax, excise duty and VAT. The plaintiff is disputing this alleging that “the demand for the alleged tax is lawful as the second drfendant is not empowered under the law to demand, impose, assess and collect taxes …..” The plaintiff is protesting the payment of the additional tax and items of section 5A of the Tanzania Revenue Autority Act, 1995 as amended, such grievance should be placed before the Tax Revenue Appeals Board and not the ordinary civil court. I am of the settled view that the legislature in its wisdom, intentionally used the word “sole” in section 7 of the Act before “original”. This means that the Board has execusive jurisdiction in disputes emanating form revenue laws administered by the Tanzania Revenue Authority. On receiving the notification from the Customs and Excise Department on the 14.11.2001, the plaintiff should have followed the prescribed procedure under the Act. (see: Burka Coffe Estate & Another vs Tanzania Revenue Authority (Civil Case No. 28 of 1998, High Court of Tanzania, Arusha District Registry (unreported;) Tanzania Breweries Company Ltd vs. Tanzania Revenue Authority, Commercial Case No. 260 of 2001. High Court of Tanzania, Commercial Division (unreported). The plaint was filed on the 30.11.2001 by which time the Tax Revenue Appeals Act. 2000 had become operational since the 12.2001 vide GN No. 126 of 2001 published on the 29.6.2001. This Act provides for a special forum to litigate revenue disputes under laws administered by the Tanzania Revenue authority. The procedures prescribed under the Act do provide an adequated remedy to the plaintiff (see sections 12,13,14 and 15). This is not all. Under section 16 (3) an aggrieved party can have recourse to the Tax Revenue Appeals Tribunal and then onto the Court of Appeal under section 25. It is my considered view that the provisions of the Tax Revenue Appeals Act do provide an adequate remedy when tax disputes are referred to the Tax Revenue Appeals Board which is a special forum for such matters. The Court of Appeal in the case of Attorney General vs Lohay Akonaay and Joseph Lohay (1995) TLR 80 at page 96 made the following pertinent observations.
“ ………. Courts not normally entertain a matter for which a special forum has been established, unless the aggrieved party can satisfy the court that no appropriate remedy is available in the special forum”.
Lastly, the plaintiff invited me to invoke sections 21 (1) nad 95 of the Civil Procedure Code 1966 and transfer the proceedings to the Tax Revenue Appeals Board. With all due respect, I decline the invitation. The Board is not a court as defined in section 3 of the Civil Procedure Code, 1966.
- In the premises, I do hereby strike out with costs Commercial Case No. 287 of 2001. This court ha sno jurisdiction to entertain this suit. It is accordingly ordered.
26. LABOUR DISPUTES.
(a) Southern Highlands Tobacco Union Ltd vs McQeen[1969] EA 490 While a plaintiff is required to mitigate damages so far as he can, he is not required toinvolve himself in expenditure to do so; therefore, it could not be argued that the respondent ought to have set up in private practice as an account to mitigate his damages. The trial judge was right in holding that the burden of proving that the respondent could have obtained suitable other employment lay on the appellant company. (b) Civil Appeal no. 2/93 – Ally Linus and 11 others vs THA and Labour Conciliatory Board, Temeke District. CAT at Dar. -Difference between Certiorari and Mandamus and Appeal. - With respect to the learned Jaji Kiongozi, it is not a matter of judicial courtesy but a matter of duty to act judicially which requires a judge not lightly to dissent from the considered opinion of his brethren. (c ) Misc. Civil Case No.94/85 – Juma Ally Kaziyabure vs TPTL. HC at Dar (Msumi,J). -With respect I can find no legal backing for such argument, My understanding for section 27 and 40A (5) of the act is that where the Minister or Board ordered for reinstatement or re-engagement – the complainant employee may for one of the two alternatives. He may either apply to the court under s. 27(1) of the Act to have the order executed as if it was a decree; or he can claim for payment of statutory compensation and twelve months salary as provided under Section 40A(5) of the Act .Either of these alternatives can only be initiated at the instance of the aggrieved employee and not the offending employer. -An employer cannot, at his own initiative, choose to pay his aggrieved employee statutory compensation and twelve month’s salary as alternative to complying with the Minister’s or Board’s decision of reinstatement. (d) Misc. Civil cause No. 9/86 – Peter Ndonde vs Tanzania Shoe Co. Ltd. HC at Dar (Mapigano,J). The employer has an option to determine the employment, albeit at some risks, to wit, if reference to the Minister was made under Section 40A of the SEA and the Minister exercised powers under sub-section (3) thereof which says that the Minister may order re-instatement. (e) Civil Application No. 1/85 – D.A.N. Kavishe vs AICC. CAT at Arusha. “Looking at labour laws (Misc. Amendments) Act 1 of 1975 which amends the Employment Ordinance, Cap. 366, there is section 40A which says that where a reinstatement or re-engagement has been ordered under the section and the employer refuses or fails to comply with the order the employer shall be liable to pay the employee compensation as contained in section 40A(5). So according to this section the employer is not bound to receive the applicant back even if the Permanent Labour Tribunal or the Minister orders his reinstatement. It does not appear likely for the applicant who had been sacked so expeditiously to be received back by the employer and as had been argued in this Court and the previous application to the High Court, this is essentially a service tenancy and it would be anomalous to have a tenant residing in his employer’s premises without offering him his services and above all when the employer had shown by his conduct that he no longer need his services and had washed his hands completely off him”. (f) Misc. Civil Appeal No. 6/88 – Amos Kashuku vs The GM, Tanganyika Dyeing and W. Mills Ltd. HC at Dar (Mnzavas, JK). This argument has some force but, with due respect to the learned counsel it is far from being convincing. If the Appellant was, as argued in the lower court and before this court, recruited from Bukoba one would have expected the appellant to produce better evidence than his mere argument that he was so recruited. We would have for example expected him to produce such evidence as transportation charges from Bukoba to Dar es Salaam for him and his family paid by the respondent soon after he had been offered the appointments. There was no such evidence. Even if for the sake of argument the appellant had used his own money from Bukoba to Dar es Salaam one would have expected him to ask for a refund from his employer. Again such evidence was not forthcoming. In view of the correspondence between the parties before the appellant was employed, the learned Resident Magistrate was entitled to find that the appellant was recruited from
Dar se Salaam and not from Bukoba.
If the appellants were lucky to have been paid fare for them to Bukoba. Appellant’s argument that because he and his family were paid fare to Bukoba he should also be paid expenses for transport of his luggage to Bukoba is misconceived as two wrongs do not make a right. (g) Civil appeal No.15/90 – Twikasyege Mwaigomole vs Mbeya RTC Ltd. CAT at Mbeya. This is clearly not a contract of service till one reaches the age of 55, nor does its termination entail the compulsory payment of the remaining period to the retiring age of 55years. If this were the case any person whose services were terminated this way would be able to collect as many future earnings as his employment with many employers at different times may permit. (h) Misc. Civil Cause No.88/91 – Zayumba Maganga vs AGIP and others. HC at Dar (Kaji,J). Under section 18 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance, Cap. 360 as amended by Act No. 55 of 1968 – an application for an order of Mandamus, Prohibition or Certiorari shall be made within 6 months after act or omission to which the application for leave relates. (i) Civil Appeal No.42/92 – Timoth Kaare vs Mara Co-op. Union (1984) Ltd. CAT at Mwanza. With regard to complaint in paragraph 6 that by retiring the respondent interfered with his appellant’s Constitutional right to work, we can only say that this right is by its very nature cannot be absolute. First, it must be subject to the regulations of the employing authority and secondly, it must be subject to the availability of work suitable for the person involved . It certainly does not mean that one can walk into an office, factory or worksite and demand to be given work under Article 22, nor does it mean that under this Article one can demand to be employed even when old and senile. Appellant certainly has a right and even a duty to work, but not necessarily with the respondent union. (j) Uchunguzi wa mgogoro wa Kikazi Namba 6/92 – Juwata vs Tanzania Distillaries Ltd. ICT at Dar. Mlalamikaji arejee kazini tangu alipofukuzwa kazi bila kupoteza marupurupu yake. Muda wote aliokuwa nje ya kazi uhesabike kuwa likizo ya malipo, kwa hiyo hasitahili likizo yoyote ambayo angepata kama angekwenda nyumbani. Vivyo hivyo, kwa kuwa alikuwa haendi kazini hasitahili posho ya usafiri na posho ya chakula. (k) Civil Revision No. 24/95 –K .J.Motors vs Richard Kishamba and 19 others. HC at Dar (Kalegeya,J). CPC is not strictly applicable in employment matters. It is not originated by normal pleadings, but by labour officer’s report. See s. 132, Cap. 366. Where a case is originated by a labour officer’s report the technicalities of procedure prescribed under the Civil Procedure Code may not be followed and it lie wholly within the discretion of the court to direct which cause to be followed and all this is without undue regard to technicalities of procedure so as to attain substantive justice. (l) Civil Appeal No. 65/95 – GM, RTC Mara vs Manyanga Wakuleba and others. HC at Mwanza (Mrema,J). It is a common parlance, in my view that before an employee takes up engagement with his employer he or she must have an address at the very place he or she was engaged to go to take up employment he or she had applied for. Under S. 53(2) Cap. 366, the law goes further to hold the employer fully responsible to incur expenses to transport the affected employee’s family who are brought to the employer’s place of work by reason of thee employee’s engagement there by the employer. The expenses to be incurred include “traveling expenses, subsistence allowances or rations during journey, See subsection 3 of s. 53 of the same Ordinance. Under the same section it is also a statutory duty or obligation on the part of the employer to pay out subsistence expenses or rations during the period, if any, between the date of termination of the contract and the date of repatriation. However, under sub-section 4 of s. 53 the employer shall not be liable for subsistence expenses or rations in respect of any period during which the repatriation of the employee has been delayed by the employee’s own choice, or for reasons of force majeure. No law, as yet, has been enacted to bind the employers, whether in the government sector or parastatal organizations, to adhere to the alleged “presidential directive” of paying the retrenched employees four months salary per annum for a period not less than ten years. In my view, that is not law and the trial court was definitely wrong to rely on such principle which is not legislated, nor is it mandatory. (m) Civil Appeal No. 36/96 – Marcky Mhango vs Tanzania Shoe Co. Ltd and others. CAT at Dar. - We want to start by clarifying the status of the Voluntary Agreement between the appellants’ Trade Union and the 1st respondent. It is not correct to speak of the validity or invalidity of the agreement. The agreement was freely entered into by the two sides; duly executed and indeed it accurately reflected the wishes of the parties. The agreement is therefore correct and certainly valid. - The confusion here is obvious. The requirement in S. 39(2) are not for concluding a Voluntary Agreement as the trial judge contends, they are conditions precedent for the registration of Voluntary Agreements by the Industrial Court. Upon such registration, the voluntary agreement becomes an award of the court and therefore enforceable as such. Before its registration, the voluntary agreement remains just a contract between the parties. The position therefore is that, while an award may be invalid because of the fault registration of the Voluntary Agreement, the agreement itself remains a perfectly valid contract between the two sides. (n) Leonard Kato vs National Poultry Co. Ltd (Number not seen).(100?) HC at Dar (Mackanja,J). -It is also important to note that allowances are paid as incentives to employees who are actually in active service for reaching set work targets. An employee who is out of service during a particular time, such as between termination of employment and re-instatement will no be the right person to perform such a duty. - Similarly, subsistence allowance is paid to an employee who is sent to perform official functions outside his place of work and in so doing he spends nights outside his station. - It is significant to say that an employee is entitled to go on leave as a way to break from work. The decree holder has not been doing any work to justify a break. He is in fact presumed to have been on continuous leave with full pay, pay which he now claims by way of unpaid salaries from the time his employment was terminated. -As regards allowances for medical treatment and housing allowance, like all other allowances, they cannot be presumed to have been paid. They have to be pleaded for and proved by evidence, and they had to be clearly pronounced in the judgment. (o) Civil Appeal NO. 15/97 – Kihamira Kibaya vs UAC (T) Ltd. CAT at Dar. An employee is free to choose whether to take his labour dispute to a tribunal established under the Act or to file his case in a regular court of law, except in cases of summary dismissal or proposed summary dismissal or deduction from an employee’s wages by way of disciplinary penalty where, under s. 28 of the Act, the jurisdiction of the court is expressly excluded. (p) Civil Appeal No. 32/98 – Said Walele vs General Tyre (EA) Ltd. CAT at Arusha. But if the Act was inapplicable, it must follow, as day follows night, that the appellant was not entitled in law to file his case under the Act and ask the Resident Magistrates’ court to order his re-instatement, a remedy available under the Act. This appellant cannot assert, as he has done, that the Act was inapplicable to him, and in the same breach say he is entitled to its protection. He cannot be allowed to do so. Either the Act applies to him or it does not. Those proceedings were plainly misconceived in law. The appellant should have sought remedies other than those available under the Security of Employment Act. (q) Civil Appeal No. 98/98 – Omar Mkata vs G.M. Tanzania Pipelines. HC at Dar (Kalegeya,J). The appellant’s assertion that he was forced to sign the disclaimer certificate cannot easily be accepted by common sense because he was no longer their employees; there was nothing which could put him in unequal situation with the respondent. ® Civil Appeal N. 8/99 – The GM, Williamson Diamonds Ltd vs Edwin Mgelegele. CAT at Dar. Summary dismissal means dismissal without notice, and the plaintiffs contention that their services were wrongly terminated without notice can only, in our view, be construed as a contention that they were summarily dismissed. (s) Civil Appeal No. 74/99 – K.J. Motors and others vs Richard Kishamba and others. CAT at Dar. Representative suit We are therefore firmly of the view that compliances with Order 1 rule 8(1) (a) is a necessary requirement even in employment suits, the mandatory application of it being imposed or sanctioned by sub-section (3) of section 134 of the Employment Ordinance. (t) Misc. Civil Cause No. 178/99 – Bepha Mgasa vs C.M.C Motors Ltd. HC at Dar (Ihema,J). “In the absence of a clear definition as to what amounts to subsistence allowance, the most fair and reasonable subsistence allowance the appellant would be entitled to get would be her monthly salary…” (u) Civil Case No. 481/99 – Hilal Hemed Rashid and others vs The Permanent Secretary and AG. HC at Dar (Kyando, J). In Tanzania a police officer cannot be retired in the public interest. Permanent employment does not, in my opinion, men thereby that employment for life is offered. The claim to payment from the date of the “pre-mature” retirements to dates of compulsory retirement are based on the assumption that the plaintiffs had to work up to the dates of their compulsory retirements. This assumption, in view of the authority above, is wrong and it is also founded on speculation. This because no one can know what the future holds for him. One can die before reaching the age of compulsory retirement or he can be dismissed from employment or he can even resign. (v) Civil Appeal No. 50/00 – Tanscan Timber CO. Ltd vs Arthur Kibona. CAT at Mbeya. -Tshs. 20,000/= granted as subsistence allowance. (w) Misc. Civil Cause No. 13/01 – In the Matter of the Application by TRAWU. HC at Dar (Msumi, J.K). The argument that because it is a court, the decisions of the Industrial Court are not subject to review is legally not tenable. Its name notwithstanding, the Industrial Court of Tanzania is an inferior tribunal. It is not a court of law within the judicial system of Tanzania. (x) Civil Appeal No. 163/01 – Dar es Salaam Water & Sewerage Authority vs Dora Shemndolwa. HC at Dar (Kyando,J). There is no need for a Chamber Application or Affidavit to enforce the decision of the Minister or Board. What is filed is only the decision of the Minister or Board and what follows is the execution, as stated already, of the decision. (y) Commercial Case No. 40/00 – Swedish vs Suchak and Sons Co. Ltd. HC (Commercial Division) at Dar (Nsekela,J). Order XXI rule 10(2)(j) requires that the mode in which the assistance of the court is required should be stated. In other words, the decree holder must state which of the five modes of execution mentioned in that clause he wishes to invoke for the purpose of execution. There is no application before this court under Order XXI rule 10(2) (j) (iii) which is one of the modes in which the assistance of the court can be sought to make an order for the arrest and detention of the judgment debtor in a civil prisoner. It is my humble opinion that the Chamber summons filed by the decree holder on 16/7/00, is not a substitute for non compliance with Order XXI rule 10(2)(j)(iii). (z) Civil Appeal No. 64 c/f 66/02 – The Permanent Secretary (Establishments) and AG vs Hilal Hamad Rashid and Others. CAT at Dar. Difference between removal and retire. There was a cross appeal that the learned judge erred in refusing to award statutory salaries to the respondents to the date of compulsory retirement of each. This need not retain us. We are in full agreement with the learned judge that the claim should fail. We endorse the observations by MROSSO, J (as he then was) in Twikasyege Mwaigombe vs Mbeya RTC Ltd [1988]TLR 237 at 241, that:- “There is sometimes a misconception that where a person is offered employment on permanent and pensionable terms, then that he must be employed for life and must be paid a pension”. (aa) Civil Appeal No. 72/03 – Saleh Said Bakari and others vs DAWASA. HC at Dar (Massati, J). In employment causes the procedure is much more simplified. As it was held by this court in Thabit Ngaka vs Regional Fisheries Officer [1973] LRT 24, once the matter s referred to the court by a Labour Officer under S. 32 of Cap. 366, there is no need for the court to order the parties to file pleadings. Rather it should follow the simplified procedure laid down under S.134 of the Ordinance as amended in 1969. - In the present case, however, we are of the opinion that there was no right of a hearing because there was no termination but it was merely a non – confirmation while Stella remained in the employment of the MOF. It is our decided opinion that probation is a practical interview. We do not think that the right to be heard and to be given reasons extends even where a person is told that he/she has failed an interview.
(bb) Civil Case No. 253/01 – Mathias Ndyuki & 15 Others vs The Attornery General – HC at Dar (Massati, J).
- The plaintiffs claim is for the sum of shs. 135,738,463/- being “ the balance of their terminal benefits which have not been paid to them”. This claim id not chage even in their other amended plaint which they filed on 19/11/2001. The Defendant resists the claim because he beliees that “what was paid to the plaintiffs was proper and in accordance with the laws and the employment terms and conditions”. Would conclude that the terminal benefits of the plaintiffs of the plaintiffs ought to be calculated on the basis of the salary of the salary scales prevailing at the date of termination, i.e. in 21/3/97.
- I am of the view that even if it was not Friendship Textile Mill Ltd which had to pay the terminal benefits, the car taker committee stepped into its shoes and in terms of GN. 82/97, those terminal benefits, had to be paid according to law, and unless the contrary intention was shown with the same legal consequences.
- On the above premises, I will proceed to find that the plaintiffs have established that they were not only underpaid, but also that whatever they were paid, they were not paid promptly.
- Counsel have locked hons as to whether the plaintiffs are entitled to subsistence allowances. Mr Ngwembe has submitted that the plaintiffs do not deserve it because according to him the plaintiffs had been repartriated in compulsory leave. For that proposition, he cited the decision of the Court of Appeal in NICHOLAS HAMISI & 1013 OTHERS VS TANZANIA SHOE TLD Civil Appeal No. 62 of 2000 (unreported). With unfeigned respect, I think Mr. Ngwembe is wrong and in fact HAMISI’s case is clearly distinguishable. The decision in that case was based on the interpretation of S. 53 of the Employment Ordinance. The Court of Appeal was categorical that:-
“ subsistence allowance is payable upon repatriation following termination of employment, to the former employee’s place of engagement on his place of domicile”.
In the present case, the plaintiffs may have been transported to their place of domicile in January 1995, but there was no termination then. As found above, the plaintiffs were terminated in March 1997; so they could not have been repatriated in 1995.
(cc)Civil Case No. 391/2000 – Leticia Luwanga vs Tri Telecommunication (T) Limited - HC At Dar (Ihema,J).
On 31st October, 2000 on Leticia Luwanga, the Plaintiff, filed a suit in this court praying for judgment and decree against Tri Telecommunication Tanzania Ltd, the defendant claiming for (1) damages for unlawful breach of contract at T. Shs 30,000,000/=, costs and any order deemed fit and just. The plaintiff’s suit is allegedly founded on unlawful termination of her employment as well as denied of the right to be heard. Upon being served, the defendant, through the legal services of Mustafa Chandoo & Company Advocates, resisted the claim in its written statement of defence and further set out a preliminary objection, contending incompetence of the suit in terms of Section 28 of the Security of Employment Act No. 62/1964 as well as vexation and abuse of the judicial process. The plaintiff had also lodged the dispute before a Conciliation Board on 14/04/2000 and was pending when the plaintiff filed her suit in court. The plaintiff is represented by Muganda nad Kamugisha Advocates.
-Upon completion of the pleadings the parties were given leave to argue the preliminary objection through written submissions. Arguing in support of the preliminary objection Mr. Chandoo learned counsel submits, among others, that under the Security of Employment Act 1964 as amended by Act No. 1 if 1975, the jurisdiction to determine the issue whether or not an employee has been lawfully terminated is vested in the Conciliation Board and an appeal (reference) to the Minister for Labour as provided for under Part IV of the Act read together with the previsions of Section 40 A(1)(2) & (3) of the Labour Laws (Misc. Amendements) Act No. 1 of 1975. It is further the argument of the learned counsel that the plaintiff had already by then refered the dispute to the Conciliation Board subjecting the matter to dueal adjudication. The case by the Court of Appeal of Tanzania in Civil Appeal No. 8 of 1998 – Mwanza Textile Ltd vs Augustino Masatu by Nyalali, CJ (as he then was)was cited in support.
-The learned counsel for the plaintiff on their part, while conceding the scheme of labour disputes as established by the Security of Employment Act, contend that no mandate however is given to a Conciliation Board and the Minister by the said Act to award damages in respect of breach of contract of employement. For they argue that when there is unlawful breach in a contract of employment it is the party suffering form that breach who has the right under the general law of contract to seek relief in terms of damages from a court of law. The plaintiff has taken that course by filing the present suit the learned counsel contend and have called in support the authority in the cases of Ahamed Kondo & 11 others vs The Hon. Attorney in Civil Appeal No. 24 of 1981 Dar es Salaam Registry (unreported) as well as Kihamira Kalunge Kibaya vs United Company Ltd – Civil Appeal No. 36 of 1987 (Court of Appeal at Dar es Salaam (unreported).
- In his rejoinder submission Mr. Chandoo the learned counsel for the defendant has distinguished the authority in the cases cited by the plaintiff’s advocates on the ground that the Security of Employment Act is inapplicable.
- Think the grounds upon which the preliminary objections has been raised, have sufficiently been shown to merit sustaining the objection, For it is clear from the wording of Section 40A(1) of Act No. 1 of 1975 that termination or summary dismissal of any employee coming under the purview of the Security of Employment Act is the reserve of the Conciliation Board first and foremost if the employee is aggrieved by such termination or dismissal. Such is the scheme of labour disputes established by the Security of Employment Act 1964. Accordingly the suit is misconceived for having been filed contrary to the clear provisions of Section 40A (1) of Act No. 1 of 1975. At any rate the learned counsel for the plaintiff for withdrawing the dispute before the conciliation Board in favour of filing the present suit. There is further abundant evidence that at the time the present suit was filed in this court the dispute was still pending before the Conciliation Board as evidenced by the plaintiff’s letter of 30th March, 2001.
- In the event I sustain the grounds of preliminary objection and I dismiss the suit with costs to he defendant. The costs are to be borne (paid) by Muganda and Kamugisha Advocates, the learned advocates of the plaintiff.
(dd) Civil Appeal No. 28/04 - Songea Tobacco Processing Factory (1997) Ltd ( SONTOP), vs Tanzania Plantation and Agr. Workers Union (TPAWU) HC at Dar Oriyo, J.
- Having supported the Industrial Court’s decision as it did, the respondent, on another note, raised a preliminary point of objection that this court has no jurisdiction over appeals originating form decisions of the Industrial Court. We must admit that the objection was irregularly raised in the Written submissions. However, since it is a legal point, questioning our jurisdiction over the appeal, we must first decide whether we have jurisdiction or not. Apparently the appellant had the opportunity to argue the objection in subimissions in rejoinder but did not do so for unknown reasons. So the appellant did not advance any arguments on the issue of the jurisdiction of this court over the appeal.
- it was corrently argued by the respondent that an appeal is a creature of statute and there must be a law conferring jurisdiction on this court over appeals form the Industrial Courts. Authorities on the legal position are many; See HARNAM SINGH BHOGAL VS JADVA KARSANANI (1953) EACA, 17 and THE ATTORNEY GENERAL VS SHAH (NO. 4) [1971] EA 50. This court has also on several occasions stated that it has no jurisdiction over appeals from the Industrial Court, pursuant to the provisions of SECTION 27 (IC), the Industrial Court of Tanzania Act, 1967, as amended by Act 3/90 which states:-
“ subject to the provisions of this section, every award and decision of the court shall be final and not liable to be challenged, reviewed, questioned or called in question in any court save on the grounds of lack of jurisdiction in which case the matter shall be heard and determined by a full beanch of the High Court.
Such decisions of this Court include:-
1. LEKULE VS JV INDUSTRIES LTD, Civil Appeal No. 3/98, Dar es Saalaam Registry (unreported).
2. ATHUMANI KUNGUBAY AND OTHERS VS PSRC and TTCL, civil Appeal No. 9/01 Dar es salaam Registry (unreported).
3. Ludovick Mbona vs NBC [1997] TLR 26.
However, that wea the legal position until act No. 11 of 2003, WRITTEN LAWS MISCELLANEOUS AMENDMENTS ACT, was enacted at the end of 2003. SECTION 27 (IC) above was deleted and substituted by Act 11/03 to read as hereunder:-
“ Subject to the provisions of this section, every award and decision of the Industrial Court shall be called in question on any grounds in which case the matter shall be heard and determined by a full bench of the High Court”. (emphasis provided).
On the basis of the amendment, we have jurisdiction over appeals originating form the Industrial Court.
-We now proceed to determine the grounds of appeal. The first limb of the Appellant’s complaint agaist the Award was the distinction made by the Industrial Court between retrenched TPAWU leaders and other employees of the appellant. This distinction was made in accordance with SECTION 8(b) of the Security of Employement Act, Cap 574 which provides:-
“8 An employer in whose business a Committee is required to be, or is, established in accordance with this Act
(a) N/A
(b) Shall not discriminate against a member of the Committee and, in particular and without prejudice to the generality of the foregoing, shall not terminate the employment of a member of the Committee (except for breach of the Disciplinary Code) without the prior approval of a labour office” (underlining supplied).
It is crystal clear from the above provision that the District Labour Officer’s prior approval was required before the trenchment of TPAWU leadership. In view of the above provision, we think that the Industrial Court was correct in upholding the distinction and we cannot fault it for that.
-The second limb of the appellant’s complaint which is indeed the crux of the appeal is whether the Industrial Court was correct in ordering the reinstatement or the payment of statutory compensation in the course of registering the Voluntary Agreement. As we shall show later, we are of the settle mind that the Industrial Court ated incorrectly in this respect. On the refusal to register the voluntary agreement, the Industrial Court was entitled under the circumstance, where the branch leadership had ceased to exist; pursuant to the provisions of SECTION 39 (7) (c) of the Industrial Court Act, 1967, as amended.
-Having set out the legal position above, and with due respect; we are of the opininon that the Industrial Court erred in this respect. In the absence of a trade dispute or inquiry before it; the court had no jurisdiction to issue the orders of reinstatement or statutory compensation under SECTION 40A(5), Security of Employment Act, as it did. Accordingly the decision and/or orders to reinstate the union branch leaders or to pay them under Section 40A(5) is quashed and set aside.
(ee) Civil Appeal No. 50 /04 – Mathias Syereye vs Tazara Construction Unit HC at Dar (Massati, J).
Thew law on entitilement to repatriationm expenses, is, I think succinitly set out in S. 53(2) (3) and (4) of the Employment Ordinance and interpreted in the case of Amos Kashuku vs the Manager, Tanganyika Dyeing and Weaving Mills Ltd Misc. Civil Appeal No. 6 of 1988 and also by the Court of Appeal in Nicholaus Hamis and 1013 Others vs Tanzania Shoes Co. ltd and Tanzania Leather Associated Industries Co. Civil Appeal No. 62 of 2000 (unreported). And according to the Court of Appeal:
“Subsistance allowance is payable upon repatriation following termination of employment to the former employee’e place of engagement or domicile”.
But the Court went on :
“There should have been credible evidence that the appellants were taken on at places other than Dar es Salaam or that there was a contract obliging the employer to transport the employees to their places of domicile or the first respondent to be responsible for their repatriation and with that, subsistence allowance during the journey in terms of S. 53 of the Employment Ordinance or any other relevant law”.
So it is clear that under the law, subsistence allowance is part of the repatriation expenses and is payable if an employee is entitled to be repatriated in the first place and while waiting to be repatriated. Otherwise the employee will have to show the existence of a contract between him and the employee for the latter to repatriate the employee.
IN the present case it is indisputable and evident that the appellant was engaged in Dar es Salaam. The appellant acknowledges that much but has pleaded that the respondent had been meeting his transport expenses during his annual leave to his place of domicile. He relies on the decision of Tanzania Timber Company Ltd vs Arthur F. Kibona (Civil Appeal No. 50 of 2000). I think, the issue that came before the Court of Appeal in that case was whether the respondent unreasonably refused to be repatriated. Liability for repatriation was not in issue. The situation is different in the present case. Here, the liability to repatriation is, itself in issue. And the question of unreasonable refusal to be repatriated does not come into focus.
So I do not think the TRANSCEN case is of any assistance to the appellant. As to whether the respondent should be estopped by his previous conduct of paying for his travel expenses to his place of domicile during his annual leaves, I can fing no law in support of such argument ; first S. 53 of the Employment Ordinance gorvenes repatriation on termination, and not on leave. Leave is not termination. If the respondent paid transport expenses for his leave, it did not impose a legal obligation to repatriate the appellant on termination. So, in the event , I also find no merit in the appellant’s second ground of appeal.
As to the Court of Appealsaid in NICHOLAUS HAMIS’S case that in law, repatriation expenses are payable either on the employee showing he was engaged in a place other than his duty station or if there was a contract obliging the employer to transport the employee to his place of domicile. I have also shown above that a trial court may decide on unpleaded issue provided the parties have had a chance to argue on it. So I do not agree with Mrs Bade’s submission that the learned trial magistrate cannot be faulted as “it is legally untenable for her to rule on something not pleaded: “There sholds also be a distinction between a matter pleaded and not producing a document to the court for scrutiny and examination for that is a question of evidence.
So the first question that I have to address myself is whether the voluntary agreement was pleaded by the appellant. The appellant referred to the existence of a voluntary agreement in submission as annexture “D” to the plaint. I have looked at annexture “D” to the plaint. This is a letter from the Labour Office to the respondent. Paragraph (e) of that letter reads:-
“Napenda kukujulisha kwamba ofisi hii imetoa uamuzi baada ya kusikiliza maelezo ya pande zote mbili mwajiri na mwajiriwa na kupitia mkataba wa wenu hiari (Voluntary Agreement)”.
The Voluntary Agreement is therefore only alluded in the sadi letter. Annexture “D” is therefore not a Voluntary Agreement referred to by the appellant.
(ff) Civil Appeal No. 172/02 – V.F.S. Luwumba vs D.T. Dobies & Co. (T) Ltd HC at Dar (Oriyo, J),
- I have studied the proceedings and the judgment of the trial court; I have read the arguments advance by counsel on appeal. According to the trial Court’s record, it was the appellant who advanced the argument that he was terminated without notice, which was a breach of the law and the said termination amounted to a summary dismissal. He cited the provisions of Section 51 (1) and 52 (1) of the Employment Ordinace, Cap 366 and S 21 of the Security of Employement Act, among others, in support. Reacting to this argument of the appellant, the respondent argued that if that was a case of summary dismissal, then the trial court lacked jurisdiction to entertain the suit pursuant to the provisions of Section 28 (1) of the Security of Employment Act, among others, in support. Reacting to this argument of the appellant, the respondent argued that if that was case of summary dismissal, then the trial court lacked jurisdiction to entertain the suit pursuant to the provisions section 28 (1) of the Security of Employement Act and prayed for the dismissal of the suit. But the respondent did not end its arguments there. It proceeded to submit on other grounds why the suit ought to have failed.
(gg) Civil Appeal No. 53/01 – Joseph M. Mutashobya vs M/S Kibo Match Group Limited CAT at Dar ( Nsekela J.A)
- The appellant, Joseph M. Mutashobya, who had been employed as a sales/Marketing Manager by the respondent, Kibo Match Group Limited, instituted a suit in the High Court claiming a declaration that the termination of his employment was wrongful and void and also claimed certain “entitlements” amounting to Shs. 38,703,862/=. The facts are straightforward. The appellant was employed by te respondent for a period of three years with effect from 6/8/1995 subject to renewal after mutual agreement. It is not in dispute that the respondent terminated the agreement before the expiry of the prescribed period. The High Court (Mushi,J) dismissed the suit with costs, hence the appeal to this Court . At the hearing of the appeal, Mr. Kimomogoro, learned advocate, represented the appellant and Mr. Chadha, learned advocate, represented the respondent. The appellant advanced three grounds of appeal, namely-
1. That the Honourable trial judge erred in holding that the “agreement and been dulfiled” when the same was terminated unilaterally ad prematurely by the respondent.
2. That the Honourable trial judge erred in holding that to read in the agreement a requirement of giving reasons before termination of the employees services would “certainly alter the terms of the agreement” signed by the appellant and the respondent.
3. That the Honourable trial judge erred in failing to invoke Tanzania laws in his interpretion of the agreement.
- Mr Kimomogoro consolidated grounds one and two in arguing the appeal. The basic complaint by the appellant is that the agreement that governed their relationship provided for a fixed term of three years. The respondent however, unilaterally terminated the agreement without assigning any reasons whatsoever for the course of action he had taken. This was unlawful. The appeallant has been denied of his livelihood, he added and this was in breach of clauses 12 and 13 of the agreement. In the words of the learned advocate, the appellant had a legitimate expectation that he would be employed for three years”, and cited the cases of Mohamed Jawaf Mrouch vs Minister for Home affairs [1996] TLR 142; Tanzania Air Services vs. Minister for Labour; Attorney General [1996] TLR 217; Twikasyege Mwaigombe vs Mbeya Regional Trading Company Ltd. [1988] TLR 237. The second ground of appeal revolved around clause 20 which reads:-
“ This agreement shall be governed by and construed in accordance with the laws of Tanzania”
- The learned advocate submitted that the right to work is a constritutional right and cannot be taken away without being heard. To bolster his argument, he cited Articles 13 (6) (a) and 22 (1) of the Constitution of the United Republic. On his part Mr. Chadha, learned advocate for the respondent, submitted that the agreement that the parties had entered into provided under clause (b) for early termination of the appellant’s employment with the respondent. He added that in the said agreement , there is no provision for giving of reasons in order to terminate the agreement.
- Having heard the rival contentions of the learned advocates, we are of the settled view that the answer to Mr. Kimomogoro’s spirited submissions lie in a proper construction of clauses 13 and 14 which provide as follows:-
“ 13 Termination of contract KMGL may terminate the contract prior to the end
of the period by:-
(a) Summary dismissal for breach of contract or if the employee is guilty of serious misconduct.
(b) By giving at least three months notice in writing or payment of three months salary in lieu. (emphasis supplied)
(c) As in clause 12 (h) above.
14. The employee may terminate the contract prioer to the end of the contract
by giving three months (sic) in writing”.
- We have omitted cause 12 (h) because it is not relevant for our purposes. Clauses 13 and 14 above are in very plain language and we are enjoined to give effect to those plain words. Clause 13 gives to the respondent and escape route to disentangle form the contractural obligations under the agreement. In similar vein, the appellant could do the same by invoking clause 14 if he so desired. We do not read anything in clause 13 (b) which dictates that the respondent must give reasons for invoking it in order to pre – maturely terminate the employment of the appellant with the respondent. The opening words of clause 13 clearly anticipated the possibility of the respondent terminating the agreement before the expiry of three years. It was not a hidden agenda. It would appear to us that the anchor of Mr. Kimomogoro’s submissions is that the respondent did not give any reasons for invoking clause 13(b). He referred us to a couple of cases which are irrelevant including Tanzania Air Services Limited vs. Minister for Labour (supra). In this case, the applicant was seeking for an order of certiorari to quash a decision of a Minister because of his failure to give reasons. His Lordship, Samatta, J.K (as he then was) made the following important observations at page 222 D.F . He stated thus –
“ It seems to me that the interests of justice call for the existence, in common law, of a general rule making it mandatory in matters of importance for public authorities , a term I use to include statutory and domestic bodies, to give reasons for therir decisions. But what are matters of importance? It is neither desirable nor possible to define that term, but certainly it should be taken to include all matters in which liberty livelihood or reputation of the individual is concerned or in which proprietary or pecuniary rights or interests are at stake. In any other situation the decision maker should be bound to give reasons only if he is requested by a party to do so” (emphasis supplied).
And at page 224, His Lordship continued-
“ in my considered opinion, a duty to give reasons and a righ to them should be recognized by our law and treated as being of decisive importance in administrative justice” (emphasis supplied).
- It will be noted that His Lordiship’s observations were not meant to be of general application. They were limited to public authorities which included statutory and domestic bodies. This is in the field of administrative law. The issue here is the construction of an agreement made between the appellant and the respondent (not being a public authority) . Such concepts as the duty to give reasons for decisions made by public authorities are not applicable to contractual relationships in the field of private law unless of course they are embodied in the agreemt itself. As regards the second ground of appeal, Mr. Kimomogoro sought to invoke Articles 13(6) (a) and 22 (1) of the Constitution of the United Republic of Tanzania. The learned advocate complained that the appellant was denied the right to work. Our brief response to this is that the violation of these provisions of the Constitution was not one of the two issues framed by the trial court on the 20.3.1998. Understandably, the trial court did not discuss the alleged violation of the Constitution and make a decision upon it. The issue is not properly before us.
- In the result, we are of the settled view that the respondent validly exercised his rights to terminate the appellant’s employment under clause 13 (b) of the agreement by payment of three months’ salary in lieu of notice. There was no breach of the contract of employment and the appellant is entitled to any damages.
-
(hh) Civil Revision No. 11/02 - Director, Hill Garden Bar vs Mariam Magazi HC at Dar (Mandia, J).
- The report of the Labour Officer filed with the trial court mentioned the fact of termination of services but the claim included a claim of one moth’s salary in lieu of notice. This means the present respondent was summarily dismissed. Case law has consistently held that termination without notice is summary dismissal. Where summary the courts is ousted. An issue of jurisdiction can be decided by a trial court even if not pleaded. In the present case the court was alerted on the point of jurisdiction through the preliminary objection on a point of law but did not make a decision on the point. The ex – parte judgment entered by the trial court is vacated. The record of trial should be remitted to the trial court where the parties will be heard on the question of jurisdiction. The case can only proceed further if this point is answered in the positive.
(ii) Civil Appeal No. 33/2000 – Tambueni Abdallah & 89 Others vs National Social Security Fund CAT at Dar ( Ramadhani J.A).
- At the High Court the appellants, Tambueni Abdallah and 89 others, sued the respondent, the National Social Security Fund, the successor of the National Provident Fund claiming that they were wrongfully declared redundant. The respondents came up with a preliminary objection containing tow grounds but the learned judge decided only one ground and upheld the objection. BUBESHI, J agreed with the respondent that the High Court has no original jurisdiction determine labour disputes and that such jurisdiction is with the Industrial Court under the Industiral Court Act, 1967. We better review all the submissions before the High Copurt so as to gain a good appreciation of the issue. The respondent said that the issuein the suit was whether or not the appellants were rightly declared redundant on 12th or 12th of October 1994. It was argued that issue is by virtue of section 3 of the Industrial Court Act, 1967, (hereinafter referred to as the Act) a trade dispute which, according to section 4 of the Act, the appellants had to refer to me Union Branch within 7 days. The Branch had to report the matter to the Commissioner for Trade (section 6) who was to transmit it to the Industrial Court within 21 days. It was submitted that the appellants could not come directly to the High Court.
- The appellants replied that the suit arose from a breach of contract with regard to wrongful termination of employment through redundancy. It was contended for the appellants that section 4(1) of the Act provides that an employee “may” refer a dispute to the Industrial Court and nowhere is it provided that an employee “shall” refer a dispute to the Industrial Court. So, it was argued, the High Court has not been ousted. Two unreported decisions of this Court were cited as outhority for the proposition that original jurisdiction over a trade dispute is either with the Industrial Court or with the High Court. Kihamira Kihunge v. United Africa Co. of Tanzania Ltd, Civil Appeal No. 36 of 1987 and Ahmed Kondo & Eleven Others v. The Attorney General , Civil Appeal No. 24 of 1981. Also cited, for the same proposition, was the High Court decision (MWALUSANYA, J) in Njombe, Ludewa & Makete Co –op Union Ltd vs. Minister of Labour Youth and Culture Development Civil Cause No. 8 of 1994 (Songea).
- For the respondent it was further argued that the word “may” in section 4(1) of the Act does not give discretion of either the Industrial Court or the High Court but a discretion to an employee of either to present the dispute to the Industrial Court or not at all. In any case, it was submitted that the section dealing with jurisdiction is not section 4 but section 4 but section 15. it was further contended that the legislature in its wisdom could not create the Industrial Court which could or could not be used. It was submitted that law courts are not shopping centres.
Two High Court decisions were cited as outhorities for the view that trade disputes go to he High Court in one of two ways; One, to enforce a Board’s or a Minister’s decision, and two, in the case of a breach of contract of service upon a report of a labour office under section 132 of the Employement Ordinance (Cap 366,). The decisions are: Shabani H. Msengesi vs. National Milling Coorporation, Civil Appeal No. 44 of 1994, (LUGAKINGIRA,) J, as he then was) and Mambo Shoo Bar v.R. (1971) HCD 230. it was reiterated that the dispute was not one for the High Court but one for the Labour Commissioner.
- The appellants submitted that there is nothing in the Act or the Security or Employment Act which prohibits the High Court from dealing with labour disputes. They cited Christopher Gasper [1997] TLR 301. They then came up with a novel submission which had never been canvassed in the High Court. The appellants said that they are in a dilemma; as auxiliary workers, they fall under the Security of Employment Act and are prohibited by section 4(1) (a) of the Act to go to the Industrial Court due to the definition of employee under the Security of Employement Act. They pointed out that under section 9 of the Security of Employment Act redundancy is to be dealt with the Employment and Worker’s Committee and that there is no provision for appeal. They submitted that the only avenue of solving their dispute is the High Court.
- The respondent submitted that section 4(1) of the Industrial Court Act read together with section 8 (a) and (b), section 2(a) and section 15(1) of that Act provides that all trade disputes, including redundancy, go to the Industrial Court. They said that Christopher Gasper was wrongly decided and that BUBESHI, J. has corrected herself in the present case. It was submitted that it is not necessary to mention redundancy specifically and that reference to disputes is enough. The respondent concluded by saying that if a statute has given powers to a tribunal, then it is wrong for the High Court to usurp those powers.
- The appellants replied by saying that the sections cited by the respondent deal with disciplinary matters. In this matter, it was submitted, the High Court was required to declare that the appellants were still employees of the respondent because the Voluntary Agreement was violated. The appellants also said that section 15(2) of the Act merely regulates the registration of Agreements and after that disputes go to the High Court and not the Industrial Court. Again they said that section 14 (1) (a) of the Security of Employment Act prevents those who do not fall under the definition of employee from going to the Industrial Court. They reiterated that in Kihamira the issue was redundancy.
- - We think the best place to start is with the last submission of the appellants that the High Court was asked to declare that they were still in the employment of the respondent because of the violation of the Voluntary Agreement. It is obvious to us that the High Court had first to determine the validity of so – called Voluntary Agreement. This is expecially so in this case because the validity of the Voluntary Agreement is disputed. If the High Court had come up with a positive finding, then the second issue was whether or not the redundancy was according to the Agreeement. Only after that determination could the High Court determine the status of the employment of the appellants. From what we have just said above, it is obvious to us that the High Court could not have avoided to decide the preliminary objection does it have original jurisdiction over such matters? We cannot fault BUBESHI, J. and we dismiss the last contention of the appellants.
- We have now to determine whether BUBESHI, J wes right in upholding the preliminary objection. But before that we have to deal with the appellant’s submission that there are two decisions of this Court to the effect that the that the High Court has concurrent jurisdiction with the Industrial Court over labour disputes. We have traveled through the judgments of this Court in Ahmed Kondo and Kihamira and there is no indication that the issue of original jurisdiction of the High Court over trade disputes was raised. So, this Court did not discuss that matter. Admittedly, this Court determined the two appeals from the High Court exercising original jurisdiction over trade disputes. However, it did not decide whether or not the High Court had such jurisdiction for the simple reason that matter was not canvassed before it. So, we do not consider the two decisions as authorit for the submission that the High Court has such original jurisdiction. This Court is now going to determine that.
- Then decision of MWALUSANYA, J. was cited as authority for the same proposition of origina jurisdiction of the High Court in trade dispute. We have gone ghrough his Ruling in Njombe, Ludewa and Makete and this is we read.
- I have checked the relevant law and have found that under section 6(10(g) of the Security of Employment Act, matters of redundancy have to be dealt with only by the employer and Workers’ Committee at his place of work. There is no provision for an appeal either to theLabour Conciliator Board or the Minister of Labour. In short, on matter of redundancy te decision of the employer and his Workers’ Committee is final. They cannot appeal to the Industrial Court because employees governed by the Security of Employement Act, are prohibited from using the services of the Industrial Court as per S. 4(1A) of the Industrial Court Act No. 41/1967 as amended by Act No. 3/1990. The only remedy available to the employees who have been unlawfully declared redundant by the employer and his Workers’ Committee is to file suit in an ordinary court.
- What does section 6(1)(g) of the Security of Employment Act provide?
