African Marble Company Ltd v. Presidential Parastatal Sector Reform Commission Civ no 47 of 2007

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  MROSO, J, A., KAJI, J, A., And KIMARO, J, A.)

CIVIL APPLICATION NO 47 OF 2007

AFRICAN MARBLE COMPANY LIMITED (AMC)............................... APPLICANT

VERSUS

PRESIDENTIAL PARASTATAL SECTOR REFORM

COMMISSION (PSRC)..................................................................RESPONDENT

(An Application to move the Full Court to call fro and

examine the record of Proceedings regarding the execution of

the final judgment of the High Court of Tanzania at Dar es Salaam)

(Bubeshi, J.)

Dated 5th March, 1998

in

Civil Case No. 233 of 2006

RULING OF THE COURT

22 November, 2007

KAJI, J. A.:

        In a notice of motion made under Section 4 (3) and 4 (5) of the Appellate Jurisdiction Act, Cap 141 R. E. 2002, and Rule 45 (2