(1) The functions of a Committee (Workers’ Committee) in, and in relation to, the business for which it is established are
(g) to consult with the employer concerning any impending redundancies and the application of any joint agreement on redundancies,
- That paragraph does not in any way provide for decision making in respect of redundancy. All that it says is that the Committee makes any decision in concent with the employer concerning redundancies. It also not prohibit recourse to the Industrial Court. So, with all due respect to the learned judge that decision is wrong and cannot be taken as aouthority for the proposition that the High Court has original jurisdiction to hear trade disputes on redundancy.
- It is our considered opinion a declaration of redundancy, and especially when it is contested by employees, is a trade dispute. We agree with the respondent that a trade dispute is defined in section 3 of the Act as:
Any dispute between an employer and employees or an eimploye in the employment of that employer connected with the employment or no- employment or the terms of the employment , or with the conditions of labour of any of those employees or such an employee, (emphasisi is ours)
The word “non – employment” in our view, includes redundancy. So, this matter and to be dealt with under section 4 of the Act, as the respondent properly pointed out.
- Under section 4 of the Act a member of a trade unioun is required to report a trade dispute to the union branch at the place of work within 7 days of the occurrence of the dispute. The union branch has to report the matter to the Labour Officer within 14 dys. Where there is no union branch then the report is sent to the District Secretary of the registered trade union within 14 days. The Labour Officer or the District Secretary shall within 21 days of receiving the report try to conciliate the parties and effect a settlement. Any such settlement, known as negotiated agreement, shall be recorded in writing and endorsed by the Labour Commissioner who shall submit it to the Industrial Court for registration under section 24 within will make the negotiated agreement operative. The Labour Commissioner, on the other hand, can inpuire into a trade dispute, whether or not it has been referred to him under section 8 and shall refer the matter to the Industrial Court.
- It is clear to us that trade disputes has to follow that prescribed procedure and there is no room for going to the High Court straight. The High Court has no original jurisdiction to entertain trade disputes. Such matters are dealt with in accordance with the Act.
- We wish to express our views on two matters. One, we agree with the respondent that Christopher Gasper was wrongly decided by BUBESHI, J. who has corrected herself when deciding this dispute. Two, we agree with the respondent that the word “may” in section 4(1) of the Act does not give discretion as to which court to go to but that an employee has a discretion of whether or not to litigate. In fact there is not a semblance of ambiguity in the way the subsection has been formulated by Act No. 2 of 1993.
- Any trade dispute, whether existing or apprehended, may be reported by or on behalf of employers or employees.
- We, therefore, dismiss the appeal with costs.
(jj) MGOGORO WA UCHUNGUZI NA. 143 WA MWAKA 2002 – A. MWANGIA & (73) OTHERS VS T.R.C. HC at Dar (Mwipopo, J).
- Msomi Bw. Safari wakili, amehitimisha kuwa hili ni shauri la uwakilishi (representative suit) ambalo lilipaswa lifuate 0.1. R.8 ya CPC na. kifungu cha 134 (3) cha sheria ya Ajira Cap. 366 Employment Act. Pia amenukuu kesi ya K.J. Motors & Others Vs Richard Kishamba Others - Civil Appeal No. 74/1999 akinukuu Mhe. Mwanaaki Kisanga JR katika sehemu ya hukumu yake isemayo,narudia kunukuu.
“ We are therefore firmly of the view that compliance with order 1 Rule 8(1) (a) is necessary requirement even in employment suits….”
Mahakama hii imetoa maamuzi mengi kwamba Sheria ya Mada CPC haiibani mahakama hii kuifuata chini ya kifungu cha 29 cha Sheria ya Mahakama ya Kazi ya Mwaka 1967 kama ilivyorekebishwa. Hata hivyo mahakama hii ni Mahakama ya Kazi ya Tanzania (There is hereby established an Industrial Court to be known as the Industrial Court of Tanzania (Kifungu cha 15 cha Sheria hiyo ya Mahakama ya Kazi) inayopaswa kufuata tafsiri na maamuzi yanayogusa au yanayohusu migogoro ya kiajira. Ndiyo maana Mahakama hii imekuwa ikitekeleza masuala ya migogoro ya kuiwakilishi kulingana na dhana CPC 01.R.8. (1) na hukumu ya Mahakama ya Rufaa kama ilivyonukuliwa Mhe. Mwanahaki Kisanga JR akitafsiri kufungu hicho kiwe kinafaa kufuatwa kwenye mashauri ya kiajira, lakini kw akutumia utaratimbu wa Mahakama hii yenyewe ambao ni huu kama wafanyakazi wnawakilishwa na Chama cha Wafanyakazi kama ilivyo hapa awali kwenye shauri la TD Na. 41/1993 ilikuwa OTTU – basi hakuna haja ya kupata kibali cha mahakama ili mradi OTTU/TUICO na chama cha wafanyakazsi kiorodheshe wafanyakazi kisianzishe au kisiendeshe mgogoro bila ridhaa ya Wanachama wake na pea mahakama ijue ni akina nani hao ya mwajiri pia ajue ili aweze kujitetea ipasavyo na ushahidi ukitokea basi wote wa kufaidi mafao ya Tuzo wajulikane ni akina nani. Lakini, kama siyo Chamacha Wafanyakazi kinachowakilisha wlalmikaji basi yeyote au kundi lao mmojawapo baina ya anaweza/wanaweza kuteuliwa na walalamikaji wenzao wawakilishwe kwa maandishi na hati hizo ziletwe mahakamani au kwa Kamishna wa Kazi zenye majina na sahihi ya walalamikaji au wawakilishi wao. Hilo likitekelezwa basi hakuna haja ya kibali maalum kuombewa kirasmi (forma application) wala kutolew rasmi kwa njia ya uamuzi au amri halisi ya mahakama hii labda kama hilo litajitokeza wao wenyewe walalamikaji au baina yao na wlalamikiwa ndipo mahakama hutoa amri/maelekezo juu ya uwakilishi ili mradi pia maelekezo hayo yalingane na CPC 01 r 8 (1) (a) bali na kifungu cha 22 (a)(i) - (iv) cha Sheria ya Mahakama ya Kazi kisemacho kwamba Mahakama ya Kazi, nanukuu:-
“22 ……………………
(a) Shall hear receive and consider any submission arguments or evidence made, presented or tendered –
(i) by or an behalf of the employees concerned
(ii) by or on behalf of the trade union of which such employees may be members.
(iii) by or on behalf of the employer concernd; and
(iv) by or on behalf anybody of persons which, in the opinion of the Court, represents the interest of the employer in Tanzania and of which when the employer an concerned is a member ……”
Kwa kuzingatia taratibu hizi za mahakama hii juu ya masuala ya mashauri au migogoro ya uwakilishi (Representative Trade Enquiry) ni wazi kuwa walalamikaji hawajatimiza
lolote kati ya masharti yanayotaka wawakilishwe na Chama cha Wafanyakazi hapa TRAWO haipo. Ingawaje PW 1 Ernest Damiani kwenye ushahidi wa maandishi aya ya 13 kasema kuwa kikao cha Tawi la Wafanyakazi, bila shaka cha TRAWU hakikuwepo kabla yao kupunguza kazi tarehe 31/12/2002. Hakuna pia maandishi yoyote ya walalamikaji 74 yakisema wanamteua Abdallah Mwangia awawakilishe na yeey akakubali kubeba jukumu hilo zitoe na kwa nini awe peke yake bila msaidizi yeyote wala kaati Fulani ya kuendehs mgogoro huu kwnai wote 74 hawawezi kuendehs mgogoro am huu wote kwa mmoja mmoja au the pamoja bila uwakilishi wa mmoja wao au wachache miongoni mwao. Kotokana na sababu hizi naridhika kuwa uwakilishi wa shauri hili haupo kihalali. Hii inaondoa uhatari wa mlalamikaji yeyote mpendamakesi kujianzia shauri lake mwenyewe kwa niaba ya wengineo kumburuta mwajiri wao mahakani kila kukicha na hata pengine kumbe kafanya kuja mahakamani kuwa ndiyo ajira yake ya kujikimu kmaisha kwa njia ya kuwallia hali wenzake au umma umchangie ili aweze kupata “ haki” ya kiajira anayodai ilipotoshwa isivyostaili na hivyo kudidimiza dhana nyingine ya msingi inayoweka ukomo wa kuendeleza au kuburutana kwa mashauri mahakamani baina ya pande za wadau wale wale.
(kk) Miscellaneous Civil Cause No. 42/04 – Sugar Board of Tanzania vs Minister For Labour and Others HC at Dar (Massati, J).
- The 4th Respondent herein was employed by the then SUGAR DEVELOPMENT CORPORATION as a Planning and Manpower Development Officer between 1/5/83 to 30/6/83 when she was terminated by the Applicant herein; the SUGAR BOARD OF TANZANIA.
- On 13/8/03 to 4rh Respondent MARGARETH HUMPHREY, filed a report to the District Labour Officer Dar es Salaam under S. 4 of the Industrial Court Act, 1967 as amended. She complained of wrongful termination. The Labour Officer summoned the parties to appear before him. The Applicant complained that the Labour Officer could not entertain the dispute because the dispute was reported to him out of time, but the Labour Officer insisted on conducting the conciliation proceedings which took place on 16/9/03 and 17/9/03. The District Labour Officer certified his failure to effect a consiliation between the parties and so decided to refer the matter to the Laour Commissioner by his letter dated 19/9/03 accompanied by the requistite certificates and forms.
- Upon receipt of written representations from the parties the Commissioner of Labour forwarded the dispute to the Industrial Court by a letter date dated 19/3/04 for the said court to hold an inquiry under S. 8 (a) of the Industrial Court Act 1967 as amended by Act No. 2 of 1993. The Industrial Court dully registered it was Inquiry No. 14 of 2004 and on 6/4/2004; the Court issued summonses to the parties; requiring them to file their pleadings. Before doing so, however the Appellant rushed to this court and filed an application for leave to apply for an order of certiorari to quash the decision of the commissioner for Labour forwarding the dispute to the Industrial Court. On 29/4/04 I granted that leave, and the Applicant duly filed its application. With all the necessary affidavits filed by the parties, I ordered that the application be argued in writing. I will now proceed to examine the rival arguments of the parties and make a ruling on the merits of the application.
-
(ll) Civil Appeal No. 14 /04 - Stephano Mgelwa and Others vs The Director Tele Security Co. Ltd HC at Dar (Jundu, J).
- I have looked at the decision of the Ilala District Conciliation Board dated 8/11/2002 a copy of which was annexed to the Report of the Labour Officer to the Magistrate. It shows that it was made under section 24 (1)(a) of the Ex – Security of Employement Act 1964. The said Board, having found that the Respondent had failed to prove the charges leveled against the Appellants, it stated as follows in its decision.
“ HIVYO BARAA LIMEONA KUFUKUZWA KAZI KWA WARUFANI SI HALALI NA LINAAGEZWA WARUDISHWE KAZINI NA KULIPWA HAKI ZAO” (underlining mine)
- Translated in England the decision simply meant that the dismissal of the appellants form their employment was not lawful and that they had to be reinstated in their employment and paid their dues by the respondent. Now, I agree as conceded by both parties that after the said decision by the Conciliation Board, the Respondent if was aggrieved by it, should have made a reference to the Minister for Labour but it did not do so. I further agree as conceded further by parties that the Appellants thereafter rightly instructed or placed the decision of the Conciliation Board in the lower court for enforcement as a decree under section 27 of the security of employment Act, 1964. I hasten to say that the Board decision simply ordered that the Appellants be reinstated in their employment and be paid their dues but did not state or quantity the amount of dues to be paid nor did it state what type of contract of service existed between the parties wshich the Appellants were to be reinstated by the Respondent. However, in my considered view, the Appellants were to be reinstated in their employment or contract of service as it was before being dismissed from the same by the Respondent and be paid their dues as per the terms and conditions of the said contract up to the date of being reinstated.
- Further if the contract of service was only for a specific period, then in my considered view the reinstatement and payment of dues should only be for the remaining period of the specified of service form the date of dismissal from employment. Be as it may, the excuting court as was the cse for the lower court in this appeal has no mandate under section 27 of the security of Employment Act, 1964 to vary, modify, change add or revise a decision if a Conciliation Board but only to enforce it. Now as I have already said the decision of the conciliation Board was that the Appellants be reinstated in their employement and be paid their dues. It did not state or quantity the dues to be paid nor the type of contract of service. But in my considered view this did not prevent parties form giving particulars that my assist the executing court in its task. Such particulars include what type of contract of servide existed between the parties and what dues were being paid under the said contract of service. Now in the lower court the Respondent had revisited the execution and in its affidavit and submission in support of its application, the Respondent informed the executing court, that it is the lower court that the contract of service with the appellants was each for a specified period of three months, and demonstrated the said periods for each of the Applicants.
- I consider this information as relevant to the executing court in its execution task. The Appellants in their counter – Affidavit filed in lower court and in their submission in the said court never refuted the said point that their contracts of service with the Respondent were for a specified period of three months each. Therefore, the lower court accordingly held that the Appellants be reinstated from when they wre summarily dismissed from employment to the date when their contracts of service expired. Indeed, in their submission before this court both parties concende that the relevant contracts of service between, them was that of three months each of the Appellant I hold that this information was only useful to assist the lower court in its taks of executing the decision of the Conciliation Board but in no way did it revise the said decision.
- I further hold that since the relevant contracts of service wre for a specific period, the lower court was justified to order that payment of the Appellants dues should be for the date of the dismissal to the date of expiry of the said contracts. This was also an information seeking to assist the executing court in its execution taks but did not revise the decision of the Conciliation Board.
- As to the Appellants further point taken up in their rejoinder submission that the termination of service did not accompany statutory compensation under section 4 OA (5) of the Security of Employement Act, 1964, I hod that this point was not listed in the Appellants memorandum of Appeal, therefore the same cannot be taken and ensued without first searchin and obtaining leave of this court. Therefore there is need of discussing the decision of the court of Appeal cited by the Appellants to me.
- In the final result this appeal is dismissed in its entirety. The appeal having originated from anemployemnt cause under the Employement Ordinance, Cap. 366, I make no order as to costs.
(mm)
27. LAND DISPUTES
(a) Civil Appeal No. 22/89 – Mohamed Salum vs Humphrey Maleko. CAT at Dar. - Plots are allocated when the survey has been completed and the survey plan has been approved by the Director of Survey and Mapping. - However, in certain circumstances, as shown in this case by the evidence of experts in the field of survey, in order to expedite the allocation of plots to the applicants, TP drawings could be used in allocating plots as it was done in the instant case in regard to Plot No. 1634.In the event that circumstances make it necessary to allocate plots on the basis of TP drawing, we do not think that such a practice would be in contravention of any law. - In our view, it is common ground that in matters of land, the issuance of a letter of Offer is the first important step towards the obtaining of the certificate of Occupancy. - The validity of the Certificate of Occupancy is determined by the date of the Offer and not the date of registration of the Certificate of Occupancy. - As there was no evidence to show that the allocation to the respondent had been withdrawn or revoked, we are in agreement with the learned trial judge that the subsequent allocation and offer to the appellant of the same plot was of no legal effect. - Courts have power to declare null and void an order by the President revoking a right of Occupancy if it is established that the order was improperly made. To our understanding, the import of that decision is that it does not matter whether or not the Certificate of Occupancy involved was registered earlier than the other so long as it is proved that the order was improperly made. - So long as the respondent who was offered the plot prior to the appellant, was still in legal occupation of the plot, any subsequent allocation of the same plot to the appellant irrespective of the Certificate of Occupancy being registered earlier than the respondent was invalid. - In our opinion, for a serious matter such as the revocation of a Certificate of Occupancy, it is a cardinal principle of natural justice that the party involved should be notified and given an opportunity to be heard as to why the revocation should not be carried out. (b) Civil Appeal No. 26/89 – Tito Saturo and others vs Matiya Senya and others. CAT at Arusha Section 63(1) of the MCA, 1984, does not empower the High Court to order that a suit involving unsurveyed land be commenced before itself.
© Civil Appeal No. 39/92 – Dar es Salaam City Council vs C.M. Mundeba. HC at Dar (Mwaikasu,J). In terms of S. 22 (2) of the Land Ordinance, Cap. 113 it is only the District court presided over by a District Magistrate which has power to entertain a suit arising out of matters concerning land registered under the Land Registration Ordinance or matters relating to Rights of Occupancy granted under the Land Ordinance, Cap. 113. (d) Civil Appeal No. 31/95 – NBC vs Walter Czurn. CAT at Dar. The situation then is that, there was no lawful demand by the appellant bank and so, the principal moneys and the interest secured by the mortgage Deed did not become payable and therefore the appellant Bank could not exercise the statutory powers under S.19 of the 1881 Act. It follows then, that the sale of the mortgaged property to the first purchaser was unlawful. Although the law does not prohibit the mortgagee to sale a mortgaged property to a single purchaser and without publication, yet once the first defendant offered for publication of the sale by tender, he was expected by law and in equity to carry out the sale in that mode and honesty. (e) Civil Appeal No.42/95 – Abuallya. Aziz vs Bhatia Brothers. CAT at Dar. When the matter came for hearing it was noted that the appeal raised the issue as to the effect of lack of consent by the Commissioner for Lands to the sale of the registered land. It was further noted that there were conflicting decisions on the issue. Some decisions held that lack of such consent rendered the transaction void and of no legal effect- See, for instance, Nitin Coffee Estate and others vs United Engineering Works Ltd and Another[1988] TLR 203, while others held the contrary view , See, for instance, George Shambwe vs National Printing Co. Ltd [1995]TLR 262 and the majority opinion in Civil Application No. 58/98 involving the same parties. The matter was therefore referred to the Full Bench of the Court for consideration. After an extensive review of both statutory and case law, the Full Bench in its Ruling in Misc. Civil Appeal No. 1 of 1999 involving the parties in this appeal held in effect that lack of consent by the Commissioner for lands to a sale of registered land in terms of Regulation 3 of the Land Regulations 1948 and 1960 does not render the contract or transaction void. Nor does it render the sale unenforceable unless it is shown that the Commissioner’s consent was sought and refused. In the absence of any evidence that the Commissioner’s consent was sought but was refused, the Court said:- “…….a party who has performed his or her part of the bargain may be assisted by the court to enforce the contract against the defaulting party. So a party who fails to submit a written contract for consent or refusal by the specified authority may be compelled to do so if the other party has performed his or her part of the bargain. Of course where such consent is sought and is refused, the contract becomes wholly unenforceable, though valid, and any expenses incurred by the parties may be recovered by legal action, if necessary.” Nikitin’s case has now been overruled by the Full Bench in Misc. Civil Appeal No. 1/1999 on the ground that it was decided per incuriam. So that the law as it now stands is that a party who has performed his part of the bargain may be assisted by the court to enforce the contract against the defaulting party unless it is shown that the consent of the Commissioner for Lands was sought and refused. The contract is enforceable as between the parties unless it is shown that the consent of the Commissioner for Lands was sought and refused.
(f) Civil Appeal No. 19/96 – Mwalimu Omar vs Omar A. Billali. CAT at Dar. The issue was whether holders of land under customary law in planned areas have an inferior title to those who are subsequently allocated. On our part, we think this is the time to revisit and consider the decision in the old colonial case of Mtoro bin Mwamba vs AG [1953-57]2 Tanganyika Law Reports 327, and Methuselah Paul Nyagwaswa vs Christopher M. Nyirabu[1985] TLR 103, the two cases which were so widely canvassed both at the trial and in the High Court. The decisions in these two cases are not entirely free from difficulties. In the Land Ordinance, Cap. 113, A right of Occupancy is defined as a title to the use and occupation of land and includes the title of natives or of a native community lawfully using or occupying land in accordance with native law and custom. Under this definition one right of Occupancy is created by a direct grant of a public land by the President in terms of Section 6 of the Land Ordinance, the other one is that of a person or persons holding land in accordance with customary law. Mtoro bin Mwamba and Nyagwaswa cases on the status of holders of land under customary law, equated them with squatters and that the effect of the decision of in Nyagwaswa case was to render holders of land under customary law squatters once the area in which their land is, is declared a planning area and that thereby they loose all rights except the right of compensation for unexhausted improvements. In the cause of this judgment we intend to look closely at the decisions in these two cases and hopefully reduce some of the confusions. What this amounts to is that a holder of a right of Occupancy under customary law cannot under any circumstances be reduced to a squatter. What is a squarter? By the ordinary dictionary meaning, Squarter is a “person who settles on new, especially public land without title, a person who takes unauthorized possession of unoccupied premises”. Since the title of a holder of the right of Occupancy under customary law is recognized by the law of the land, i.e the Land Ordinance, such a holder does not fit in the above definition of a squarter. The right of a holder of a right of Occupancy under customary law, cannot be extinguished and turn such a holder into a “squarter” upon the area being declared a planning area. The appellants in this appeal having held customary title on the disputed plot prior to its grant to the respondent, were protected by S. 33(1) (b) of the Land Ordinance and that therefore their title could not be extinguished by the subsequent grant of the right of Occupancy on the same plot to the respondent. But before we can say so, it has to be established that the appellants in this case like Nyagwaswa, held rights of Occupancy under customary law over the land in dispute prior to its grant to the respondent under S.6 of the Land Ordinance. The Plot in dispute is situate in the Magomeni suburb of the City of Dar es Salaam. The appellants occupied this plot within the City of Dar es Salaam without authorization from the authorities , namely, the City Council or the land office. This was prior to the area being surveyed and demarcated. Customary law on land and tenure does not apply in urban areas, let alone in the heart of the City of Dar es Salaam. The appellants were therefore by definition squatters. The position then is that the present case is radically different from Nyagwaswa because in the present case the appellants occupied the land in dispute as squatters and therefore unprotected, while Nyagwaswa held the land in dispute under a right of occupancy in customary law and therefore enjoyed the protection under S. 31(1) (b) of the Land Ordinance. We wish to say with respect that no one can hold land under customary law in a planned area. But we want to say now that customary law cannot apply on urban areas for the very good reason that a deemed right of Occupancy is not compulsorily registrable whereas in urban areas all titles to land must be registered. This is necessary for smooth urban planning. Deemed right of Occupancy is equal to the Granted right of Occupancy under the Land Ordinance hence non takes precedence over the other. Therefore all that the holders of deemed rights of Occupancy need to do is to convert these into granted rights of Occupancy by having their holdings surveyed and title deeds issued to them. Learned judge was correct in holding that the title to urban land is only dependent on granted rights of Occupancy because customary law does not operate in urban areas. (g) Civil Appeal No. 28/96 – Tanzania Transcontinental Trading Co. Ltd vs Design Partnership. CAT at Dar. In considering whether or not there was a contract between parties courts have to look not only at the terms of correspondence between the parties but also the surrounding circumstances. The relationship of the parties is one of such surrounding circumstances. Price is “a fundamental matter” in an agreement of sale and that if there is no agreed price then the agreement is void for uncertainty in terms of S. 29 0f the Law of Contract Ordinance. Co- ownership of real property involves four factors referred to as the four units. These are:- Unity of possession; unity of interest; unity of title and unity of time. In tenancy in common tenants have separate interests; everyone has specific shares but remain undivided. Thus, the most crucial factor in tenancy in common is unity of possession If that is absent then there is separate ownership. (h) Misc. Civilo Appeal No. 1/99- Abually Alibhai Azizi vs Bhatta Brothers Ltd. CAT (Full Bench-Five Judges) at Dar. Quoting B.H.R. Roole vs R [1960] EA 62, “A full Court of Appeal has no greater powers than a division of the Court, but if it is to be contended that there are grounds, upon which the Court could act, for departing from the previous decision of the Court, it is obviously desirable that the matter should, if practicable, be considered by a bench of five judges.” There is a principle of law, however, that where a court has interpreted the law in a certain manner particularly on interpretations which affect property rights, and that interpretation has been acted upon for a considerable time, then that interpretation should not be departed from unless it is clearly wrong and gives rise to injustice. Guided by the principles and the provisions of sub-section (2) of section 2 of the Law of Contract Ordinance, we are satisfied that the expression, “shall not be operative” as used under regulation 3 of the Land Regulation 1948 and 1960, does not mean “void” or another meaning to the same effect. We note that the decisions of cases made before the enactment of the Law of Contract Ordinance and which held to the effect that non-compliance with the statutory requirement of consent or writing rendered a contract void, were correct according to the law applicable then, but ceased to be precedents on the matter after 1960. As to the decisions which were to the same effect as if the provisions of sub-section (2) above mentioned did not exist, there is no doubt in our minds that such decisions were made per incuriam. We have asked ourselves if the expression “shall not be operative” does not entail invalidity, what does it mean. Logically, it means at least that the contract in question is valid. The corollary of what we have stated is that a contract for the disposition of land, which otherwise is proper but for the lack of required consent, is inoperative, that is, unenforceable to the extent that such enforcement is prejudicial to the interests of the paramount landlord. However, where such enforcement is not thus prejudicial, a party who has performed his or her part of the bargain may be assisted by the court to enforce the contract against the defaulting party. So a party who defaults to submit a written contract for consent or refusal by the specified authority may be compelled to do so if the other party has performed his or her part of the bargain. Of course where such consent is sought and is refused, the contract becomes wholly unenforceable, though valid, and any expenses incurred by the parties may be recovered by legal action, if necessary. NITIN’s case is bad in law since it undermines the sanctity of contract, and GEORGE SHAMBWE’s case is only partly sound because it does not safeguard the interests of the paramount landlord. (i) Civil Revision No. 127/01 – M. Marealle vs Ibrahim Kajembo. HC at Dar (Kimaro,J). It is until such institutions which are conferred with exclusive jurisdiction on land matters become operative, that the District and Courts of Resident’s Magistrate will cease having jurisdiction on land matters. For the time being, they do have jurisdiction to entertain those cases. (j) Land Case No. 96/04 – Beno Chelele t/a General Integrated Firms vs NHC and others. HC (Land Division), (Kileo,J). -The issue is whether the plaintiff is a lawful tenant of the suit premises. I think for some one to be a lawful tenant he/she must have entered into a tenancy agreement with the landlord or must have been allocated the premises by an order of the court. -Even the court may allocate only those premises, which are left unoccupied without good cause -I do not think that the two defendants, as long as they were not landlords of the suit premises should be entitled to this prayer. The expression “mesne profits” is only another term of damages for trespass arising from the particular relationship of landlord and tenant.
(k) Kibwana Mohamed vs R [1980] TLR 321 HC at Dar (Mnzavas,J). -Quoting Said Juma vs R[1968]HCD 158, “ When, in a case of criminal trespass, a dispute arises as to the ownership of the land, the court should not proceed with the criminal charge and should advice the complainant to bring a civil action to determine the question of ownership.
(l) Land Case No. 46/04-Shaffique A.S. Dhiyebi vs Presidential Parastatal Sector Reform Commission. HC (Land Division) at Dar (Kileo, J). -The plaintiff submitted a bid for the purchase of the house in dispute on 23 August 2002 upon seeing the advitersements. He managed to pay the purchase price to wit, Tshs 149 million only to the defendant, PSRC.He complied with all the conditions of the offer save tthat he did not produce evidence of his Tanzanian nationality. -Subsesquently whe it transpired to PSRC that the plaintiff was not a Tanzanian national they, by their letter dated 16March, 2004 (Exh.D2), terminated the offer they had made to the plaintiff and wrote a cheque for Tshs. 149 million only in his favour as a refund of monies that had been paid by him. -The plaintiff then sued the defendant for the following reliefs:- (a) An order for specific performance (i) preparing and signing the sale agreement with the plaintiff (ii) Initiating the transfer process in accordance with the provisions of the Land Act, 1999. (b) Refund of USD 108,000 rental loss due to delays in commencement of the housing project (c ) Refund of USD 5000 which is the traveling costs incurred by the plaintiff for the purposes of following up the transfer formalilties. Dr. Tenga who advocated for the plaintiff is his srgument among others, cited the case of Blackpool and Flyde Acro Club Ltd vs Blackpool Borough Council (1990) All E.R p. 25 which in reviewing the old reasoning Bingam LJ stated aas follows:- “ A tendering procedure of this kind is, in many respects, heavily weighted in favour of the inviter. He can invite tenders from as many or as few parties as he chooses. He need not tell any of them who else, or how many others, he has invited. The invitee may often, although not here, be put to a considerable labour and expense in preparing a tender, ordinarily without recompense if he is unsuccessful. The invitation to tender may itself, in a complex case, although again not here, involve time and expense to prepare, but the inviter does not commit himself to proceed with the project, whatever it is, he need not accept the highest bidder, he need not accept the any tender; he need not give reasons to justify his acceptance or rejection of any tender received”. - Dr. Tenga opined that the reasoning in M.J.B. enterprises case, which also discussed the Blackpool case, should be adoptedin trerms of section 180 of the Land Act, 1999. The said section provides:- “Subject to the provisions of the Constitution and this Act, the law to be applied by the courts in implementing, intrerpreting and applying this Act and determinig disputes about land arising under this Act or any other written law shall be:- …………………………………. The substance of the common law and the doctrines of equity as applied from time to time in any other countries of the Commonwealth which appear to the court to be relevant to the circumstances of Tanzania”. -Much as this provision is attractive, however the case before us is more than just the “intention of tha parties, invitation to tender, contractual obligations and submissions of a bid”. It is also about enfrceabilty of a contract. May be I coulb be persuaded under different circumstances to adopt the reasoning in M.J.B Enterprises case but in so as this case is concerned I do not find it to be too relevant. - I have considered the above arguments and I must say that I hardly find them convincing. In the first place, if the law provided that a foreigner could not own land in Tanzania save for investment purposes, then automatically even without mentioning it as a specific condition it was upon anyone bidding for the property advertised for sale to ensure himself or herself that he/she was quqlified to purchase the property in the first place. -Section 20 of the Land Act provides as follows: “20(1) For avoidance of doubt, a non-citizen shall not be allocated or granted land unless it is for investment purposes under the Tanzania Investment Act, 1971. (2) Land to be designated for investment purposes under the subsection (1) of this section shall be identified, gazetted and allocated to the Tanzania Investment Centre which shall create derivative rights to investors”. (m) PC Civil Appeal No. 155 /04 – Petrol Haule Vs. Flora M’Mbungu HC at Dar
(Chande, J)
-This is an appeal from a decision of the District Court of Temeke exercising revisional jurisdiction under section 22 of the Magistrates’ Court Act, 1984. The origin of this appeal is a land dispute was a “shamba” between the appellant, Petro Haule, and the Respondent, For a M’Mbungu. The respondent had instituted a suit at the Kigamboni Primary Court, Temeke District, the proceedings of which commenced on 24/02/2004. During the course of the defence case, the appellant on 29/06/2004 requested the District Court to invoke its revisional jurisdiction and to declare those proceedings a nullity as the Primary Court had no jurisdiction to determine issues pertaining to land, under the Land Act, No. 4 of 1999. it is clear that proceedings at the Kigamboni Primary Court commenced after the effective date of operation of the Land Disputes Courts Act, 2002. So ousted a court cannot invoke a jurisdiction expressly ousted by statute to adjudicate upon matters for which it has no jurisdiction. It had no authority to proceed with that hearings on 24/02/2004 after the effective date of operation of the Land Disputes Courts Act, 2002, which is 1/10/2003.
- The Respondent faults the appeallant for not raising the issue of jurisdiction at the preliminary stages of the proceedings. While the principle remains that a question of jurisdiction ought to be raised at the earliest opportunity, raising it by seeking the District Court’s revisional jurisdiction, during the defence case at the first instance court, as was the case now, is within an acceptable time frame.
- Accordingly, I up hold the appellant’s second ground of appel. I quash and set aside the ruling and order of the District Court. I also quash the proceedings of the Kigamboni Primary Court and declare them null and void. As the Land Act, 1999 and Land Disputes Court Act, 2002 provide for the appropriate and exclusive jurisdictional forums, the parties are at liberty to file a suit in a court of competent jurisdiction provided there of. In the circumstances of this case, there will be no order as to cost. Appeal allowed.
(n) Civil Appeal No. 30/03 – Fatuma Bondei vs Juma Tegulo. HC at Dar (Manento JK)
- Given the evidence in record, I am satisfied that the respondent bought the said piece of land from the late Luciana Mohamed and he developed it. He was a bonafide purchaser for value and there was no case against the said Luciana which ruled that the land Luciana sold was not her property. Iam of the opinion that the respondent had proved on a balance of probability that the suit plot belongs to him after he had lawfully purchased it from Luciana Mohamed. For that matter therefore, the appeal is dismissed and I don’t see any good reason why I should make an order for costs. Thus, costs will lie where they fall.
(o) Civil Appeal No. 86/04 - Lawrence Cheyo, Nundwile Cheyo vs Simon Peter Mroso CAT at Dar (Manento, Jk.)
- I do agree with what Mr. Shayo, learned advocate is submitting. The evidence before the court showed that the said plot and been issued to the respondent Simon Peter Mroso way back on 10/02/1987. Ten years after, despite of the demarcations he had put, by way of erecting a wire fence, the same was granted to the 2nd appellant on 3/11/1997 even before revoking the first offer, to whoever had been granted the same, it being Sevisi P. Mroso or the respondent. Therefore then at the time the 2nd appellant was granted plot No. 926 Block H. Mbezi Beach medium density. the Ministry for Lands, Urban Development had no such plot No. 926 Block H. Mbezi Beach medium density. That plit had already been granted to either Sevis P. Mroso or Simon Mroso. Thus the land office had nothing to offer to the 2nd appellant known as plot No. 926 Block H (supra). The offer to the 2nd appellant was a nothing and it remained a nothing on the eyes of the law. In the absence of any person appearing in court in the name of Sevisi P. Mroso, then the plot No. 926 Block H. situated at Mbezi Beach medium density was and is the property of the respondent in the total exclusion of any other person, unless otherwise lawfully rvoked. This answers the first ground of appeal.
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(p)
28. LEAVE TO APPEAL TO THE COURT OF APPEAL.(Rule 43,-46)
(a) Civil Case No. 208/93 – Star Transport Co. Ltd vs NBC. HC at Dar (Kaji,J). - At any rate an Appeal to the Court of Appeal against an ex-parte decree/judgment made by this court in the exercise of its original jurisdiction does not require leave by this court as per S. 5(1)(a) of the Appellate Jurisdiction Act, 1979. -And leave to Appeal to the Court of Appeal out of time against a decree made by this court exercising its original jurisdiction can only be granted by the Court of Appeal itself under Rule 8 of the Court of Appeal Rules, 1979. (b) Civil Appeal NO. 44/95 – Tanganyika Motors Ltd vs Transcontinental Forwarders Ltd. CAT at Dar. -Civil Appeals to this Court are governed by S. 5 of the Appellate Jurisdiction Act, 1979. -So the legal position is that any order of the High Court which is not of the nine orders listed in paragraph (b) of sub- section (1) of S.5 of the Appellate Jurisdiction Act,1979, falls under paragraph (c) of the section and is only appellable with leave of the High Court or of this Court. (c )Civil Application No.1/96 – Ludovick Mbona vs NBC. CAT at Tabora. -It is well settled law that a right to appeal can only be founded on a statute and that any party who seeks to avail himself of the right must strictly comply with the condition prescribed by the statute. -In terms of section 44 of the Courts Rules, where the High Court has concurrent jurisdiction with this Court, it is a mandatory requirement under this Rule that the application for leave must first be made to the High Court. (d) Misc. Civil Cause No. 29/96 – Phil M. Kleruu vs NHC. HC at Dar (Nsekela,J). It is common ground that has been held by this Court on a number of occasions, that a failure to extract and lodge with the memorandum of appeal to this Court a copy of the relevant formal order or decree is not a mere procedural defect, but goes to jurisdiction and renders the appeal incompetent….. (e) Civil Appeal No. 11/95 – Richard Rukambura vs Isaack Mwakajila and TRC. CAT at Dar. [Quotes Honderson vs R Cr. Appeal No. 167/94 (unreported) – In this case the Court of Appeal held:- “……Under the Appellate Jurisdiction Act, 1979, a certification of a point of law is required in appeals originating from primary courts. This is provided under sub-section 2(c) of S. 5 of the Act. In such a case the appeal to this Court is a third appeal the first being heard by a district court under the Magistrates Courts Act, 1984. The appeal before us as already mentioned at the beginning of the judgment is a second appeal, the first one being heard by the High Court. In such a case no certification of a point of law is required, though the appeal lies only on a point of law to be raised by the appellant himself. This is the meaning of the provisions of sub-section (7) of the same section. If the appellant raises no point of law, then the appeal would be “dismissed” by the Court as incompetent.” (f) Civil Appeal No. 58/97 – Kanjibhai Patel vs Dahybhai Misty. CAT at Mwanza. What are the consequences of an error in the certificate? The answer is simple in that it renders the Certificate invalid. The very nature of anything termed a certificate requires that it be free from error and should an error crop into it, the certificate is vitiated. It cannot be used for any purpose because it is no better than a forged document. An error in the certificate is not a technicality which can be conveniently glossed over but it goes to the very root of the document. (g) Civil Appeal No. 3/99 – Shaibu Rashid vs Salum Mkumba. CAT at Dar. The appeal is incompetent, it was lodged without certificate of the High Court in terms of S. 5(2) (c) of the Appellate Jurisdiction Act, 1979.
(h) Civil Appeal No. 66/99 – Festo Kabakama vs Joseph Tigusaine. CAT at Dar. -It is common knowledge that under Rule 77(1) of the Court’s Rules, 1979 it is mandatory for the appellant to serve a copy of the notice of appeal within seven days after lodging the notice of appeal on all persons directly affected by the appeal. - Respondent was also not served with a copy of the letters to the Registrar of the High Court applying for a copy of the proceedings – hence the appellant can not take advantaged of sub-rule (1) of Rule 83 in computing the time within which the appeal is to be instituted to exclude the time taken for the preparation and delivery of a copy of the proceedings to the respondent.
(i) Civil Application No. 100/99 – Mohsin Abdallah vs Tariq Mirza and another. CAT at Dar. - The application to the High Court was not refused, it was struck out for not complying with the provisions of Rule 46(3), that is, for not being accompanied by a copy of the High Court Order. - First of all, since the application was struck out rather than dismissed, it ceased to exist. It is as if no application had been made. Any subsequent application cannot then come to this Court, because whenever an application may be made either to this Court or to the High Court, it has to be made to the High Court in the first instance. - Rule 46 does not apply to applications to the High Court but to this Court. Rule 46 is stated clearly in sub- rule (1) to apply to applications to the Court” i.e. the Court of Appeal. -While the High Court is duty bound to supply documents applied for and to supply them without unreasonable delay, it behooves the parties concerned to exercise diligence in the conduct of their cases, otherwise they cannot escape blame. I am satisfied that the respondents in this case have by their inaction virtually abandoned any intention to appeal and should be deemed to have withdrawn the notice of appeal in terms of Rule 84(a). - True, it is mandatory for a copy of the list of authorities to be supplied to the other side. In my view, however, the omission, where it occurs, does not render an application incompetent, but it may be pointed out at the appropriate time in order for it to be remedied, otherwise any complaint would be unjustified.
(j) Civil Application No. 3/00 – Karagwe District Cooperative Union Ltd vs Aaron Kabunga. CAT at Mwanza. -This is an application for extension of time to lodge an appeal while an application for leave is still pending before the High Court. -In view of the absence of leave to appeal, the applicant’s right to appeal has not yet accrued. Leave might not be granted, and until leave is granted there is no way in which to determine the extent of the extension to be granted. I think, therefore, the application is premature. It should in my view, be brought after leave to appeal is granted.
(k) Civil Application No.64/00 – Victor Bushiri and 135 others vs Ami Tanzania Ltd. CAT at Dar. -Rule 47 (2) were not complied. From my reading of the provisions of this rule, it is clear to me that where no time has been specified in the order granting leave to amend as was the case in this matter, the amendment has to be effected within 48hrs from the issuance of the order. -Non – compliance with the provisions of rule 10(4) and (5) is a mere irregularity which does not render the application incompetent, to wit, indicating in the margin on the right side of every tenth line..
(l) Civil Application No. 111/00 – Benedict Mumelo vs BOT. CAT at Dar. -The respondent had not applied for a copy of the decree so that whatever may have been the trial court’s contribution to the respondent’s delay and confusion in filing its appeal, it was under no obligation to provide the respondent with a copy of the decree for appeal purposes if there was no application for it. -In my opinion, the respondent was negligent in not applying for the vital document – the copy of the decree for appeal purposes.
(m) Civil Application No. 2/01 – Isaack Sebegele vs Tanzania Portland Cement. CAT at Dar. -Being a layman, is, with due respect, no ground for exempting tha applicant from due compliance with legal requirement under the rule. -The applicant’s claim that the court officials was the course of the delay is nothing more than a mere assertion. If indeed that is what happened, the applicant ought to file an affidavit sworn by the alleged court officials in support of his assertion.
(n) Civil Appeal No.69/01 – Samos Ltd vs Mirko Tomassia. CAT at Zanzibar. - We are of the settled view that where the parties are represented, counsels must diligently comply with the Court Rules.
(o) Civil Application No. 78/01 – Stanbic Bank (T) Ltd vs Jayant Patel and another. CAT at Dar. -The Registrar however is enjoined to comply with the request in the letter, by supplying to the respondent the record of the proceedings. So far the respondents have done what the law enjoins them to do. Until such time that the record is ready, there is nothing that the respondent’s can do to expedite the appeal. -In the case of Transcontinental Forwarders Ltd vs Tanganyika Motors Ltd [1997] 328, this Court held that:- “That the present respondent, who had applied to the Registry for a copy of the proceedings sought to be appealed against and had not been furnished with any, had complied with the Rules by copying his letter to the relevant parties – there was no legal provision requiring him to keep reminding the Registry to forward the proceedings and once Rule 83 was complied with the intending applicant was home and dry”. (p) Civil Appeal No. 103/02 – Mohamed Dharamsi and others vs Ali Versi. CAT at Zanzibar. -The appeal arose from the ruling of the High Court in exercise of its original jurisdiction to determine a preliminary objection so the appeal falls under section 5 (1) (a) of the Appellate Jurisdiction Act, 1979, hence no leave was required to appeal.
(q) Civil Application No.61/03 – TTCL and Another vs Tri- Telecommunication Tanzania Ltd. CAT at Dar. -Wrong date in the Notice of Appeal is fatal.
( r) MZA Civil Application No. 12/02 – Peter Ng’homango vs. The Attorney General CAT at Dar (Munuo, JA). The application is supported by an affidavit deponed to by the applicant the substance of which is, that the applicant was not served with a copy of a letter to the Registrar of the High Court applying for a copy of the proceedings, judgment and decree appealed from. Not serving the applicant, Mr. Ng’homango argued, renders the intended appeal incompetent for breaching the mandatory provisions of Rules 82 of the Court of Appeal Rules, 1997/which states, inter alia. “82. A person to whom a notice of appeal has been served may at any time, either before or after the institution of the appeal, apply to the court to strike out the notice of the appeal, as the case may be on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time”. It is the contention of the applicant that an essential step of serving him with a copy of the letter was not complied with by the respondent so the notice of appeal should be struck out with costs. The applicant referred to the cases of Stephen Wasira vs. Joseph Warioba (1997) T.L.R% 205 at page 211 – 212, Salim Sunderji and Another vs. Jamal (1993) T.l.R. 224, Grace Ngowi vs. Dr. F. Ngowi T.L.R. 120 and Anna Makinda vs. Dr. Ndembwela Ngunangwa, Civil Application No. 31 of 1997, Court of Appeal of Tanzania (unreported) wherein the Court stressed that failure to take an essential step of serving the respondent would justify striking out the Notice of Appeal. Since the learned State Attorney failed to produce a copy of the letter duly signed by the applicant to prove that he was served, the applicant’s claim that he was not served is probable. All in all, there is no proof of service of the letter to the Registrar on the applicant. For that reason, I allow the application and accordingly strike out the Notice of Appeal and the intended appeal with costs.
(s) Civil Application No. 179/04 - M/s Ilabila Industries Ltd vs Tanzania Investment Bank and Another CAT at Dar (Munuo, JA). On the criteral for granting or withholding leave to appeal, the same is reflected in the Court’s decision in the case of Wambele Mtumwa Chamte vs Asha Juma Civil Application No. 45 of 1999, Court of Appeal of Tanzania (unreported) wherein the Court observed: “ …. Unfortunately, it is not provided what factors are to be taken into account when considering whether or not to grant leave to appeal to this Court. However, it is obvious that leave will only be granted if the intended appeal has some merits whether factual or legal” In the case of Gaudensia Mzungu vs. The I.D.M. Mzumbe Civil Application No. 94 of 1999, Court of Appeal of Tanzania (unreported) the Court held:- “…… Again, leave is not granted because there is an arguable appeal. These is always an arguable appeal. What is crucially important is whether there are prima facie, grounds meriting an appeal to this Court.” On the property in dispute not fetching a lucrative price or market value thereof, I wish to affirm Kimaro, J.’s observations on sale by public auction for she correctly held: “ Sale by public auction may not necessarily fetch the market value of the property. The auction price may be higher or lower than the market value…”
(t) Civil Application No. 1 /03 – Sofia Bhoke Maryogo vs. Richard Kisika Mugendi CAT at Dar ( Munuo, JA). - The intended appeal is not time barred because the copies of proceedings, judgment and decree have not yet been availed to the respondent. Kamiz’s case cited supra is therefore distinguishable from the present application. Because the proceedings and judgement have not been supplied to the respondent, he would not be blamed for employing delaying tactics in filing the intended appeal. In that regard the case of Asmin Rashid vs Boko Omari (1997) TLR 146 in which the Court held than an intending appellant must obtain court records without undue delay would not apply where the intending appellant has applied for, but has not been supplied with the proceedings and judgement. The case of Mohsin T. Abdallah vs Tarif Mirza and Others Civil Application No. 100 of 1999 Court of Appeal of Tanzania [unreported] clearly held that:- “ .. while the High Court is duty bound to supply documents applied for and to supply them without unreasonable delay, it behoves the parties concerned to exercise diligence in the conduct of their cases, otherwise they cannot escape blame”. In this application no negligence has been proved on the part of the respondent in applying for, or obtainging the copies of proceedings and judgement which are still in the typing pipeline. The respondent’s learned advocate, Mr. Mauggo, asserted in his reply, that the respondent has applied for, but has not been supplied with copies of proceedings and judgment which is why he has not been able to file the intended appeal. He rightly referred to the case of Transcontinental Forwarders Ltd. Vs. Tanganyika Motors Ltd. 1997 TLR 328 wherein the Court held: “ … reminding the Registry after applying for a copy of the proceedings etc. and copying the request to the other party may indeed be the practical and realistic thing to do, but it is not a requirement of law. Once Rule 83 is complied with the intending applicant is home and dry”. The issue in this application is whether there is cause to strike out the Notice of Appeal. The reply to the above issue has to be negative. One, the Notice of Appeal was issued within time. Two, the delay of the Registrar of the High Court to supply copies of proceedings and judgement to the respondent cannot be blamed on the latter. Under the circumstances the application to strike out the Notice of Appeal is without merit. The application is accordingly dismissed. No order for costs.
(u) Civil Application No. 1/05 - Method Kimomogoro vs Board of Trustees Tanapa CAT at Arusha. ( Ramadhani J.A)
- Now, let me go back to the application. This is an application for striking out a notice of appeal lodged by the respondents on 11th February, 1999. The point of objection by the applicant is that from the time the notice of appeal was lodged on 11th February, 1999, no further step has been taken. The reply of Mr. Mwaluko was that they were waiting to be clled by the Registrar of the High Court to go and collect the copy of record of appeal. Mr. Mwaluko relied on Transcontinental Forwarders Ltd. Vs. Tanganyika Motors Ltd. [1997] TLR 328 where at p. 330 MAKAME, J.A. said:-
I wish to say only that reminding the Registry after applying for a copy of the proceedings etc and copying the request to the other party may indeed be the practical and realistic thing to do, but it is not a requirement of the law. Once Rule 83 is complied with the intending applicant is home and dry.
This is so but I am a shade unsure whether the learned judge intended to lay down a rule of general application in all circumstances. In that case slightly over six months had elapsed from the date of requesting for a copy of record of appeal. In the instance, the letter to the District Registry was on 10th February, 1999, thus to the time this notice of motion was filed on 15th March, 2005, it is over six years, and not six months. I am sure in such circumstances my learned brother would not have considered the present respondent “home and dry”.
But apart from that Mr. D’souza here claims that letter to the District Registrar on on 10th February, 1999, did not ask for a copy of the record of appeal and that is why it has not been supplied to date. May be I recite relevant parts of that letter.
We respectfully apply for a certified copy of the Order and Ruling by Hon. Justice Mkwama in order to enable our clients to seek leave to appeal to Court of Appeal and to prepare the record of Appeal.
We shall also need a certified copy of the Order granting leave to appeal.
It is not at all clear that a record of appeal was being asked for. A copy of the order and the ruling are the documents required in asking for leave to appeal. And that is what the letter states. For the preparation of a record of appeal more documents than those two are required and these have to be specifically applied for.
Mr. Mwaluko has relied upon the counter – affidavit sworn by the Acting Manager Legal Services of the respondents, Richard Nsimba, who stated that in the letter the late ben Lobulu inadvertently and/or by oversight omitted the words “ a copy of proceedings” in the same letter.
That counter – affidavit is a clear admission that the letter of 10th February, 1999, did not request for a copy of record of appeal and, hence, the same has not been supplied for six years now and the respondent has kept completely quiet. This Court has said a number of times that an error of an advocate is not sufficient reason for extending time for the doing of anything under the Rules – see for example Inspector Sadiki vs. Gerald Nkya [1997] TLR 290. What that means is that an error of an advocate is not an excuse for failure to comply with the rules.
I am satisfied that no record of appeal has been asked for and, therefore, none has been supplied and it is over six years now the appeal ha not been instated. The application to strike out the notice of appeal is allowed with cost. Consequently the notice of appeal lodged on 11th February, 1999, is hereby struck out.
29. LEAVE TO DEFEND A SUIT.
(a) Kundanlal Restaurant vs Devshi & Co. (1952) EACA 77 at 79.
“The principle on which the court acts is that where the defendant can show by affidavit that there is a bonafide triable issue, he is to be allowed to defend as to that issue without condition. A condition of payment into court ought not to be imposed where a reasonable ground of defence is set up. The condition of payment, or giving security, is seldom imposed, and only in cases where the defendant consents or there is good ground in the evidence for believing that the defence set up is a sham defence and the master is prepared very near nearly to give judgment for the plaintiff in which case only the discretionary power given by this rule may be exercised. It should not be applied where there is a fair probability of a defence nor where the practical result of applying it would be unjustly to deprive the defendant of his defence. - A fundamental principle of justice is that a defendant who has a stateable case and arguable defence must be given opportunity to state it and argue it before the court. All the defendant has to show is a definite triable issue of law.”
(b) Commercial case No. 10/00 – CRDB Bank Ltd vs John Kagimbo Lwambagaza. HC (Commercial Division) at Dar (Nsekela, J). “Quoted Kundanlal case(supra)”.
(c) Commercial Case No. 141/01 – Ubungo Petrol Station Ltd vs NBC. HC (Commercial Division) at Dar (Dr. Bwana, J). -Quotes – Mngambi vs Matutruru (1967) EA 196, 197 “ It would be against natural justice to deprive a man of his right to defend unless the court in a plain and obvious case is satisfied without any doubt in the matter that the plaintiff is entitled to judgment and the defendant is seeking leave to defend for mere purposes of delay. Summary procedure is to be exercised with great care…” - Quoting – Zola and Another vs Ralli Brothers Ltd and Another [1969] EA 691, 694. “Order XXXV is intended to enable the plaintiff with a liquidated claim to which there is clearly no good defence to obtain a quick and summary judgment without being unnecessary kept from what is due to him by the delaying tactics of the defendant . If the judge to whom the application is made considers that there is any reasonable ground of defence to the claim, the plaintiff is not entitled to summary judgment”. (d) Civil Case No. 297/02 – Augustino Vyaga vs Janeth J. Ottaru. HC at Dar Mihayo, J). -Unconditional leave to defend can only be allowed if there is an issue to be contested, or an issue capable of being tried. This is the gist of order XXXV rule 3 (1) of the CPC, 1966. - In this case, there is no issue to be contested or tried in the main suit.
(e) Civil Case No. 262/92 – Tanzania Portland Cement Co. Ltd vs Continental Builders Ltd. HC at Dar (Chipeta, J). -As I understand the law, leave to defend will be granted where the defendant /applicant raises triable issue of fact or law (See Kundanlal Restaurant(supra). Leave will also be granted where the applicant alleges that he received no consideration for the promissory note in question. But where consideration is not denied and the facts do not disclose a substantial defence which, if proved, could be an answer to the claim, then leave to defend will not be granted.
30. LOCUS STANDI.
(a) PC Civil Case No. 145/94 – Nuru salum vs Pili Salum. HC at Dar (Kyando, J). -Mr. Kalolo submitted that the respondent, being the child of the original owner of the land in dispute, did not have any legal right to sue because she did not have letters of administration in respect of her late father’s estate or any other evidence to show that she had inherited her late father’s property and was the sole heir in respect of it. Mr. Kalolo submitted that the respondent had no locus standi in the matter therefore. He said even under customary law the respondent did not show that she was the lawful heir of the property of her father. -I find this point well founded and the arguments of it formidable. In order to be recognized by the courts as the lawful heir of the late father’s estate or that she administers it (the estate), the respondent had to adduce evidence that she had inherited the estate or she could represent it in courts. The usual evidence is of course, letters of administration or probate of a will. She produced no such evidence. She did not, in other words, establish her locus standi in the caase.
(b) Land Case No 130/ 2004 – Prof. Gabriel Ruhumbika Vs Commissioner for Lands and 2 others. HC(Land Division) at Dar (Rugazia, J). Reference was made to the case of Lujuna S. Balonzi vs Registered Trustees of Chama Cha Mapinduzi (1996) TLR 203 in which it was held, inter alia, that an applicant must show not only that the court has power to determine the issue but also that he is entitled to bring the matter before the court. It was also held that courts can only accord protection to interests which are regarded as being to legal recognition. -What we have is just an allegation that he is an attorney of the plaintiff. Such a situation cannot be allowed to prevail because this could lead to chaos if by a mere allegation one be allowed to institute proceedings and /or enter appearance. This being the case there is no way the legal status of the attorney can be ascertained. (c) Civil Appeal No. 21/96 – Rashid Hussein vs Boniphace Nyamuhanga and Another. CAT at Dar. -When the case comes for ex-parte hearing, the defendant, still has locus standi to appear on that date under Order IX rule 9 of the CPC, 1966 and assign reasons for his non appearance on the date the case was called and fixed for ex-parte hearing.
(d) Civil, Application No. 135/02 – Emma Kea vs Anna and another. CAT at Dar. Advocates of less than five years practice normally have right of audience in the Court of Appeal.
31. MOTOR ACCIDENTS.
(a) Civil Appeal No. 5/90 – G.S.L.E. s.p.q.vs Hamud Said. CAT at Mwanza. - The award of Tshs. 2,000/= per day for non- user of the vehicle for one year (365 days) was a practical and reasonable approach.
(b) Civil Appeal No. 10/92 – Zuberi Augustino vs Anicet Mugabe. CAT at Mwanza. -It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved. Cost of repair was pleaded but not proved. The respondent merely stated it to be shs. 500,000/=. Also non-use was not at all pleaded. However, it was not disputed that was using the bus for passenger trips between Mwanza town and Kisosa and the engine was damaged in that process. The respondent is entitled to some relief and we would sustain the award of shs. 500,000/= under the prayer of “any other relief this Court may deem just and fit to grant.” -We allow shs. 250,000/= for devaluation. (c) Civil Application No……. Yahya Husssein vs Oham Transport Ltd and Another. HC at Dar (Nyalali, C.J). -The proper approach in assessing general damages is to take into account all various heads of personal injuries and place a total sum of money as compensation for the totality of personal injuries involved.
(d) Civil Case No. 215/95 – Tuge Magambo vs Mehrab Transport Ltd and three others. HC at Dar (Bubeshi,J). - Mr. Mhango learned counsel for the first defendant has submitted that there is no cause of action disclosed in the pleading enjoining his client (owner of the vehicle). He has forcefully argued that on the facts pleaded the first defendant cannot be held responsible for the accident that happened on 30.11.1994. he has added that the plaintiff has not shown under which branch of tort the claim was being laid. That if the claim is based on negligence the particulars must be given in the plaint. He submitted that in this case there are non. - The term cause of action means some wrongful act committed by the defendant. It may be based on contract, or tort. If the second defendant was charged and convicted and that the vehicle of the first defendant was in the vicinity of the accident and contributed, according to the plaintiff’s counsel, to the destruction of the plaintiff’s property, can this connect the first defendant to the damage being claimed? Is this sufficient to connect the first defendant? I think not. There must be a nexus linking the first defendant with what happened on that day, and not otherwise. And that linkage must be established by evidence.
(e) Civil Appeal No. 49/99 – Project Manager of Noremco vs Josephat Urio. CAT at Arusha. -We are satisfied that on the evidence the driver deliberately and mischievously did so for reasons best known to himself. -We hold that the applicant company could not be held vicariously liable for the wrongful act of its employee committed in such circumstances.
32. MORTAGE /LOAN. (a) Civil Appeal No. 35/95- NBC Holding Corporation vs Hamson Mrecha. CAT at Dar. - Parties to an executory contract are at liberty to vary its terms at any time, either partially or wholly if the necessity for doing so arises. Besides, variation of overdraft terms is a recognized banking practice. -Notice is indeed necessary in banking practice. - Therefore, while holding that the variation of the overdraft in the case was not a breach of contract, we believe the bank exposed itself to damages for exercising its right to vary the overdraft without notice in the absence of an exemption from liability.
(b) Civil Appeal No. 76/99 –Grace Ndeana vs NBC Holding Corporation . CAT at Dodoma. -The respondent bank as the principal is liable for the utterances of the agent.
33. NATURAL JUSTICE.
(a) Misc. Civil Application No. 68/94 – Sylvester Cyprian and 210 others vs The University of the DSM. HC at Dar (Kyondo, J). - Quoting University of Ceylon vs Fernando [1960] I WLR 223 – “What are the requirements of natural justice in a case of this kind. First, I think that the person accused should know the nature of the accusation made; Secondly; that he should given an opportunity to state his case, and Thirdly, of course, that the tribunal should act in good faith”. -The Privy Council observed that the Vice – Chancellor was not bound to treat the matter as a trial, but could obtain in formation in any way he thought best, and it was open to him, if he thought fit, to question on witnesses without inviting the respondent to be present, but a fair opportunity must have been given to him to correct or contradict any relevant statement to his prejudice.
(b) Civil Appeal No. 45/98 – The High Court Judge i/c High Court, Arusha vs N.I.N Munuo Ng’uni. CAT at Arusha. -We agree with the learned trial judge that the current trend and tempo of human rights demand that there should be a right to be heard even for such an interim decision. -In fact, nowadays, courts in some jurisdictions, like the Eire Republic, demand not only that a person be given a right to be heard but that he be given an “adequate opportunity” to be heard. -It is a fundamental requirement of justice that a person or property should not be at risk without the party charged being given adequate opportunity of meeting the claim…. -Article 13 (6) (a) of the Constitution provides that :- “When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and the right of appeal or other legal remedy against the decision of the court or of the other agency concerned.” So the principle audi alteram partem is part of the constitution.
(c) Civil Application No. 54/98 – Pantaleo Lyakurwa vs Leokadia Lyakurwa. CAT at Dar. -The law of this country prohibits the condemnation of a person without his being given an opportunity to be heard. If, however, the person is given such an opportunity and does not make use of it, he cannot be heard to complain that he was condemned unheard. -the audi alteram paartem rule does not take away the power of the decision –maker to hear the matter ex-parte when a party duly notified of the hearing elects not to take a part in it or without good cause absents himself, or where because of the urgency of the matter an interim order must immediately be made. -A party who, having been duly notified of the hearing, absents himself at the hearing is deemed to have waived his right to be heard in the matter.
(d) DPP vs Sabinis Tesha [1993] TLR 237. CAT at Arusha. It is a cardinal principle of justice that a party should not be condemned unheard, the appellant was not given an opportunity to respond to the allegation that the cautioned statement made by one of the respondents was illegally obtained.
(e) Jimmy Ngonya vs N.I.C Ltd [1994] TLR 28. HC at Dar (Bahati, J). Since the General Manager, who was in the nature of the prosecutor, was present during the deliberations of the Board which dismissed the applicant, the proceedings of the Board were vitiated by bias.
(f) Ndesamburo vs AG [1997]TLR 137. HC at Dar (Msumi, J). The principle of natural justice which require that a person had to be afforded an opportunity to defend himself necessarily implied that the person determining the matter would consider the party’s defence before making a decision which affected the right of the party. Failure to consider such defence was as bad as not affording the party the opportunity of hearing.
34. OBJECTION PROCEEDINGS.
(a) A.D Mashoto vs A.H Kaunga [1986] TLR 67. HC at Tabora (Chipeta, J). Since the agreement was with a consideration and possession of both the property and the title deed passed as long as consent has not been refused the objector has an interest in the property which interest a court of law ought not to disregard with abandon. Objection succeeds.
(b) Commercial Case No. 50/00 – CRDB Bank Ltd vs Mamba Enterprises Ltd and Charles Mulokozi. HC (Commercial Division) at Dar (Nsekela, J). -Order XXI rules 57 (1); 58; 59 and 60 are central to this ruling and are the ones relied upon by the objector. -When the court is dealing with an objection under Order XI Rules 57, 58 , 59 and 60 of the CPC, the court should concentrate on the question of possession of the property the subject of the attachment and then decide whether the judgment –debtor is in possession of the property on his own behalf or on account of or in trust for some other person. If the property is in the actual possession of some other person other than the judgment-debtor, then the court has to decide whether the possession is in trust for or on behalf of the judgment –debtor. The court should not be concerned with the question of title unless necessary for its decision on the question of possession. - It is I hope clear by now that the scope of the investigation under Order XXI Rules 57,58,59 and 60 is confined to the question of possession and not title or fraud for that matter. The investigation should be directed as to who is in possession of the mortgaged property. -Order XXI Rule 60 provides as to when the claim to property attached should be disallowed and this happens when the court is satisfied that the property at the time of the attachment was in the possession of the judgment-debtor as his own property and not on account of any other person OR was in the possession of some other person who was holding the property in trust for the judgment-debtor OR that the property was in physical possession of a tenant or other person who was paying rent to the judgment-debtor. It is evident that what has to be investigated and decided is who, as between the judgment-debtor or the objector, was in possession on the date of the attachment of the property. -Since the property was in possession of the objector, I proceed to find out whether that possession of the objector was on his own account for himself or as trustee or on account of the judgment-debtor. -To conclude, for reasons stated above, as the mortgaged property was in the possession of the objector in trust for the judgment-debtor, that is, the third respondent, Charles Mulokozi. I do hereby disallow with costs the objection by Calvin Mafuru.
(c) Commercial Case No. 67/00 – Joyce Mpinda vs CRDB Bank Ltd and others. HC(Commercial Division) at Dar (Dr. Bwana, J). -Objection by a wife-matrimonial property- Caveat must be registered -S. 48(1) of the CPC, 1966 not relevant in the situation. -Section 59(1) of the Law of Marriage Act, 1971 interpreted.
(d) Civil Revision No. 123/00 – Donald Nkwao vs Elite Sisters Academy and Another. HC at Dar (Kyando, J). -A person who objects to attachment does not have to be a party to the suit in which the order of attachment was made. All he needs to have is some interest in the attached property which he then protects by objecting to attachment (See Order XXVI rr. 57-58 of the CPC, 1966). -Objection has to be heard by the court which made the order for attachment.
(e) Civil Application No. 15/02 – BOT vs D.P. Valambhia. CAT at Dar. It is abundantly clears to me that there is no right of appeal to this Court once an objection to an attachment has been adjudicated upon. The remedy open to the objector is to file a suit to establish the objector’s right to the claim of the property in dispute. 35. PAYMENT/RELIEF-IN FOREX.
(a) Civil Reference No. 7/92 – Transport Equipment Ltd vs D.P.Valambhia. CAT at Dar. -Two conditions prominently stand out in that proposition of law. First, the contract forming the basis of the claim must have been in foreign currency. Second, the plaintiff, or as in this case the defendant in the counter-claim, must have specifically prayed for relief in foreign currency while proving the basis of that prayer. -We may observe here that Cap. 294 is no longer law in Tanzania. It was repealed by the Foreign Exchange Act, !992, which came into force on 16.03.92 as per G.N 37/92. The former section 5(b), which is said to have been violated, prohibited payments within Tanzania to or for the credit of a person resident outside Tanzania or on behalf of one resident outside Tanzania except with the permission of the Treasusrer. -However, the new section 5(b) says:- “Any person whether resident or not resident in the United Republic may hold any amount of foreign currency and raw gold within the United Republic”. We are of the well considered opinion that the point of foreign exchange violation has been overtaken by events and law. That point will only have academic interest while this is a court of justice and not an academic institution.
36. PETITION AGAINST CITY.
(a) Misc. Civil Appeal No. 9/89 – Arusha Municipal Council vs Tanango Transport Co. Ltd. HC at Arusha. The application to court under the proviso of rule 12 (2) Cap. 101 should in my view, be in the form of a petition setting out all the grounds/facts which must include documents from the Council. -In this matter there ought to have been two applications in the Magistrates Court. The first application in the form of a petition as already stated above under Rule 12(2) of Cap. 101 seeking the issuance of a summons to the Municipal Council to show cause why the demolition order should not be rescinded. The second application should have been under Order 37 Rule 1 of the CPC, 1966 for an order of temporary injunction. 37. POWER OF ATTORNEY.
(a) Naiman Moiro vs Nailejlet Zablon [1980] TLR 274 CAT at Arusha. -Power of attorney does not apply where the person to be represented is resident in Tanzania. Rule 28 (2) of the Tanzania Court of Appeal Rules, 1979.
(b) Civil Appeal No. 39/92 – DSM City Council and others vs C.M.Mundeba. HC at Dar (Mwaikasu, J). Registration of power of attorney is compulsory under S. 8 of the Registration of Documents Ordinance, Cap. 117. Otherwise, it will not be received in evidence and or pass an interest in land – See s. 9, Cp. 117.
© Civil Case No. 51/95 – The GM, Pamba Engineering Company Ltd vs The MD, Nyanza S and General Services. HC at Mwanza (Lugakingira,J). -By definition a power of attorney is authority whereby the donee is put in the shoes, stead or place of the donor to act in the donor’s name. In the sense the donee assumes the person of the donor and by implication the latter cannot be present when the former is acting for him, otherwise the donation is meaningless. -It is neither in law nor in practice that a party to a suit may designate a representative merely because he would like the representative to speak for him, or because he thinks the representative is cleverer man than he is, or because he is too lazy or too busy to come to court. -A power of attorney will therefore be donated for very good reasons, for instance, extreme age, prolonged illness or absence from the court’s jurisdiction such that it would be unduly expensive for the party concerned personally to appear. -Power of attorney does not apply where the donee is also in court. (d) Civil Application No. 6/98 – Rashid Sinani and others vs Mussa Haji Kombo and another. CAT at Zanzibar. -In my opinion, it is perfectly correct to say that an advocate and a donee of a power of attorney are in law of distinct capacities.
(e) Civil Reference No. 5/00 – Rashid Sinani and others vs Mussa Kombo and Another. CAT at Zanzibar (Full Bench). A person could not be a holder of a power of attorney and an advocate of the donor of that power of attorney at the same time (Dr. Lamwai argued).
(f) Commercial Case No. 17/00 – Serafini Affonso vs Portan Enterprises Ltd. HC (Commercial Division) at Dar (Kalegeya, J). There is no magic about the term “Power of Attorney”. It is an instrument authorizing another to act as one’s agent or attorney. The Black’s Law Dictionary, 6th Ed. states:- “an instrument in writing whereby one person, as principal, appoints another as is agent and confers authority to perform certain specified acts or kinds of acts on behalf of principal……such power may be either general (full) or special (limited).
38. PLACE OF SUING.
(a) Civil Revision No. 50/98 – James Gwagilo vs A.G. CAT at Dar. - Paras (a) and (b) of section 18 of the CPC, 1966 do not apply for suits against the Government. It is only para (c) which is applicable. -Under S. 18 a suit may be filed where the cause of action arose or where the defendant carries on business. 39. PRESUMPTION OF MARRIAGE.
(a) Matr. Appeal NO. 2/86 – Geroda Laurent vs Onesmo Ombeni. HC(Matrimonial) at Dar (Maina,J). -The parties lived together for 9 yrs, from 1976 till 1985. There was no marriage contracted between them, but had three children and a house. The appellant petitioned in the primary court for divorce, maintenance of the children who were staying with her and for division of matrimonial assets. - The issue, as the District Court correctly put it, is whether the parties were married. That was crucial because unless there was a valid marriage, their could be no question of divorce. -From the evidence, it is common ground that the parties lived together for nine years. There was no marriage ceremony. Can they be said to have been validly married? The district court answered that question in the negative. Marriage, as defined by S. 9 of the Law of Marriage Act, means “the voluntary union of one man and a woman intended to last for their joint lives”. Now, the respondent said that the appellant was not his wife and neither did he intend that they marry. He only lived with her in concubinage. They were lovers. Merely staying together does not in my view mean marriage. -Under the Law of Marriage Act, there are procedures to be followed before a marriage is contracted there are monogamous and polygamous marriage as defined in the Law of Marriage Act. If the relationship of the parties be called marriage what type of marriage was it, in the absence of a marriage ceremony? -S. 160 (1) is rebuttable. I hold that the parties were not married and therefore the question of divorce does not arise. -Distribution of assets can only be considered where there was a valid marriage and then divorce. Refer S. 114(1) of the Law of Marriage Act, 1971.
(b) Zacharia Lugendo vs Shadrack Lumilang’ombe [1987] TLR 31 HC at Mwanza (Mwalusanya,J). (i) Where a man and woman live as husband and wife under the belief that they are legally married, their cohabitation amounts to concubinage. (ii) Marriage unlike concubinage is a solemn and serious institution. There ought to be evidence of customary law marriage to constitute marriage, such as handing over ceremony by parents of the girl to the boy, or evidence of certain rites recognized by the relevant customary law of that tribe like a festival of pombe or other like ritual- S. 25 (1) (d) of the Law of Marriage Act, 1971. (iii) The presumption of marriage may be rebutted if it can be proved that the parties had never gone through a ceremony of marriage recognized under the law. It is not the law that staying with a woman for over two years creates marriage where there was none. (c) Francis Leo vs Paschal Simon Mgana [1978] LRT 22 HC (Mfalila,J). -The first point that comes out very clearly out of sub-section (1) is that this section does not automatically convert concubines into wives at the end of two years or more of cohabitation. All that this section does is to provide for a presumption which is rebuttable that such people were duly married, and this being duly married, surely must refer to the forms and procedures for marriage provided under the Law of Marriage Act. Therefore all that is required to rebut such a presumption is to establish that the two never went through a ceremony of marriage reccognised under the Act. Once this is established the two can no longer be regarded as husband and wife even if they have lived together for hundred years.
(d) Hemed S. Tamin vs Renata Mashayo [1994] TLR 197 CAT at Dar. (i) Where the parties have lived together as husband and wife in the course of which they acquire a house, despite the rebuttal of the presumption of marriage as provided for under S. 160 (1) of the Law of Marriage Act, 1971, the courts have power under S. 160 (2) of the Act to make consequential orders as in the dissolution of marriage or separation and division of matrimonial property acquired by the parties during their relationship is one of such order (ii) Having found that the parties were not dully married, the decision of the lower court regarding the dissolution of marriage is void. (e) (PC) Civil Appeal NO. 148/95 – Happiness Nyakulimba vs Shabani Iddi Kifaru. HC at Dar (Msumi,J). -In favour of presumption. -Quoted Francis Leo (supra) and differed…..with respect I find it hard to accept this exposition. Long cohabitation coupled with proof that the parties went through a marriage process recognised under the provisions of the Law of Marriage Act should amount to a formalized marriage rather than a presumption of marriage. My respective understanding of the words “were duly married” as used in this sub-section is that long cohabitation by parties with capacity to marry between them to the extent of regarding them as if they were duly married. In other words the legal status of such parties is similar to those of a formalized marriage. All legal provisions regulating or prescribing formal marriages would equally apply to presumed marrage.
40. PRIVITY OF CONTRACT.
(a) Civil Appeal No. 2/03 – Consolideted Holding Cooperation vs. Rajani Industries Limited and BOT. CAT at Dar (Lubuva, JA). The principle enunciated under the doctrine of the privity of contract was aptly described by the distinguished author William R. Anson in his book THE LAW OF CONTRACT 27th Edition, at page 4088 the learned author sets out the modern view on the principle of the doctrine of the privity of contract that no stranger to the consideration can take advantage of a contract, although made for his benefit The distinguishes author cites Lord Haldanes formulation of the modern rule in Dunlop Pneumatic Tyre Co. Ltd vs. Selfrige and Co. Ltd. [1915] A.c. 847 at page 853 wherein it was stated: In the law of England certain princilples are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right my be kconferred on a stranger to a contract as a right to enforce the contract in personam.
41.PROBATE AND ADMINISTRATION.
(a) Prob. & Adm. Cause No.65/82 – In the matter of Mohamed Kisawaga. HC at Dar (Bubeshi,J). -Since the sale price realized was that below the one agreed by the parties and endorsed by the court, it was therefore important for the Administrator General to have mandate from this court. That this was not done is highly improper. -By public auction it means what it says and this auction conducted on 14/6/97 is contradicted by the letter from the Administrator General dated 5/5/97. -Hence it is hereby ordered that the public auction conducted on 14/6/97 is hereby declared cancelled.
(b) Prob. & Adm. Cause No.3/85 – In the matter of the late Mwinjuma Simba. HC at Dar (Bahati,J). According to S.49 of the Probate and Administration , a grant of probate or letters of administration may be revoked for the following reasons 1-5. -Non of the above matters appear to have been proved by the affidavit filed in support of this application. Hence, application dismissed with costs.
(c) PC Civil Appeal No. 153/86 – Gratian Jeremiah vs Christina Jeremiah. HC at Bukoba (Mwalusanya,J). I am of the considered view that the respondent had not succeeded to prove that the will that was torn was a valid will. The respondent’s witness (PW2) conceded at the trial that the said will bore no signatures of attesting witnesses either of clan-members or non- clan members. It appears the said will was a secret document executed by the deceased and his wife (respondent) to the exclusion of all other persons. Obviously that type of document cannot be recognized as a valid will.
(d) Civil Appeal No. 45/94 – Mwaka Mussa vs Simon Simchimba. CAT at Dar. We agree with Mr. Maira’s submission that in view of rule 31(1) of the Probate and Administration Ordinance, Cap. 445 the Law of Limitation Act, 1971 is not strictly applicable in matters of probate. In that rule, it is provided that in any case where probate or administration is for the first time applied for after expiration of three years from the death of the deceased, the petition shall contain a statement explaining the delay.
(e) Civil Application No. 36/92 – Albert Braganza and another vs Flora Braganza. CAT at Dar. From the submissions by counsel, there is no claim that there is a commonly accepted usage among the Goan sub-community in Tanzania as to who should decide where someone should be buried. In the present matter no party can therefore be said to have a better claim.
(f) Civil Appeal No. 90/94 – Mohamed Hatibu vs salima Mswahili. HC Dar (Kyando,J). Under the Fifth Schedule to the Magistrates’ Courts Acct, 1984, the powers of a court are limited to only appointing an administrator and giving directions to him, where necessary on how to administer an estate. It is for the administrator, not the court, to distribute the estate. The two courts below therefore erred in distributing the estate in this case and their orders to that effect, of giving 1/8 and or ½ of the estate to the appellant, are hereby quashed and set aside.
(g) Pro. & Adm. 23/97 – Rayud Masetta vs Mariam Masetta. HC Dar (Nsekela, J) -Applications for revocation or annulment of probate and letters of administration should have been made under S. 49(1) of the Ordinance and Rule 29(1) of the Probate Rules. In my view however, this error is not fatal to the application. -Apart from the wrong citation of the rule, the application is made by Chamber Summons and supported by affidavit setting out the grounds of the application.
(h) Civil Appeal No. 52/97 – Professor (Mrs) Esther Mwaikambo vs Davis J. Mwaikambo and others. CAT at Dar. -Pendente lite -Procedure- after filing caveat, the matter should proceed as a suit, even revocation of the grant pendente lite was not proper.
(i) PC Civil Appeal No. 111/97 – Hamis Selemani vs Kondo Selemani and another. HC (Matrimonial) at Dar (Mackanja, J). -Difference between Memorandum and Petition of Appeal. -Order XXXIX applies to appeals original decrees of the District Courts and from courts of Resident Magistrates. Appeals originating from Primary Courts are regulated by Part III(c) of the Magistrates’ Courts Act, 1984 , which does not impose such requirement. -And whereas an appeal from an original decree of a District Court or from a Court of a Resident Magistrate is instituted by a Memorandum of Appeal, an appeal originating from a primary court will be instituted by a petition. The difference is not for nothing. -Whoever is aggrieved by the decision in the probate matter has a right to appeal within the time limit set down by law.
(j) Civil Appeal No. 39/97 – Mohamed Hamis vs Swalehe Bwendau. CAT at Dar. Time of caveat in probate matters – four months from the date of lodgment.
(k) Civil Reference No. 29/97 – Sadiki Alawi vs Zulekha Alawi and NBC. CAT at Dar. -Our understanding of paragraph (a) [of S. 52 of the Probate and Administration Ordinance, Cap. 445] is that basically probate and administration proceedings are regulated by the provisions of the Ordinance and the rules made there under, but that the provisions of the CPC may be resorted to in certain circumstances, e.g. where it becomes necessary for the Court to order discovery or to fix a date for the doing of anything by a party there is no corresponding provision in the Ordinance or the rules regulating the same. In our opinion this paragraph cannot, by any stretch of imagination, be construed to mean that probate and administration proceedings are a suit. -We think that S. 22 of the CPC, applies only when the law in question provides for the institution of a suit, in the first place, and then proceedings to stipulate for the manner in which such suit may be instituted. -We are satisfied that the decision of the High Court resulting from probate and administration proceedings is appellable only with leave because it was not a decision or decree made in a suit under the CPC.
(l) Civil Appeal No. 63/99 – Mwalimu Abbas vs Mwajuma Mohamed. HC at Dar (Manento,J). -As the proceedings show the application for the appointment of the administration of the estate of Abbas Mwalimu is for a registered Right of Occupancy, in Plot No. 39 Block “O” Congo Street, Kariakoo Area, in Dar es Salaam. Kariakoo Area is a surveyed area and the Offer of a Right of Occupancy was issued under the Land Ordinance, Cap.113 of the laws, so by the proviso of section 63 (1) of The Magistrate Court Act, 1984, Primary Courts Magistrates have no jurisdiction in civil proceedings in respect of immovable property relating to land held on Government lease or of a Right of Occupancy granted under the Land Ordinance. -The work of the court is to appoint the administrator only and not to distribute the estate. It has therefore powers to appoint and to revoke the said administrator.
(m) Scholastica Benedict vs Martin Benedict [1993] TLR 1. CAT at Mwanza. While S.15(1)(c ) of the Magistrates Courts Act, 1963 (now S. 19 of the MCA,1984) did not specify the particulars relating to the administration of estates, the Order of the Chief Justice published as Government Notice No. 320 of 1964 conferred jurisdiction on primary courts in matters of administration of estates regardless of whether the subject matter is land registered under the Land Registration Ordinance, provided the applicable law is customary or Islamic law, other than matters falling under the Marriage, Divorce and Succession (Non- Christian Asiatic) Ordinance.
(n) Mohamed Hassani vs Mayasa Mzee and Another [1994] TLR 225. CAT at Dar. -Primary Courts are empowered under rule 2 (a) of the Fifth Schedule to the MCA, 1984, to make first appointment of administrators of estate and Rule 2 (b) of the same schedule for appointment of a replacement. Therefore the judge was wrong to restrict the power of Primary Courts to appoint administrators to rule 2 (a). -It is upon to the person challenging the validity of appointment of an administrator by the court to show that the person so appointed does not have the required qualifications to administer the estate. -The administrator is not legally required to obtain consent of all heirs before disposing of property or sale of a house. -Once an administrator of the estate was appointed then the house of the deceased owner of the property is changed in all documents and that of the administrator is substituted and is left to his discretion on to administer the estate in the best way he can…..” (o) Civil Revision No. 90/03 – Omari Ally Omary Vs. Idd Mohamed and others – CAT at Dar (Massati JA,)
-In the scheme of the Probate and Administration Ordinance there are only two provisions governing appeals, S. 72 and S. 83 of the Ordinance which is supplemented by Rules 95 of the Probate Rules . s. 72 allows appeals from orders granting or refusing probate or letters of administration made in contentious cases. The term. “contentious” is defined by s. 2 of the Probate and Administration Ordinance to mean.
..In relation to a grant of probate or letters of administration means the appearance of any person to oppose the application for the grant, and
“ Contentious” has a like meaning”
in the present case the application for grant was not opposed. Therefore it was not a “contentious case”, so S. 72 of the Probate and Administration Ordinance does not cover the present situation.
“Section 83 of the Ordinance reads.
(1) subject to any Probate rules, every appointment, direction, or decision of a district court under this part shall be subject to appeal to the High Court”.
Section 83 is in Part VIII which reads:
“ PRACTICE AND PROCEDURE IN APPOINTING, AND REVOKING THE APPOINTMENT OF, ADMINISTRATORS OF SMALL ESTATES”.
S73 (2) of the Ordinance reads:
(2) Save as may be provided in the Part where this Part applies the provision of parts IV, V, VI and VII (other than the provisions of sections 52 (b), 60, 61, 62, 70, and 71 shall not apply.
Section 49 under which the application was made is in Part VI, but from the wording of S73 (2) of the Ordinance it can not be brough within the ambit of Part VIII, which covers S83. It follows therefore that no appeal can be entertained from S 49 on the strength of S 83 and Rule 95 of the Probate Rules.
Now, it is trite law, that an appeal is a creature of statute. There is no right of appeal where a statute does not allow one. (see Attorney General vs. Shah ( no.4) (1971) e.a. 50, Haznal Singh Bogal vs. Jady Kazstan (1953) EACA 17).
In the present case I am settled in my mind that there is no provision which allows an appeal from the decision or order made under S 49 of the Probate and Administration Ordinance. But if I am wrong on this finding I will also fault the memorandum of appeal for failure to attach a copy of the extracted order as required under 039 R1 of the Civil Procedure code 1966 read together with Rule 95 of the Probate Rules. In KOTAK LTD Vs. KOOVERJI 91967) E.a. 348 (T0 , it was held that O. 39(1) of the Civil Procedure Code 1966 extends to a formal order as a prerequisite to an appeal (see also, also SAID SALIM BAKHRESSA Vs. ALLY NGUME (1997) T.L.R. 312.
On the above premises, I find and hold that the appeal is incompetent and using mypowers under S44 (1) (b) of the Magistrates Court Act, 1984, I order that the appeal be struck out and each party shall bear her his own costs.
(p) Civil Appeal No. 101/02 - Sarah Harison Mkisi and Mohamed Said Mayosa and Albert Harison Mkisi - HC at Dar (Oriyo,J).
- In Seif Marare vs Mwadawa Salum (19850 TLR. 253 this court, in a similar situation, held as follows:-
“ On application for appointment of an administrator of a deceased estate, the duty of the court is to appoint as administrator a person who has an interest in the estate and according to the wishes of the deceased, if any are expressed”.
- That was the principle applied by the trial court and I have no reason to interfere with the decision. If the appellant was interested to see that he received a fair share from the estate; then he should have applied to be included in the list of beneficiaries and not necessarily as an administrator.
(q) PC Civil Appeal No. 31/03 - Mariam Dorina and Justine Daniel vs Kisha Lugemalila HC at Dar (Oriyo, J).
- The appeal originates from Probate and Administration Cause No. 63/02 at the Kinondoni Primary Court whereby the respondent was appointed the administrator of the Estate of Philbert Mambo, deceased.
- Subsequent to the appointment, the appellant, a former wife to the deceased, was not happy with the appointment of the respondent. She filed an appeal, at the District Court of Kinondoni Vide Misc. Civil Appeal No. 44/02. The appeal was dismissed for lack of merit; hence this second appeal.
- The respondent raised a preliminary point of objection in law in that the appellant had no locus standi as she was not a party in the initial Primary Court Proceedings. It is not in dispute that the appellant was not a party to the proceedings at the Primary Court in Probate in Administration 63/02.
- It is trite law that a right of appeal is a creature of statute. There is no right of appeal where a statute does not specifically provide for one [see AG Vs SHAH (No. 4) (1971) EA 50; HAZNAL SINGH BOGAL VS JADY KAZSTAN (1953) EA 17].
- Again, it is a trite legal principle that only a party to proceedings has a right of appeal. The remedy for third parties interested in the subject matter is REVISION (See Court of Appeal decisions in AHMED ALLY SALUM VS RITHA BASWALI AND ANOTHER, CIVIL APPEAL 21/99, DAR ES SALAAM REGISTRY unreported and BANK OF TANZANIA VS 1. SAID A MARINDA AND 30 OTHERS 2. ATTORNEY GENERAL, CIVIL APPEAL. 74/ DAR ES SALAAM. Registry, unreported).
- The right of appel to this court in matters originating from Primary Courts is provided under SECTION 25 (1) ( b) , Magistrates Court Act, 1984. The provision provides a right of appeal on a party to the proceedings; and not otherwise.
- Having demonstrated the foregoing, I have no doubts in my mind tht the appellant has no right of appeal to this court because she was not a party to the original proceedings. I therefore uphold the preliminary, point of objection and accordingly, I strike out the appeal.
(r) Civil Revision No. 184/02 – Esterziah Ayugi vs Joseph and others HC at Dar (Oriyo, J).
- In my considered opinion, it is a matter beyond controversy, that the issue before the trial court was on the Luo customs and traditions on the status of a married woman and the clan’s rights over the burial of a decased Luo man as opposed to the rights of his wife; which are not recognize because a wife has no right or any say to bury her decased husband. The Resident Magistrates Court at Kisutu erred in assuming jurisdiction over customary laws in contravention of the clear provisions of statutory laws.
- Let’s assume for a moment, for the sake of arguments that the issue of thecustoms and traditions of the Luo community was properly before the court; can the decision of the trial court be held to be correct in the context of the Constitution of the United Republic of Tanzania 1977, as amended and other statutory enactments? Was the Kenyan decision good law? I hasten to answear it in the negative. Tanzania as a member of the international community is signatory to variohs International Instruments on Human Rights including Treaties, Covenants, Conventions and related Protocols. In assuming its International obligations in the instruments to which it has become a party thereto Tanzania introduced into her Constitution certain provisions on the Basic Rights and Duties of her citizens; as provided under Articles 12 of 29 of the Constitution which fall under PART III OF CHAPTER ONE. Pursuant to these provisions, guarantees and protection of equality of all before the law are vailable; discrimination on the basis of gnender, trible, place of origin, color, religion political opinion, etc; is prohibited; the rights to privacy, marriage, to found a family, etc. are reognised and protected. Others include the rifhts to life, freedom of associateion, movement, expression and religion, etc. There basic rights and duties are enforceable in courts of law pursuant to the provision of an enabling statue specifically enacted for that purpose, the BASIC RIGHTS AND DUTIES ENFORCEMENT ACT, No. 33 of 1994. Similar provisions are repeatedly found in International Instruments like the United Nations Declaration of Human Rights, 1948; the African (Banjul) Charter on Human and Peoples Rights; the Convention on the Elimination of All Forms of Discrimination Against Women and many others.
- In view of the foregoing constitutional guarantees on the basic rights and duties of all Tanzanians which are also entrenched in other statutes such as the Law of Marriage Act 1971, etc; even if the trial court was seized with jurisdiction over customary laws; the same should have been applied subject to the basic rights and duties provisions. The decision of the trial court is in conflict with the supreme law of the land and other statutory enactments. The Kenyan decision was bad law for application in our jurisdiction. With due respect to the learned trial magistrate, the decision was also erroneous on this score.
42. PROCEDURE
(a) Misc. Civil Appeal No. 9/89 – Arusha Municipal Council vs Tango Transport Co Ltd. HC at Arusha (Mushi, J). -Procedure for applying for a temporary injunction against City/Municipal Council under Cap.101.
(b) Civil Reference No. 7/92 – Transport Equipment Ltd vs D.P. Valambhia. CAT at Dar. As already pointed out Mr. Mbuya was aware of the date for mention. He therefore did not need a notice for hearing from the registry. That he was absent, he has only himself to blame. Of course, in his absence the date for assessment was fixed which sitting he again missed. Now, was he to be notified of the date either by the registry or by Valambhia? We are very quick to say NO. -An eminent Chief Justice of Zanzibar, LAW, as far back as 1939, said in Abdullahuhssein Bidalboy vs Marekwa. V. ZLR 44. “In my opinion, apart from the official notice in the Gazette referred to it, it is the duty of the parties to keep themselves informed as to when their case will be tried.”
(c ) Civil Case No. 77/92 – Joseph Barthazar vs Lucas Makule. HC at Dar (Bubeshi,J). -Again having missed the hearing date of 11/8/94 neither Mr. Kinguji nor his client made further enquiries as to what had become of their case. -As a matter of practice and going by the individual calendars, not all matters are cause listed and particularly so when they are partly heard. In an event “cause listing” a matter is purely an administrative matter it is not part of the rules of procedure.
(d) Civil Appeal No. 19/94 – Board of External Trade vs My Computer (T) Ltd. CAT at Dar. -We hold therefore that this particular summons under Order 5 did not entitle the presiding judge to find fault with the present first appellant for not responding to the plaint by submitting to the Court the Written Statement of Defence because the day in question when the court sat it was their first appearance and the summons was the summons to appear and answer questions and not to bring their defence. - In the circumstances, we are of the firm view that each summons issued to the defendants must looked at closely as to the law governing it before a decision is reached on how the summons was satisfied or its contents defaulted. -We accordingly quash the ex-parte judgment and decree of the High Court. The first and second appellants are hereby allowed to file their WSD and the main suit is to proceed inter parties in the High Court.
(e) PC Civil Appeal No. 81/94 – Raphael Mapunda vs Mantogolo Keto. HC at Dar. (Bubeshi, J). -Mr. Kalolo however applied to have his client joined in the appeal and the same was granted. -Let the objector/respondent be joined as a co-defendant and evidence adduced as to the parties legal rights. This being an appellate Court it cannot sit to hear evidence being adduced by the objector / respondent on how she came to acquire the piece of land she now owns. - I therefore agree with counsel Kalolo that the matter be heard denoval before another court.
(f) Civil Appeal No. 7/96 – The Executive Secretary Wakfu and Trust Commission vs Saide Salmini Ambar. CAT at Zanzibar. -Under the CPC, there is nothing like “mention”. -We agree with Dr. Lamwai . Mentions are not a legal requirement but one of practice. It was not necessary on 15th October for the court to fix a date for hearing and then on that later date to grant leave to proceed ex-parte.
(g) Misc. Civil Cause No. 94/96 – THA vs Kader Mohamed. HC at Dar (Ihema, J). -Case dismissed on a date fixed for mention -Citing NBC vs Grace Sengela [1982] TLR 248. HC (Bahati, J). “ A suit can only be dismissed on the grounds of default of appearance when the case is fixed for hearing and not merely for mention.
(h) Civil Appeal No. 54/96 – Elibariki Mboya vs Amina Abeid. CAT at Arusha. - In our opinion, she should have held, in conformity with S. 73 of the CPC, 1966 that the non stamping of the instrument did not in law constitute a basis for faulting the decision of the Resident Magistrate’s Court. Respondent should have been ordered to pay duty. -A decree will not be reversed or substantially varied in appeal for admitting a document not properly stamped or because the suit was decided on a Sunday, or because the plaint was signed on behalf of the plaintiff by his wife, and no power of attorney was on record…...All these are irregularities not affecting the merits of the case or the jurisdiction of the court and they are cured by this section.
(i) Civil Appeal No. 111/97 – Hamis Selemani vs Kondo Selemani. HC (Matrimonial). Difference between Memorandum and Petition of Appeal.
(j) George Shambwe vs A.G. and another [1997] TLR 176. CAT at Dar. -The appellant contents that since the case was fixed for mention on that day, then in law or practice, the case was meant to come for orders and the court had no powers to dismiss the petition for non-appearance or non-prosecution. -Counsel for the first and second respondents argue to the contrary to the effect that the court had powers to dismiss the petition on those grounds on the basis that the appellant knew that the case was fixed for continuous hearing over a period of time including 29 October, 1996. - We agree with the counsel for the first and second respondents that the court was acting within the scope of its previous order when it dismissed the petition and that it was so justified in so doing because the appellant must have been aware of the hearing date but failed to appear.
(k) Civil Revision No. 43/99 – Rashid Matonda and others vs A.M. Kibave and 3 others. HC at Dar (Mwita, J). I have formed the view that payment of insufficient filing fees is an administrative error which may be remedied by requiring the appellants to pay the appropriate fee and by itself will not invalidate an application.
(l) Civil Case No. 295/98 – Universal Supplies Agency Ltd vs Minister for Lands and Human Settlements and Chairman Ruhembe Village and others. HC at Dar (Kyando, J). -Under a Village Council of a Village Government of a registered Village is a legal person and has to be sued in its own name. It is therefore wrong to sue the Chairman of the village council as the plaintiff has done in this case. I strike out the name of the Chairman of the village council from the suit and substitute for it the name of the village council itself.
(m) Civil Appeal No. 40/98 – Mustapha Raphael vs East African Gold Mines Ltd. CAT ar Dar. -It is correct to say that under Order 8 Rule 14(1) of the CPC, 1966 as amended by G.N. No. 422/94, a court is bound to enter judgment against a defendant who, having been required to present a WSD fails to present the same within the time fixed by the court, unless the court, in its discretion makes any other order. The question however, is whether the respondent had been served with a summons under Order 8 rule 1(1) of the CPC, 1966 as amended by GN 422/94, in order to entitle the appellant to judgment without need to proof. If the summons which was served on the respondent was one for filing a WSD as argued by the appellant then the provisions of rules 1(2) and 14 (2) (b) of Order 8 of the CPC must have been intended to come to play, although as we indicated earlier normally the High Court does not issue a summons for filing a defence. Since the respondent did not file a defence the court fixed a date for ex-parte proof (which was published in the Guardian Newspaper). Under rule 14(2) (b), on the date fixed for ex-parte proof the court could “pronounce judgment in favour of the plaintiff upon such proof of his claim”. The words used in rule 14(2) (b) are quite clear that even in an ex-parte hearing the claim has to be proved.
(n) PC Civil Appeal No.63/99 – Mwalimu Abbas vs Mwinjuma Mohamed. HC(Prob & Adm) at Dar. -Unfortunately, Dr. Twaib for the appellant did not file his written submissions and until when I was writing this judgment, no such submissions in support of the appeal had been filed.For that reason therefore, Mr. Magafu, learned counsel for the respondent submitted that the appeal should be dismissed outright with costs under Order 39 rule 17(1) of the CPC, 1966 because failure to submit his written submissions is similar to a failure to appear when the matter is called for hearing. -It is true that under CPC,1966 , the appeal could be dismissed forthwith when the appeal is called for hearing, yet S. 35 of the MCA, 1984 the appeal could be heard without notice to the appellant or and the respondent. Though the learned counsel for the appellant have decided not to make any submissions, yet my judgment will not solely depend on the Memorandum of Appeal, but partly on the revisional powers of this court on matters originating from primary courts.
(o) Commercial Case No. 14/00 – Tanzania Venture Capital Fund Ltd vs Igonga Farm Ltd. HC (Commercial Division) at Dar (Nsekela,J). -The plaintiff raised (in his reply) a preliminary objection that the defendants written submissions be strike out since they were filed out of time and without a court order to that effect. Mr. Galati has made a valid point but I am not prepared to accede to it. I am in complete agreement with him that court orders must be strictly complied with by all concerned, but having said that I am of the settled view that the contravention of the court order dated 13/07/00 has not occasioned any prejudice to the plaintiff. -I am not aware of any provision in the CPC, 1966 governing the presentation of written submissions to the court. It is a practice of the court – a very good practice – if I may be permitted to say so and which should be encouraged and supported by both the Bench and the Bar. In this particular case, I do not see how the plaintiff was prejudiced by the late filing of the written submissions by the defendant. It is a curable defect and accordingly I do hereby enlarge the period within which to file the submissions to 1.8.00 when the submissions were actually filed in court. -Suit withdrawn without leave to file it afresh cannot be re-filed on the same subject matter. Refer Order XXIII Rule 1(1) (2) and (3), and Order XXII Rule 1(2).
(p) Land Case No. 146/2004 – Fredrick A.M.Mutafurwa vs CRDB 1996 Ltd and others. HC(Land Division) at Dar (Rugazia,J). Counsel urgued to disregard the submissions (which were filed late and without leave of the court) and treat them as if they were not filed at all. Counsel did not end there for he put up a spirited argument by revisting several aurthorities on the subject. One of these is Ivan Mankobrad vs Miroslav Katik and Another- HC Civil Case No. 321/1997 Dar Registry(unreported) were it was held that court orders are made with purpose which is to regulate proceedings. In that case this is what my brother Judge said:- “….They are meant to command parties to act within a time frame fixed by the Court. If the parties are to act in total disregard to those orders then the court business will be rendered uncertain, and that will not be good for the efficient administration of justice. What is more, the respondent did not apply for, and if successful, to have the time within which to file the counter affidavit extended…” -The language used above needs no overemphasis. That is the court’s attitude towards parties who choose to disregard court orders without lawful or reasonable excuse. -Times out of number this court has held that the practice of filing submissions is tantamount to a hearing and, therefore, failure to file the submissions has been linked to non-appearance or want of prosecution. Needless to say, it has to be borne in mind that submissions filed out of time and, without court leave, are to be disregarded. See Fatuma Kassim vs Tabu Prosper – PC Cr. APP. No. 12/02 Dar Registry HC (unreported); Hidaya Zuberi vs Bogwe Mbwana PC Civ. Appeal No. 98/2003 Dar (unreported);Buyamba John vs Adili Bank Corporation Ltd and Another – Civil Case No.146/00 Dar(unreporfted). All these cases the court did not mince words to express the seriousness it attaches to compliance with the schedule and /or requirement to file submissions. -In sum total, it has to be said in no uncertain terms that filing the submissions out of time amounted to lack of prosecution. I so hold and, consequently proceed to dismiss the application with costs.
(q) Land case No. 53/04 – Joyce John Mhaville vs Tanzania Portland Cement Co. Ltd. HC(Land Division)- Longway, J ( Dar es Salaam). -On the second objection, it was submitted that the suit contravenes Section 10 of the Civil Procedure Code 1966. That is Civil Case No 118 of 1999, the plaintiff had withdrawn the case in response of objection “in limine”. That the said withdrawal had not sought grant of liberty by the court, so that a fresh suit may be instituted in terms of Order XXIII of the CPC, 1966. It was submitted therefore that the provisions of Order XXIII Rule 1(3) read together with section 10 of the Code had the effect of precluding the plaintiff from instituting a suit with the same cause of action as the one withdrawn. (-Court)-There is no dispute that Civil Case No 118/99 was withdrawn with costs to the defendants, but neither the proceedings…….nor……is shown that the court on 3/39/99 had granted that withdrawal with leave for the plaintiff to reinstitute fresh suit.The prayer was plainly made as being under Order XXIII Rules 1(1) and (2) of the CPC, 1966, without a specific prayer that leave be granted so that the plaintiff returns to court as provided for under sub rule 3 of rule 1 of Order XXIII. This premise, would indeed draw the application of section 10 of the Code to preclude the plaintiff from instituting fresh suit as submitted. There is no permission for reinstitution read in the order of the court of 3/9/99. I would therefore agree with the defence argument that case no 118/99 had been determined between the parties as regards the subject matter between them, so the present matter as rightly submitted, is res judicata. -Lastly, in a new submission, the defence counsel submitted that because the law rquires that the court satisfy itself on the question of its jurisdiction before it entertains any matter, that he was raising the issue now, ‘at any time in the proceedings’. Learned counsel submitted that the plaintiff’s claim is based on a deemed right of occupancy and not granted right of occupancy, therefore it falls under customary law as per section 180 of the Land Act, 1999. Therefore that the Village Land Council and Ward Tribunals are the courts of competent jurisdiction. It was submitted therefore that the matter of customary law in this case, as per provisions of section 13 of the CPC, 1966 should have gone to the Village Land Council, the Ward Tribunal oor District Land and Housing Tribunal which have a concurrent jurisdiction with this court on matters of customary law. It was noted that this court’s original jurisdiction has been taken away. (r) Misc. Civil Appeal No. 6/01 – Kinondoni Municipal Council and others vs Rehema Nyenza. HC at Dar (Kimaro,J). Ruling and Order must accompany the Memorandum of Appeal, unless the court dispenses with it (ruling).
(s) Civil Application No. 81/00 – Juma Swalehe vs Zahara Kitindi. CAT at Arusha. One can rightly say that the repeated orders for service were in fact merely gratuitously, and indeed superfluous, it being incumbent on the applicant to follow up and find out what was happening in court, once he had not come to court in response to the substituted service.
(t ) Civil Appeal No.67/01 – James Gwagilo vs A.G. CAT at Dar. -The function of pleadings is to give notice of the case which has to be met. A party must therefore so state his case that his opponent will not be taken by surprise. -Quoting Blay vs Pollard and Morris [1930] 1 KB 628, 634:- “Cases must be decided on the issue on record, and if it is desired to raise other issues they must be placed on the record by amendment. In the present case the issue on which the judge decided the case was raised by himself without amending the pleadings, and in my opinion he was not entitled to take such a course”. -The general rule is that a party is bound by his pleadings and should not be allowed to take succeed on a case not made out in his pleading.
(u) Civil Appeal no.84/01 – Freeman Mbowe and A.G vs Alex Lema. CAT at Dar. -Dr. Lamwai replied that in the same way a statute altering procedural provisions govern matters already instituted, so also court decisions should have the same effect. -Alterations of the form of procedure are always retrospective, unless there is some good reasons or other why they should not be.
(v) Civil Revision No. 15/02 – Bandarini Savings and Credit Cooperative Society ltd vs Sagumo Mgidya and others. HC at Dar (Ihema, J). On 12.10.02 the court consented that the application be disposed of by way of written submissions and a schedule to that effect was fixed. The ruling of the court was scheduled for 29.11.2002. To date none of the parties has filed their written submissions as ordered. As this by itself is sufficient to chase away the application, I order that the application be dismissed for want of prosecution. (w) Civil Case. No. 297/02 – Augustino Vyaga vs Janeth Ottaru. HC at Dar (Mihayo, J). Documents are part of the evidence and should be filed by the witness who deponed not by counsel who submits, to wit, in written submissions.
(x) Misc. Civil Cause No.14/04 – HC at Dar (Mihayo, J). EACA decisions are binding on our courts unless our Court of Appeal of Tanzania has categorically departed from such a decision of the EACA and declared it bad law.
(y) Civil Application No.67/03 – Colgate Palmolive Co. Ltd vs Zachaaria Provision Stores and 3 others. CAT at Dar (Mrosso,JA). The respondent, as already mentioned, has not lodged a memorandum of appeal within sixty days after being notified that the copy of proceedings was ready for collection. As rightly pointed out by Dr. Mapunda, the applicant who obtained a favourable decree in the High Court must not be kept in suspense indefinitely because of an intended appeal which never became an appeal. The notice of appeal is struck out with costs under Rule 82 although it could also be deemed to have been withdrawn under Rule 84 (a) of the Court Rules.
(z) Civil Applicaion No.87/01 – Global Distributors (T) Ltd and others vs CRDB Bank Ltd. CAT at Dar (Ramadhani, JA). The defect under Rule 10 (5), that is, the failure to indicate every tenth line, was delt with by this Court in Presidential Parastatal Sector Reform Commission vs The Impala Hotel Ltd, Civil Appeal No. 100/03 (unreported). In that appeal the Court referred to two earlier decisions of this Court. First, Hamisi Ally Ruhondo and 115 others vs TAZARA, Civil Appeal No. 1/86 (unreported) where the Court suo moto said:- “….We wish to remark that we were inconvenienced by the record furnished to us and which was duly certified by the appellant’s advocate. Between page 59 and 60 of the typed record a whole page of the original record is left out ……The n at page 62 nearly ten pages of the original record are omitted…We wish to argue Prof. Shivji, the learnmed advocate for the appellants to exercise greater care when certifying records and we would respectively draw his attention to the Rules of the Court of Appeal regarding this matter.” The second decision which was referred to was Leonsi Silayo Ngalai vs Hon. Justice Alfred Sakalama and another, Civil Appeal No. 38/96 (unreported) where a preliminary objection was raised but later withdrawn and the Court said:- “…….that insufficiency or incompleteness of the record of appeal is not a ground for incompetency of an appeal, because such a defect is rectifiable by an appellant at any stage of the proceedings as provided under sub-rule 3 of rule 92 of the Tanzania Court of Appeal Rules…….” This Court concluded in The Impala Hotel Ltd as follows:- “The non-compliance with the Court Rules in the preparation of the record of appeal in Ruhondo’s case and Ngalai’s case (supra) were far graver than what we have at hand! In line with this decisions, we find that this ground of complaint is devoid of merit. The Court will undoubtly be inconvenienced in reading pages of the record of appeal whose tenth lines are not indicated, but this is not a ground for rendering the appeal being incompetent”. -We are of the same view as our learned brother brethren in The Impala Hotel Ltd , in which ine of us was involved, and we find the objection to be devoid of merit and we dismiss it.”
(aa) Civil Application No. 140/04 – Pita Kempap Limited vs Mohamed Abdulhussein. CAT at Dar (Msoffe,JA). -The notice of motion made under Rule 82 is seeking an order to strike out with costs the notice of appeal lodged in this court on 17.9.2004. -The reason is that, ever since the notice of appeal was filed no leave to appeal has been granted within the fourteen days from the date of the decision sough to be appealed against. Thus, in Mr. Maira’s view, an essential step has not been taken within the prescribed time, hence this application. -On the other hand, Mrs. Lwebangira stated that the notice of motion was premature. In her oral submission, the notice of appeal should not be strike out in that there are two applications pending before the High Court. One for extension of time to apply for leave to appeal, and the other for leave to appeal. It is therefore the view of Mrs. Lwebangira that since the two applications are yet to be determined by the High Court the notice of motion is premature. -So was held by this Court, Mfalila, JA in Asmin Rashid vs Boko Omar [1997] TLR 146 the essential steps in the prosecution of an appeal envisages by the above Rule (Rule 82) are steps which advance the hearing of an appeal and not explanations for the delay. -In my view, appeal is process in which a number of steps are involved in its institution. A notice of appeal and leave (where necessary) are two different steps in the process leading to one major goal of instituing an appeal. Failure to take action in one of the two streps should not be used to terminate the other at this stage. Since the respondent is already in the process of seeking leave it is fair that he be given opportunity to pursue that step to a conclusive end. -In my view, assuming the respondent ultimately institutes the appeal without leave then a preliminary point could always be taken at that stage on the competence of the appeal. In other words, time is not yet ripe to canvass the point covered in this application. It is therefore premature to seek an order to strike out the notice of appeal at this point in time.
(bb) Civil Case No. 99/03 – Maunga Seed Co. Ltd vs The Secretary To The Treasury ministry of Finance And National Planning Government of the Republic of Zambia. HC at Dar (Shangwa,J). -It was quite unprocedural and undiplomatic on the part of the plaintiff to sue the Government of the Republic of Zambia without notifying and or consulting the Government of the United Republic of Tanzania which was the High powered contracting party in the agreement for supply and sale of maize to the Government of the Republic of Zambia when the peoples of Zambia were experiencing some shortage of maize during 2000/2001 crop production season. -It is an embarrassment to the Government of the United Republic of Tanzania as it was filed without consultation or notice to the Attorney General.
(cc) Civil Applicartion No. 70/02 – Consolidated Holding corporation vs. Nyakato Soap Industries Ltd CAT at Dar (Mroso, JA). In the year 2001 Parliament passed legislation, Act No. 10 of 2001, changing the name “NBC Holding Corporation” to “Consolidated Holding Corporation” In view of that change of name, the applicant has filed an application to this Court by a notice of motion praying for leave to change the name of the appellant both in the notice of appeal and in the memorandum of appeal to Corporation Holding Corporation, in place of NBC Holding Corporation. The Notice of motion is filed under Rules 46,47 (1) and 104 of the Court Rules. It seems that the citing of Rule 46 was unnecessary. - Mr. Ndyanabo did not oppose the application and seized the opportunity to make an oral application for leave to amend the notice of cross – appeal which he had also filed before NBC Holding Corporation was changed to Consolidated Holding Corporation. Mr. Ndyanabo did not cite the particular rule under which he made the informal application. Rules 45 (1) and (3) and 104 permit such application and as Mr. Mwandambo did not object to Mr. Ndyanabo making an informal application in the course of hearing the formal application, I entertained it. Rule 45 (1) of the Court Rules provides that subject to the provisions of sub –rule (3) of the rule, all applications to the Court must be by motion which should conform to Form “A” in the First Schedule to the Rules of Court. However, sub – rule (3) of the Rule provides that an informal application may be made in the course of hearing. Can the Court allow amendment of filed documents, whether the application is formal or informal?. Rule 104 of the Court Rules provides- The Court may at any time allow amendment of any notice of appeal or notice of cross – appeal or memorandum of appeal, as the case may be, or any other part of the record of appeal, on such terms as it thinks fit”. Mr. Mwandambo, citing a ruling of this Court in Hassan Nuru Hassan v s. Consolidated Holding Corporation, Civil Application No. 118 of 2001 (unreported), in which this Court allowed the amendment of a notice of appeal in order to substitute the name Consolidated Holding Corporation for NBC Holding Corporation, even where there had not been a formal application, argued that the Court should grant this application in which there had been a formal application. This argument is accepted and, in fact, supports more Mr. Ndyanabo’s informal application than Mr. Mwandambo’s which has been made squarely under Rule 104 of the Court Rules. Both learned counsel’s application to amend the notice of appeal and cross – appeal as the memorandum of appeal are granted, so that the name Consolidated Holding Corporation is substituted for the name NBC Holding Corporation. The second prayer by Mr. Mwandambo that the notice of appeal be amended so that the part of the High Court decision against which it is intended to appeal is specified in the notice of appeal, is also granted. The Notice of Appeal should state that it is intended to appeal against that part of the decision as decides on “the award of general damages, interest and costs”. The amended notice of appeal, memorandum of appeal and cross-appeal must be loddged in court within seven days of the date of this ruling. It is so ordered. It hardly needs to be overemphasized that it is highly imporoper on the part of the court to rely on or to take into account radio and news papers reports as the basis of deciding the case. Time and again this court has expressed the correct position in law for the courts in administering justice. The courts should base their decisions or nothing else other than the evidence adduced in court and the applicable lew in the circumstances of the case. In the instant case it is inexplicable why the learned judge fell into the serious error of taking into account press and radio reports as the basis of deciding the case. This was, in our view, highly improper. We urge the court to refrain from such practices in future.
(dd) Civil Appeal No. 61/96 - John Lessa vs Zamcargo Limited and Jonas Mmari CAT at Dar. (Kisanga J.A.).
- This is an appeal against the decision of the High Court (Kyando, J.) refusing to enter judgement for the plaintiff/appellant after the defendant/respondents had failed to file a written statement of defence within the prescribed time.
- Very briefly the facts of the case are as follows: After the appellant and filed the plaint in the High Court, that court ordered that the written statement of defence be filed by 23.2.93, and the case to be mentioned on 3.3.93. On this latter date no written statement of defence had been filed, and the time for filing the written statement of defence to 16.3.93. The appellant alleged that the respondents failed to comply with the court order and so he applied to have judgement entered in his favour or for an order to proceed ex – parte against the respondents. The application was resisted and the learned judge, upholding the submission that the written statement of defence was filed well within time, dismissed the application. The appellant’s application to the High Court (Bubeshi, J.) for leave to appeal against the dismissal was refused but was subsequently granted by a single Jusge of this Court (Ramadhani, J.A.).
- Mr. Kisusi who, as stated before, conducted the defence before Mr. Ndyanabo took over, vigorously maintained that he filed the written statement of defence on 26.2.93. According to him that was well within kthe time fixed by the court i.e. 16.3.93. However a close examination kof the record demonstrates that the alleged date of filing the written statement of defence i.e. 26.2.93 was clearly a forgery. First, the appellant said on oath that after the court had ordered the filing of a written statement of defence by 16.3.93 he constantly enguired from the court if that order was complied with but was filed. The question is: if Mr. Kisusi had filed the written statement of defence on 26.2.93 why was a copy of it not served on the appellant? Why was the appellant not shown the alleged written statement of defence when he requented the court and asked if one had been filed? Second, on 3.3.93 when the case was mentioned in court, one Mr. Lyimo apparently holding brief for Mr. Kisusi, counsel for the respondents, asked for extension of time till 16.3.93 to file a written statement of defence, and the application was duly grnted. If Mr. Kisusi had already filed the written statement of defence on 26.2.93 as he claimes, why was it necessary on 3.3.93 to ask for extension of time to file the document? And if tht document was on the file, why did the court not see it, in which case it would be superfluous for it to extend time for filing the same document. It is pertinent to note that the said Mr. Lyimo has not sworn any affidavit to explain the cirucimstances in which he came to ask for extension of time to file a written statement of defence in a case where according to Mr. Kisusi, one was already filed. Nor did Mr. Kisusi himself swear any affidavit to shed some light on the matter. Not only that Mr. Kisusi has not filed the affidavit of one George Mjema, his clerk, who allegedly resented the written statement of defence at the registry for filing on 26.2.93. In these circumstances it is impossible to think that the written statement of defence was filed on 26.2.93 as Mr. Kisusi asserts.
- The worst aspect of this matter is what appears on the exchequer receipt against which the written statement of defence was allegedly filed on 26.2.93. But the inspection of the counterfoils of the relevant receipt book disclosed that the previous two receipts Nos. A8/509500 and A8/509501 where both issued on 23.4.93, this is some two moths later. The question is: How could the subsequent receipt No. A8/5095002 have been issued before those two on 26.2.93? the only conclusion to be drawn is that the exchequer receipt No. A8/5095002 dated 26.2.93 as not issued in the ordinary course of business. It must have been issued in a fraudulent attempt to show that the written statement of defence was filed on 26.2.93 and that this particular exchequer receipt was issued in respect thereof.
- With that said, we now conclude this matter by holding that the learned High court Judge wrongly found that the written statement of defence was filed within the time fixed by the Court. On the evidence he should have found that the respondents had failed to file a written statement of defence. Accordingly that Ruling is set aside.
- The appellant in his chamber application to the High Court has asked for judgement in default of filing a written statement of defence or for an order that the case proceeds ex – parte against the respondents. Although the appellant did not say so expressly, it is clear that he was relying on the provisions of Order 8 Rule 14 of the Civil Procedure Code. Had the trial judge not been misled, he would have found, that the respondents had failed to present a written statement of defence, in which case he would have proceeded to make the necessary order or direction under the above cited Rule following such default. Accordingly the matter is remitted to the High Court with a direction that Court now proceeds to make the necessary order/ direction under order 6 Rule 14 of the Civil Procedure Code.
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(ee) Civil Appeal No. 306/04 – Mohamed Juma vs Halima Athumani HC at Dar (Kalegeya J).
- It was quite uprocedural, deplorably wrong, for the Magistrate to have simply asked parties whether they had anything to add to their pleadings and proceed to write judgement. A Certificate of a Conciliation Board alone however, is not suffiecient evidence let alone tested evidence to support a decree for divorce and consequential orders.
- The Court was bound to hear evidence on the alleged cruelty and abuse. In divorce petitions the court is bound to hear evidence and make a finding on who among the spounses is the guilty party for the break – up of the marriage. This is necessary as it may have some bearing on consequential orders. In the case at hand all the vices alleged by the Respondent in her petition were challenged by Appellant in his “letter cum answer” document. Now, without hearing the parties and their evidence, how did the court arrive at the findings displayed in part of the judgment quoted at length for this purposes! The obvious is that it simply kdecided to believe what was in the petition wholesale! Court should not be carried away by simply the dark picture presented by the pleadings. Decisions should be based on established facts by evidence. It is not uncommon, during and afgter trial, for courts to discover that what was put up in a pleading was excessively exaggerated or never was in existence, and a party may end up abandoning it altogether or calling no evidence in support thereof. In drawing up a pleading, a party may have been driven by illi – feelings; wrong and schemed advice, ignorance, and even vendetta. It is because of this that summary/default judgements though permissible under the law are not encouraged the best safety valve being full proof exparte, that is, adducing oral evidence.
- While possibly one may argue that treading on the Bakwata Conciliation Board Certificate, divorce is the most obvious, it is not easy to give an explanation regarding proof of property itemized under Ann. B to the Pettition? I have no quarrel at all with the principle enunciated in the last three paragraphs of the lower Court’s reocord already quoted above because wives are not chattels and deserve equal share of what spouses acquire during the subsistence of the marriage (contrary to what the Appellant propagates in his answer to lthe petition) and the Welfare of issues of marriage has to be adequately addressed by the Court. However, I am at a loss as to what the court actually meant. Was there to be another trial? How was the petitoner’s share to be detemined and by who? What about the children? How were their interests to kbe gauged and by who? In fact, as the judgement stands, it would be difficult for the Respondent and the children to enjoy the fruits of the judgement it purports to accord.
- All the above an unswered questions put the judgment itself as passed by the court into question. And this goes further to establish that the issues raised in the petition and the answer thereto cannot be adjudicated upon, the way the lower court purported to do, without calling evidence.
- Apart form an attack on lack of procedural production evidence to support the petition, the Appellant also charged that the matter proceeded without the pleadings being complete. On this we not two elements one, is the way the answer is written. I have already said, it is in Kiswahili (on this, we should take pride of our language) but it takes the form of a letter. Two, although it is not necessary to have a rejoinder, the way the matter was conducted leaves a lot to be desired. The proceedings show that parties said that they had nothing to add and signed the record. Circumstances are not free from a possibility that they did not comprehend the process. Did they mean that they had nothing to add to their pleadings or had nothing to gove as evidence? This also gives me a feeling that possibly the Appellant was not prppertly advised on how the answer to the petition was to be formulated, otherwise, apart form other wanting elements, he would not have put it in a form of a letter with copies thereof to “Women Legal Aid Centre” and “Mufti Tanzania” as the former are clearly indicated as drawers of the petition “gratis” hence were not appearing in the case and the latter is not a party to the case.
- Form the totality of the above, while I deeply sympathise with Respondent, for she embarked on the process with expectations and intention of advancing her cause and that of the children expenditiously, thisk court cannot allow this flawed decision, as sufficiently pointed out above, to stand. The lower court’s judgement and decree are accordingly quashed and set aside. It is hereby ordered that the trial of the petition be conducted afresh with proper guidance to the parties regarding pleadings and furnishing of evidence as procedurally and legally obtainging. As the court is the causant of the flaws that have resulted into this reversal of the process it is hereby ordered that hearing of the petition afresh be put on first track.
- Regard being had to the relation of the parties, no order is made as regards costs.
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(ff) Civil Reference No. 4/05 - Philip D. Mnyama vs Dr. Lutale HC at Dar (Kalegeya, J)
- This is a very unfortunate, interesting but complex matter through seemingly simple.
- It is trite law that,
“ where a counter – claim is set up in a written statement of defence, the Counter – claim shall be treated as a cross suit and the written statement of defence shall have the same effect as plaint in a cross suit and the provisions of order VII shall apply mutatis mutandis to such written statement as if it were a plaint” [O.BVIII, Rule 0 (2) CPC] Thus, generally, finalization of the claims as fronted in the plainti do not effect the calims that are fronted in the Counter – claim and vice versa.
The present case however, presents unique elements and it is not without reason that the trial court sought guidance of this Court by way of reference in terms of O.XLI Rule 1 CPC.
The written statement of Defence containing a counter – claim was filed on 8/9/98 and a copy threof was served on plaintiff on 22/9/98.
- However, the plaintiff did not file a reply to the written statement of Defence nor a defence to the counter – claim until 20/11/98.
- Beeing about 59 days out of the usual 21 days period within which to file a defence, and no application for extension of time having been made in that regard in terms of O.VIII Rule 1 (2) of the Civil Procedure Code as amended by GN 422 of 1994, the Defendant preferred a preliminary objection with the trial Court to have the Reply/answer struck out. On 12/3/2001 the objection was dismissed, the court holding that the reply was legally and properly filed.
- The said holding did not amuse the Defendant who successfully preferred Revisional proceedings with the High Court. The High Cour (Bubeshi, J) on 8/2/2002 revised the trial court’s finding holding that the Plaintiff had deplorably acted out of time and without court’s leave and struck out the reply with had naturally contained the defence to the counter – claim. The High Court then ordered,
“The lower Court’s record to be re – submitted back for continuation of the case”.
- It is interesting and complex because the Counsel and the Court, admittedly, are at cross roads – none is sure of the way forward.
- I have carefully considered the matter and I must also admit it has condiderably tasked by brain.
- As the purported defence filed out of time was struck out, legally, the defendant, was entitled to pray for judgement as ordered on 3/3/2004. 0.8 Rule 14 (1) CPC has the following.
“ 14 – (1) Where any party has been required to present a written statement under sub – rule (1) of rule 1 or a reply under rule 11 of this Order and fails to pesent the same within the time fixed by the court, the court shall pronounce judgement against him or make such order in relation to the suit or conter – claim, as the case may be, as it thinks fit.
- While Rule 11 (1) where a defendant sets up a counter – claim the plaintiff and the person (if any) who is joined as a party against whom the counter – claim is made shall each, if he wishes to dispute the counter – claim, present to the court a written reply containing statement of his defence in answer to the counter – claim within twenty – one days form the date of the service upon him of the count – claim”.
- Up to that stage there is no vivid procedural bottleneck. The problem starts with the way the main suit filed by the Plaintiff should be dealt with in the circumstances.
- In view of the claims preferred by Plaintiff (here, we are dealing with the plaint and the Written statement of defence excluding the counter – claim) the issues for trial would be or close to the following:
a. Who among the Plaintiff and Defendant is the lawful owner of plot No 105 Block “B” Tegeta, Dar es Salaam?
b. If the answer is in the affirmative for the Plaintiff, whether the Defendants trespassed thereto, destroyed the Plaintiff’s servant’ Quarter valued at shs. 960,000/= and proceeded to erect constructions of his own?
c. To what reliefs are parties entitled?
- It is obvious therefore that the trial would be conducted on what substantially has already been determined in the judgement entered on the Counter – Claim.
- The main issue, as circumstances stand, is who has a paramount title to the disputed land? Technically, on the basis of the judgemet entered, it is now the Defendant. No evidence however was adduced in support thereof. The question now is, supposing the trial proceeds and from the evidence that will be adduced, the court is satisfied that contrary to the judgment on record, the Plaintiff has a better title, how will it proceed? Enter judgment for Plaintiff? That cannot be because otherwise we will have two judgments diametriacally opposite of each other on same matter. Will the court set aside the judgement alredy entered? That is not possible as it is now functus officio in relation thereto. Should the trial court now leave the matter as it is by keeping a blind eye to the Plaintiff’s claim? That will leave the Plaintiff’s case hanging, undetermined, clearly justice will not have been done to the action he mounted.
- The question is, what do we do in the circumstances?
- After paying the matter due attention and analysis it deserves, I am of the following considered views:-
(a) That where trial courts are faced with such a situation (i.e each party claiming title to the same piece of land or property), upon default by the Plaintiff to file a reply or answer to counter - claim in terms of O.VIII Rule 11 CPC, no judgment should be entered in terms of O.VIII Rule 14(1) CPC. The court should be able to say “Defendant, yes, technically you are entitlement to judgment but considering the nature of similarity of the claims in the main suit and counter – claim, let us allow the Plaintiff to prove his claims first “ The Defendant would not be disadvantaged thereby in anyway because it is full trial as regards Plaintiff’s case and after the conclusion of which, depending on the finding, the court would turn to his (Defendant) case with all technical advantages like securing judgment outright on unshaken elements.
- Iam strengthened in this view by the very workding of (O.VIII Rule 14(1) CPC – it does not provide that the only avenue available to the court is to pass judgement. No. It gives a leeway. Apart from judgement, the court can “ make such order in relation to the suit or counter – claim, as the case may be, as it thinks fit”.
- It all depends on the circumstances of the case and the way the court sees it fit.
- The Legislature must have envisaged such situations as the current one in employing the quoted wording.
- I should add that, in my view, even in cases not resembling the current one, but where the claims, in the counter – claims, by their very nature require detailed proof and analysis like damages, compensations and related, it is desirable that an exparte proof be ordered under O.VIII Rule 14(1) CPC instead of entering judgement simpliciter. Why? We are all aware of frails of human nature. Pleadings are not evidence. And in drawing them up a party may have exaggerated the claims due to ignorance, ill – advice, endetta or related or he may be suffering from what is called “seize chance and get – rich – quick syndrome” Thus, though 0.8 Rule 14(1) so permits, summary judgments should be an exception rather than the normexparte proofs are the more befitting the parameters of Justice. I am further cemented on this by what happens time and again in courts that some parties who are allowed to prove their cases exparte sometimes fail to do so! For exparte proof does not lessen the legal burden of proof placed upon the party, that he who alleges has to prove. Such a party who gets his claims dismissed nothwithstanding having had the whole would at his disposal to prove his claims would have otherwise secured judgement under the the summary procedure!
(b) Now, on the question before us, as that stage (b) has now passed, and for reasos exposed above i.e that the Plaintiff’s claims cannot simply be abadndoned or left hanging; neither would a trial from where the matter stands be meaningful, for that step is potentially pregnant with setting in confusions and contradictions, for ends of justice, I am of the settled view that the only, and best way out is to quash the judgement entered in respet of the counter – claim, as I hereby do, and order full trial of the Plaintiff’s case first. At the conclusion of the trial, the court will deal with whatever claims that may still be untackled in the counter – claim, including requiring exparte proof by Defendant or entering summary judgement as it may deem fit, however, guided by what I observed under (b) above.
- The recond to be returned to the trial court forthwith with these directions that issues should now be framed followed by full trial. This order skeeps part of O.VIII A CPC – i.e. mediation, as it would serve no purpose in the circumstances. However, considering the delay so far taken by the dispute within the precincts of the court, I order that the trial should be fixed at speed track one and should proceed before the same trial Magistrate. It is so ordered.
(gg) Civil Appeal No. 4/04 – Mwangaza Iddi vs Athumani Salehe Kidile HC at Dar (Massati J).
- I think there is no dispute before the parties that the Defendants are the ones who filed a notice of preliminary objections, The plaintiff did not file any. There is also no dispute that on 28/4/2003, at the instance of the plaintiff’s counsel the court ordered that the preliminary objections be withdrawn. Nomenclature apart it would be legally naïve to think that the trial court may have had in mind any preliminary objections other than those raised by the Defendants. It may not have been logical for the plaintiff to pray to “withidraw the preliminary objection which she had not raised; it may be that “withdrawal was not” dismissal of the preliminary objections the point is that whether rightly or wrongly the trial court had endorsed the prayer for the “withdrawal”. Withdrawal means removal from the court records. If the court was wrong in so doing it could only be corrected by way of review (by itself) or by revision or appeal. It could not, I think, be corrected by consent of counsel in the absence of an express order to vacate it or in review. Since this was not the case, I have no doubt in my mind that the order removing the preliminary objections was still valid in law. In KAMUNDI vs REPUBLIC (1973). EA. 540 it was held that a court becomes functus officio when it disposes of a case by a verdict of guilt or by passing a sentence or making an order finally disposing of the case. In the present case, the trial court made orders finally removing the preliminary objections form the court records. As I said above, whether or not it was correct or proper for him to do so the court thereby became functus officio with regard to the preliminary objections I therefore agree with Mr. Makunja, learned counsel that the trial court was legally precluded from deciding on the said preliminary objections as he did, unless the said preliminary objections were restored by first correcting the order or by vacationg it. This substantially disposes of the appeal.
- But there are also aspects, that I have thought fit to comment on in addition to the gournds raised by the Appellant. And there are two observations. First under the O.VIII r. 3 preliminary objections to suits ought to be pleaded in the Written Statement of Defence. Here thery were not so pleaded. So really they were not properly before the tral court. Secondly even if they were properly before the trial court the defects pleaded would not justify a dismissal of a suit but obly a rejection or striking off of the same. So the order of dismissal was therefore of doubtful legal validity.
- In fine then this appeal must succeed. The order of the trial court is set aside. It is ordered that the case file be remitted to the trial court and placed before another magistrate of competent jurisdiction so that it may proceed with the suit according to the law. The appellant shall have her costs in this appeal and the court below.
(hh) Civil Appeal No. 66/01 - Ernest Kakala vs M/s Interstate Business Building Contractors. HC at Dar. (Mlay J,)
- Falure to file written submissions within the prescribed period amounts to failure to prosecuted the application. The respondent even in the absence of the applicant’s submissions, filed written submission on 11/1/2005. As the application has not filed any submissions, the respondent has nothing to reply to.
- The application is accordingly dismossed for want of prosecution with costs.
(ii) Misc. Civil Appeal No. 10/03 - E.D. Kisusi vs The Hon. Attorney General and another HC at Dar (Oriyo, J)
- Admittedly, the appeal was a source of anxiety to us and we had to direct tht parties include in their submissions on the appeal, arguments on whether the decision of the second respondent was capable of being appealed against. We agree that any advocate; aggrieved by a decision and/order of the second respondent has a right of appeal to this court. SECTION 24A (1) of the Advocates Ordinance, Cap. 341, as amended by Act any decision or order of the Committee Under this Ordinance may, within 30 days of such decision or order, appeal to the High court against such decision or order.
- Oour concern here is whether there is a decision/order of the second respondent on the matters before it capable of being appealed against. It is common knowledge that there were only two matters pending before the second respondent as of that date: namely the substantive issue on the allegations of misconduct and the second preliminary objection. Any decision or order of the second respondent would be on the merits of either of the two matters or on both.
- In our considered opinion, the second respondent has yet to pronounce its decision or order on any of the matters pending before it. What the second respondent had done was, in our view, to merely decide on the procedure it had chosen to adopt in disposing of the matters before it. We had earlier in this decision reproduced the relevant part of the Committee’s decision for a purpose. The Committee stated that it had duly considered the submissions on the preliminary objection; but , in the course of so doing, it had realized that it was not possible to make a decision thereon without going into the merits of the allegations of misconduct. That was the basis of the Committee’s decision to proceed by dealing kwith the allegations and the preliminary objection simultaneously. As correctly submitted by Mr. Matupa, learned Counsel for the respondents, the Committee had not yet made a decision on either the allegations of misconduct or the preliminary objection. It other words, there is no decision of the Committee on the matters pending before it for purposes of appeal.
- The appellant argued that since both parties to the dispute before the Committee were able to argue the preliminary objection without going into the merits of the allegations of misconduct, then the Committee should be ordered to hear the preliminary point first. The argument is quite interesting, but, with due respect to the learned E.D Kisusi, if we were to grant his prayers, we would be creating a dangerous precedent of unprecedented consequences, to say the least. The procedure adopted by the Committee to simultaneously consider the substantive matter and the preliminary objection is prevalent in our courts and has its advantages; such as, speedy disposal or both matters; the elimination of inherent dangers of prejudices, etc.
- The appeal has given us the impression that it is an attempt to throttle the machinery of justice. It is an attempt to pre- empty the Committee from exercising its statutory powers to make decision (s) on the matters pending before it. While we cherish and uphold the appellant’s statutory of appeal; we are of the firm view that the appeal is prematurely before us.
- In view of our above observations, the appeal is unmaintainable. On that account, we strike it out.
- Accordingly, we uphold the second respondent’s decision dated 25/9/2003. We order that the matter be remitted to the second respondent to proceed with it.
(jj) Civil Case No. 237/00 – Scania Tanzania Ltd vs Suchak and Sons co. Ltd HC at Dar (Oriyo,J)
-I will now turn to the merits of the application for judgement on admission of a sum of Shs. 120,000,000/= Judgment on admission is provided for under ORDER XII rule 4, Civil Procedure Code. It states as follows:-
“ Any person may at any stage of a suit where admissions of fact have been made either on the pleadings, or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just”.
- Pursuant to the contents of paragraph 4 of KAYUZA’S affidavit in support, the applicant contends that the respondent admitted indebtness to the applicant through a letter dated 16/7/99 and undertook to reduce the debt by Shs. 120,000,000/= by the end of August, 1999. which the respondent failed to do. The copy of the letter was annexed to the affidavit and marked “AF.1” The same letter had formed part of the plaint under paragraph 8 and marked “p.6”. The issue before the court is whether the letter of 16/7/99 written by the respondent to the applicant constitutes an admission under rule 4 above. The answer by the respondent is in the negative. It is contended for the respondent that for the provisions of rule 4 to apply, the issue must have been raised in the pleading or in the proceedings followed by unambiguous admission thereafter.
- The respondent further argued that although the letter of admission was part of the plaint; the admission was strictly denied in the defence and the applicant’s prayer in this regard should not be granted.
- In their commentaries on the India Code of Civil Procedure on Order XII rule 6 therefore, which is similar to our Order XII rul 4; the learned authers of MULLA, 15th Edition, at page 1400, state that before a court acts under the rule; the said admission kjust be clear, unambiguous, unconditional and unequivocal. On the application Order XII rule 6 of Kenya which is inpari material with our rule 4, the East Africa Cour of Appeal stated as hereunder in the case of JOHN PETER NAZERATH VS BARCLAYS BANK INTERNATIONAL LIMITED, Civil Appeal No. 39 of 1976 (unreported):-
“ in our view, on a motion for judgment on admission, the matter to be looked at should be the admission made, whether written or oral, and to see whether such admission suffices for judgment to be entered. The admission must be clear, explicit and not open to doubt”.
The relevant part of the matter of admission dated 16/7/99 reads:-
“We would therefore like to assure you our commitment in repayment of the outstanding amout and, our promise that we will pay without fail a total of 120,000,000/= at the end of August, 1999 and continue with other payments as earlier agreed between us”
The respondent does not deny the latter and its contents. In my view, the letter, fits the test laid down both in MULLA and the East Africa Court of Appeal decision in JOHN NAZERATH. It constitutes a clear, unconditional and unambiguous admission not open to doubt.
On my part, I am satisfied, on the pleadings in the main suit and the affidavits filed pursuant to this application, that the applicant has adduced sufficient evidence of admission on the part of the respondent that the latter is indebted to the former at least to the tune of shs. 120,000,000/=.
The application for judgment on admission for shs. 120,000,000/= against the respondent is hereby granted with costs.
(kk) Pc Civil Appeal No. 110/03 - Pontian C. Kahama vs Dr. Julius G. Kibassa HC at Dar (Oriyo, J).
- The ruling is in respect of a preliminary objection in law raised by the respondent that the appeal is nor properly before the court. At the hearing of the preliminary objection, the appeallant appeard in person and the respondent was represented by Adili Attorneys learned advocates.
The appellant does not dispute that Act 25 of 2002 Written Laws (Miscellaneous Amendments) Act, bars appeals, revisions and reviews from interlocutory orders unless such an order has the effect of finally determining the matter. Further, he does not dispute that the appeal filede by him si against an interlocutory order. Thereafter the appellant proceeds to argue some aspects of the merits of the appeal.
I will not be detained hereby considering the arguments of the parties because there is no dispute that the appellant’s appeal is against an interlocutory order of District Court. As rightly stated by the respondent, the appeal is not properly before the Court as it contravenes the letter and spirit of Act 25 of 2002 above.
In the upshot, the appeal is struck out. The respondent is awarded the costs of the appeal.
(ll) Civil Appeal No. 34/04 - Pontian Mutayabarwa vs Chiku H. Lugonzo HC at Dar (Oriyo,J).
-The issues for determination here is whether the procedure in appeals in matrimonial proceedings is governed by the general provisions of the Civil Procedure Code or by the Matrimonial Proceedings Rules, 1971. Section 80 of the Law of Marriage Act, 1971 provides for a right to appeal in Matrimonial Proceedings . Subsection (3) of section 80 provides as hereunder:-
“ Save to the extent provided in any rules made under this Act the provisions of the Civil Procedure Code, 1966 relating to appeals shall not apply to appeals under this Act” (under living mine)
It is therefore obvious from this providion that the provisions of the Civil Procedure Code as stipulated in section 74 as amended, are explicityly excluded from application to appeals in matrimonial proceedings. However, section 80 (3), the Law of Marriage Act, makes an exception in that the Civil Procedure Code provisions may be applicable in appeals under the Law of Marriage Act, where the rules made there under permit the same. By virtue of Rule 38 of the matrimonial proceedings Rules which is under Part VIII of the rules and is titled “ APPEALS” provides for the application of the proviksions of ORDER XXXIX of the Civil Procedure Code titled APPEALS. The application of rules 9 to 37 of Order XXXIX is provided for use in appeals in matrimonial proceedings with some exceptions listed therein. Therefore, the application of rules 9 of 37 of Order XXX!X of the Civil Procedure Code are extended to apply to appeals in matrimonial causes.
It is trite law that a subsidiary legislation cannot override the provisions of the main statute . Therefore the provisions of rule 38 cannot override those of section 80 (3). The fact still remains the same in that the provision 74 (2), which is in the body of the principal registration, are not applicable to appeals in matrimonial proceedings except as provided under section 80 (3). The respondent had relied on the provisions of Rule 29 (2) of the Matrimonial Rules in support of the preliminary objection. But with due respect, that rule is applicable to trials in the trial court and does not extend to appeals. The correct rule is 38 above; however; the principle is that the Civil Procedure Rules will only be invoked where the Matrimonial Proceedings Rules do not provide for the situation.
Having stated the foregoing, the preliminary objection lacks merit. It is accordingly dismissed. The respondent being a legal aid recipient from WLAC, there is no order for costs.
(mm) Reference Civil Case No. 211/98 – Philip D. Manyama vs Dr. Lutale HC at Dar (Kalegeya, J).
- This is a very unfortunate, interesting but complex matter though seemingly simple.
It is trite law that,
“Where a counter – claim is set up in a written statement of defence, the Counter – claim shall be treted as a cross – suit and the written statement of defence shll have the same effect as plaint in a cross suit and the provisions of order VII shall apply mutatis mutandis to such written statement as if it were a plaint” [O.VIII, Rule 9(2) CPC] Thus, generally, finalization of the claims as fronted in the plaint do not affect the claims that are fronted in the Counter – claim and vice versa.
-The present case however, presents unique elements and it is not without reason that the trial court sought guidance of this Court by way of reference in terms of O.XLI Rule 1 CPC.
- The Written Statement of Defence containing a conter – claim was filed on 8/9/98 and copy thereof was served on Plaintiff on 22/9/98.
- However, the Plaintiff did not file a reply to the written statement of Defence nor a defence to counter - claim until 20/11/98.
- Being about 59 days out of the usual 21 days period within which to file a defence, and no application for extension of time having been made in that regard in terms of O.VII Rule 1(2) of the Civil Procedure Code as amended by GN 422 of 1994, the Defendant preferred a preliminary objection with the trial Court to have the Reply/answer struck out. On 12/3/2001 the objection was dismissed, the court holding that the reply was legally and property filed.
- The said holding did not amuse the Defendant who successfully preferred Revisional proceedings with the High Court. The High Court (Bubeshi, J) on 8/2/2002 revised the trial court’s finding holding that the Plaintiff had deplorably acted out of time and without court’s leave and struck out the reply which had naturally contained the defence to the counter – claim. The High Court then ordered,
“ The lower Court’s record to be re – submitted back for continuation of the case”
- It is interesting and complex because the Counsel and the Court, admittedly, are at cross - none is sure of the way forward.
- I have carefully considered the matter and I must also admit it has considerably tasked by brain.
- As the purported defence filed out of time was struck out, legally, the defendant, was entitled to pray for judgement as ordered on 3/3/2004. 0.8 Rule (1) CPC has the following:-
“14- (1) Where any party has been required to present a written statement under sub – rule (1) of rule 1 or a reply under rule 11 of this order and fails to present the same within the time fixed by the court, the court shll pronounce judgment against him or make such order in relation to the suit or counter – claim, as the case may be, as it thinks fit”.
While Rule 11(1) of the same Order provides:-
“11 – (1) where a defendant sets up a counter – claim the plaintiff and the person (if any) who is joined as a party against whom the counter – claim is made shll each, if he wishes to dispute the counter – claim, present to the court a written reply containing statement of his defence in answer to the counter – claim within twenty – one days from the date of the service upon him of the counter – claim.”
(nn) Civil Appeal No. 50 /04 – Mathias Syereye vs Tazara Construction Unit HC at Dar (Massati, J).
- I don’t agree with the Appeallant that generally judgments cannot be based on an unpleaded issue. In a number of cases it has been held that such judgments may stand if no prejudice has been caused and if the issues has been argued (see DHANNI RAMJI Vs RHAMISHAI & CO. (UGANDA) LTD 9170) EA 515 , and if the issue is left to the court for decision (see ODD JOBS vs NUBIA 91970) EA 476 And the Court of Appeal of Tanzania in AGRO INDUSTRIES LTD Vs. MUBIA was cited with approval and held:
“ When a trial court allows parties to address it on any issues the court must conclusively determine those issue notwithstanding that the issue was not in the pleadings”
In the present case, it may be that the issue of place of recruitment may not have been directly pleaded and an issue framed, I am satisfied tht second issue, apart from the first, framed by the trial court, was broad enough to embrace the issue of place of recruitment, because in order to answer any of the two issues the issue of place of recruitment had of, necessity to be tackled. Besides the issue of place of engagement came out clearly in the course of the trial and the parties were allowed to address the court on the issue as they referred to S. 53 (3) (b) of the Employement Ordinance (Cap. 366) which is the foundation of the right to repartriation. I am thus satisfied that on the facts in this case, the trial magistrate was entitled to take the views she did. Therefore, I find no merit in the appellant’s first ground of appeal.
It has been that general traverse is not bad per se, although it would make it difficult for the plaintiff to know the defence. (See East African Posts and Telecommunications vs Terrazo Paviours [973] LRT 55. But if the appellant felt embarrassed by the general denial, it was open to him to object it, or to ask for further and better particulars of the defence in terms of O VI r. 5 of the Civil Procedure Code, 1966. In the absence of any such objection the primary concern of the trial court and this court is the substance rather than the wording of the written statement of defence. As rightly pointed out by the appellant, under O. XIV(I).
“Issues arise when a material proposition of fact or law is affirmed by the party and denmied by the other”.
(oo) Civil Appeal No. 140/04 – Moses Steven Malume vs Director Moku Security HC at Dar (Manento, JK,)
- It is not the duty of the court to order for the bringing of any evidence, whether oral or documentary to the court in order to assist the claimant to prove his or her case. It is always the duty of the person whose burden of proof lies on his to prove a fact, to bring such evidence in support of what he/she says. Nowhere in the record has shown that the appellant made such application, either orally or by way of an application that the respondent was to bring the attendance register. Unsually, the court is presumed to know nothing until it is told. So if the court was not asked or told to order the respondent to bring the attendance register it had no obligation to do so. The ground number one of the memorandum of appeal is accordingly dismissed.
(pp) Civil case No. 317/97 – Protas Rutta vs Fahari Bottles HC at Dar (Ihema, J).
- It is correct that Section 11 (1) of the Appellant Jurisdiction Act No. 15 of 1979 vests power to the High Court to extend time for among others making an application for leave to appeal or for a certificate that the case is a fit case to appeal notwithstanding that the time for giving the notice or making the application has already expired. Rule 43(a) of the Court of Appeal Rules 1979 directs that an application for leave may be made informally i.e. orally when the decision against which it is desired to appeal is given or by Chamber Summons according to the practice of the High Court; within fourteen days of the decision.
(qq) Civil Appeal No. 41/02 – Anamaria Julius Mganga vs Julius Mganga HC at Dar (Kimaro, J).
- As clearly demonstrated in this appeal, the appellant did not file a divorce case. She filed an ordinary Civil Case in which she was praying for the orders which are shown at the beginning of this judgment. However, the case proceeded as if it was a matrimonial case in which the appellant was seeking for a divorce and the division of the matrimonial assets.
- The trial magistrate went to the extent of determining issues without having sufficient evidence upon which to make a fair decision.
- What the trial magistrate ought to have done was to make a finding as to whether the paryers which were being sought are tenable in that case or not and give proper orders accordingly and not to determine on matters which were not the real issues before the court.
- For the above season alone, I allow the appeal and quash the orders which the made by the trial court.
(rr) Civil Appeal No. 24/03 - Frank Kibanga vs ACU Limited CAT at Dar (Mroso J.A).
- So, according to Mr. Merinyo, the omission was not a result of ignorance about the need to include a copy o the decree in te record of appeal. Mr. Merinyo submitted that a record of appeal which did not contain a copy of the decree appealed against rendered the appeal incompetent. He cited decisions of this Court such as Juma Ibrahim Mtale vs. Karmali [1983] TLR 50, Fortunatus Masha vs William Shija and Another [1997] TLR 41; Alimu Kafunga vs Ally Sambila, (CA) Civil Appeal No. 390 of 2004 (unreported) and Zephania Letashu vs Moruo Ndalamia, (CA) Civil Appeal No. 31 of 1998 (unreported), all in support of the proposition that a copy of the extracted decree is necessary for an appeal to be competent.
As regards the second ground of objection Mr. Merinyo submitted that under Rule 89 (1) (f) and (2) of the Court of Appeal Rules, 1979 “all documents put in evidence at the hearing” should be included in the record of appeal. Certain documentary exhibits which had been tendered at the trial were alleged to be missiong from the record of appeal and the omission to include them rendered the appeal incompetent. He cited the case of Grace Frank Ngowi vs Dr. Frank Israel Ngowi [1984] TLR 120 as authority. For the two grounds of objection he submitted that the appeal was incompetent and should be struck out.
The appellant explained that he had indeed applied to the District Registrar for various documents, including a copy of the extracted decree, which he needed for appeal purposes and when documents were supplied to him he trusted that the copy of decree had also been supplied. He prayed for leave to file a supplementary record so as to bring a copy of the decree into the record of appeal. As for the second ground, he pointed out that the alleged missing exhibits were in fact in the record.
Mr. Merinyo objected to the appellant being given to file a supplementary record. He submitted that such application should have been made before the Notice of Preliminary Objection was filed and that there should be good reasons for the omission.
- it is undisputed that the record of appeal does not contain a copy of the extended decree. The explanation from the appellant that he believed it had been supplied to him, which had not been the case, is unhelpful. He said in fact that at a later time he realized the copy of decree was missing from the record and when he asked for it from the High Court he was told the original record had already been dispatched to the Court of Appeal in Dar es Salaam. He then, inadvisedly, resigned from the idea of ensuring that it formed part of the appeal record by obtaining it from Dar es Salaam and applying in time for leave to file a supplementary record which would contain a copy of the extracted decree.
A record of appeal to this Court which does not contain a copy of the extracted decree against which the appeal is lodged is significantly and fatally incomplete. Mr. Merinyo cited several decisions of this Court in which it was held that a copy of the ectracted decree or order appealed from was necessary for an appeal to be competent. We will refer to two only such authorities.
In Juma Ibrahim Mtale vs. K.C. Karmali [1983] TLR 50 a preliminary objection was raised that the appeal was incompetent for lack of a decree in the record of appeal. The appellant in the case conceded that there was indeed no copy of the decree in the record and sought leave to file a supplementary record which would include the decree into the record. This Court said:-
--- unless this Court holds that the absence of the decree in the record is immaterial, the Court is bound to strike out the appeal leaving the appellant with the option to make subsequent appropriate applications seeking to bring back to this court a proper appeal in the case ----
Having considered the submissions made on both sides, ad the authorities cited, including the case of Commissioner of Transport vs. A.G. of Ugand & Another [1959] E.A 329 and Haining & Others [1971] E.A. 421, we are satisfied that this appeal is incompetent and is hereby struck out ……
The next case we wish to concider is Zephania Letashu vs Moruo Ndelamia, (CA) Civil Appeal No. 31 of 1998 (unreported). A preliminary objection had been raised that the record of appeal did not contain the notice of appeal as required under Rule 89 (2) (vi) of the Court Rules and that the record did not also contain the decree being appealed against as required by Rule 89 (2) (v) of the Court Rules, 1979. The advocate for the appellant in that case conceded that the two documents were missing from the record of appeal but asked for ajourment to remedy the deficiency. It had occurred that a decree, but of a different case, had been included in the record of appeal and the explanation from the advance for the appellant in that case was that a wrong copy of decree had been included in the record because of inadvertence. This court - Mfalila, J.A, Samatta, J.A. (as he then was) and Lugakingira, J.A. said:-
Carelesnes or inadvertence on the part of litigants or their counsel cannot be accepted as sufficient explanation to move the Court’s hand in their favour -----. We are satisfied that sufficient explanation has not been furnished for the absence of the decree. A decree is a vital and central component of the record of appeal since the appeal is grounded on it, hence its absence is fatal to the whole exercise.
The objection was upheld and the appeal was struck out with costs.
There is no gainsaying, therefore, that the absence of a copy of the extracted decree from the record of appeal renders the appeal incompetent. We cannot, after the objection was raised, allow the appeallant in the present proceedings to remedy the defect. To do so at this stage would be tantamount to pre – empting the preliminary objection. We uphold the first ground of objection and we hereby strike out with costs this appeal for being incompetent. The second ground of objection was unfounded as the documents are in the record.
(ss) Civil Application No. 11/03 – Fabian Akonaay vs Matias Dawite HC at Arusha (Ramadhani J.A.)
- Thae notice of motion has merely said “Made under the Provisions of Act No. 15 of 1979 as amended by Act No. 17 of 1993”. Now, Act No 15 of 1979 is the Appellate Jurisdiction Act, 1979, which contains many provisions so a specific section, a sub – section and a paragraph, if any, has to be cited. The predecessor of this Court, the East Africa Court of Appeal, said in Abdul Aziz Suleman vs Nyaki Farmers Cooperative Ltd. And Another [1966] EA 409 that the rules of the Court did not specifically require that a particular order or rule under which an order is sought be stated in the notice of motion but that it was the usual practice.
- This Court has struck out a number of decisions for citing a wrong provision or for not citing any provision at all, for example, NBC vs Sandrudin Meghji, Civil Application No. 20 of 1997; Rukwa Autoparts Ltd vs Jestina G. Mwakyoma Civil Appeal No. 45 of 2000; and Citibank (T) Ltd vs TTCL & Others Civil Application No. 65 of 2003.
- So we uphold the respondent and we, therefore, strike out this application with costs. In view of our findings on the first ground we do not think that it is necessary to go into the rmaining two grounds of the preliminary objection.
-
(tt) Arusha Civil Application No. 1/03 – Olympa Lema vs Abdallah Juma CAT at Arusha (Nsekela, J.A).
- As rightly submitted by Mr. Mughwai, in terms of rule 44 above, whenever an application may be made to the Court of Appeal or to the High Court, it shall in the first instance be made to the High Court. This Court under Rules 8 of the Court Rules and the High Court under section 11(1) of the Appellate Jurisdiction Act, 1979, have concurrent jurisdiction to grant extension of time in which to file notice of appeal. However in terms of rule 44 of the Court Rules, 1979, such an application must be made to the High Court in the first instance. The applicant came to this Court, by – passing the High Court. This was erroneous (see: (CAT) TAG Civil Application No. 2 of 1998 between Rajab Saidi and Kassimu Kombo (unreported); Civil Appeal No. 68 of 1999 between Dismas K.B. Francis t/a K.B. Enterprises and (1) James Joseph Materu (2) NBC Holding Corporation (3) Tabora Municipal (unreported).
-
- In the result, I have no alternative but to gree with Mr. Mughwai, learned advocate for the respondent, that the application is incompentent. It is accordingly struck out with costs.
(uu) Civil Appeal No. 11/02 - Aloyce Mselle vs The Consolidated Holdig Corp. CAT at Arusha (Ramadhani, J.A,).
- Mr. Maruma submitted that explanation by the appellant should have been by an affidavit . We agreed with him. But if it is sauce for the goose it is sauce for the gander. Mr. Maruma gave evidence from the bar that his Chambers did not receive copies of those two documents and he also attacked the EMS receipt. But Mr. Maruma cannot say anything about the EMS as it was not addressed to his chambers. It is only the respondent who could have done so through an affidavit.
- Mr. Maruma referred us to Martin Wilson & Another vs Dimetria Mosha, (CAT) Civil Appeal No. 62 2001, where this Court refused to accept a dispatch book as proof of service because it did not indicate what documents were served to the other party.
- We stand by that proposition but, in or opinion, it does not apply to postal receipts. A dispatch book normally bears the name of the addressee and also a brief decription of what is sent. For example, in the case of a letter, the reference number would be cited. Postal receipts, however, do not describe the contents of an envelope or of a parcel sent.
- There are two pointers here that the appellant served copies of the two documents on the respondent. One, each of the two documents indicates athat a copy was to be served on the respondent, and that shows that the appellant was aware of that requirement. Two, there is an EMS receipt that the appellant posted a parcel to the respondent on 25th May, 1998 while the two documents were dated 19th May, 1998. As we commented earlier, the respondent did not swear an affidavit saying that they did not receive the EMS. The respondent did not contradict these two prima facie pieces of evidence. We, therefore, dismiss grounds one and three of the preliminary objection.
- We agree with Mr. maruma that there is an unbroken chain of outhorities of this Court to the effect that wrong citation of a provision of law under which an application is made renders that application incompetent. Such decisions include: NBC vs Sandrudin Meghji Civil Application No. 20 of 1997; Rukwa Autoparts Ltd vs Jestina G. Mwakyoma Civil Application No. 45 of 2000; and Citibank (T) Ltd vs. TTCL and others Application No. 65 of 2003. So, MCHOME, J should not have granted leave to appeal.
- We therefore, set aside the leave to appeal and consequently we quash the purported notice of appeal for lack of an item under Rule 89 (2) (i).
-
(vv) Arusha Civil Revision No. 1/02 – Husein Mgonja vs The Trustees, Tanzania Episcopal Conference CAT at Arusha (Mroso J.A.).
- We wish to observe briefly that the legal provision under which the notice of motion was brought is non – existent. There is no section 2(2) of the Appellant Jurisdiction (Amendment) Act, No. 17 of 1993. Section 2 of that Act amended section 4(2) of the Appeallate jurisdiction Act, 1979 by deleting it and substituting for it a new subsection (2). The notice of motion should in fact have cited section 4(3) of the Appellate Jurisdiction Act, 1979 as amended by Act, 17 of 1993. If a party cites the wrong provision of the law the matter becomes incompetent as the Court will not have been properly moved. See National Bank of Commerce vs Sandrudin Meghji, Civil Application No. 20 of 10997 (unreported); Almas Iddie Mwinyi vs National Bank of Commerce ad Another, Civil Application No. 88 of 1998 (unreported) and Mbeya Rukwa Autoparts and Transport Ltd. ( MRAPATA) vs Jestina George Mwakyoma. Civil Appeal No. 45 of 2000 (unreported). This application is therefore also incompetent for failure to cite the correct enabling provision of the law.
(xx) Civil Case No. 198/1995 – Voctional Education Training Authority vs. Ghana Building Contractors and Varsan Dewji Ramji and Company HC at Dar es Salaam (Kyando J,)
- I wish, in conclusion, to commit or a matter of procedure or practice. Mr. Kayange has attached annextures to his written submissions. I do not know what purpose thes are supposed to serve. Are the iniaded to be evidence/ exhibits in the application. If so ley should have been annexed to the plaint or the counter affidavit. Exhibits cannot be annexed to submissions are supposed to be elaborations or explainations evidence already tendered. They are intended to contain arguments on the applicable law. They cannot themselves carry with them evidence. I reject therefore the annextures annexed to the submissions of Mr. Kayange has attached annextures to his written submissions. I do not know what purpose these are supposed to serve. Are they initiated to be evidence /exhibits to the plaint or the counter affidavit. Exhibits cannot be annexed to submissions are supposed to be tendered during submissions. Submissions are supposed to be elaborations or explainations on evidence already tendered. They are intended to contain arguments on the applicable law. They cannot themselves carry with them evidence. I reject therefore the annextures annexed to the submissions of Mr. Kayange direct that they be returned to him.
(yy) Civil Appeal No. 151/01 – Damas Mfoi vs Hilda Machange HC at Dar (Luanda J,).
- I start with the first ground. Earlier I have hinted that there are two dicisions this matter. Now the question is which one is correct. Mrs. Ringo, learned counsel for Hilda submitted that the issue was resolved by the trial court as evidenced in the court proceedings dated 17/6/99 quoted supra. Mr. Shayo who advaocated for the Damas said it was not resolved for the reasons.
- One the same was not framed as issue. Second, the settlement order which was signed by parties to the mediation doesnot indicate so. He is of the view that the issue was not resolved. He said court should take the settlement order as a correct position of the matter because in mediation the parties are the ones who dicide their case and not the court, So the conset order signed by both parties is the parties decision. I quite agree with Mr. Shayo on this. I thus hold that the issue of the custody of the child was not dissolved. Now what should be done? Taking the circumstances of this case, I am of the settled mind that this court can step into the shoes of the trial court and resolve it on the available evidence.
- The evidence on record shown that the child is handicapped. And at the time of trial she was more than 6 years of age. By now she is around 8 – 9 years. She need an extra care. Unfortunately it is not possible to ask the child whom does she prefer to stay with. Having considered this I am settled in my mind that Hild should continue taking care of the child, if Damas has evidence showing moral turpitude of Hilda then he is free to go to the trial court for variation of this order.
- (yy) PC Civil Appeal No. 93/04- Chacha Mantage vs Petro Ngassa – HC at Dar (Mandia, J.)
- After going through the proceedings of the Primary Court and the District Court I have noted that the District Magistrate dealt with both the application for extension of time, and the application for revision. On the question of extension of time the District Magistrate observed, at page two of his ruling, that the applicant/judgment debtor was supplied with a copy of judgement on time but he did not take any action, ostensibly because he was waiting to be supplied with a copy of proceedings. The District Magistrate argued that by waiting for a copy of proceedings the judgment debtor was delaying his own application because the Magistrates Court Act allows for an oral petition of appeal. The ruling of the District Magistrate shows that the copy of judgment was supplied on 12/11/2001. Under Section 20(3) there was thirty days within which to file an appeal, a time which can be extended by the District Magistrate under Section 20(4)(a). Sub-section (b) of Section 20 (4) of the same Act even allows the appellant to state the grounds of his appeal orally, which the court shall record and then proceed to hear the appeal. The District Magistrate is therefore right in holding the opinion that there was no need for the delay to get proceedings because the law did not provide for this. The District Magistrate also pointed out that in an application for revision a party cannot move the court after the expiry of twelve months from the termination of such proceedings in the Primary Court. This is correct. There is Section 22 (4) to provide for this cut – of date. From the reasoning of the District Magistrate in his ruling I am convinced that he tackled both the application for extension of time and the application for revision adequately. The present appeal has no merit and is dismissed I entirety.
(zz) Misc. Civil Case No. 19/04 – Director Wood Plus Ltd vs Makandila Lawi Magoti – HC at Dar (Oriyo,J).
- The applicant filed an application for extension of time to apply for the revision of proceedings in Employment Cause No. 287 of 2000 from the Resident Magistrates Court at Kisutu. Parties applied for leave to argue application in writing, and leave was duly granted. The case was fixed for mention in chamber today with view to fix a ruling date.
- Parties did not file the submissions as ordered. Instead they filed a Compromise of Suit Agreement under Order XIII rule 3, CPC.
- As there is no suit pending in this court; the compromise of suit agreement is a misconception and it accordingly rejected.
Order:
1. Application for extension of time to apply for revision is dismissed for lack of prosecution.
2. The compromise of suit agreement is struck out.
3. Each party to bear own costs.
(aaa) Civil Revision No. 100/04 – 1. St. Bernard’s Hospital Co. Ltd 2. Dr. L.M.M. Chuwa vs Amina Kisenge HC at Dar es Salaam (Mandia, J).
- Secondly, the claim was for shs. 2,500,000/= and a judgment was entered by the court when the defendant failed to file his defence within the prescribed time. A judgement in default without proof can only be entered under Order 8 Rule 14 (2) (a) where the claim does not exceed shs. 1000/=. For amounts in excess of Sh. 1,000/= Order 8 rule 14(2) (b) required exparte proof of the claim. The judgment entered therefore offends the provisions of Order 8 Rule 14 (2) (b). It is hereby vacated. The record of the case should be remitted to the trial court for it to proceed in accordinance with the law as set out above.
(bbb) PC. Civil Appeal No. 175/01 – Sylivester Masatu vs Joseph Masongo HC (Massati, J).
- It was held by this court in ISHANI VS NKWAMA AND ISHANY (1971) HCD .n. 101 that it was not open for this court to entertain appeals questioning the integrity of a judicial body. So the first ground of appeal is out of place here. As for the allegation that the record of the trial court was fabricated or doctored to suit the interests of the Respondent the position of the law is that there is always a presumption that a court record accurately represents what happened. This is what the East African Court of Appeal held in PAULO OSINYA VR. (1959, EA 353, which was followed by the Tanzania Court of Appeal SHABBIR F. JESSA RAJKUMKAR DEOGRA Civil Reference No. 12 of 1994 (unreported) Under S. 5 of the Evidence Act 1967 there has to be substantial evidence to disprove this presumption. I can find no evidence in this case to justify a rebuttal of that presumption. So I shall not deal with the 1st ,2nd, 3rd and 4th grounds of appeal.
(ccc) Civil Appeal No. 304/01 – Lucy Edward Kessy vs Edward Linus Kessy and RehmaSemtumbi HC at Dar (Ihema, J).
- This is an appeal against the decision of the ruling of the Kinondoni District Court dated 9th day of November, 2001 dismissing the appellant’s plaint for failure to verify paragraph 22 of the plaint. In this ruling Hon. M.T. Matitu, District Magistrate upheld a point of preliminary objection by the defendant to the effect that paragraph 22 of the plaint has not been verified as such fatal to the pleading. Paragraph 22 of the plaint thereof states the jurisdiction of the court.
- In the verification Clause it is noted that the plaintiff omitted paragraph 22 of the plaint which states that and I quote;
“ The course (sic) cause of action arose in Kinondoni and the pecuniary value are within
the powers of this court”.
It is correct that Rule 15 of Order VI madndatorily requires that “every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proven to the satisfaction of the court to be acquainted with the facts of the case”
- I think given the mandatory requirement that every pleading shall be verified I respectfully agree that the trial magistrate cannot be faulted for dismissing the plaint on this ground. Accordingly I hold that the appeal on this ground cannot stand and I reject it. As the second ground of appeal is also founded on the first ground, the same also falls,
- In the upshot the appeal filed fails and appeal I dismiss it with costs.
(ddd) Civil Revision No. 29/97 - NIEMCO LIMITED VS MILO CONSTRUCTION COMPANY LTD. HC at Dar Mackanja, J.
- Now, was the applicant entitled to compne the two application? This is a matter of procedure. It ha snothing to do with the quality, or otherwise of the evidence tht has been tendered in support of the application. It can safely be said that this is not a strange course of action. In fact it has its advantages. First, it makes the determination of the application for extention, an if allowed, the application for revision, very expedious. For if the first leg of the application is allowed, a decision on the second one will be made immediately and at the same sitting. Should the first part be refused them no decision will be made on the application for revision. The twin application is therefore properly before the court. I would dismiss the preliminary objections.
(eee) Civil Appeal No. 88/03 – Flavian Mgori vs National Lotteries Board HC at Dar (Massati, J).
- In the second ground of appeal, Mr Kashumbugu, learned counsel, has assailed the proceedings for being pregnant with irregularities He especially attaked the way the suit has changed hands between different magistrates without assigning any reasons for such changes. He said this contravened OXVIII r 10 (1) of the Civil Procedure Code 1966 and had the effect of nullifying the proceedings. He therefore urged me to quash the proceedings and order a retrial. Mr KISUSI learned counsel, bubmitted that the change of magistrates was done within the parameters of OXVIII r. 10 (1) of the Civil Procedure Code 1966, and the Appellant did not object to such changes. He said the Appellant cannot now be heard to complain against the said changes. And as noted above also Mr. Kashumbugu learned counsel, did not seek to reply to Mr. Kisusi’s submission. The issue here, is whether, the change of magistrates was permissible in law and what, if any, is the effect of such change?.
Order XVIII r 10 (1) of the Civil Procedure Code 1966, which is the subject of this contention provides:-
“ Where a Judge or magistrate is prevented by death, transfer or other cause from concluding the trial of a suit his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his derection under the said rules and may proceed with the suit from the stage at which his predecessor left it”.
It is clear to me that the provision permits a judge or magistrate to continue with hearing of a suit left by his predecessor if the said predecessor had been prevented by death, transfer, or other cause from concluding the trial of the suit. It is further my understanding that such provision would not apply if non of the enumerated causes is established , and the record must so reflect. So in DAVID KAMUGISHA MULIBO VS BUKOP LTD BUKOBA (1994) TLR. 217 the Court of Appeal held that it was highly, irregular unprocedural and contrary to Order 17 (10) if none of the impediments mentioned in the section were present. The irregularity was one of the bases for the Court of Appeal to quash the decision of the succeeding judge.
As I had remarked in my introductory paragraph, this suit was tried by a succession fo 4 magistraes and the 5th one delivered the judgment. The first one was Nchimbi RM. He took down the whole of the plaintiff’s/Appellant’s case and part of the defence case. On 23/11/95, Nchimbi, RM. Disqualified himself from proceeding with the case. So the suit was reassigned to Kiwango RM. Kiwango RM heard some objection and reserved a ruling. For reasons which are not on record, that ruling was prepared and delivered by a Miss Mjanjara RM, on 5/11/97. It is apparent from the record the matter was reassigned to her, until, again, for reasons which are not clear, it was reassigned to BWIMBO, RM, who had set to give judgment as the defendants ahd absented themselves; which order she set aside on 11/2/2002 and ordered the suit to proceed for defence. She heard the remainder of the defence case and composed the judgment which was eventually delivered by Kalombola PRM. It is therefore not clear from the record, why the suit was transferred from Kiwango RM to Manjajara RM and from her to Bwimbo RM. Although under O XX r. 2 of the Civil Procedure Code a judgment may be pronounced by a succeeding magistrate or judge, it is not clear in the present case why Bwimbo RM did not deliver the judgment herself. On the face of the record therefore it appears that the change of magistrates was irregular. However in KAMUGISHA VS BUKOP LTD case, Sekule J had stayed the suit pending the obtaining of a report of the labour officer and from the records, it was evident that Sekule J was ready to proceed with the matter after the labour officer’s opinion had been obtained. Sekule J had dealt with the substance of the matter before him. However in the present case Nchimbi RM, is the one who dealt with the suit by taking the evidence. The other magistrates who succeeded Nchimbi RM, who proceeded with the trial of the case and concluded it. In my view therefore, for the purposes of OXVIII r. 10 (1) of the Civil Procedure Code, Bwimbo RM was the successor and Nchimbi RM was the magistrate who by disqualifying himself was prevented from conducting the trial. I would therefore distinguish the facts of this case form those of KAMUGISHA VS BUKOP LTD case cited above. I would therefore proceed to hold here that there was some other cause which prevented Nchimbi RM from concluding the trial of the suit and that it was in order for Bwimbo RM to take over continue and conclude the trial. That leaves me with another point I had observed earlier above. Whether it was proper for Kalombola PRM to pronounce the judgment prepared by Bwimbo RM?.
According to MULLA CIVIL PROCEDURE CODE Vol. 11 14th ed p. 1515: The term “predecessor” has been held to include any officer “who had tried the case whether he was still in office or had been transferred or had gone on leave”.
So the rule is not to be interpreted as stricltly as OXVIII r. 10 (1) of the Civil Procedure Code, 1966, ad if there was any irregularity here, it is curable.
In fine then I am of the settled view that this appeal has been lodged without sufficient grounds. It is accordingly dismissed with costs.
(eee) Civil Revision No. 114/01 - Tanesco vs 1. Juma Ibrahim Shindano 2. Ibrahim Mattaka
- Pursuant to the clear provisions of the law reproduced above; I agree with Mr Maira that the applicant was duly served through its principal officer at its Ilala Office. On the mandate of the applicant to speak for the second respondent, I have with due respect to the learned counsel, a different view; for obvious reasons. First and foremost is that the second respondent was the tortfeaser and principal debtor; the suit could not have proceeded without him. The first respondent’s allegations in the plaint were allegedly supplied by the second respondent. It is obvious here that without the active participation of the second respondent in the proceedings the suit or claim against the applicant had no basis. I have already held that the applicant was properly served as evidenced by the copy of summons duly endorsed by a principal officer of the applicant on 31/5/01; annexture “JS A” to the first respondent counter affidavit. The first respondent did not supply a similar proof of service on the second respondent. Had the second respondent been duly served, I think the first respondent would have provided a similr proof. In the absence of proof of service on the second respondent on record; I find that the applicant’s contention that there was no service on the second respondent, has merit. Actually it is not correct to argue that the applicant was arguing the second respondent’s case. In order to effectively argue its own case on the irregularities and errors at the trial, the applicant had to, cover the irregularities committed against the second respondent but had a bearing of adverse effects on the applicant, being a co – defendant. There is no doubt, from a reading of the exparte judgment and decree, that the applicant was converted to become the principal debtor in the place of the second respondent. Further, the execution of the decree was to be by attachment of the applicant’s motor vehich SU 33853, Toyota Land Cruiser. The second respondent was not effected by the judgement and decree in anyway.
On the foregoing, I think, I have suffieciently demonstrated, how the errors and the irregularities at trial, as pointed out by the applicant, occasioned injustice to it. On that account I find that the exparte trial and judgment were premature because the second respondent had not yet been served. This constrituted an obviouses and judgment were illegal because the second respondent was denied the opportunity to the heard, by failure to serve him. The proceedings have to be revised to remove the injustices committed to both the applicant and the second respondent.
In the final result, I quash the proceedings and set aside the judgment, decree and orders of the trial court in Civil Case No. 106/01/. The applicant is awarded the costs of the application.
- Subject to the Law of Limitation Act, 1971 the first respondent is at liberty to initiate fresh proceedings; if he so wishes.
(ddd) Civil Appeal No. 251/04 - Elimayaka Co. Ltd vs Amri Ramadhani HC at Dar (Mihayo, J).
- The appellants have come to this court after being aggrieved with a default with a default judgment entered against them on 16/3/2004. They are being represented by Mr. Zakaria Maftah learned counsel. He filed a memorandum of appeal containing 2 grounds. For reasons that will shortly be apparent, I will only deal with the first ground of appeal which says:-
“The learned magistrate has erred in law and fact in giving default judgment against the appellant while written statement of defence had been filed”.
- The decision of the lower court complained of was made on 16/3/2004; On this day, this is what transpired in court:-
“ 16/3/2004
Coram: N.T. Mwankenja - SDM For Applicant: Present in person.
For Respondent: absent
Plaintiff/applicant:
The applicant for attachment before judgment has been overtaken by events. I will drop the application. Defendant is represented by an advocate M/S Maftah. He has entered appearance on 8/12/2003 & 8/1/2004 which means that defendant was served on 5/12/2003. The advocate for defendant filed notice for a preliminary objector (sin) to no avail. So foar no written statement of defence filed pray (sic) for judgment in default”
Sgn.
N.T. Mwankenja - SDM
16/3/2004
Order: Default judgment is entered in favour of plaintiff with costs
Sgn.
N.T. Mwankenja - SDM
16/3/2004
- But the written statement of defence had been filed on 5/12/2003 together with a counter affidavit and a notice of preliminary objection. All vide Government Receipt No. 19266850. Therefore, the basis of the default judgment was not there. The trial magistrate proceeded under the wrong provision of the law. As rightly pointed by Mr. Maftah, the trial magistrate could have only proceeded under order IX rule 6 (1) (a) (ii). And since a written statement had been filed, the magistrate should have ordered for exparte proof. In entering a default judgment, the trial magistrate misapplied the law.
- As this is what set in motion all the problems that arose, it cannot be left to stand. The appeal is hereby allowed. The order for default judgment dated 16/3/2004 and the subsequent decree is set aside. The case shall be retried de novo on merits before another magistrate of competent jurisdiction. Costs are awarded to the appellant.
(eee) PC. Civil Appeal No. 1/05 - Rukia S. Pazi vs Twahir S.Pazi HC at Dar (Mihayo, J).
- Mr Semgalawe, learned counsel seeks to withdraw the appeal before this court because he says, of a settlement order entered by this Court (Shangwa, J) in probate and administration cause No. 447 of 1999. Strangely, the respondent here is resisting that withdrawal ostensibly because this matter had been adjourned for a judgment to be prepared and delivered.
A party is free to withdraw his case at any time before judgment is given, Mr Semgalawe would therefore be perfectly entitled to withdraw this appeal. There is nothing to stop him.
On the foregoing, I must accept the prayers by learned counsel. This appeal is hereby, marked as withdraw. No order as to costs.
43. REFERENCE.
(a) Civil Reference No. 11/01 – Hassan Nuru Hassan vs Consolidated Holding Corporation. CAT at Dar. -A Reference from the decision of a single judge of this Court ordering stay of execution. -In our considered opinion, the raising of a new ground in Reference is prohibited – Rule 57 (2) - though it could be argued that raising of new grounds in a reference is not expressly covered.
(b) Civil Appeal No. 27/01 – Mohamed Abbas and 899 others vs L.C. Mususa. CAT at Dar. -In Asmon Rashid vs Boko Omari [1997] TLR 146 CAT (Mfalira,JA) held that essential step within the meaning of Rule 82 is a step which advances the hearing of the appeal, such as applying for leave to appeal, where such leave is necessary. Failure to take such an essential step can lead to the notice of appeal being struck out. -In Ivan Makobrad vs Miroslav and others, Civil Ref. No.9/98 – (unreported) it was held by this Court that although there was need to serve copies of documents and also the grounds for a reference to the respondent, there was no specific rule in the Court Rules , 1979 regulating applications for reference. There was a lacuna in the Rules and a recommendation was made to the Chief Justice to consider regulating applications for reference. In the mean time, the Court stipulated that the applicants for references should serve respondents with copies of all the documents required to be filed under Rule 51 (2) and also state the grounds for the reference
. 44. REPRESENTATIVE SUITS
(a) Civl Case No. 126/01 – Kamwenda and others vs TAZARA. HC at Dar (Luanda, J). -It is a condition precedent to obtain leave first before filing a representative suit. This is provided under Order 1 rule 8 of the CPC, 1966. -Quoting Ernest Karate and others vs A.G Civil Case No. 212/01 HC at Dar (unreported) (Luanda,J). “……Since in law seeking leave from court is a condition sine qua non in instituting a representative suit, to allow the same to be sought and obtained after filing the case is a contradiction in terms. If the same is allowed its effect is that it dilute the condition imposed by the law of which this court is not prepared to do”
(b) Civil Appeal No.74/99 – K.J.Motors and Three others vs Richard Kishamba and others. CAT at Dar. We are therefore firmly of the view that compliance with Order 1 rule 8(1)(a)of the CPC,1966 is a necessary requirement even in employment suits, the mandatory application of it being imposed or sanctioined by sub-section (3) of S. 134 of the Employment Ordinance. The technicalities which, in terms of the proviso to the section, should be dispensed with include rules against hearsay evidence and those of corroboration.
( c) Misc. Land Application No.25/2004 – Stephen Mwasimba and 110 others vs Kinondono Municipal Council. HC (Land Division) at Dar (Longway, J). -In an application for leave to file a representative suit the applicant must show the common interest between him and other intended complainants. See [1996] TLR 203.
(d) MGOGORO WA UCHUNGUZI NA. 143 WA MWAKA 2002 – A. MWANGIA & (73) OTHERS VS T.R.C. HC at Dar (Mwipopo, J).
- Msomi Bw. Safari wakili, amehitimisha kuwa hili ni shauri la uwakilishi (representative suit) ambalo lilipaswa lifuate 0.1. R.8 ya CPC na. kifungu cha 134 (3) cha sheria ya Ajira Cap. 366 Employment Act. Pia amenukuu kesi ya K.J. Motors & Others Vs Richard Kishamba Others - Civil Appeal No. 74/1999 akinukuu Mhe. Mwanaaki Kisanga JR katika sehemu ya hukumu yake isemayo,narudia kunukuu.
“ We are therefore firmly of the view that compliance with order 1 Rule 8(1) (a) is necessary requirement even in employment suits….”
Mahakama hii imetoa maamuzi mengi kwamba Sheria ya Mada CPC haiibani mahakama hii kuifuata chini ya kifungu cha 29 cha Sheria ya Mahakama ya Kazi ya Mwaka 1967 kama ilivyorekebishwa. Hata hivyo mahakama hii ni Mahakama ya Kazi ya Tanzania (There is hereby established an Industrial Court to be known as the Industrial Court of Tanzania (Kifungu cha 15 cha Sheria hiyo ya Mahakama ya Kazi) inayopaswa kufuata tafsiri na maamuzi yanayogusa au yanayohusu migogoro ya kiajira. Ndiyo maana Mahakama hii imekuwa ikitekeleza masuala ya migogoro ya kuiwakilishi kulingana na dhana CPC 01.R.8. (1) na hukumu ya Mahakama ya Rufaa kama ilivyonukuliwa Mhe. Mwanahaki Kisanga JR akitafsiri kufungu hicho kiwe kinafaa kufuatwa kwenye mashauri ya kiajira, lakini kw akutumia utaratimbu wa Mahakama hii yenyewe ambao ni huu kama wafanyakazi wnawakilishwa na Chama cha Wafanyakazi kama ilivyo hapa awali kwenye shauri la TD Na. 41/1993 ilikuwa OTTU – basi hakuna haja ya kupata kibali cha mahakama ili mradi OTTU/TUICO na chama cha wafanyakazsi kiorodheshe wafanyakazi kisianzishe au kisiendeshe mgogoro bila ridhaa ya Wanachama wake na pea mahakama ijue ni akina nani hao ya mwajiri pia ajue ili aweze kujitetea ipasavyo na ushahidi ukitokea basi wote wa kufaidi mafao ya Tuzo wajulikane ni akina nani. Lakini, kama siyo Chamacha Wafanyakazi kinachowakilisha wlalmikaji basi yeyote au kundi lao mmojawapo baina ya anaweza/wanaweza kuteuliwa na walalamikaji wenzao wawakilishwe kwa maandishi na hati hizo ziletwe mahakamani au kwa Kamishna wa Kazi zenye majina na sahihi ya walalamikaji au wawakilishi wao. Hilo likitekelezwa basi hakuna haja ya kibali maalum kuombewa kirasmi (forma application) wala kutolew rasmi kwa njia ya uamuzi au amri halisi ya mahakama hii labda kama hilo litajitokeza wao wenyewe walalamikaji au baina yao na wlalamikiwa ndipo mahakama hutoa amri/maelekezo juu ya uwakilishi ili mradi pia maelekezo hayo yalingane na CPC 01 r 8 (1) (a) bali na kifungu cha 22 (a)(i) - (iv) cha Sheria ya Mahakama ya Kazi kisemacho kwamba Mahakama ya Kazi, nanukuu:-
“22 ……………………
(a) Shall hear receive and consider any submission arguments or evidence made, presented or tendered –
(v) by or an behalf of the employees concerned
(vi) by or on behalf of the trade union of which such employees may be members.
(vii) by or on behalf of the employer concernd; and
(viii) by or on behalf anybody of persons which, in the opinion of the Court, represents the interest of the employer in Tanzania and of which when the employer an concerned is a member ……”
Kwa kuzingatia taratibu hizi za mahakama hii juu ya masuala ya mashauri au migogoro ya uwakilishi (Representative Trade Enquiry) ni wazi kuwa walalamikaji hawajatimiza
lolote kati ya masharti yanayotaka wawakilishwe na Chama cha Wafanyakazi hapa TRAWO haipo. Ingawaje PW 1 Ernest Damiani kwenye ushahidi wa maandishi aya ya 13 kasema kuwa kikao cha Tawi la Wafanyakazi, bila shaka cha TRAWU hakikuwepo kabla yao kupunguza kazi tarehe 31/12/2002. Hakuna pia maandishi yoyote ya walalamikaji 74 yakisema wanamteua Abdallah Mwangia awawakilishe na yeey akakubali kubeba jukumu hilo zitoe na kwa nini awe peke yake bila msaidizi yeyote wala kaati Fulani ya kuendehs mgogoro huu kwnai wote 74 hawawezi kuendehs mgogoro am huu wote kwa mmoja mmoja au the pamoja bila uwakilishi wa mmoja wao au wachache miongoni mwao. Kotokana na sababu hizi naridhika kuwa uwakilishi wa shauri hili haupo kihalali. Hii inaondoa uhatari wa mlalamikaji yeyote mpendamakesi kujianzia shauri lake mwenyewe kwa niaba ya wengineo kumburuta mwajiri wao mahakani kila kukicha na hata pengine kumbe kafanya kuja mahakamani kuwa ndiyo ajira yake ya kujikimu kmaisha kwa njia ya kuwallia hali wenzake au umma umchangie ili aweze kupata “ haki” ya kiajira anayodai ilipotoshwa isivyostaili na hivyo kudidimiza dhana nyingine ya msingi inayoweka ukomo wa kuendeleza au kuburutana kwa mashauri mahakamani baina ya pande za wadau wale wale.
45. RES JUDICATA/ SUB –JUDICE.
(a) Civil Appeal No. 61/99 – Peniel Lotta vs Gabriel Tanaki and others. CAT at Arusha. -The doctrine of res judicata is provided for in S. 9 of the CPC, 1966. Its object is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgment between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit. -The scheme of S.9 therefore, contemplates five conditions which, when co-existent, will bar a subsequent suit. The conditions are:- (i) The matter directly and substantially in issue in the subsequent suit must have been directly and substantially is issue in the former suit. (ii) The former suit must have been between the same parties or privies claiming under them. (iii)The parties must have litigated under same the title in the former suit. (iv)The court which decided the former suit must have been competent to try the subsequent suit and, (v)The matter is issue must have been heard and finally decided in the former suit. (b) Civil Appeal N. 2/02 – Nelson Mrema and 413 others vs Kilimanjaro Textile Corporation and another. CAT at Dar. -Principles of res-judicata – S. 9 of the CPC, 1966 -We are satisfied that the ingredients of res- judicata have been satisfied which is to say, the present case is re-judicata.
(c) Land Case No.132/04 – Iddi Semvua Msangi Vs The Liquidators of Tanzania Crown Corks Ltd nad Vincent Bruno Minja. HC(Land Division) Kileo,J (Dar es salaam). “I find that the case before me is res judicata in view of the fact that the same subject matter and reliefs claimed and the parties were the subject of the Civil Case No. 54 of 2002 of the District Court of Kinondoni which was conclusively determined”.
(d) Land Case No. 190/2004 -TPDC vs Gazelle Tracker Ltd. HC (Land Division) at Dar (Rugazia, J). -Mr. Lutema submitted that this was a fit case for res subjudice to apply and he gave reasons which, I think, are very sound. Counsesl made reference to Sarkar on Civil Procedure 10th Ed. interpreting section 10 of the Indian Code of Civil Procedure which is worded similar as section 8 of our Civil Procedure Code, 1966. The learned author says at page 77 that the phrase matter in issue does not mean any matter in issue in the suit but has reference to the entire subject matter in controversy. Cousel also quoted the same author at page 78 as as saying that the subject matter and the causes of action need not be the same. Also at the same page the learned author is quoted saying that one test of applicability is whether the final decision in the previous suit would operate as res judicata in the subsequent suit.
46. REVIEW.
-Time limit in the Court of Appeal is 60 days while in the lower court is 30 days.
(a) Civil Application No. 18/93 – Transport Equipment Ltd vs D.P. Valambhia. CAT at Dar[Full Bench]. -Whether the Court of Appeal for the United Republic of Tanzania has inherent jurisdiction to review its own decisions. -Inherent jurisdiction of a court is by its nature not a creature of statute, though it may be embodied or re-stated in a statute. The inherent power of the court is that which is necessary for the proper and complete administration of justice and such power is resident in all courts of superior jurisdiction and essential to their existence….. -The case law position in East Africa has been stated by the East African Court of Appeal in a number of cases including the case of Somani vs Shirinkhanu (No. 2), (1971) EA p. 79-80 to the effect that the Court of Appeal does not have inherent jurisdiction to review its own judgments or orders except in limited circumstances. -While accepting the proposition that the Court of Appeal of Tanzania, as was the Court of Appeal for East Africa, has limited inherent jurisdiction within the exceptions stated in Somani’s case, we are satisfied that there is also inherent jurisdiction to review its own decisions whenever such decisions are based on manifest error on the face of the record resulting in miscarriage of justice as was the situation in Bwogi’s case. -Review can be exercised in the following situations:- (i) Where one of the parties was condemned unheard (ii) Where there was a manifest error on the face of the record which resulted in miscarriage of justice. (iii) Where the court had no jurisdiction to entertain the case. (iv) Where the judgment was pronounced by fraud. (b)Civil Application No. 4/95 – Tumbeke Syejo vs Raphael Mantika. CAT at Mbeya. -Order XLII rule 1 of the CPC, 1966 provides that an Order of the court [High Court] rejecting the application [for review] shall not be appellable. As this Court held in Haillas Pro-Chemie vs Wella A.G [1996] TLR 269. “A party to the proceedings in the High Court may invoke the revisional jurisdiction of the Court in matters which are not appellable with or without leave”.
© Prob & Adm) civil Appeal No. 4/95 – Mohamed Hassan vs Mayasa Mzee and Another. CAT at Dar. We would like to clarify yet again that the review jurisdiction of this Court is not statutory but inherent, hence it was a matter of surprise to us that anyone should move this Court to exercise its review jurisdiction under Rules 3 and 40 of the rules of this Court. It was therefore open to us to strike out the notice of motion as incompetent The full Court of this Court put down the circumstances in which it can exercise its review jurisdiction in Civil Application No. 18/93 – Transport Equipment ltd vs D.P.Valambhia (supra) as follows:- [See Valambhia’s four circumstances] (d) Civil Application No.2/97 – James Kasuka vs George Humba. CAT at Mwanza. -In revision, we set a time limit of sixty days, We think however, that it is proper and reasonable that we should impose the same time limit of sixty days for applications for review in civil matters as this one.
(e) (Ext.Jur.) Civil Appeal No.19/97 – Tembo Chipboars Ltd vs Fini Clay Product Co. Ltd. HC at Dar.(Kimaro, J Ext. Jur.) -While it is conceded that the trial magistrate was wrong in the manner in which he determined the application for review, the order which was made by him is not appellable. -Order XL rule 1 (v) is very specific on which order made as a result of an order for review is appellable. It is specifically stated that it is an Order granting an application for review. When an application for review is dismissed it is not open to challenge by way of an appeal.
(f) Civil Application No. 16/94 – Timothy Kaare vs Mara Cooperative Union (1984) Ltd. CAT at Mwanza. There are four instances where the Court of Appeal may invoke its limited jurisdiction to review its own judgment or orders. [Quoted Valmbhia’s case].(supra).
(g) Civil Appeal No. 46/99 – Ramadhani Mbegu vs Kijakazi Mbegu and 5 others. CAT at Dar. -A close scrutiny of these provisions, would show that Order XXXIX rule 1(1) covers the form of the Memorandum of Appeal and other requirements for accompanying the memorandum. However as regards an application for review, it is our view that Order XLII rule 3 is restricted to matters of form, that is to say, the structure, such as title, name of the parties, date of decree, number of suit and the numbering of paragraphs. Apart from this stipulation on an application for review, we are unable to find any provision in the CPC which requires the Memorandum for review to be accompanied by a copy of the decree as the learned Judge held in this case. -It is now settled that in an application for review, it is not a legal requirement to have the memorandum for review accompanied by a copy of the decree appealed. - In the case of an application for review involving the same file and the same court as was the case here, it was not necessary to require the attachment a drawn order to the memorandum for review.
(h) Civil Application No. 4/99 – Mariamu Rajabu vs Ally Omar. CAT at Dar. -Mr. Kisusi answered that by saying that Primary Courts have their own rules of procedure and the CPC does not apply to primary courts even when matters originating there go up on appeal to the District Court or High Court. The learned advocate went on to argue that Mackanja, J erred to reject the application for review under Order XXXIX rule 1 (1) of the CPC because the Code does not apply to primary courts. -We find the submissions of Mr. Kisusi novel, and if they are correct, they raise an interesting point of procedural law regarding matters emanating from primary courts. However, that is a matter to be argued before the High Court in the exercise of its review jurisdiction.
(i) Civil Application No. 11/01 – Khalifa Saddot vs Yahya Jumbe. CAT at Mwanza. -Time limit for both review and revision is Sixty days.
(j) Civil Appeal No. 43/01 – James Mapalala vs British Broadcasting Ltd. CAT at Dodoma. -Dr. Kapinga, learned counsel, submitted that Order XLII rule 1 of the CPC sets out circumstances in which the High Court is empowered to review its own judgment. First it is necessary to show that there is a party which is aggrieved by the decision. Second, that there is a discovery of a new and important matter or evidence which, after due diligence, was not within the knowledge of the party at the time the judgment and the decree was passed. Third, that there was an error apparent on the face of the record or any other sufficient reason. -We agree with Dr. Kapinga that in this case there was no aggrieved party.
(k) Civil Revision No. 97/01 – Wakirya Stephen vs Merry Lukindo. HC at Dar (Mwaikugile, J). -The law gives mandate to the judge who passed the decree a review of which is applied for, to hear the application. The provision refers to “a judge” . -The application for review was filed before Kisutu RMs’ Court which is presided over by Resident Magistrates. -Order XLII rule 5(2) of the Code provides:- “For purposes of this and the next succeeding rule, “Judge” includes a Magistrate.” -It is on record that the ex-parte judgment was passed by Rugazia, PRM. According to rule 5 of Order XLII of the CPC, 1966 the application for review of the ex-parte judgment passed by Rugazia, PRM ought to have been assigned to and determined by him as long as he was still attached to Kisutu RM’s court at the time the application for review was presented. He had not been transferred to another station. -So from the foregoing it is crystal clear that Makwandi, RM was not authorised by law to conduct the proceedings of an application for review of a judgment which was not passed by him. I find that to be a material irregularity.
(l) Tbr Civil Application No. 4/02 – Mohamed Seleman vs. Ally Mohamed Hazam CAT at Dar (Masoffe, JA). It is correct that Paragraph C of S. 5(1) should be read together with S. 5(1) especially the words “except where any other written law for the time being in force provides otherwise” appearing therein. In the judge of this application, the exptions mentioned in s. 5(1) will include the provisions of Order XLII Rule 791) which specifically disallows an appeal from the dismissal of an application for review. Since the applicant could not access this Court by way of appeal on account of the above mention reason, one wonders why he did not seek this Court’s intervention by way of a revision! In my view, the alternative remedy of revision was always available; although it is unlikely if the remedy could be pursued now for reasons of time bar - See this Court’s decision in James Masanja Kasuka vs. George Humba TBR Civil Application No. 2/97 prescribing a period of sixty (60) days for filing civil applications this Court.
(m) Zee Hotel Management Group and Others Vs. Minister of Finance AMD, and
Others [1997] TLR 265 CAT – At Dar
- The appellants had applied in the High Court of Zanzibar for certain orders rlating to the issuing of entry permits or special passes. The learned judge granted an order against the 11th respondent ordering him to issue an entry permit for two years and adjourned the matter for a few days to satisfy himself that the order has been complied with. At the resumption the judge approved a modification in terms of which renewable three months passes would be granted. On appeal against this subsequent order,
Held:
(i) The judge was functus officio once he had given his original and in the absence of an application for a review of his earlier decision he had no authority to so review it.
(n) Civil Appeal No. 81 of 1997 - Venance Mwingira vs Harlinda Mwingira HC at Dar (E.M.E. Mushi J,)
- This leads us to ask ourselves yet another question, is this a proper application for review as it is envisaged by order 42 of the C.P.C. Has he satisfied the requirements really?
Rule 1 (1) of the order provides that any person who considers himself to be aggrieved with a judgement, decree or order of the court, whether or not an appeal lies to a higher court may apply for a review of the judgment, decree or order. Such an application, however, must be made to the same court which passed the judgement, decree or order.
In an application for a review, the applicant must show:-
(1) that there has been a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made. Or
(2) that there is a mistake or error apparent on the face of the records; or
(3) that there is any other sufficient reason. I gather from the foregoing provisions, therefore, two vital facts:-
(a) Firstly, in a case where the party is not appealing, he may nevertheless apply for a review of the judgment, decree or order even if an appeal by some other party is pending.
(b) Second, an application for a review can be based on any of the three conditions or a combination of them.
Applying the principle embedded in the provisions of Rule 1 (1) of order 42, to the matter at hand, I am satisfied that review can be entertained by the proper court, and I am in agreement with Mr. Mtanga that there is no need fro an appeal. Application for review can be based on any of the three grounds of the conditionalities required to be met by the person wishing to make such an application. In the instant case therefore, the applicant would contend that there has developed a unique situation which has rendered the execution of the order of the court in respet of partitioning of the disputed house impossible! This would, suppose, satisfy the third condition, for it would constitute “sufficient reason” upon which an application for review can be founded.
However, such an application for review has to be formal and it must be made under the provisions of order 42 of the Civil Procedure Code. An application for review, therefore, cannot be made under section 68 (e) or even 68© of the C.O.C. Accordingly, with respect, I am not in agreement with Mr. Mtanga that the application he field on 05/04/2001, can be taken by this court to be an application for review. Not at all.
Once the application is failed, the court will have to decide first, whether there is sufficient ground for review. If it is so satisfied, then the court will grnt an order for review, and thereafter, it will proceed to make such correction of the decree or make order(s) as it think just in the circumstances of the case (see 42 R.8).
The application must be made to the some court which passed the decree or made the order. In the instant case, the order sought to be reviewed was passed by a Principle Residet Magistrate, (Extended Jurisdiction), and for the purposes of jurisdiction, an order passed by a Magistrate exercising “extended jurisdiction” is equated to an order passed by the High Court. Accordingly, it would be quite proper, I would guess so, that if the applicant would still wish to make a formal application for review, he would be within the procedure to file it in the High /Court. At the High Court, the application could be heard by the same judge who made the order (A.R. Manetho, J.K) or any other judge, depending on the administrative arrangements of the judge in charge of the registry in which the application would be filed.
Let me wind up this ruling now, by saying that it is quite important for this dispute to be determined, once and for all. The divorced spouses will not remain at peace unless and until this matter is settled by the court. The court which passed the controversial order is still seized with power to do so, not only under order 42 of the C.P.C., but also under the provisions of section 114 (i) of the Law of Marrige Act, 1971, which states:-
“ ……………. The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset and the division between parties of any assets acquired by them during the marriag by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale”
In the final analysis, therefore, the objectionb raised by Dr. Mapunda are hereby rejected. However, at the some time, the application filed by the applicant is dismissed for want of proper filing. Accordingly, the applicant is advised to make a formal application for the review of the disputed order, under the provisions of order 42 of the Civil Procedure Code, 1966. It is so ordered. No order for costs is made.
47. REVISION.
_Time limit in the Court of Appeal is Sixty days, just like Review but 30 days in the lower courts.
(a) Civil Application No. 51/96 – A.G vs Maalim Kadau and 16 others. CAT at Dar. -A person not a party to the suit can apply for revision if aggrieved by the order of the court but cannot appeal.
- In this matter the Attorney General is seeking to move the Court for a order that the decision of the High Court in Civil Case No. 12 of 1995 dated 2 August, 1996 be revised in order to correct illegaties and improprieties contained therein . The Attorney who was yet to be joined as a party to High Court Civil Case No. 12 of 1995 on behalf of the government was not served with the notice of hearing of the application for temporary injunction. So, with unprecedented speed and urgency the application was heard and determined the same afternoon. The application was granted with the result that a temporary injunction was issued against Kahama Mining Corporation Limited, the Attorney General and their agents, servants, workers or representatives restraining them from evicting the respondents from their villages until the final determination of High Court Civil Case No. 12 of 1995.
- The Attorney General was aggrieved by the order issued by the High Court (Mchome, J.) . Though he was not a party to Civil Case No. 12 of 1995 the order was issued against him. Hence this application to this Court.
- At the hearing of this application, Mr. Maira Learned counsel holding brief for Mr. Kwikima on behalf of the respondent raised a preliminary objection. He argued that as the Attorney General has a right of appeal in this matter, it was not proper for him to bring up the matter by way of revision. It was his submission that in terms of Section 4 the Appellate Jurisdiction Act, 1979 as amended by Act No. 17 of 1993 which invested the Court with revisional jurisdiction, a party who has the right of appeal cannot come to this court by way of revision. In this case, he said, the Attorney General should have lodged an appeal. Prompted by the court as to how this could be done since the Attorney General was not a party in the original case, Mr. Maira firmly maintained that rule 76 of the Court’s Rules, 1979 allows any person who desires to appeal to the Court to do so. In his view, “any person who desires to appeal” to the Court to to do so. In his view, any person even if he is not a party to the original case, if in one way or the other he is affected he can lodge an appeal. He insisted that words should be given their natural meaning as they appear in the rules unless such interpretation results into absurdity. He referred us to the decision of this court in Civil Reference No. 79 of 1992 – Transport Equipment Ltd V.D.P. Valambhia.
- Respondent to the preliminary objection, Mrs. Macha, learned Senior State Attorney for the Attorney General ardently submitted that the Attorney General not being a party to Civil Case No. 12 of 1995 could not lodge an appeal. She said, it would lead to an absurdity if the law allowed any person not involved in the original case to lodge an appeal. In that way, she stressed, a flood gate of appeals from the would at large would be opened.
- With respect, we agree with Mrs. Macha’s submission on this point. While it is true tht rule 76 of the Court’s Rules, 1979 provides for any person to appeal to this Court, it defies logic and common sense that the provision was meant to allow any person at large even if he is not a party to the original case to take up any appeal to this Court as urged by Mr. Maira. In our considered opinion, the words “any person” should be interpreted to mean any one of those involved in the original case and not otherwise. As interpretation along the lines canvassed by Mr. Maira, learned counsel would lead to an absurdity which was not intended in enacting the rule. It is our view that Civil Reference No. 7 of 1992 – Transport Equipment Ltd. V.D.P. Valambhia to which we were referred is inapplicable to the instant case. In that case, In that case, unlike the instant case, the parties involved in the reference were the same parties who were involved in Civil Applications Nos. 13 and 29 of 1991 before a single Judge of this Court. So, the question of involving a person who was not a party to the original case did not arise. In the result , the preliminary objection is overruled.
(b) Civil Application No. 4/95 – Tumbeke Syejo vs Raphael Mwantika. CAT at Mbeya. -Quoting Halais Pro-Chemie vs Wella A.G.[1996] TLR 269 “ A party to the proceedings in the High Court may invoke the revisonal jurisdiction of the Court in matters which are not appellable with or without leave”.
(c ) Hailas Pro- Chemie Industries Ltd vs Wella A.G [1996] TLR 269 CAT at Dar. We think that Mwakibete’s case[1995] TLR 134 read together with the case of Transport Equipment Ltd [1995] TLR 161 are authority for the following legal propositions concerning the reviosional jurisdiction of the Court under sub-section (3) of S.4 of the Appellate Jurisdiction Act, 1979. (i)the Court may, on its own motion and at any time, invoke its revisional jurisdiction in respect of proceedings in the High Court (ii) Except under exceptional circumstances, a party to proceedings in the High Court cannot invoke the reviosional jurisdiction of the Court as an alternative to the appellate jurisdiction of the Court. (iii) A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court in matters which are not appellable with or without leave. (iv) A party to the High Court may invoke the revisional jurisdiction of the Court where the appellate process has been blocked by judicial process. (d) Civil Appeal No. 41/94 – Rev. Francis Rwechungura vs Rev. Archbishop Daniel Itaja. CAT at Mwanza. It is elementary that the Court can only invoke its powers of revision in the course of hearing a valid appeal before it. In this case, there can be no doubt that Rule 89 was not complied with. That is, the notice of intention to appeal having not been filed, it goes without saying that the record is incomplete. As a result, it being a mandatory requirement that one of the requisite document i.e. the notice of appeal was not filed, the appeal is incompetent.
(e) Civil Application No. 46/98 – Kassim Magassa vs Willy Bukuku. CAT at Dar. Counsel’s negligence or inaction is no ground for the courts exercise of its revisional jurisdiction.
(f) Misc. Civil Revision No. 19/96 – Anthony Kanolilo vs Director East Africa Pump Ltd. HC at Dar (Nsekela,J). -It is settled that where a court has jurisdiction to determine a question and determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even law. -An order setting aside an ex-parte decree is not subject to revision under S. 79 of the CPC, as the same is appellable.
(g) Civil Application No. 11/01 – Khalifa S. Saddot vs Yahya Jumbe and others. CAT at Dar. -Time limit for both review and revision is Sixty days to wit, in the Court of Appeal.
(h) Civil Application No. 13/02 – NBC LTD vs Superdol trailer Manufacturing Co. Ltd and others. CAT at Dar. -The Bank intends to apply for revision of the High Court judgment in question which directly affected it (the Bank) adversely even though the Bank itself was not a party to the proceedings leading to that judgment. -I allow the application and the applicant is to file its application for revision within 14 days of this ruling. (i) Civil Revision No. 8/00 – COWI Consult (T) Limited vs Pius Kuhangaika and 2 others. HC at Dar (Jundu,J). Quoting a decision of the High Court in Civil Revision No. 37/03 by Luanda, J. “-I am of the settled mind that time cannot start to run from the decision which in the 1st place ought not to be entered. Time cannot start to run from a decision which is a nullit. A party who is aggrieved with that decision may apply for revision, notwithstanding the time in making such application has lapsed.”
(j) Tbr Civil Application No. 4/02 – Mohamed Seleman vs. Ally Mohamed Hazam CAT at Dar (Masoffe, JA). It is correct that Paragraph C of S. 5(1) should be read together with S. 5(1) especially the words “except where any other written law for the time being in force provides otherwise” appearing therein. In the judge of this application, the exptions mentioned in s. 5(1) will include the provisions of Order XLII Rule 791) which specifically disallows an appeal from the dismissal of an application for review. Since the applicant could not access this Court by way of appeal on account of the above mention reason, one wonders why he did not seek this Court’s intervention by way of a revision! In my view, the alternative remedy of revision was always available; although it is unlikely if the remedy could be pursued now for reasons of time bar - See this Court’s decision in James Masanja Kasuka vs. George Humba TBR Civil Application No. 2/97 prescribing a period of sixty (60) days for filing civil applications this Court.
(k) Civil Revision No. 90/03 – Iddi Mohamed Vs Tatu Zuberi CAT at Dar. - The respondents raised issues on the status of the applicant and on why he has come in solate in the proceedings. It is not disputed that the appliecant was not made a party to previsious proceedings to revoke the third respondents grant of letters of administration. The legal position as correctly submitted by the applicant that a third party with an interest in the subject matter, as the applicant in the case at hand, must be made a part to proceedings in order to afford him an opportunity to be heard. This position is supported by this courts decision in:- Juma kadala vs. Laurent Mnkande [1983]. TLR 103; where it was held that non joinder of the third party is fatal to the proceedings. Further, it is a trite principle of law that a party who was not a party in proceedings has no right of appeal; his only remedy is Revision (see Court of appeal decision in Ahmed Ally Sulum vs Ritha Baswali and Another; C/APPL. 21/99, DSM Registry, unreported and BoT Vs. 1. Said Marinda and 30 others 2. The Attorney General, C/APPL. nos. 74/98 and 74/00, DSM Registry, both unreported). Therefore, one the foregoing, it is clear that the application for krevision by the applicant is competently.
(l) Civil Application No. 37/02 – Dr. Abel Nkiini & Associates Company Ltd Vs. NBC. Limited and others CAT at Dar. (Lubuva, JA).
- In this application, the Court is moved by notice of motion under rule 3 an order that applicant, Dr. Abel Nkini & Associates Company Limited, be joined as a party/intervenor in Civil Reference No. 5 of 2002. The application is supported by an affidavit sworn by Dr. Abel Nkini, directror of the applicant company. On as already indicated, in this application, the applicant seeks to be joined as a party/intervenor in the reference.
- The ground for the applicant is that the applicant was not a party in Civil Application No. 13 of 2002 but was an interested and necessary party who was directly affected by the decision of the learned single Judge. Maira, Professor Shivji strongly emphasized that the applicant is seeking to be joined in Civil Reference No. 55 of 2002 as a party or entervenor on the ground that he is not just anybody in the street, but an affected and interested party.
- Furthermore, and as urged by Mr. Maira and Professor Shivji, learned counsel, Reference No. 5 of 2002 arises from the decision of the learned single Judge in Civil Application No. 13 of 2002. In that application, as already observed, the applicant was not a party. Although an interested and a necessary party, he was not made a party to the proceedings in the application and so, he had no opportunity of being heard before the single Judge. All the more so, with regard to the reason upon which the exstension of time was granted, namely that the applicant did not bring to the knowledge of the 1st respondent the existence of High Court Civil Case No. 235 of 2000. As submitted by Mr. Maira and Professor Shivji, I agreed that it is possible that decision to extend the time may well have been different if the applicant was given the opportunity of being heard on this aspect to show that it was otherwise. As this is one of the complaints raised in the reference, I think there is logic in the claim that the applicant is an interested and necessary party to the proceedings in Reference No. 5 of 2002.
- Mr Kesaria, learned counsel for the 1st respondent had drawn the Court’s attention to the decision of this Court in Attorney General vs. Maalim Kadau and 16 Others (1997) TLR 69 regarding the meaning of any party to the proceedings. In almost similar situation in that case, the Attorney General who was not a party to the original suit in the High Court applied to the Court for revision. In the course of hearing the application, the point was raised whether the Attorney General could appeal since he was not party in the original case. The Court took the view that an appeal can only be lodged by any one else who is a party to proceedings. By extension, in similar vein in an application for revision or reference, such an application can only be made by one who is a party to the proceedings. In the instant case, unlike in Kadau, (supra) the applicant was a party in the original case High Court Civil Case No. 235 of 2000. Therefore, in the subsequent proceedings either on reference or revision, he is not onlyh a party lbut a necessary and interestwed one. Therefore, in the cirucinstances of the case, I cannot with respect, accept Mr. Kesaria’s argument that the applicant was any other person, he was an interested party.
- It is a cardinal principle of natural justice that a party, let alone a necessary party should not be condemned or in any way be affected by a decision in which such a party was not given a hearing i.e. audi altera partem. In this case, the applicant as an interested and necessary party to the original case High Court Civil Case No. 235 of 2000 was not lmade a party lin the proceedings before the single Judge in Civil Application No. 13 of 2002 similarly, in Civil Reference No. 5 of 2002, the applicant has not been made a party. The pertinent question falling for consideration at this tage is whether the non – inclujsion of the applicant in the proceedings in Civil Application No. 13 of 2002 before the single Judge affected the proceedings as the Court held in Bank of Tanzania vs. Saidi Malind and Others, Civil Application No. 74 of 1998, (unreported).
- Finally, I am also in agreement with Professor Shivji that the proceedings in the reference in this matter are a first step towares the revision proceedings in which the applicant has been made a party. In that situation, if that is the case and Mr. Kasaria, learned counsel is in agreement that the applicant is a party to lthe revision proceedings in agreement that the applicant is a party to the revision proceedings in this Court in Civil Application No. 38 of 2002, I can see no reason why the applicant should not be joined as a party at an interlocutory stage, prior to the revision, namely the reference when the decision of the single Judge will be considered. With respet, I do not accept Mr. Kasaria’s submission that there is no basis for the applicant to be joined as a party at the reference stage because, according to him, the applicant will have an opportunity of being heard during the revision proceedings. It is to be pointed out at once that in the reference, the decision of the single Judge is the subject matter, while in the revision proceedings, the Court would deal with the merit of the High Court decision. The applicant in this matter is raising a complaint against the decision of the single Judge and not the merit of the decision of the High Court. Therefore, Mr. Kesaria’s submission on this aspect is, with respect, without merit.
- All in all therefore, having regard to the circumstances of the case, and as urged by Mr. Maira and Professor Shivji, learned advocates, I am satisfied that the applicant, NBC Limited, was an interested and a necessary party in the proceedings before the learned single Judge. In that situation, I am increasingly inclined to the view that it would be in the interest of justice to grant the application in lorder to afford an opportunity to the applicant to be heard in the revision proceedings on an aspect in which he alleges he was not heard by the single Judge. At any rate, save for the 1st respondent, the application is otherwise not resisted by the other respondents. This course of action, I think, is in accord with kthe principles of natural justice that an individual should not be condemned without being given an opportunity of being heard audi alteral partem.
-Consequently, for the foregoing reasons, the application granted. It is ordered that the applicant, Dr. Abel Nkini & Associates Company Limited be joined as a party/intervenor to the Civil Reference No. 5 of 2002.
Each party to bear its costs.
)
(m) Henry Lyimo Vs. Eliabu E. Matee [1991] TLR 93 (HC - Dar (Kyando, JA).
- The respondent filed a suit against the applicant in the Resident Magistrate’s Court. Then he applied for temporary injunction to restrain the applicant from doing a number of things. He also prayed for a temporary closure of business in which the applicant was involved pending final disposal of the suit. The lower court granted the application. Aggrieved the applicant filed this application in the High Court praying that the order of closure of the business be revised.
Held: The order made by the learned magistrate is clearly an interlocutory one. It is an interim order pending the determination of the case. It is therefore not a case decided within the meaning of the provisions of section 79(1) of the Civil Procedure Code and this court has no jurisdiction to invoke its revisional powers as provided for in that section.
(n) Attorney General Vs. Maalim Kadau and 16 Others [1997] TLR 69 (CAT) DAR
-The Attorney General applied for an order that a decision of the High Court be revised in order to correct illegalities and improprieties contained therein. The proceedings arose out of the institution of proceedings by Kahama Mining Corporation Ltd (KMC) against the respondents who sought an injunction against an eviction order against the respondents. Whilst those proceedings were still pending the respondents applied for the Attorney – General to be joined as a co – defendant in that suit as they alleged that their defence raised basic constitutional rights issues. An order was granted and it was ordered that the matter be heard by the High composed of three judges.
- Prior to the Attorney – General being joined as a party to the original case, the respondents applied as a mater of urgency for a temporary injunction to restrain KMC from evicting them before the main suit was finally determined. The application was heard and determined the same afternoon and a temporary injunction was issued against KMC and the Attorney – General.
- It was contended on behalf of the respondents that as the Attorney – General had a right of appeal in the matter if was improper for his to bring the matter by way of revision. It was contended that even though he was not a party to the original proceedings, Rule 76 permitted any person to bring an appeal.
Held:
(i) The words any person in Rule 76 referred to any of the parties involved in the original suit and not any other person.
(ii) As the court order referring the matter to the High Court expressly provided that the Court be composed of three judges, the court had no authority to hear the application for the temporary injunction; the Court had erred further in granting the order without notice to the Attorney – General.
(iii) The Court had also erred in holding that it had authority under S 95 of the Civil Procedure Code 1966, it was trite law that the inherent powers of the Court under this section of the Code were only invoked in cases where the Court had authority or jurisdictionto hear the matter – in the present matter there was no such authority or jurisdiction because of the existence of the unvacated order.
(o) Transport Equipment Ltd Vs. Devram P. Valambhia [1995] TLR 161 (CAT ) –Dar.
-In this application the applicant sought to move the Court of Appeal of Tanzania to revise the judgment, decree and order and order of the High Court. The application was brought under powers of revision given to the Court of Appeal by the Appellate Jurisdiction Act 1979 as amended by Act No. 17 of 1993. The Court of Appeal considered, inter alia, when such powers of revision can be exercised.
Held:
(i) The appellate jurisdiction and the revisional jurisdiction of the Court of Appeal of Tanzania are, in most cases, mutually exclusive, if there.
Is a right of appeal then that right has to be pursued and, except for sufficient reason amounting to exceptional circumstances, there cannot be resort to the revisional jurisdiction of the Court of Appeal.
(ii) The fact that a person, through his own fault, has forfeited his right of appeal cannot amount to exceptional circumstances.
(iii) if a party does not have an automatic right of appeal then he can use the revisional jurisdiction after he has sought leave to appeal but has been refused.
(iv) The Court of Appeal, may suo motu, embark on revision whether or not the right of appeal exists, and whether or not it has been exercised in the first instance.
(v) In the present application the applicant had an automatic right of appeal which was not utilized due to the applicant’s own fault.
(p) Civil Revision No. 187/02 - Managing Director BP. Tanzania Limited vs Athumani Hamisi & Hamisi & 10 Others.
- You would think, I suppose , that I have wasted all this energy in recounting the events of this matter. Not at all what I want to impress upon is this – that there is nothing to revise in this application. The some has been taken by events. As a matter of fact, by the time the application was filed, 23/12/2002 and the consequent ex – parte interim order of Hon Lady Justice Bubeshi, the application had already been overtaken by events. All the monies transferred to M/S Kiwangos & Advocate’s Account, had been withdrawn and the same distributed to the 11 ex – employees of the Applicant.
I find it to be a mere academic exercise (indeed, as it then was on 23/12/2002). To issue the orders prayed for by the Applicant. There is no longer a garnishee order to suspend! It will be a useless exercise to issue an order to M/S Kiwango restraining him not to dispose of the money transferred to him by the operation of the ganirshee order. That money no longer exists in his Account. The decree requested to be stayed from being executed, has since been executed. It no longer existes! All the orders issued by the trial Magistrate, on 19/12/2002, have been complied with.
Now, what do we do with an application for reision, such as this one, whereby all the orders and decrees issued by the lawer court (subject of revision) have been executed? In my humble opinion., the best course to be taken by the Applicants, is not to seek for revisional orders, but to go for alternative orders by way of an appeal. It is only through any appeal now all the issues raised in the counsels’ followed by relevant orders. In the light of what I have said above,, I hereby order that – since the application has been overtaken by events, it is accordingly dismissed. No order for costs is awarded. It is so ordered.
(q) Civil Revision No. 10/03 - Patrick Masumba vs National Housing Corporation and C.J. Santamaria HC at Dar (E.M.E. Mushi J,).
- having filed the Counter - affidavit, Counseal for the 2nd Respondent, mr. Rutabingwa, filed a notice containing five preliminary lobjections (P/O0 on points of law. Counsels were allowed to dispose of the P.O. by way of written submissions.
- In his submissions, Mr. Rutabingwa resists the application on five main points, namely:-
(a) that the application is barred by Act. No. 25 of 2002;
(b) that the application for revision of the proceedings and quashing the court order of 13/08/2002 is time bared;
( c) That the application kwas never accompanied by the draw order 13/08/2002 and besides, no ruling and drawn order of 10/12/2002 has been attached either;
(d) That the application by the applicant was never accompanied byt the drawn order of 13/08/2002 and besides, no ruling and drawn order of 10/12/2002 has been attached either;
(e) that the application by the applicant hs long been overtaken by events, and;
(f) the application by the applicant will not serve any purpose now, it is a mere academic exercise.
Mr. Rutabingwa, as usual, has given a thorough analysis of his grounds of objection. Contained in a five – typed pages, I would say that his arguments are quite well argued and convincing. Likewise, counsel for the Applicant, has equally given lengthy submissions.
But will respect, despite of the lengthy submissions by the counsels, I am satisfied that this fmatter need not detain us longer than necessary. Admittedly all the five objections raised and argued by Mr. Rutabingwa are quite valid, taking the totality of the proceedings of the RM,s Court and the High Court as well, in Application No. 108 of 2002 refereed to above. However I am not inclined to going into all of them – certainly not, since only one of the objections can definitely dispose of the whole matter. If is objection no. (a) that the application is barred by Act. No. 25 of 2002.
It is a fact that the applicant’s application, the filed on 24/01/2003. is partly made under sect. 79 of the Civil Procedure Code , 1966. It is also a fact that Act No. 25 of 2003 has amended sect. 79 of the Code According to the amendment, sub – section (2) has been added to sect. 79, and reads as follows:-
“….. 79 92) Notwithstanding the provisions of sub – section (1) no application for revision shall lie or be made in respect of a preliminary or interlocutory decision or order of the court unless such decision has the effect of finally determining the suit’.
The above amendment came into effect on 14.12.2002. The order being sought to be revised as on interlocutory order, which has no effect to finally disposing the suit. That being the case, therefore, since this application was filed after coming into force fo the amendment, this application is barred. This amendment is mandatory and not discretionary.
Iam in agreement with the objections raised by Mr. Rutabingwa. Accordingly, this application being barred by Act No. 25 of 2002, the application for Revision is dismissed, with costs.
(r ) Arusha Civil Revision No. 2/02 – Husein Mgonja vs The Trustees, Tanzania
Episcopal Conference CAT at Arusha (Mroso J.A.).
- Mr. Kimomogoro is of course correct to say that although the Court of Appeal Rules, 1979 and the Appellate for revision in a civil matters should be filed in the Court, the period was fixed by this Court in the Halais Pro – Chemie case cited to us by Mr. Kimomogoro. In that case the period of sixty days was fixed. See also NBC Holding Corporation and Another vs. Agricultural and Industrial Lubicants Supplies Ltd. And Two Others (C.A) Civil Application No. 42 of 2000 (unreported), and Melau Ngoilale vs Sailevu Loibanguti, Civil revision No. 1 of 2002 (also unreported). It is pertinent to hold, therefore, that this revision application which was filed over eight months after the date of the decision sought to be revised is hopelessly time barred. If in fact it was the applicant’s former advocate who deliberately caused the dealy as alleged by the applicant, it will be open for the applicant to take whatever action he considers necessary against the advocate. The Court will not condone the delay merely because it is said to have been caused by an advocate of the applicant. Furthermore, the Court cannot now in these proceedings enlarge the time for filing an application which has already been filed and objection raised. Such an application should have been made before the case was set down for hearing.
48. RULING/ORDER.
(a) Misc. Civil cause No. 29/96 – Phil Kleruu vs NHC. HC at Dar (Nsekela, J). Quoting Court of Appeal decision in B.P Tanzania Ltd vs Ebahim S. Ebrahim, Civil Ref.No.4/92 (unreported) “A ruling is a ruling it can neither be an order nor a decree. A decree is a formal expression of a judgment whereas an order is a formal expression of a ruling”. CivilApplicationNo.43/99 – Christopher Gasper and others vs THA. CAT at Dar. - Admittedly, this Court in B.P. Tanzania Ltd (supra) said:- “For instance, it is not correct to talk of whether a ruling is an order or a decree. A ruling is a ruling it can neither be an Order nor a decree. A decree is a formal expression of a judgment whereas an order is a forma expression of a ruling”. -This Court went further to quote the definition of decree and order in the CPC. An order is defined in relation to a decree in the following terms. “Order means the formal expression of any decision of a civil court which is not a decree” The Code defines a decree thus:- “The formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 38 or S. 89…….. -With due respect, we think that this Court was too restrictive in B.P. Tanzania Ltd in saying that , “ a ruling is a formal expression of a judgment whereas an order is a formal expression of a ruling.” Apart from what we have pointed out above it is significant to not the definition of “judgment” as given by the CPC. “…….the statement given by the judge or the magistrate of the grounds of a decree or order”. -This definition adds the uncertainty of what this Court said in B.P. Tanzania Ltd that “the matter does not present any difficult” It is not that straight forward or simple that a decree is from a judgment and an order is from a ruling. It is unfortunate that the CPC does not define “ruling” at all. May be in a proper case this Court will have to sort out the matter and consequently amend the definitions contained in the CPC.
49. SALE OF MATRIMONIAL PROPERTIES.
(a) Civil Appeal No. 22/93 – Mtumwa Rashid vs Abdallah Idd and Salum Omari. CAT(Matrimonial) at Dar. -Upon a true construction of this provision (S. 59 LMA,1971), we think that it applies only to cases where the matrimonial home is owned wholly by the spouse who is contemplating to alienate it. It does not apply to situations like in the present case where the matrimonial home is owned jointly by the spouses. The provision seeks to ensure that the spouse who has no ownership in the matrimonial home is not rendered destitute by the other spouse who, being the owner of the matrimonial home, decides to alienate it. -For, where the matrimonial home is jointly owned by the spouses, the question of the non-consenting spouse being deemed to have an interest therein does not arise because such spouse actually has an interest in the matrimonial home. -Where the matrimonial home is jointly owned by the spouses, there can be no basis whatsoever for so limiting the rights of the non-consenting spouse who, like the other spouse, owns the matrimonial home in his/her own right. -Since it is common ground that Idd Ally knew that the matrimonial home was jointly owned by Salum Omar and Mtumwa Rashid, then it is clear that both the seller and the purchaser negotiated the sale secretly in order to deprive Mtumwa Rashid of her ownership of the matrimonial home. Such conduct amounted to fraud and the resulting sale was obviously tainted. -In the result the purported sale by the parties, and the purported consent by the Commissioner for Lands to such sale were void in law with consequences that Salum Omar did not pass title to Idd Ally, the purchaser, under the transaction.
(b) Civil Appeal No.59/00 – Idda Mwakalindile vs NBC Holding Corporation and Sam Mwakalindile. CAT at Mbeya. -Upon seeing the advertisement in the newspaper, she (wife) filed the suit seeking three orders:- (i) A declaration that the mortgage deed entered into between the first and second defendants is illegal for contravening S. 59 (1) of the LMA, 1971. (ii) The proclamation of sale made by the first defendant through the auctioneer is illegal for contravening S.48 (1) (e) of the CPC, 1966. (iii) A perpetual Injunction to restrain the first defendant from dealing with, selling or disposing off the houses on plot No. 22C Block 1 Usafwa Road, Mbeya, without the consent of the plaintiff. -Under this provision (S. 59 (1) LMA, 1971) it is beyond dispute that a matrimonial house owned by the wife or husband ought not to be alienated by way of sale, mortgage, lease or gift without the consent of the other spouse. In this case, as Mr. Mwakilasa, learned counsel submitted, the mortgagee, the bank was not aware that the house was a matrimonial property. It was registered in the name of the second respondent and not in the name of both the appellant and the second respondent. For that reason, the bank, the first respondent, had no reason not to believe that the houses belonged to the first respondent. -We agree that the appellant had a registrable interest in the house, which, as provided under the section, could be protected by caveat. The appellant did not register a caveat with the Registrar of Titles. The caveat, would serve as a warning to the second respondent that the house was a matrimonial property. In the circumstances, there being no caveat to protect the registrable interest of the appellant, there was no way in which the first respondent could know that the houses was a matrimonial property, -In obtaining the loan, the second respondent voluntarily mortgaged the house which was registered in his name. Hence, the mortgage and alienation of the house was not null and void in contravention of S.59 (1) of the LMA, 1971. -However, it is to be observed that sub section (2) of S. 59 of the Act, takes care of the interest of the spouse whose interest have been affected by the under sub-section (1). Under sub-section (2) it is provided to the effect that where an estate or interest in a matrimonial home is alienated or mortgaged contrary to sub-section (1), the estate or interest so created shall be subject to the right of the other spouse to continue to reside in that matrimonial house until the marriage is dissolved. In the instant case, as the marriage is stil subsisting, the repercussion is that the interest of the appellant is protected under this sub-section of the Act until the dissolution of the marriage. -The provision of S. 48 (1) (e) of the CPC, 1966 applies to residential houses in regard to attachment and sale in execution of a decree. In this case, the matter does not involve the execution of a decree, it concerns mortgage. So, the above provision is irrelevant. (c ) Commercial Case No. 15/00 - Evelyne Cheyo vs Furha Finance Ltd and others. HC (Commercial Division) at Dar (Dr. Bwana,J). An intervenor is a person who has an interest in a pending suit. He or she may then apply to the court - by way of a motions supported by affidavit- to be joined in order to maintain his or her rights. It is preferable that such an application is made before all parties to the suit have closed their cases. The affidavit so filed should contain the grounds on which the applicant relies in support thereof. -Quoting Hadija Mwene vs Ally Mbaga and another (HC Civil Appeal No. 40/95) at Mwanza, -Lugakingira, J. “……a prudent spouses would seek to protect that interest by actually causing a caveat to be registered…..in other words sub-section (1) should not be read in isolation but in conjunction with any law for time being in force relating to the registration of the title to land or deeds….In accordance with the provisions of S. 33(1) (a) of the Land Registration Ordinance, Cap. 334, the owner of any estate holds the same free from all estates and interests …other than encumbrances registered…..A bare interest in an estate would not operate to prevent its alienation where registrable land is involved. It is therefore incorrect to think the mere existence of S. 59 (1) is sufficient to prevent an estate from being sold….or mortgaged. -As the pleadings show, the relevant land was mortgaged in 1971. It would appear that the applicant knew of the same sometime around that time but up to the time of the official search, that is, on 30th May, 2000 she had not taken steps to protect her “deemed interest” by way caveat. A mere existence of S. 59 (1) is not sufficient to prevent the alienation. -A deemed interest would allow an applicant to register and /or protect the said interest by caveat, or caution, thus creating encumbrance over the said property. Less than that, in my opinion, the applicant would not succeed in obtaining the legal protection sought. Therefore, she cannot be joined as an intervenor.
50. SECURITY FOR COSTS.
(a) Civil Appeal No. 28/91 – Unilever PLC vs Hangaya Ramadhani. CAT at Dar. Foreign Judgment s (Reciprocal Enforcement) Ordinance, Cap.8 – is applicable. Several cases have been quoted in this judgment.
(b) Civil Case No. 66/99 – Tanzania Development Finance Co. Ltd vs E.R. Investments Ltd. HC at Dar (Manento,J). -From the wording of Rule 1(1) of Order XXV of the CPC, 1966 there are two conditions which must be fulfilled first before the court, on its own motion or on the application of any of the defendants may order the plaintiff to give security for costs during the pendence of the suit. “(a) the plaintiff(s) is residing out of the country (Tanzania) (b) The plaintiff(s) does not posses any sufficient immovable property within Tanzania other than the property in suit.” -This is strictly the law. The affidavits deponed by the applicants did not say that the defendant company is not residing in Tanzania. It is actually registered in Tanzania and its Managing Director, Emmanuel R. Makubo did not say in his affidavit that he is a non- Tanzanian. -The object of the rule (security for costs) is to protect the defendant in the cases specified, where in the event of success he may have difficult in realizing his costs. - It is therefore immaterial whether the respondent/defendant is conducting his business in this country or not is immaterial for what determines payment of security for costs is no longer the place of domicile, but is the possibility or realizing costs of the applicant against the plaintiff in the event the applicant succeeds and not the residence of the plaintiff. This stand was accepted by the Court of Appeal of Tanzania in Civil Case No. 28/91 (unreported) between Uniliver(supra) in which a number of cases to this effect were quoted. It was said in that case that the old inflexible rule of practice that the a plaintiff resident abroad must pay security for costs no longer hold true with the advent of legislations such as Tanzania Foreign Judgments (Reciprocal Enforcement) Ordinance, Cap. 8. -The Court of Appeal of Tanzania also quoted with approval the English case of Ro Appollinaris Company’s Trade Marks (1891) Ch.1where it was stated that if the plaintiff who is a resident in a foreign country has enough property in the country which in the event he loses the case, such properties would be adequate to meet the costs, then the court would not order security for costs just because the plaintiff is a foreigner. This confirms the fact that what is material is not all that one is a resident or non- resident but if he can meet the costs at the end of the suit in the event he loses. -Security for costs can be asked under the exceptional circumstances and it should be the exceptional and not the rule, and it must be based upon sum established principle and not on a mere circumstances that the court in its first impression finds that the suit is not bonafide suit. -I agree with the learned counsel for the respondent that such orders for costs should not be issued lightly as they may prevent the respondent to continue with his suit due to lack of sufficient immediate available funds to deposit in the event the order is granted.
(c) Commercial Case No. 17/00 – Serafin A. Affonso vs Portland Enterprises Ltd and others. HC (Commercial Division) Kalegeya, J. The general legal principles are that the power of the court to issue an order for security for costs is discretionary aims at protecting the defendant in the event of success at the end of the trial where the circumstances show that the plaintiff by virtue of being outside the court’s jurisdiction and not having any property around may not be able to meet costs awarded. The discretion should be exercised not to stifle any genuine claim by setting conditions which may not enable an impecunious person from pursuing his rights in the courts of law. The court should carefully carry out a balancing exercise in relating the aforementioned need on one hand and the defendants protection of the other, to afford him to recover from the plaintiff costs genuinely incurred during the pursuit of the action commenced by the plaintiff.
(d) Commercial Case No. 19/00 – Serafin A.Affonso vs Tangol Fishing Coo. Ltd. HC (Commercial Division) at Dar (Nsekela, J). -On what principle should security for costs be awarded. The answer to this lies in the wording of Order XXV rule 1 (1) itself. In the case of Farrab Inc. S.A. vs The Ottaman Bank[1968] HCD 356 Platt,J held, inter alia that:- “Under Order 25 rule 1 security for costs might not be required if the plaintiff had sufficient immovable property in Tanzania, apart from the property in suit, to cover the costs likely to be incurred by the defendant, but plaintiff’s property was not sufficient here.” In the instant case, the respondent has no immovable property in Tanzania at all. I think this is one of the factors to taken into consideration when exercising my discretion. On what basis should the amount of that security be determined? It is of course, for the party seeking on order for security to put before the court material that will enable the court to make an estimate of the costs of litigation. The amount of security given is in the discretion of the court. In the Supreme Court Practice , 1991, Vol. 1 page 421 there is the following note on Order 23 under the heading “Amount of Security”. It reads:- “The amount of security awarded is the discretion of the court, which will fix such sum as it thinks just, having regard to all circumstances of the case. It is always the practice to order security on a full indemnity basis. If security is sought, as it often is, at an early stage in the proceedings, the court will be faced with an estimate made by a solicitor or his clerk of the costs likely in the future to be incurred, and probably the costs already incurred or paid will only be a fraction of the security sought by the applicant………..It is a great convenience to the court to informed what are the estimated costs,, and for this purpose a skeleton bill of costs affords a ready guide”. -The applicants were expected to provide the court with material that would enable the court to exercise its discretion.
(e) Commercial Case No. 33/00 – Remy & Co.`Ltd vs Seif Industrial Complex Ltd. HC (Commercial Division) Kalegeya, J. -Quote’s Serafin A. Affonso vs Portland Enterprises Ltd and others (supra).
51. SPECIFIC PERFORMANCE.
(a) Commercial Case No. 61/00 - Stella Masha vs TOL Ltd. HC (Commercial Div.) Nsekela, J. -To state the obvious, specific performance is a discretionary remedy which compel a party in breach to perform its contractual obligations. This of necessity means that there must be a concluded contract between the disputants. -Again I think it is trite law that specific performance will only be granted if monetary compensation will not be adequate. In the instant case what is at stake is a residential property which cannot “possibly” be replicated and therefore monetary compensation will be inadequate. -However, in the case of Corker vs Ajewole 1976 (1) ALR Comm. 230 at p.235 it was stated:- “It is settled law that a person seeking to enforce a contract must show that all the conditions precedent have been fulfilled and that he has either performed or is ready and willing to perform all the terms which ought to have been performed by him. Accordingly, generally a plaintiff in an action for specific performance of an agreement cannot succeed if there is failure on his part to discharge his obligations under the said agreement.
52. STAMP DUTY.
(a) Civil Reference No. 7/92 – Transport Equipment Ltd vs D.P Valambhia. CAT at Dar. -We have no difficulties in saying that the relevant document is an agreement and so covered by the Stamp Duty Act. Apart from the fact that the document itself is so titled, that is, “Irrevocable Agreement”, it has been signed by both parties. If it was truly a unilaterally surrender document then there was no need for Valambhia to sign when not a party to unilateral declaration. Now if it is an agreement then it is subject to Stamp Duty. -According to S. 46 (1) of the Stamp Duty Act, two conditions are relevant. These are the admissions of an unstamped document in evidence or acting upon such document. -However, S. 46 (3) of the same Act states:- “(3) Failure by any public officer to examine and impound any instrument as required by this sub- section shall in no circumstances affect- any proceedings under this Act or any other written law”. -Without analyzing sub-section (3), on the face of it, we have no doubt that it covers the present situation where the ruling of Rubama, J was made “Under …..any other written law”. It would appear to us then that no offence is perpetuated.
(b) Civil Appeal No. 54/96 – Elibariki Mboya vs Amina Abeid. CAT at Arusha. -In Transport Equipment Ltd (supra) there was a question among others, what order this Court could make in relation to an instrument to which the provisions of the Act applied but which, notwithstanding that it was not duly stamped, the High Court acted upon. This Court said it could do what the High Court ought to have done under proviso (a) to S. 46 (1) of the Act. -The pivotal point of this appeal is whether the learned Judge of the High Court was right in law to have allowed the appeal on the ground that, Exhibit “A” having not been duly stamped, the instrument was not valid and should, therefore, have not been admitted in evidence by the trial court. Having given careful consideration of this question, we are of the opinion that the learned Judge reached a wrong decision. In our opinion, she should have held, in conformity with S. 73 of the CPC, 1966 that the non-stamping of the instrument did not in law constitute a basis for faulting the decision of the Resident Magistrate’ Court.
(c) Joseph Lugaimukamu vs Father Canute Mzuwanda [1986] TLR 69. HC at Dar (Bahati ,J). -With regard to admissibity of exhibit PI which was the agreement for the loan, the authority cited by Mr. Haule Sunderji Nanji Ltd vs Mohamedali Kassam Bhaloo [1958] EA 762 clearly shows that the respondent should have been given an opportunity to pay the required stamp duty and penalty. Since in this appeal, the ruling of the trial court was only in the judgment and the ruling was that no stamp duty was required, the respondent had no opportunity to pay the stamp duty and the penalty. -There is no doubt but that the ruling by the trial court on the admissibility of the agreement (Exh. PI) was erroneous because S. 46 of the Stamp Duty Act, 1972 clearly stipulates that under no circumstances may an unstamped document which requires to be stamped be admissible in evidence. This agreement being an agreement in respect of a loan was no doubt liable to stamp duty in terms of S. 42 of the Act. -Going by the holding in Sunderji’s case cited above. What is tto be done now is to allow the respondent if he so wishes to pay the stamp duty plus penalty so that Exhibit PI may form part of the evidence. -Once that is done then the record should be brought back to this Court to determine whether on the strength of the document together with the rest of the evidence on record oral and documentary the learned trial magistrate was correct in coming to the conclusion to which he came. There cannot be any question of sending back the case file to the District Court as was done in Sunderji’s case, because in this case the trial magistrate acted on exhibit PI whereas in Sunderji’s case the trial magistrate did not act on the unstamped document and the file was remitted back to him to consider the evidence of the unstamped document which was made admissible by the payment of the stamp duty by the party who was relying on it.
53. STAY OF EXECUTION
-Time Limit is 60 days – LLA, 1971 – Ist Schedule Rule 21.
(a) Tanzania Cotton Marketing Board vs Gogecot Cotton Co. SA [1997] TLR 63. CAT at Dar. (i) That the applicant had not gone beyond the mere assertion that it would suffer great loss and that its business would be brought to a stand still. Unless details and particulars of the loss were specified there was no basis upon which the court could satisfy itself that such loss would be incurred. (ii) The applicant had furthermore failed to indicate, beyond the vague and generalized assertion of substantial loss, that the loss would be irreparable. Any loss which the applicant was likely to suffer could be adequetly compensated for by an award of damages. (iii) The granting of a stay was a matter of discretion which was to be exercised on a common sense and balance of advantage basis. In the present case there were no good or sufficient reasons for the grant of a stay even on the basis of common sense and balance of convenience approach. This is an application for stay of execution. It arises from the decision of the 16.8.96 by the High Court (Kaji, J) in Misc. Civil Cause No. 34 of 1996. In a notice of Motion filed under Rule 9(2) (b) of the Court’s Rules, 1979 the applicant is applying for an order that the execution of this decision be be stayed pending the determination of an intended appeal the notice of which was lodged on 22.8.96. The application is supported by an affidavit deponed by one Ahmad Kilingo, the legal Secretary to the applicant company. At the outset it must be stated quite clearly that this being an application for stay of execution filed under Rule 9 (2) (b) of ythe Court’s Rules, it is discretionary. It’s grant or otherwises would depend on the individual circumstances of the case at hand. In this case, the decision turns around the issue whether the applicant would suffer not only substantial but irreparable loss which cannot be atoned by way of damages. Quoting Bansidhar vs Pribhu Daya [1954] AIR 41 Raj :- “It is not enough merely to repeat the words of the Code and state that substantial loss will result, the kind of loss must be specified, details must be given, and the conscience of the court must be satisfied that such loss will really ensue”. But what seems to worry the applicant is the resulting hardship in future business dealings. Such would in my view, be the normal hazards of any judgment -debtor. This was further underscored in the case of Bansidhar (supra). There it was furtheer observed:- “The word “substantial” cannot mean an ordinary loss which every judgment debtor is necessarily subjected when he losses his case and is deprived of his property in consequence. That is an elementwhich must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to and different from that”. -Stay order is not normally granted unless the court is satisfied that the applicant has suffered an irreparable loss that cannot be atoned by way of damages. - As to the question whether the appliacant has shown a prima facie case with the probability of a success in the appeal pending. It however, to be noted that at this stage it is rather premature to make any meaningful assessment of chances of success of the appeal pending, because arguments from both sides have not been heard. Quoting Simonite vs Sheffield County Council (English case). “……and that there were strong grounds for an appeal was no reason for granting a stay, for no one ought to appeal without strong grounds of doing so”.
(b) Civil Appeal No. 9/99 – Linus Furaha Shao vs NBC. CAT at Mwanza (Kisanga,J.A). - Mr. Mtaki contended that the details of the alleged irreparable loss were not set out in the affidavit, they were given only during hearing of the application, and this did not afford him opportunity to challenge them by filing a counter- affidavit. Having said that, however, Mr. Mtaki did not seek an adjournment during which to look for counter- information. - I have carefully considered the applicant’s allegations. As I said earlier, the allegation was set out in the affidavit while the details or particulars of it were given orally at the hearing. I think that ideally these details should have been given in the affidavit as well. But the fact that they were given in only orally in the course of arguing the application cannot be a sufficient ground for rejecting them. If Mr. Mtaki felt that he had reason to doubt the truthfulness of the details as given by the applicant, it was open to him to ask for adjournment to enable him to adduce counter- information, but he did not. -Since the execution of the decree will involve the attachment of the house in which he and his family are living ……throwing the applicant and his family out will cause loss and sufferance which will not be compensated in monetary terms. Stay granted.
(c ) Civil Application No. 1/99 – The general Manager, K.C.U.(1990) Ltd vs Mbatama Rural Primary Cooperative Society. CAT at Mwanza. The applicant lodged in court this application for stay of execution knowing fully well that the order intended to be stayed had already been executed. The application, therefore, is clearly misconceived because it seeks for a remedy which no longer existed at the time of making the application.
(d) Civil Application No.113/99 – Anwar Mohamed (as administrator…) vs Said Masuka. CAT at Dar. - In Civil Application No. 109 of 1999, striking out the application by the respondent for leave to appeal, stay of execution and extension of time, I remarked inter-alia:- “The Constitutional point intended to be raised on appeal may well be important, but all the same, this Court being a creature of the statute, rules pertaining to all applications should be strictly adhered. Unfortunately in tthis case there was no compliance with the time limit granted on extension, the Constitutional issue notwithstanding”. -I am still of the view that these remarks apply with equal force.
(e) CivilApplication No. 76/98 – Joakim Kalembwe vs M.N. Mwamlima. CAT at Dar (Lubuva, JA). -It is common knowledge that the purpose of an order for stay of execution is to maintain a stastus quo position in a particular case pending further steps being taken thereafter eg. Pending determination of the appeal. -In my view, it follows therefore that the stay order was being sought at the time when it would serve no useful purpose. The position is even more predicated now, it would equally be a futile exercise to have the order of stay issued today, 1999 (which execution was effected in 1998). For these reasons, I am firmly of the view that what is sought in this application has been overtaken by events.
(f) Civil Appeal No. 8/94 – Kernali Fida vs Nashman Kasham. HC at Dar (Luanda, PRM Ext.Jur). It is my considered view that where no failure of justice has been occasioned and the appellant was aware of the execution process, failure to issue notice of execution as provided under order 21, rule 20 (2)of the CPC, per se does not render the execution already carried out illegal.
(g) Civil Reference No. 14/97 - African Marble Co. Ltd vs Tanzania Saruji Corporation. CAT at Dar. Quoted with approval Tanzania Cotton Marketing Board (supra).
(h) CivilApplication No. 2/97 – NBC vs Justo Msechu and Sons Ltd. CAT at Dar. -Quoting Mulla, Civil Procedure Code, 14th Ed. p. 1188 “An order for stay of execution implies that the decree has not been executed. Therefre, where a decree has been executed, no order can be made under this rule”. - As correctly conceded by the learned counsel for both parties, this application has been overtaken by events……The granting of a stay order would not therefore serve any useful purposse.
(i) Civil Application No. 100/01 – Matsushita Electric (EA) Co. Ltd vs Charles George. CAT at Dar. -I am of the considered opinion that once a notice of appeal is filed under Rule 76, then this Court is seazed of the matter in exclusion of the High Court except for applications specifically provided for, such as leave to appeal, provision of Certificate of point of law or execution where ther is no order of stay of execution from this Court. -A notice of appeal filed in this Court does not automatically stop the lower court from proceeding with execution. Therefore, the respondent properly applied for a garnishee order and the High Court correctly granted. -Execution is the process of enforcing or giving effect to the judgment; it is complete when the judgment creditor gets the money or other thing awarded to him by the judgment. Where the decretal sum is lying in court, as is in this case, then it is obvious that the judgment creditor has not got what was awarded to him. Deposition of the decretal amount in court only takes it out of reach by both parties. Therefore executinon is not complete.
(j) Civil Application No. 146/01 – Stanbic Bank Tanzania Ltd vs Woods Tanzania Ltd. CAT at Dar. When can an execution of a decree be stayed pending the determination of the appeal? It is well established in this country that there are three principal factors which a court must have regard to when deciding whether or not to make an order for a stay of execution. These are:- Whether the appeal has, prima facie, a likelihood of success. Whether the refusal of staying execution is likely to cause substantial and irreparable injury to the applicant, and Balance of convenience.
(k) Civil Application No. 57/02 – Atthumani Hamad vs John Mabula. CAT at Dar. -Quoting Calico textiles Industries Ltd – A notice of Appeal is a pre-requisite condition for granting stay of execution. -When Rule 46 is read together with Rule 9 (2) (b) the proposition that in an application for stay of execution in civil proceedings the annexing of a copy of the notice of appeal to the affidavit sworn in support of the application is a mandatory requirement…The omission to annex the notice is fatal to the application for stay of execution. - In Alex Maro’s case, the court stated, “The application for stay is not accompanied by a notice of appeal which would give this Court the necessary jurisdiction because in the absence of notice of appeal, the matter is presumed to be still in the High Court which would be the right forum to stay the execution of its own decree”.
(l) Civil Application No. 137/04 – Engen Petroleum (T) Ltd vs Commissioner General Tanzania Revenue Authority. CAT at Dar (Nsekela,JA). - It is only the notice of appeal which clothes this Court with jurisdiction to order stay of execution under Rule 9(2) (b) above and not an order for leave to appeal to this Court. What is required is evidence that notice of appeal has been lodged in terms of Rule 76 (1) . - In Civil Reference No. 29/97, Sadiq Abdallah Alawi vs Zulekha Alawi and others, this Court stated:- “Rule 9 (2) (b) which was reproduced earlier and which sanction a stay of execution does not make leave a pre-requisite, and the question is whether there is justification for reading that requirement into the provision. Can the framers of the Rule have intended that leave to appeal should be a pre-requisite for granting a stay of execution? We think not. Under the Rule, only the notice of appeal is made a pre-requisite for granting a stay of execution. We think that if it was intended that leave to appeal also be made a pre-requisite, that it was only tooo easy for the framers of the Rule to say so but they did not”. -As stated before, the respondent has not challenged the existence and validity of the notice of appeal lodged on the 23.9. 2004. Whether or not there is an appeal before the Court is a different matter, which will be resolved at an appropriate time when it arises. (m) PC Civil Appeal No. 94/03 – Expedito Chunga vs Nsombo Co. Ltd. HC at Dar (Massati,J). -The law governing execution proceedings in Primary Courts is the Magistrates Courts (Civil Procedure in Primary Courts) rules, 1964, GN. 310/1964. -The Court Brokers and Process Servers (Appointments, Remunerations and Discipline) Rules, 1997 (GN. 315/97) – by definition the rule is meant to be applicable only where the executing officer is executing the order of the High Court, Resident Magistrate or District Court.
(n) Civil Application No. 95/03 – Tanzania Breweries Ltd Edson Dhobe and 18 others. CAT at Dar. -This Court has on various occasions held that where application for stay of execution involves a question of jurisdiction then it is logical that stay should be granted. -Tanzania Cotton Marketing Board (supra) – referred.
(o) Civil Application No. 69/03 – District Executive Director of Rufiji District (Authority) vs Abbas Likonda. CAT at Dar. - From the bar, Dr. Wambali submitted that the applicant will suffer irreparable loss and great inconvenience if the application is rejected because the respondent would not be able to refund the money if the intended appeal succeeds, which is to say, the judgment in the appeal would be nugatory. On the contrary Dr. Wambali contended, if stay of execution is granted but the appeal fails, the applicant would pay any awarded damages plus interest without difficult. -In view of the above I allow the application for stay of execution only in respect of the awarded Tshs. 9,858,000/=.
(p) Civil Application No. 35/03 – East African Development Bank vs Blueline Enterprises Ltd. CAT at Dar (Lubuva, JA). - I accept that there is no specific rule which requires the attachment of the order to the application. However, as observed earlier, both logic and common sense demand the Court cannot order stay of execution of an order which it has not seen. -Furthermore, by precedent, the practice of the Court is in such a situation is that an application for stay of execution which is not accompanied with the order sougth to be stayed is held to be incompetent. -See also Civil Application No.46/2004 Sugar Borad of Tanzania vs 21st Century Food and Packing and 2 others (Munuo,JA).
(q) Civil Application No. 13/03 - Permanent Secretary, Ministry of Natural Resources ands Tourism and A.G. vs Hotel Trevertime Limited.CAT at Dar (Nsekela, JA). - I propose to start with Mr. Ngatungas complaint that the application was not accompanied by an Order or Ruling soght to be stayed. It is not in dispute that the Notice of Motion filed by the applicants on the 5.3.2003 was not accompanied by an Order or Ruling of the High Court which is intended to be stayed. Admittedly Rule 9 (2) (b) of the Court Rules does not specifically mention that an Order or Ruling sought to be stayed should be attached to such an application. However, this Court has evolved a rule of practice to the effect that an application for stay of execution should be accompanied by a copy of a Ruling or Order which is the subject matter for stay of execution. -In Civil Application No. 35/03 (supra), this Court held inter-alia:- “It hardly need to be emphasized that both logic and common sense demand that the Court should be seized with the decision by way of judgment, ruling or order which is the subject matter of stay of execution. This is so, in order to enable the Court to see and satisfy itself of the application before it.” See also Blue Star Services Station vs Jackson Musseti [1997] TLR 310. -In the event, and for the above reasons I uphold this preliminary objection that the application is incompetent.
(r) Civil Case No. 210/89 – Transport Equipment Ltd vs D.P. Vaalambhia. HC at Dar (Rubama,J). High Court has no jurisdiction to entertain stay of execution after a notice of appeal has been lodged.
(s) Civil Application No. 60/03 – Frank W. Musari vs Gapoil (T) Ltd. CAT at Dar (Mrosso, JA). -One of the consequences of incorporation is that the personal property of the shareholders or the directors of a company is separate and distinct from that of the company. Normally a party who obtains a decree against a company is not entitled to go for the personal property of a director of a judgment debtor company unless the latter had acted as a gurantor. -Where a decision is a problematic it is usual for this Court to grant an order of stay of execution. -Quoting Ravindra Desai and another vs CRDB, Ref. No. 2 and 3 of 1996 (unreported) in which this Court (Nyalali, JA) said:- “Where there is notice of Appeal against a problematic judgment the interest of justice require a stay of execution to be granted pending hearing and decision of the appeal…..”
(t ) Civil Application No. 10/00 – East Zone Tobacco Growers Cooperative Union Ltd vs Michael Junga. CAT at Mwanza.(Kisanga, JA). With due respect to the counsel,…….the allegations that the respondent has no means of satisfying the decree is made from the bar. As such it is not evidence and so it cannot be considered. It ought to have been made in the affidavit so as to give the respondent a chance to respond to it.
(u) Civil Application No.36/92 – Albert Braganza vs Flora Braganza. CAT at Dar (Makame,JA). It is indeed the law that this Court would not grant stay of execution not applied for in the High Court in the first place unless there is already a valid nodtice of appeal filed. We have said so many times before
(v) Civil Application No.175/2004 – NHC vs Etiennes Hotel. CAT at Dar (Ramadhani,JA). -It is palpably clear that the existence of a notice of appeal is a sine qua non for the exercise of the powers of stay of execution by this Court. That has been decided in a number of decisions and in Afro Helicopter T. Ltd vs F.W. Jansen, Civil Appliacation No.12/1990, this Court said that once a notice of appeal has been lodged the High Court if functus official in matters of stay of execution. -There are two replies to this argument: One, the expiration of time does not prevent an intended appellant from lodging a notice of appeal. This is clear from the language of Rule 8 dealing with extension of time. “The Court may for sufficient reason extend the time limited by these Rules or by any decision of the Court of the High Court for the doing of any act authorized or required by these Rules, whether before or after expiration of the time and whether before or after the doing of that act, and any reference in these Rules to any such time shall be construed as a reference to that time as so extended (emphasis added).” -For the avoidance of doubt, limitation is not one of the covered by Rule 11 which gives the Registrar of the Registrar of the High Court the discretion to reject certain documents. So, the applicant could file a notice of appeal and then apply for extension of time within which to file the notice. In that case there would have been a notice of appeal to form the basis of the application for stay of execution. -Secondly, after extension of time was refused by the High Court, the proper cause of action is not for the applicant to appeal to this Court, but to file a fresh application for extension of time in this Court.This Court has said in a number of decisions…. -After the refusal by the High Court an applicant comes to this Court for a second bite, as it were, and not an appeal. It is the same Rule 11 of the Appellate Jurisdiction Act, 1979 which clothes the High Court with the powers to grant leave to appeal as well as to extend time. -Before the High Court there were two prayers: for extension of time and for stay of execution, and that both prayers were dismissed. So, could the applicant appeal against the refusal of the High Court to stay execution? That question has exercisesd my mind a great deal. I am not aware of any precedent and non was cited to me. However, stay of execution is not an end in itself but it serves a purpose where there is an appeal pending. Stay of execution is an interlocutory order pending appeal. Here, as I have demonstrated above, there is no pending appeal, so, what is the relevancy of stay of execution? Why allow an appeal, which for all intends and purposes, is academic? That surely is what Rule 3 (2) (c) seeks to avoid. -The period of limitation of 60 days set by the decisions of this Court, fix the time from the date of the decree to be stayed was given by the High Court
(w) Civil Application No. 8/01 – The Director Tilapia Hotel vs Ashura Abdulkadri. CAT at Mwanza. (Ramadhani,JA). -It is true the that the judgment creditor is entitled to enjoy the fruits of her success. -It is my considered opinion that the decretal amount ought to be deposited into court where it will be available to whoever will be entitled to it.
(x) Civil Application No. 99/03 – Mrs Wajibu Mangungu and others vs NBC Ltd. CAT at Dar (Nsekela,JA). -The general is that an appeal shall not operate as a stay of execution unless the Court so orders. A Court willl not deprive a successful party of the fruits of the litigation until an appeal is determined unless the applicant can show that there are circumstances to justify such deprivation. An application for stay of execution has to establish one of the three circumstances to enable the Court to grant a stay Order. These are:- (i) Whether the appeal has, prima-facie, a likelihood of success; (ii) Whetheer the refusal of staying execution is likely to cause substantial and irreparable injury to the applicant; (iii) Balance of convenience (See Civil App. No 146/01 Stanbic Bank Tanzania Ltd (supra). -Quoting Tanzania Postal and Telecommunication Corporation vs Henritta Supplies [1997] TLR 141 at 144 “ It is however relevant at this juncture, to reflet that this Court has on numerous occasios taken the view that the chances of success of an intended appeal though a relevant factor in certain situations, it can only meaningfully be assessed later on appeal after hearing arguments from both sides.” - It will be recalled that the cornerstone of the applicants case is that if the mortgaged house is disposed of, this will cause irreparable injury to the applicants. The legal ownership of the house will naturaly change hands and that will be the end of their interest therein. I agree. Stay of execution granted.
(y) Civil Reference No. 23 /04 - Consolidated Holdings Corporation vs. Jit Finance Limited and Another CAT at Dar (Munuo, JA), (Nsekela, JA) and Msoffe, JA). The application was struck out on the ground that the sought to be stayed was not annexed to the Notice of Motion. We are of the settled view that the applicant should have annexed a decree and not the judgment.
(z) Civil Application No. 68/03 – Tanzania Zambia Railway Authority vs. Ayoub L.O. Ritti CAT at Dar (Munuo, JA).
(aa) Civil Application No. 163/04 – Tanzania Revenue Authority vs. National Social security Fund CAT at Dar (Lubuva, JA). The Court cannot order stay of execution of an order which is has not seen and satisfy itself of what is prayed for in the application. In such a situation, the Court has held in a number of applications that where the application is not accompanied with the order which it is required to stay such an application is incompetent. I appreciate Mr. Lugaiya’s point that all this was due to confusion caused in the process of filing the documents. However, sympathy apart, the legal position still remains that the application is incompetent. Accordingly, the application being incompetent, is struck out. No order as to costs.
(bb) Civil Application No. 111/04 - Jamal Ahmed vs. Yeslam Said Bin Kulaib CAT at Dar (Masoffe, JA). There is no serious dispute that an aggrieved party can access this Court under the Appellate Jurisdiction Act, 1979. Under S. 5 thereof appeals can lie to this Court against decrees, judgments, orders, decisions, or findings of the High Court. This, in effect, means that ordinarily a party can come to this court “through the High Court” Hence, it will be evident that a notice of appeal envisaged under Rule 9 (2) (b) as a prerequisite for an application for a stay of execution willl be one which is against a decision, order etc. passed by the High Court. So, since the decree of the Regional Housing Tribunal was not passed by the High Court it will follow that there is no decree capable of being stayed by this Court. It is for this simple reason that the proposition by Mr. Mselem that this Court has the discretionary power to order stay of execution of a decree passed by any Court, or Tribunal for the matter has, no basis in law.
(cc) Civil Application No. 97/04 – SDV Transmi (Tanzania) Limited vs. Ms Ste Datco . CAT at Dar (Kaji, JA). - In the application, the application, sdv transmi (tanzania) limited, is seeking, under Rule 9 (2) (b) of Tanzania Court of Appeal Rules, 1979, an order for stay of execution of the decree passed by the High Court (Commercial Division) in Commercial Case No. 46 of 2003, pending the determination of the then intended appeal (now already registered as Civil Appeal No. 125 of 2004). It is supported by an affidavit deponed by JASON REYNARD who is the applicant’s General Manager.pending, the applicant under certificate of urgency, is moving the Court for an order that the execution of the judgment and decree of the trial court and any orders made subsequent to the said judgment be stayed pending determination of the appeal on the grounds that:- (a) If execution of the decree is not stayed, the applicant will suffer a great economic loss and the operation of the applicant will be seriously paralysed (b) The appeal raises serious legal issues for determination of the Court, and same has overwhelming chances of success, and if an order staying execution is not made, the entire appeal will be rendered a nugatory. ( c) The respondent is a foreign company with no physical existence in Tanzania, and has no essets to satisfy any decree if the appeal succeeds. (d) the balance of convenience lies in favour of granting the order for stay. It is common knowledge that the Court’s power to grant or to refuse a stay order under Rule 9 (2) (b) of the Court Rules, 1979 is unfettered and discretionary which however, must be exercised with a judicial mind guided by the established principles and common sense. The immediate question is “what are those principles?”. In Ignazio Messina & National Shipping Agencies vs. Willow Investment & Costa Shinyanga Civil Reference No. 8 1999 (unreported) this Court spelt out the principle for consideration when considering whether to grant or to refuse a stay order. It said:- “It is now settled that :- (i) The Court will grant a stay of execution if the application can show that refusal to do so would cause substantial irreparable loss to him which cannot be atoned by any award of damage. (ii) it is equally settled that the Court will order a stay if refusal to do so would, in the event the intended appeal succeeds, render that success nugatory Again the Court will grant a stay if in its opinion, it would be on a balance of convenience to the parties todo so”. In Tanzania Electric Co. Ltd & Two Others Vs. Independence Power Tanzania Ltd – Consolidated Civil Application Nos. 17 and 27 of 1999, the Court added another principle when it held that it would grant a stay if it is demonstrated that the intended appeal has prima facie likelihood of success, it appearing on the face of it that the court handing down the decision bein appealed against, lacked jurisdiction to order the award it did. Currently these are the principles which guide the court deciding whether or not to grant stay of execution, which an application is required to satisfy the Court that the facts and circumstances of his case bring that case within the ambit of one or more of those principles, and where he succeeds to do so this Court will grant a stay. The crucial issue, therefore, is whether the applicant has satisfied the Court that the facts and circumstances of its case bring this applicantion within the ambition of one more of these principles. Third, in my view, loss of business goodwill is just an ordinary loss to which every judgment debtor is necessarily subjected when he loses his cases and is deprived of his property in consequences, stated by Bose, AJC in ANAND PRASHAD VS. GOVINDA BAPUAIR 1934 Nag quoted in the Editor sanifu Newspapers case (supra). In view of what I have stated above, it is my holding that on its first ground, the applicant has failed to satisfy the Court that if execution is not stayed it will suffer irreparable loss.
(dd) Civil Application No. 68/03 – Tanzania Zambia Railways Authority & Ayoub L.O. Ritti - HC at Dar (Munuo JA,)
- The applicant, Tanzania Zambia Railway Authority seeks stay of execution of the decree in Miscellaneous Civil Cause No. 51 of 2001 in the High Court of Tanzania at Dar es Salaam. Mr. Lutema, learned advocate, represented the applicant. The respondent, Ayoub O. Ritti, was represented by Mr. Kariwa, learned advocate.
- Mr. Kariwa submitted that the application si incompetent on the ground that a copy of the decree whose execution is sought to be stayed, was not annexed to the Notice of Motion. He cited the case of Consolidated Holding Corporation Versus Rajani Industries Ltd, Civil Application No. 138 of 2002 [unreported] in which a single judge struck out an application for stay of execution because a copy of the decree was not annexed to the Notice of Motion. For the same reason, counsel for the respondent contended, the present application should be struck out with costs.
- Mr. lutema conceded that no copy of the decree was annexed to the Affidavit in support of the application. He observed, however, that a copy of the judgement of the High Court was annexed to the Notice of Motion so the application for stay is competent and ought not to be struck out.
- As was held in the case of Dunhil Motors Ltd. Versus Tanzania Revenue Authority, Miscellaneous Civil Application No 12 of 2000, Court of Appeal of Tanzania [unreported] and Consolidated Holding Corporation Versus Rajani Industries Ltd. Cited supra, although rule 9 (2) (b) of the Court of Appeal Rules, 1979 does not state that a copy of the decree must be annexed to an application for stay, logic requires that such decree be annexed to the Notice of Motion. It has to be so because the Court cannot stay the exection of a decree it has not seen. In this application, for instance, it would be impossible to determine whether the decree would involve the payment of a colossal amount of money when no decree has been exhibited to substantiate the same. Hence the importance of annexing a copy of the decree to the Notice of Motion or to the Affidavit in support of the application. Nor should a copy of the judgement replace the decree because section 28 of the Civil Procedure Code, Act No. 49 of 1966. clearly distinguishes a judgment from a decree by stating.
“28 The Court, after the case has been heard, shall pronounce judgement, and on such judgment, a decree shall follow”.
-In the light of the above, the present application for stay of execution is incompetent for want of a copy of the decree sought to be stayed. Under the circumstances the application is struck out with costs.
(ee) Aero Helcoper (T) LTD Vs. F.N. Jansemn [1990] TLR 142 (CAT) Kisanga, JA.
- When an application for a stay of execution pending appeal to the Court of Appeal of Tanzania came for hearing in the Court of Appeal of Tanzania preliminary objection was raised to the effect that the application was wrongly before it in that it ought to have been made to the High Court in the first instance. Counsel for the applicant and respondent referred to two apparently conflicting decisions of the High Court on the point.
Held: (i) The inherent power of the High Court under section 95 of the Civil Procedure Code is exercisable where the law has made no provision governing the particular matter at hand;
(ii) once proceedings of appeal to the Court of Appeal of Tanzania have been commenced the High Court could not properly apply section 95 of the Code for the simple reason that the proceedings are no longer in the court a required by section 2 of the Code.
(iii) once appeal proceedings have commenced by filing notice of appeal to the Court of Appeal of Tanzania, the law makes specific provision, relating to the sty of execution the court, under rule 9 (2) (b) of the Court of Appeal Rules,
(iv) once appeal proceedings to this court have been commenced by filing notice of appeal, the High Court has no inherent jurisdiction under section 95 of the Civil Procedrue Code to order a stay of execution pending appeal to this court.
(ff) Misc. Appeal No. 2 of 1994 - Seif Household Store Ltd Vs. Mabai Store [1995] TLR HC (Kyando, J)
This was an appeal from a ruling of the Housing Appeals Tribunal(HAT) granting an application by the respondent for stay of execution pending an appeal to it (HAT) from the decision of the Regional Housing Tribunal of Dar es Salaam. Initially the respondent had lodged its application with a Resident Magistrate’s Court which dismissed it for want of prosecution. The High Court, on appeal, considered the extent of powers of the Resident magistrate’s Court in entertaining applications for stay of execution of decrees passed by the Regional Housing Tribunal and also considered the proper forum to lodge such applications.
Held:
(i) The Resident Magistrate’s Courts’ poweres to entertain an application for stay of exectuition are limited to staying execution of a decree for only a reasonable time and for the pubposes of enabling the judgement debtor to make an application to either the Regional Housing Tribunal which passed the decree or to the Housing appeals Tribunal, having appellate jurisdiction in respect of the decree or the execution of it;
a. The Resident Magistrate’s Court had no power to stay execution of the decree pending appeal.
b. The Residente’s Court’s dismissal of the application did not affect the respondent’s right to apply for stay in the proper for a, either the Regional Housing Tribunal or the Housing appeal Tribunal.
c. The application to the Housing Appeals Tribunal was properly entertained by the Tribunal having been filed after the appeal had been lodged.
(gg) Khadija Abdallah Vs. Ajesh Vaja and Two Others [1996] TLR 126 (HC) (Mkude, JA).
- The Respondents were ordered to vacate certain premises pursuant to a decree of the Dar es Salaam Regional Housing Tribunal passed on 19 October, 1992. Upon lodging a notice of appeal with the Housing Appeals Tribunal, the Respondents filed for (and duly obtained) an order for stay of execution from the Resident Magistrate at Kisutu in terms of Order 21 rul 24 of the Civil Procedure Code.
- The Application applies for the revision of the Magistrate’s order, in terms of Section 79 (1) and order 43 rule 2 of the Civil Code. The applicant contends that the Magistrate granted the stay of execution without jurisdiction and/or pursuant to a material irregularity and accordingly asks that execution be ordered to proceed forthwith.
Held:
(i) The only reason the Resident Magistrate’s court granted a stay of execution was because a notice of appeal had already been filed in the Housing Appeals Tribunals.
(ii) The mere filing of a notice of appeal cannot amount to sufficient cause, for the purposes of Order 21 of rule 24, for an order staying execution by the executing court.
(iii) No sufficient explanation was given as to why the application for stay of execution was brought before the executing court and not to either the Regional Housing Tribunal or the Housing Appeals Tribunals.
(iv) The order of the Resident Magistrate’s court staying execution is therefore ultra vires its powers.
(v) The Resident Magistrate’s order is quashed, and execution is permitted until such time as a lawful order for stay of execution is issued.
(hh) E R Mutaganywa Vs. Ahmed J. Aladin and Others [1996] TLR 285 (HC)
(Maina J,).
- The applicant applied for a stay of execution of the judgment of the Principal Resident Magistrate, Kisutu pending an appeal against the judgement. The respondents raises a preliminary objection that the application was defective as there was no appeal.
Held: (i) Order XXXIX rule 5, which gave the court power to grant a stay of execution pending appeal contemplated that an appeal had been filed; the court could not entertain an application for a stay where no appeal had been filed.
(ii) Misc. Civil Application No. 316/02 – The Board of Trustees of National Security fund vs Josephine Mutahiwa HC at Dar (Luanda, J).
- I have gone through the submissions, I am but to dismiss the applications. It is on record that no appeal has been lodged in this court. So how can I stay execution. Usually the order of stay is issured if there is a pending appeal. As no appeal is pending the application of stay can not stand. Furthermore, the applications for Stay of Execution and lifting of garnishee order is to say the least is premature.
- Tha Applicants were required to make another attempt of setting aside the dismissal order.
- They did not do that. After unsuccessful attempt, this court will come to their aid and this should be by way of an appeal.
- I do agree with Mr. Lugaziya that the application fo stay and lifting of the garnishee order is incompentent.
- As regard leave to appeal out of time, Mr. Mkoba did not attempt to say a word.
54. SPECIFIED PUBLIC CORPORATIONS
(a) Civil Case No. 31/93 – Ally Mohamed vs Cassian Mgogosi. HC at Dar (Rugazia,J). -In Bin Kleb Bus Service vs Agip Tanzania Ltd HC Civ.Cas. No.102/94 (unreported) – Msimi,JK, held that the respondent ought to have applied for and obtained leave of the court before instituting execution proceedings. This decision is still as valid today as it was when it was made and, indeed, execution proceedings in my view are proceedings within the ambit of S.9 (1) of the Bankrutcy Ordinance, it follows that the proceedings thereof were improper and they have to be set aside which I now proceed to do.
(b) Civil Case No. 102/94 – Bin Kleb Bus Servises vs Agip Tanzania Ltd. HC at Dar. (Msumi,JK). The respondent ought to have applied for and obtained leave of the court before initiating the execution proceedings. The provisions of S.9 (1) are not rendered irrelevant by the mere fact that in the present case the suit was filed before the applicant company was declared to be specified corporation. The property of the applicant company was already vested in the objector hence no creditor could have access to it except in the manner provided by S. 9 (1). The applicant company was in possession of the attached property of the objector.
(c) Civil Reference No. 3/99 – The Minister For Labour & Youth Development vs Gasper Swai and 67 others. CAT at Dar. As Prof. Shivji rightly submitted, S. 9 (1) of the Bankruptcy Ordinance permits the institution of attachment proceedings with the leave of the court against the property of the second applicant, it being noted that proceedings to attach the property of the seecond applicant can be brought even against PSRC itself as a receiver.
(d) Civil Case No. 43/99 – Kampuni ya Uchukuzi Tabora vs Praxeda Paulo and another. CAT at Dar (Kisanga,JA) -What are the effects of placing the applicant Corporation under receivership of PSRC? - The provision does not transfer the assets and liabilities of the Specified Corporation to the PSRC as claimed by the counsel. It merely constitutes PSRC the receiver of the property of the Corporation in question, but it does not say that the said corporation ceases to own property. -My understsnding of the provision is that the public corporation under receivership can continue to own property, and that its creditor of any debt provable in bankruptcy can, with leave of the court, proceed against such property. Of course there is nothing to prevent such creditor from joining the PSRC, the receiver, as co-defendant. -In my view, therefore, Mr. Mtaki’s submission can not succeed. He cannot seek stay of execution against the property of the applicant corporation on the ground that the corporation, now being under receivership, does not own property. I think the applicant corporation continues to exist in law, continues to be the owner of its propertyand that, with leave of the court, a creditor of a debt provable in bankruptcy can proceed against its property. And to grant stay of execution as prayed at this stage would amount to pre-empting such creditors who may wish, with leave of the court, to proceed against the property of the applicant. That would not be right.
(e) Misc. Civil Appeal No.14/00 – Daudi Kulwa vs TTCL. HC at Dar (Ihema, J). As the law stands, correctly pointed out by Mr. Mgullu learned advocate for the respondent, leave of this court is necessary before a party is heard on an application seeking relief against a specified public corporation. And as no leave was sought and granted, the trial magistrate properly directed himself when he dismissed the application for being incompetent.
(f) Commercial Case No. 35/00 - TANESCO vs Muhimbili Medical Centre. HC (Commercial Div) (Dr.Bwana,J). -The defendant raised a preliminary objection to the effect that the plaintiff being a Specified Public Corporation under the Public Corporations Act, No.16 of 1993 have no locus standi to sue in their own name in respect of the said premises. -It however important to note at this stage that the case law cited by counsel for the defendant is distinguishable from the present caase in the following manner:- 1. the defendant in this case is not a Specified Corporation. 2. Neither TANESCO nor MMC are shown to be insolvent. 3. From the pleading it is apparent that the whole case is one of enforcement of contractual obligations with the plaintiff trying to recover rental money not paid by the defendant. -S. 9 (1) of Cap. 25 has been relied upon. It is sufice to state here that the said provision does not march with the facts before the court. -My further examination of this issue (of locus standi) vis-Ã -vis Section 43 (1) of the Act read together with Section 9 (1) of Cap. 25 differs with the views submitted by the counsel for the defendant. Those provisions, to me, do not prevent a Specified Corporation from suing or being sued in its own name, S. 228 of the Companies Ordinance notwithstanding. It would appear that the only limitation imposed by S. 9(1) of Cap. 25 in respect of debtors is for the need to obtain a court’s leave prior to commencing legal proceedings. And that will be relevant only for debtors whose debts are provable in bankruptcy. -PSRC be added as a plaintiff to the suit. Necessary amendments to the pleadings be effected soonest.
(g) Misc. Civil Application No. 132/01 – B.M. Akilimali vs Editor, Motomoto Newspaper and others. HC at Dar (Kyando, J). -Leave is necessary even if the suit was filed before the defendant was specified. -I am of the opinion that it matters not that the suit was instituted before Printpark was declared a specified company. What matters is when the execution took place. If took place when it (Printpark) was already a Specified Company, then the procedure involving PSRC became operative.
(h) Civil Case No. 225/02 – Mpembwa Agricultural & General Business Ltd vs TANESCO. HC at Dar ( Bubeshi,J). -Quoting Court of Appeal case…(Civil Reference No. 3/99 – The Minister For Labour & Youth Development vs Gasper Swai and 67 others. CAT at Dar). The Court of Appeal Held that :- “Although a Corporation may be under receivership, yet the requirement for leave is relevant at the execution proceedings which involves attachment of the property of the corporation.” Leave to sue was not essential. -The requirement for leave can be sought at execution stage.
(i) Civil Appeal No. 40/01 – Mathias Eusebe Soka vs.The Registered Trustee of Mama Cenebtuba Foundation and Others. CAT at Dar (Ramadhani, JA, Nsekela, JA, and Kaji, JA). - We agree with Mr. Maruma that this is a proper matter for preliminary objection under Rule 100. Admittedly, that Rule starts with the clause “where a respondent intends to take a preliminary objection to any appeal or any part of it ….. “ Thus a preliminary objection has to have a nexus to the appeal or part of it. Here, as Mr. Maruma rightly pointed out, NIC is to pay the decretal amount. That provides the nexus. And for that matter section 9 of the Ordinance is brought into play and so, leave to join NIC in the litigation has to be sought under that section and not under the Civil Procedure Act as Mr. Jonathan submitted. But was leave to be sued required? We have no doubts at all tha the unambiguous words of section 43 of the Act are that once a corporation has been declared a specified corporation the PSRC becomes its official receiver and the provisions of the Ordinance are engaged. That is the position as borne out by the outhorities referred to us by Mr. Maruma: Said Mnimbo & Others v. State Travel Services Ltd, Civil Case No. 296/1997 (DSM Registry) and Ali Haji Damdusti vs. BP (T) Ltd & BP Import and Exprt Co. Ltd, Civil Case No. 53/1999 (DSM Registry), and others by this Court. The argument that the objection ought to have been raised in the High Court does not find purchase with us since, as Mr. Maruma rightly pointed out it is a question of jurisdiction and it can be raised at any stage of proceedings. This is so even if Mr. Maruma consented to be joined at the trial. The consent of a party does not confer jurisdiction if there is none under the law. Negotiations as conceded by Mr. Maruma. However, we do not think that it is necessary to go into all that. The crux of the matter which concerns us is that on 12th June, 1998, NIC was declared a specified corporation, and that on 28th October it was joined as a party without there being leave under section 9 of the Ordinance. We uphold the preliminary objection and strike out the notice of appeal. However, that is not enough because the decision of the High court will still remain intact though illegal.
(j) Civil Appeal No. 71/02- National Milling Corporation and onother vs. John Paul CAT at Dar (Luanda, JA).
- John Paul (hereinafter referred to as the Respondent) filed a summary suit in the Court of the Resident Magistrate at Kisutu against the National Milling Coorpoation a specified Public Corporation and the Presidental Parastatal Sector Reform Commission (hereinafter referred to as the 1st and 2nd Appelalants) for principle sum, damages totaling Tshs. 6,640,000/= and interest.
- In their written statement of defence, the 2nd Appellant reised an objection on a point of law in that the 1st Appellant being a Specified Public Corporation the Court of the Resident Magistrate had no jurisdiction to determine the suit. Learned Counsel for both sides namely Mr. Fungamtama for the Appelalnts and Mr. Rweikiza for the Respondent argued their respective cases. At the end of the day of trial Court (Mr. Mirumbe – RM) held that the Court had jurisdiction. Aggrieved with that decision the Appellants are now appealing to this Court.
- By an order of this Court learned Counsel argued the appeal by way of written submissions. I have gone through the submissions, I am settle in my mind that the appeal has merit.
- It is not in dispute that the 1st Appellant is a specified Public Corporation. Once a corporation has been declared so, the 2nd Appellant is vested with poweres to act as an official receiver of that corporation and shall have all rights of a receiver as if he had been appointed in accordance with the Bankruptcy Ordinace. This is provided for under Section 43(10 of the Public Corporation Act, 1993. The Section reads:-
43 (1) Notwithstanding any other law to the contrary, with effect from the date of publication of an order declaring a public corporation to be a Specified Public Corporation the Commission shall.
(a) without further assurance on appointment have power to act as official receiver of the specified public corporation; and
(b) have the power and all the rights a receiver appointed in accordance to the Bankrupcty Ordinance. The record of the Dar es Salaam Resident Magistrate Court does not incicate or show to have been conferred with those powers. And to my best recollection, I have never come across to such an order of the Chief Justice to delegate such powers to any subordinate court.
From the foregoing therefore, the resident Magistrate Court was wrong when it held that it had jurisdiction in bankruptcy cases.
In sum, the appeal is allowed with costs.
(k) Misc. Civil case Appeal Nol 17/01- National Insurance Vs. S/Set Forela Mwakyusa. HC at Mbeya. (Mackanja, J).
- Soon after the above order was made the National Insurance Corporation was served with the third party notice Mr. Mbise, Leornad Counsel residted service of the third party notice on the National Insurance Corporation because it was a specified corporation which could only be sued with lleave of this Court. The learned trial Resident Magistrate refused the preliminary objections, holding that he was bound by kthe order of this court, (Mwipopo, J).
- It was by reason of the foregoing events that this appeal was lodged in which three grounds have bear raised, that is to say:-
1. That the learned trial Magistrates erred on overruling the preliminary objection.
2. That the learned Resident Magistrate miksinterproted the ruling of this court, mwipopo, J in (DC) Civil
3. That the learned trial Resident Magistrate erred in ignoring statutory provisions that were cited before him.
With the laws of this country. As it has been decided in numerous cases of this court, some of which were cited before the trial court, as a specified corpratiohn N.I.C. could not be sued unless an application kfor leave was made and leave having been granted. So when my brother Judge ordered that N.I.C. be joined to the proceedings he had the provisions of s. 9(1) of the Bankruptcy ordinace in mind and it was upon the plaintiff to comply with that order by forst applying for leeve. I say this because there is nothing in the order of this court which suggest that it dispenses with the provisions of section 9(1) of the Bankruptcy Ordinance, Cap. 25 I hold, therefore, that the trial court slipped into error when it declined to uphold the preliminary objections.
- Under section 22 of the Bankruptcy ordinance, “debt provable in bankruptcy” or “provable debt” includes any debt or liability by this ordinance made provable in bankruptcy”.
- Section 35 (1) or the Bankruptcy Ordinance further provides that “ Demands in the nature of unliguidated damages arising otherwise than by reason of a contract, promise, or breach of trust shall not be provable in bankruptcy”.
- In thye case at hand, the learned trial Resident Magistrate was confronted with the demands in the nature of unliquidated damages by the appellant arising from contract of service. Hence by virtue of section 35 (1) of the Bankruptcy ordinance, “ these demands are provable” in bankruptcy.
- it follows therefore that the appellant was obliged to seek leave of the High Court before taking any action against the respondent Company and the PSRC. It should be noted here that it was the appellant in person, and not the Labour Officer who was obliged to seek leave of the High Court before taking any legal action against the respondent.
- This does not mean that, the trial Magistrate’s hands were now tied, and he has nothing more than striking out the suit.
- After this, the learned Resident Magistrate was enjoined to act under the provisions of Section 133 (3) of the Employement ordinance, by making a finding that the matter could be more conveniently tried or determined by the High Court. He would then have referred the case between the appellant and the respondent and PSRC to the High Court.
(l) Misc. Civil Appeal No. 14 /02 - Daudi Kulwa Vs. Tanzania Telecommunications Co. Ltd HC at Dar (I hema, J).
- In Emploment Cause No. 168 of 2000 in the Residente’s court at Kinondoni, Hon. R.K. Meela Senior Resident Magisgrate dismissed an application by the appellant seeking the enforeement of the order of the Minsiter for Labour as a decree. The Learned Senior Resident Magistrate dismissed the application upon a preliminary objection on a point of law by the respondent that the said application wa incopetant for lack of leave of the High court pursuant to Section 9 (1) of the Bankruptcy ordinance read together with the relevant provisions of the Public Corporation Act No. 2/92 as amended by Act No. 16/1993. The Learned Senior Resident Magistrate also based his decision on the authority of the High Court of Tanzania in the case of Said Mnimbo & Ors V. Tourism Service (T) Ltd & Anor – HC CC No. 295 of 1997 DSM , Registry (unreported) emphasizing the necessity of obtaining leave of the High Court before dragging a specified company to a court of law.
- In this appeal it is the contention of the appeallant through the services of Mr. Ndolezi learned advocate that the objection raised is tenable only when a suit or action commenced concerns a Debt against a specified Public corporation and that the action or legal proceedings must concern a debt provable in bankruptcy or a provable debt as defened under Section 2 of Cap. 25, i.e the bankruptcy Ordinance. It is contended by the appellant that he went to the Resident Magistrate Court for the enforcement of the Minister’s orders of his reistatement and no more, despite the concession that the inclusion of a claim of unpaid salaries and other allowance was an error. Appellant also secks of distinguish the case of Said Mnimbo from the present one. In reply the respondent argues that the trial Magistrate was right to hold that the existence of a claim was a debt provable bankruptcy requiring leave of the court under section 9 (1) of the Bankruptcy Ordinance and further that even a more application for execution of a decree against a specified public corporation requires leave of the court in terms of the decision of the court of Appeal in Civil Application No. 43/99 Kampuni ya Uchukuzi Tabora v/s Praxeda Paulo & Anor.
There is no doubt that the appeal against the appeal against the trial Magistrate‘s ruling dismissing appellant’s application seeking among others the enforcement of the order of the Minister of Labour for reinstatement cannot succeed. As the law stand, correcltly pointed out by Mr. Nullu learned advocate for the respondent, leave of this court is necessary before a party kis heard on an application seeking relief against a specified public corporation.n And as no leave was sought and granted, the trial Magistrate properly directed himself when he dismissed the application for being incompetent.
(m) Civil Case No. 12/99 - Joseph Jones Mwaipopo Vs. Tanzania Telecomunication Co. Ltd. CAT at Dar (E.A. Kileo JA).
- In terms of Section 9(1) of the bankruptcy Ordinance, once a receiving order has been made a creditor shall not commence any action or other legal proceedings unless leave of the High Court is obtained. This suit was filed in court on the 1st of November 1999, i.e. after publication of No. 543 of 1997, published on 22/8/1997.
- The plaintiff, in terms of S. 9(1) of the Bankruptcy Ordinance ought to have sought leave of the high court prior to the filing or the suit. I would, in the circumstances agree with Mr. fute for the Tanzania Telecommunication Company Ltd, that the suit is incompetent for non – compliance with the law.
(n) Misc. Civil Application No. 9/02 – Asinikile N.B. Mwakansope Vs. The National Insurance Corp. CAT at Dar. (Mackanja, JA).
- One Asindikile N.B. Mwakansope seeks leave to commence a civil action agains the National Insurance Corporation. It is common ground that the respondent is a specified public corporation under section 43 (1) of the Public corporations (Amendment) Act. If granted leave the applicant seeks to recover a sum of shs. 6,229,400.00. The claim arrises from a motor accident in which the applicant’s motor vehicle with Registration No. TZE 265 was involved in respect of which the amount the applicant seeks to recover. The respondent’s alleged negligence is based on a comprehensive insurance policy the respondent issued to the applicant as (rover the said moter vehicle. Mr. Mbise, learned counsel for the respondent, has raised tow objections.
(a) the application and the intended suit are premature as the applicat did not comply with the mandatory provisions of section 35(3) of the Bankruptcy Ordinace; and
(b) the applicant does not have any cause of action against the respondent.
Let me say right away that the second objection shall not detain me. Much as Mr. Mbise argues that the application is premature, that preliminary objection is also pre – mature. For how does one know that there is or there sill be no cause of action before the pleading are drawn and a filed in court? A cause of action is the bedrock of a plaint; without a plaint having been put in place no one will be able to determine whether or not a cause of action does indeed exist. It is in that context that I would say that the second objection does not have legs to stand once.
The first objection is intimately related to the application. As I have said, and as both learned counsel are at one, the respondent is a specified public orporation. It is, unarguably, under the receivership of the Presidential that section 9(1) of the Bankruptcy Ordinance, Cap. 25, becomes applicable to it. Section 9(1) of Cap. 25 is applicable in tandem with section 43 of the Public Corporations (Amendment) Act.
It is Mr. Mbise’s contention that anyone cannot come to this Court to seek leave to commence civil proceedings against a specified public corporation unless they have complied with the provisions of section 35 (3) of the Bankruptcy Ordinance unless those debts are provable in bankruptcy. For his arguments Mr. Mbise relies on the decisions in William Kimaro & 475 Others Vs. Coopers & Lybrand and Another (1996) 252 and the Regional Labour Officer Iringa (on behalf of K.A. Mwaisonila & 26 Others Vs. PSRC and the National Milling Corporation, Misc. Civil Appl. No 8 of 2002 (Mbeya Registry, unreported). In my interpretation leave to commence proceedings against a debtor applicant can show that he has a provable debt in bankruptcy. Kutais mutandis, an application for leave to commence a civil action against a specified public corporation will be granted if the applicant has a debt which is provable in bankruptcy. Debts which ate provable in bankruptcy have been described under section 35 (3) of the Bankruptcy Ordinance be –
“ ….. all debts and liabilities, present or future, certain or contingent, to which the debtor is subject at the date of the receiving order, or to which he may become subject before his discharge by reasons of any obligation icured before the debt date of the receiving order shall be deemed to be dects provable in bankruptcy.
- According to rule 212 of the Bankcruptcy Rules 1931 debts provable in bankruptcy shall be proved by affidavit. It provides thus:-
212 An affidavit of proof of debt may be sworn before the receiver or any cleark of the recovery duly authorized by the court in that behalf. Plying the rule of eusdem generic in the intrpretaion of statutes I would sag that affidavits in proof of debts in bankruptcy may be sworn before notaries public as well as before the receiver.
- Upon the foregoing observations I am satisfied that it is mandatory, as a matter of law, that a creditor must have a provable debt in bankruptcy beofe he can seek leave to commence a civil action againt an indigent debtor. This is so because ance proof has been accepted by the receiver he shall than be listed as one of the creditors who may receive payment from the debtor’s assets. It is when the receiver has refused to accept the proof that the creditor becomes entitled to take legal action, not in the form of a suit but by way of an appeal as provided under Rules 218 and 219 of the Bakruptcy Rules. Where a proof has been rejected by the receiver under Rule 318, the creditor shall server notice to the receiver of his intention to appeal. According to Rule 219
“ The receiver shall within three days of reciving notice form the creditor of his intention to appeal against a decision rejectiong a proof, file such rpof with the registrar with a memorandum thereon of his disallowance thereof. After the appeal has been heard by the court, the proof, unless wholly disallowed, shall be given back to the receiver …… as the case may be”. There are, however debts which are not provable in bankruptcy as provided by section 35 (1) and (2) of the Bankruptcy Ordinance, that it to say:-
“(1) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise, or breach of trust shall not be provable in bankruptcy;
(2) A person having notice of any act of bankruptcy available against the debtor shall not prove under the order for any debt or liability contracted by the debtor subsequently to the date of his so having notice”.
In is the latter breed of liability in espect of which a creditor shall seek and obtain leave of the High Court before commencing any action or legal proceeding against a specified public corporation.
In the application under review the applicant seeks liquidated damages as can be discerned from his affidavit. And the damages whichi is intended to recover are based on a contract of such a debt under subsection 1 of section 35 of the Bankruptcy Ordinance is provable debt in bankruptcy.
Now Mr. Mkumbe was made the point that section 35 of Cap. 25 should be read together as one with section 43 (3) (b) of the Public Corporations (amendment) Act. In agree with this argument in principle only. Because how will a private creditor negotiate with the commission about a contious debt? So the private creditor must prove his debt in order to be able to negotiate with the commission. In my view, therefore, the provisions of section 35 the Bankruptcy Ordinance and those of section 45 (3) (b) of the Public Corporations Act complement one another to achieve a common goal, namely the effect payments to creditors who have just claims gains an indingent corporation.
Upon the above observations I hold that the first objection succeeds and, on the sane parity of reasoning, the second objection fails. According the applicantion for leave to commence a civil action against the respondent is struck out for being premature. The costs of the application.
(o) Misc. Civil Apeal No. 1/ 01 – Godfrey Fanuel Makala Vs. M/S Tanzania Electrict Supply HC at Dar (Lukelelwa J).
- Under Section 22 of the Bankruptcy Ordinance, “debt provable in bankruptcy” or “provable debt” includes any debt or liability by this ordinance made provable in bankruptcy”.
Section 35 (1) of the bankruptcy Ordinance futher provides that “Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise, or breach of trust shall not be provable in bankruptcy”
In the case at hand, the learned trial Resident Magistrate was confronted with the demands in the nature of unliquidated damages by the appellant arising from contract of service. Hence by virtue of section 35 (1) of the Bankruptcy ordinance, “these demands are provable” in bankruptcy.
It follows therefore that the appellant was obliged to seek leave of the High Court before taking any action against the respondent Company and the PSRC. It should be noted here that it was the appellant in person, and not the Labour Officer who was obliged to seek leave of the High Court before taking any legal action against the respondent.
This does not mean that, the trial Magistrate’s hands were now tied, and he has nothing more than striking out the suit.
After this, the learned Resident was enjoined to act under the provisions of Section 133 (3) of the Employment ordinance, by making a finding that the matter could be more conveniently tried or determined by the High Court. He would then have referred the case between the appellant and the respondent and PSRC to the High Court.
(p) Misc. Civil Application No. 5 /02 – Kenneth M. Mwang’amba Vs National Insurance Corporation – HC at Mbeya (Mackanja J).
-This is an application for leave by which Kenneth M. Mwang’amba wishes to sue the National Insurance Corporation for damages as a result of a motor accident in which he us ffered injuries. Admittedly the respondent is a certified public corporation in terms of General Notice No. 330 A of 1998. Mr Mbise, learned defence counsel, has raised objection against the application, contending that it is pre – mature.
- Mr. Mkumbe, learned counsel for the applicants has pursued a stance which is entirely in defference with that of Mr. Mbise. He contentds that the requirements of section 35 (3) of the Bankruptcy Ordinance, Cap 25, which provides for debts and liabilities which are provable in bankruptcy does not apply to the Ntional Insurance Corporation (NIC) because NIC is neither bankrupt nor is it insolvent. Mr. Mkumbe has listed three grounds why he believes that the applicant has no obligation to prove any debt or liability in bankruptcy, that is to say that
(a) The damages that the applicant claims against the N.I.C. cannot be proved in bankruptcy because the N.I.C. is not bankrupt. If functions daily. Neither is it insolvent. If it were bankrupt or insolvent, there would never have been in existence, N.I.C. officers. Indeed, there would have been someone who would have been managing the affairs of the N.I.C. In, other words, a bankrupt or in solvent corporation ceases to exist. The N.I.C is quite different from, say the erstwhile THB. The THB was bankrupt and insolvent years ago. There is no longer any THB office existing as of now. On the contrary, N.I.C is very much alive and functioning. So, it is my submission, that s. 35 (1) of the Bankruptcy Ordinance is applicable to corporations like the THB. If someone were to sue the THB now, then the said S. 35 (1) would be applicable.
(b) Even S. 45 (2) (a) of the Public Corporations (Amendment) Act talks about Insolvent corporations as being the ones envisage by the act. As stated, N.I.C is not insolvent.
(c) There are decided cases right here in the Mbeya Registry in which the Court has Reaffirmed that leave is required to be obtained before suigh the aspecified corporations. It has never been held in all the applications that I know of, that resort to S. 35 (1) is a prerequisite to sue any specified public corporation. After all, opening up a bankruptcy case to prove debts in bankruptcy would be sinning against S. 45 (1) of the Public corporations (Ammendment) Act because it would be opening up a litigation without leave.
- There is no doubt that this matter is founderd on the same circumstances as that of Asindikile N.B. Mwakansope vs. The National Insurance Corporation. Like in that other case the issue was whether the applicant was to prove his debt in bankruptcy before he filed an application for leave to sue a specified public corporation. After an indepth consideration of the two matter I am now persuaded that the same conditions apply to them as regards the institution an application fro leave to sue a specified public corporation. I will, therefore, emulate the reasons which were given by the Court when considering, and finally determining, Asindikile N.B. Mwakansope’s (supra). Much as the two cases have a lot in common. Learned counsel who have appeared in this application were the same, in similar roles, in Asindikile, N.B. Mwakansope’s application. In this application, like it was in Asindikile N.B. Mwakansope’s matter, both learned counsel are agreed that section 9 of the Bankruptcy Ordinance applies to the respondent. Their differences reside in the application of section 43 of the Public Corporations (Amendment) Act. Whereas Mr. Mbise, learned counsel, argues that it is sub-section of S. 43 which is applicable, it was Mr. Mkumbe’s contention that it is subsection 2 (b) that was applicable. In will, for ease of reference reproduce subsection (1) of section 43 of the Public Corporations (Amendment) Act, that is to say;
“ (1) Notwithstanding any other law to the contrany with effect from the date of publication of an order declaring a public corporation to be a specified public corporation the Commission shall:-
(a) Without further assurance on appointment have the power to act as the official receiver of the specified public corporation; and
(b) Have power and all the raights of a receiver appointed in accordance with or pursuant to the Bankruptcy Ordinance”.
The powers of a receiver under the Bankruptcy Ordinance are laid down under section 9 (1) of that legislation. It seems to me that among the receiver’s primary responsibilities is to protect the debtor’s property and assets inasmuch as it provides that on the making of receiving order –
“ …. The official receiver shall be thereby constituted receiver of the property of the debtor, and thereafter, except as directed by this Ordinance, no creditor to whom the debtor is indebted in respect of any debt provable in bankruptcy shall have any remedy against the property or person of the debtor in respect of the debt, or shall commence any action or other legal proceedings, unless with the leave of the court and on such terms as the court my impose” (underscoring supplied for emphasis). My interpretation leave to commence proceedings against a debtor after a receiving order has been made may be granted if the applicant can show that he has a probable debt in bankruptcy. Mutatis Mutandis, an application for leave to commence a civil action against a specified public corporation will be granted if the application has a debt which is provable in bankruptcy. Debts which are provable in bankruptcy have been described under section 35 (3) of the Bankruptcy Ordinance be.
“…. All debts and liabilities, present or future, certain or contingent, to which the debtor is subject at the date of the receiving order, or to which he may become subject before his discharge by reason of any obligation incurred before the debt date of the receiving order, shall be deemed to be debts provable in bankruptcy”.
According to Rule 212 of the Bankruptcy Rules, 1931, debts provable in bankruptcy shall be proved by affidavit. It provides thus:-
“212. An affidavit of proof of debt may be sworn before the receiver or any clear of the receiver duly authorized by the court in that behalf”.
Applying the rule of eusdem generic in the interpretation of statutes I would say that affidavits in proof of debts in bankruptcy may be sworn before notiaries public as well as before the receiver.
-Upon the foregaing observations I am satisfied that it is mandatory, as a matter of law, that a creditor must have a probable debt in bankruptcy before he can seek leave to commence a civil action against an indigent debtor. This is so because once proof has been accepted by the receiver he shall then be listed as one of the creditors who may receive payment from the debtor’s assets. It is when the receiver has refused to accept the proof that the creditor becomes entitled to take legal action, not in the form of a suit but by way of an appeal as provided under Rules 218 and 219 of the Bankruptcy Rules. Where a proof has been rejected by the receiver under Rule 218, the creditor shall serve notice to the receiver of his intention to appeal. According to Rule 219.
“ The receiver …. Shall within three days of receiving notice from the creditor of his intention to appeal against a decidion rejecting a proof, file such proof with the registar with a memorandum thereon of his disallowance thereof. After the appeal has been heard by the court, the proof, unless wholly disallowed, shall be given back to the receiver ……… as the case may be”. There are, however, debts which are not provable in bankruptcy as provided by section 35 (1) and (2) of the Bankruptcy Ordinance, that is to say:-
“(1) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promises, or breach of trust shall not be provable in bankruptcy:
(2) A person having notice of any act of bankruptcy available against the debtor shal not prove under the order for any debt or liability contracted by the debtor subsequentlty to the date of his so having notice”.
It is the latter breed of liability in respect of which a creditor shall seek and obtain leave of the High Court before commencing any action or legal proceeding against a specified public corporation.
-In the application under review the applicant seeks liquidated damages as can be discerned form his affidavit. And the damages which it is intended to recover are based on a contract of insurance. Such a debt under subsection 1 of section 35 of the Bankruptcy Ordinance is provable debt in bankruptcy.
-Now Mr. Mkumbe has made the point that section 35 of Cap. 25 should be read together as one with section 45 (3) (b) of the Public Corporations (Amendment) Act. I agree with this argument in principle only. Because how will a private creditor negotiate with the Commission about a contentious debt? So the private creditor must prove his debt in order to be able to negotiate with the Commission. In my view, therefore, the provisions of section 35 of the Bankruptcy Ordinance and those of section 45 (3) (b) of the Public Corporations Act complement one another to achieve a common goal, namely, to effect payments to creditors who have just claims against an indingent corporation. Upon the above observations I hold that the objection succeeds.
Acoordingly the application for leave to sue is struck out for being premature. The respondent shall have the costs of the application.
(q) Civil Case No. 378/98 – Eneza Elineza Mshana vs N.I.C & Another HC at Dar (Ihema, J).
- On 17th August 2004 Mr. Msemwa drew the attention of the Court that a preliminary objection on a point of law raised by the 2nd defendant - PPSRC – awaits adjudication by the Court. The relevant preliminary onjection is to the effect that “the suit is incompetent and bad in law as no leave to sue the first defendant was sought and granted when the same was instituted on 11th November, 1998”.
With leave of the court parties were allowed to dispose of the preliminary objection through written submissions.
I have carefully considered the forceful submissions of both learned counsel on the preliminary objection and I am satisfied that both statutory law and case law is clear that leave must be sought and granted prior to commencement of legal proceedings against a specified public corporation (company) [See the case of SAID MNIMBO & ORS V, STS Ltd – Civil Case No. 296/1977]. In addition I understand that the practice of this Court has been to have PSRC joined as a necessary party to the proceedings upon grant of leave. In the event I will sustain the preliminary objection raised and direct the plaintiff to comply with the essential requirement of the law, i.e. to seek and be granted leave to commence legal proceedings against the National Insuarance Corporation Ltd, a specified public corporation. The suit filed is thus incompetent and it is struck out of the record. There will be no order for costs in the circumstances of the present suit. I so order.
(r) Civil Revision No. 114/01 – Tanesco vs 1. Juma Ibrahim Shindano 2. Ibrahim Mattaka HC at Dar Oriyo, J
-I will first deal with the last issue on the jurisdiction of the trial court where leave to sue a specified corporation had not been granted. Mr Maira submitted that leave to sue was not required to precede the suit because the claim did not fall in the category of a debt provable in bankruptcy pursuant to the provisions of the Bankruptcy Ordiance, cap 25.
SECTION 35 (1) of the Bankruptcy Ordinance provides a description of deals provable in bankruptcy. Further SECTION 35 (3) thereof provides for what debt may be proved in bankruptcy. Pursuant to the provisions of SECTION 9 read together with SECTION 35 (1) and (3), of the Bankruptcy Ordinance, I am of the considered view that the claim in the proceedings was not in the nature of a debt provable in abankruptcy against the applicant. Consequently and as correctly submitted by Mr. Maira, leave of the High Court to sue the applicant was not reguired. The suit was therefore properly before the trial court and there was no error or irregularity committed here.
(s)
55. SUMMONS.
(a) Civil Appeal No. 19/94 – Board of External Trade vs My Computer (T) Ltd. CAT at Dar. -We hold therefore that this particular summons under Order 5 did not entitle the presiding Judge to find fault with the present first appellant for not responding to the plaint by submitting to the court the WSD because the day in question when the court set it was their first appearance and the summos was the summons sto appear and answer questions and not to bring their defence. -In the circumstances, we are of the firm view that each summons issued to the party must be looked at closely as to the law governing it before a decision is reached on how the summons was satisfied or its contents defaulted.
(b) Civil Appeal No. 40/98 – Mustapha Raphael vs East African Gold Mines Ltd. CAT ar Dar. -It is correct to say that under Order 8 Rule 14(1) of the CPC, 1966 as amended by G.N. No. 422/94, a court is bound to enter judgment against a defendant who, having been required to present a WSD fails to present the same within the time fixed by the court, unless the court, in its discretion makes any other order. The question however, is whether the respondent had been served with a summons under Order 8 rule 1(1) of the CPC, 1966 as amended by GN 422/94, in order to entitle the appellant to judgment without need to proof. If the summons which was served on the respondent was one for filing a WSD as argued by the appellant then the provisions of rules 1(2) and 14 (2) (b) of Order 8 of the CPC must have been intended to come to play, although as we indicated earlier normally the High Court does not issue a summons for filing a defence. Since the respondent did not file a defence the court fixed a date for ex-parte proof (which was published in the Guardian Newspaper). Under rule 14(2) (b), on the date fixed for ex-parte proof the court could “pronounce judgment in favour of the plaintiff upon such proof of his claim”. The words used in rule 14(2) (b) are quite clear that even in an ex-parte hearing the claim has to be proved.
56. TAXATION.
(a) Civil Case No. 138/93 – His Exellency Dr. Salmin Amour vs BBC. HC at Dar (Mshote, SDR). -It is statutory clear that Rule 55(1) of the Advocates Remuneration and Taxation of Costs Rule, 1991 makes it mandatory to produce receipts or vouchers for all documents. -However, rule 67 of the rules give discretion to the taxing officer to allow just and reasonable charges and expenses as appear to have been properly incurred. What therefore features out for consideration and determination is whether the costs charged for disbursement are just and reasonable and whether they were properly incurred.
(b) Taxation Reference No. 14/95 – Azim Premji vs Dr. Aman Walid Kabour. CAT at Dar (Kisanga, JA). -The narrow question before me was whether the taxing officer had power to tax the Bill of costs as presented comprising, as it did, a mixture of costs arising in the High Court and those arising in this Court. -It is fairly apparent that the power of a taxing officer under sub rule (1)[of rule 118 of the Court of Appeal Rules) is limited to taxing costs arising out of applications or appeals to the Court of Appeal. That is the plain and ordinary meaning of that sub-rule. The corollary then is that costs arising in the High Court are taxed by the Registrar or Deputy Registrar of the High Court in capacity as taxing officer of that court, as provided for under rule 3 of the Advocates’ Remuneration and Taxation of Costs Rules, 1991. -Thus I think that Mr. Mselem is right in his contention that a Bill of costs presented in the Court of Appeal should not contain items of costs arising in the High Court, because………there is nothing in the Court of Appeal Rules empowering a taxing officer of the Court of Appeal to tax such costs.
(c) Civil Case No. 46/95 – Morogoro Region Coop. Union (1984) Ltdvs CRDB. HC at Dar (Mshote, SDR). -Advocate for for the decree holder is statutorily entitled to 5% of the total debt collectable – Refer Schedule VII item 8 of the Advocates Remuneration and Taxation of costs Rules, 1991. -Under the rule (Schedule VIII of the Advocates….) the decree holder is entitled to Tshs. 750/= per 15 minutes or part thereof. Advocate had in this case asked for shs. 1500/= for each court attendance which I think is fair and reasonable. -It is noted that the fees prescribed for perusing documents is 50/= per folio and for drawing document is shs. 250/= per folio. Advocate for the decree holder has asked 5000/= for perusing and shs. 5000/=for drawing. The fees charges are in my view reasonable and according to scale. -Under rule 55 – it is mandatorily required to produce receipts or vouchers for all disbursements. -The question is whether expenditure can be allowed in the absence of supporting receipts. I am mindful that under rule 11 of the rules a taxing officer has discretion to allow such fees ccosts chsrged and expenses as shall appear to have been necessary and proper. On the strength of the above provision, I will allow the fees charged for personal transport to court and office.
(d) Civil Appeal No. 12/97 – Felix Kisima vs TTCL. HC at Dar. (Mwaikugile, Taxing officer). -Mr. Mjulizi was retained for the first time in the Court of Appeal. So, hjis remuneneration is to be taxed in the Court of Appeal by a taxing officer of that Court. -Quoting Kisanga,JA in Taxation Reference No. 14/95 (supra), “……..In situations where the Advocate handling the application or Appeal in the Court of Appeal had also handled the matter in the High Court in which case the remuineration of such Advocate by his client in respect of such application or Appeal has to be presented and taxed in the High Court in accordance with the Advocates Remuneration and Taxation of Costs Rules, 1991. -Instruction fees for prosecuting an appeal is guided by Rule 9 (2) of the 3rd Schedule to the Court of Appeal Rules, 1979. Matters to be considered in assessing the same are imporftance and difficulty , nature, the amount involved on appeal itself etc. -The appeal, having been brought to an end by way of a preliminary objection, can it be said that there was much time, industry and energy spent in the preparation of the appeal? In my view one cannot say so. -Quoting Masanche, J who in Haji Athumani Issa vs Rwetamwa Mutatu [1992]TLR 372 held:- “…..Since the case ended up ex-parte and not much research went into hearing, the award for Advocates’ fees was on the higher side”.
(e) Misc. Civil Case No. 169/99 – Omar A. Bafagi vs Rehema Shomari. HC at Dar (Ihema,J). -It is the position of the law that costs to be taxed are entirely in the discretion of the convict i.e. the taxing officer, subject of course to the provision of the law. Invariably a court will not interfere with the award of a taxing officer merely on the ground that the award is too high or too low. Inference will only arisse if the award is thought to be either too high or too low as to amount to an injustice to any of the parties.
(f) Civil Reference No. 5/03 - Kalunga & Co. Advocates vs National Bank of
Commerce Ltd. HC at Dar (Massati, J).
- In assessing instruction fees to defend the suit, the Taxing Master reasoned:-
“ It is clear in the record that the Applicant only filed written statement of defence and thereafter withrew from the conduct of the matter. If not for this fact, the scale fees to be paid would be 3% of 40,000,000/= for instruction fees hence Tshs. 1,200,000/= but since the Applicant did not fully defend the matter which is the purpose of sintruction fees and considering the stage reache in the main suit. I will only allow Tshs. 1,000,000/=. As for the 10,000,000/= I agree with learned Mujulizi on the fact that the scale fees applicable is Schedule IX it being a sum subject to court discretion in awarding it. According to schedule XI to the fees, fees allowable is Shs. 3,100/=.
- I have no doubt that the applicable law is Schedule IX of GN 515 of 1991. Under the Schedule the scale of fees for a claim of over 3,000,000/= is 3%. The only eception is where the defendant does not dispute the claim and does not file a defence that is when the fees is reduced to two thirds of the fee. Here, the privio applies to the Plaintiff and not the defendant. According to r. 45 of GN 515 of 1991:-
“ All bills of costs shall be taxed on the prescribed scale, unless a judge of the High Court certifies on special grounds scale arising out of the nature and importance or the difficulty or urgency of the case that they are to be taxed on the higher scale”
- I do not see any provision which gives the Taxing Master discretion or circumstance in which he can tax instruction fees below the prescribed fees. In SIANGA VS. ELIAS (19720 HCD r. 66 this court considered what constitutes instruction fees. It was held that instructions include such mattes as taking instructions, considering facts and law perusing pleadings, affidavit and other relevant documents and general care and conduct of the proceedings.
- There is no dispute that in the present case the Applicant received instructions, filed a written statement of defence, attended in court several times, and was willing to take the general care and conduct of the proceedings if the instruction were not prematurely withdrawn by the Respondent. I would perhaps have agreed with the Master if the Applicant himself had withdrawn from the conduct of the case, but that is not the case. As to Mr. Mujulizi’s concern that this would lead to unjust enrichment and encourage inefficiency, I don’t think these condiderarions have any place in matters of taxation, but could be pursued in disciplinary proceedings against the respective member of the bar. I would therefore uphold the Applicant’s argument that here the Taxing Master erred in principle in taxing instruction fee at shs. 1,000,000/= instead of 1,200,000/=.
- As to the instruction fees of shs. 10,000,000/= I agree with Mandia J. in KALUNGA & CO. ADVOCATE VS NATIONAL BANK OF COMMERCE Civil Reference No. 4 of 2004 that the fees for liquidated damages is governed by Schedule IX and that liquidated means “ascertained” . But I do not agree that a claim for general damages is a claim on liquidated damages. General damages are subject to assessment by the trial court and cannot be terned as certain until the sum is awarded by the court. If the Applicant had pursued or defended the matter to the end, and the claim ended in favour of the Respondent in respect of the said damages; say if the claim for general damages was dismissed, then schedule IX would apply. But since the Applicant’s instruction were withdrawn in between, the claim of 10,000,000/= remained flued, uncertain, and thus case Schedule IX was not applicable. But, I have also perused Schedule IX. The figure of Shs. 3,100/= appears in tems 1 (c) (iii) which relate to petition for dissolution of marriage, nullity judicial, separation and ancillary relief; and (j) for applications, notice of motion or chamber applications including appeals from taxation unopposed.
- Although the Taxing Master did not discuss how he arrived at the figure 3,100/= I am satisfied however that he was right in principle in so taxing in terms of Schedule XI item 1 (j) and proviso I of GN 515 of 1991. I am unable to interest with that finding. This discussion disposes of items (a) and (b) of the chamber summons. Unfortunately I do not have the benefit of seing the bill of costs itself, but I agree in principle that transport costs should be separate from attendances and that transport charges should be supported by vouchers. In the absence of receipts for taxi, it cannot be said that the Taxing Master has used his discretion wrongly.
(h) Misc. Civil Cause No. 32/1998 – Stanley Kinyahembe vs National Housing Corporation
- From the above, it is very clear that there was no order for payment of costs to any party upon which a bill costs could be based.
- The provisions of section 30(1) of the Civil Procedure Code, 1966 clearly provides that award of costs is a direction of court. It can award of costs or refrain from awarding costs depending on the circumstances of the case.
- It is, thus, my considered view that failure by the presiding judges to award costs meant neither of them should be paid costs.
(i) Civil Case No. 88/04 Tanzania Plaintation and Agricultural Workers Union (TPAWU) on behalf of Abdullah Msinda and 32 Others vs Parastatal Sector Reform Commission 1st Def. , The Liquidator of Gidagamond Wheat Farm Limited. HC at Dar (S.A. Lila – Taxing Master.)
- The record in very clear terms shows that the plaintiff filed a suit against, among others, the 2nd Defendant claiming for among others payment of Tshs. 235,969,360/=. The matter was struck out with costs. This shows that the plaintiff field her case claiming for a liquidated and quantified sum of money hence the applicable schedule in taxation of costs is schedule IX provides for scale fees for contentious proceedings for liquidated sum of money hence the applicable schedule in taxation of costs is schedure IX to the Advocates Remuneration and Taxation of costs Rules, GN. 515/91 herein to be referred to as the Rules. Schedule IX provides for scale fees for contentious proceedings for liquidated sum and for instruction fees it provides for 3% of the claimed amount where it exceeds 3 Million as is the case here. In this case, therefore, the 2nd Defendant/Decree Holder deserves be paid 3% of Tshs. 235,969,360/= claimed which gives us Tshs. 7,079,080/= only as instruction fees (itsm 1). This amount is not only fair but according to scale. I accordingly tax costs in item 1 as presented.
- With due respect to the 2nd Defendant schedule IX to the Rules does not provide for costs of preparing Written Statement of Defence and making 4 copies thereof. I think such costs are covered in the instruction fees. I accordingly tax off costs claimed in item 2.
- Now disbursements. They are costs climed in items 11 to 14. But for the court fees paid for obtaining a copy of ruling the rest of the costs are substantiated by receipts in the record. I accordingly tax as presented costs in items 11,12 and 13 and I tax of costs climed in item 14.
VAT The 2nd Defendant claims 20% VAT. There is no proof whatsoever that he is VAT registered. I tax off such claim.
In total this bill of costs is taxed at Tshs. 7,193,580/= (Shillings Seven Million One Hundred Ninety Three Thousand Five Hundred Eigh Only).
- 57. TRIBUNAL.
(a) Civil Appeal No.37/95 – Chisewo Maswaga vs Elias Chalo. CAT at Dodoma (Lubuva, JA). - Clearly the Primary court had no power to convert into an original suit a matter brought to it from a Ward Tribunal by way of an appeal. In terms of the provisions of S. 20 of the Act, the Primary court could only deal with the matter as an appeal and not as a fresh case. -We also agree with Mr. Rweyongeza that the subsequent proceedings on appeal to the District Court and the High Court were also a nullity as they were based on proceedings which contravened the law. -As the appellant was not to blame, time is extended for 60 days from the date of this judgment in which the appellant is to lodge the appeal.
(b) PC Civil Appeal No. 76/99 – Ndaume Kilangi vs Margreth Kwezi. HC at Dar (Manento, J). -I am of the considered opinion that if the applicant instituted a fresh suit at the a primary court after a decision of the Ward Tribunal, he was wrong to do so and he offended the provision of S. 20 (1) of the Ward Tribunal Act, 1985. His now case at the a primary court was a nullity as the law did not require him to institute a fresh suit but to appeal to the primary court against the decision of the Ward Tribunal. -Therefore, once the complaint or case has first commenced before the Ward Tribunal, the aggrieved party by the decision of the Tribunal has no options, but he has only one option, that is to say, appeal to to the primary court. (c) PC Civil Appeal No. 29/04 - Joyce Cleophace Vs Angela Kasusura. HC at Dar (Manento JK).
- This case originated from a village and then reached the Ward Tribunal. At the Bunju Ward Tribunal, both the appellant and the respondent were heard in full. Then, judgment was entered for the plaintiff, Anjela Kasusura, now the respondent. The case was further instituted at Kawe primary court where, again, the judgment was entered for the respondent. The appellant was aggrieved by that decision. She appealed to Kinondoni district court. The appeal was dismissed for want of merits. The appellant was further aggrieved by the decision of the district court . She appealed to this court. The appeal was sdmitted without any comments as to whether it had merits or not, or whether the court had jurisdiction to hear the appeal or not. Then it landed on me, hence this judgement. Iam not intending to deal with the appeal on merits, but I am first to deal with the issue whether this court has jurisdiction to hear an appeal originating from a Ward tribunal, and the procedure which the parties were to follow when aggrieved by the decision of the ward tribunal.
- Under section 20 of the Ward Tribunal Act No. 7 of 1985, a person aggrieved by a decision of a Ward Tribunal could appeal to the primary court and not instituting a fresh case at the primary court. That is the area where the primary court becomes an appellate court of the first instance. Besides that, a decision of the primary court on any appeal made to it is final and conclusive, unless it is on a point of law. Thus, under subsection (3) of section 20, the District Court becomes the final court on points of law on matters originating from the Ward Tribunal, it being criminal or civil matters.
- The appeal before this court is for a matter originating from Bunju Ward Tribunal. A dispute over a piece of land, which was said to have been sold by the respondent at the instructions of the owner, the appellant. As I said earlier, I am not considering this appeal on its merits, because I don’t have such powers under the law. The decision of the primary court on an appeal originating form a Ward Tribunal is final court. This High Court has no jurisdiction to hear and determine cases originating from the Ward Tribunal. Hence, this appeal is dismissed with costs for want of jurisdiction.
(d) Civil case No. 88/04 - Tanzania Plaintation and Agriculatural Workers Union (TPAWU) on behalf of Abdallah Msinda and 32 others HC at Dar (S.A. Lila – Taxing Master).
- The record in very clear terms shows that the plaintif filed a suit against, among others, the 2nd Defendant claiming for among others payment of Tshs. 235,969,360/=. The matter was struck out with costs. This shows that the plaintiff filed her case claiming for a liquidated and quantified sum of money hence the applicable schedule in taxation of costs is schedule IX
58. VALUATION REPORT.
(a) Civil Appeal No.205/99 – Nyakato Soap Industries Ltd vs NBC Holding Corporation. HC at Dar (Bubeeshi, J). -I must state that all valuation reports have to be endorsed by the Chief (Government) Valuer before they can be acted upon. Exh. P2 was not so endorsed. Pw2 stated in his evidence that Exh. P2 had not been approved by the Chief Valuer. In that regard evidential value of Exh. P2 is therefore to remain as the opinion of the maker. This court cannot rely on it as proving that specific damage.
(b) Land Case No. 135/2004 – Zaid Baraka vbs Engen Petroleum (T) Ltd. HC (Land Division)at Dar (Rugazia, J.). “I have to say that I liked the way the plaintiff responded to this for he argued that the value of the suit premises cannot be ascertained without support of a valuation report done by a registered valuer. I think the plaintiff is entirely right and I am at one with his argument that a mere allegation and/or estimation of the value of the property cannot oust the jurisdiction of this Hon. Court court. This has to be so when one considers that whether such estimation was done by the defendant or its counsel, we are not told that either of them has any expertise in the field of valuation. What is more, it is noted from the plaint that the claim is Shs. 50,000,000/= among other prayers.
59. VERIFICATION.
(a) Aloys Lyenga vs IGP and another [1997] TLR 101 HC at Dar (Msumi,J). Order VI rule 15 (2) did not rquire a verification clause in a plaint or WSD to disclose the source of information or grounds of belief of the matter pleaded. What the verifier was required to do was to itemize in the verification clause matter which were of his personal knowledge and those based on information or belief.
(b) Civil Application No. 141/01 – D.T.Dobie (T) Ltd vs Phantom Modern Transport (T) Ltd. CAT at Dar (Lugakingira,J). An affidavit without the word “VERIFICATION” is not incurable defective. It can be amended.
(c) Civil Case No. 225/01 – Mpembwa Agriculture and General Business Co. Ltd vs TANESCO. HC at Dar (Bubeshi,J). On the defective plaint which was not dated nor had its verification clause signed is a defect that is not fatal, it can be rectified. I order that it be amended accordingly.
60. VICARIOUS LIABILITY.
(a) Civil Application No. 49/99 – Project Manager of NOREMCO vs Josephat Urio. CAT at Dar (Kisaga, JA). -We are satisfied that on the evidence the driver deliberately and mischievously did so for reasons best known to himself. -We hold that the appellant company could not be held vicariously liable for the wrongful act of its employee committed in such circumstances.
61. WANT OF PROSECUTION.
(a) PC Civil Appeal No. 63/99 – Mwalimu Abbas vs Mwinjuma Mohamed. HC (Probate) at Dar (Manento, J). –See ROCEDDURE.
(b) Civil Case No. 126/96 – Tanganyika Motors Ltd vs Transcontinetal Forwarders Ltd. HC at Dar (Mackanja,J). The suit may be dismissed under Order XVII Rule 3.
62. WILLS.
(a) Civil Appeal No. 153/86 – Gratian Jeremiah vs Christina Jeremiah. HC at Bukoba (Mwalusanya, J). -The respondent’s witness (PW2) conceded at the trial that the said will bore no signatures of attesting witnesses either of clan-members or non-clan members. It appears the said will was a secret document executed by the deceased and his wife (the respondent) to the exclusion of all other persons. Obviously that type of document cannot be recognized as a valid will.
(b) CivilAppeal No. 21/97 – Telentine Nkweba vs Mahmud Biiru. CAT (Matrimonial) at Mwanza. -According to rule 19 of G.N. 436/63, 3rd Schedule, where the maker of the will is illiterate at least four people who are literate must witness the will, two as members of the clan of the testator and the remaining two as independent non-clan members.
(c) George Mmari vs Afra Fuuime [1995] TLR 146 HC Dar (Mwaikasu, J). (i) For a will drawn up by a literate person to be valid it must be attested, besides a wife (wives), by at least two persons of whom one must be a relative of the deceased. (ii) The deceased’s will was not attested by a relative of the deceased, and it was defective for want of proper attestation.
63. WINDING OF COMPANIES. 64. WITHDRAWAL OF SUITS.
(a) Commercial Case No. 14/00 – Tanzania Venture Capital Fund Ltd vs Igonga Farm Ltd. HC (Commercial Div.) at Dar (Nsekela,J). -Order XXIII rule 1 of the CPC, 1966 -Suit withdrawn without leave to file it afresh cannot be re-instituted afresh in respect of the same subject matter.
(b) Civil appeal No. 115/04 - Mussa Jothamu vs Stanley Andison Kyela CAT at Dar (Nsekela, J.A)
- As rightly ponted out by the learned advocate for the appellant, the withdrawal fof appeals to this Court is governed by Rule 95 of the Court Rules. Subsection (1); (2) and (3) provide as under:-
- “ (1) An appellant may at any time after instituting his appeal and before the appeal is called on for hearing lodge in the appropriate registry a written notice that he does not intend further to prpsecute the appeal.
- (2) The appellant shall, before or within seven days after lodging the notice of withdrawal, serve copies of it on each respondent who has complied with Rule 79.
- (3) If all parties to the appeal consent to the withdrawal of the appeal, the appellant may lodge in the appropriate registry the document or documents signifying the consent of the parties and thereupon the appeal shall be struck out of the list of pending appeals”.
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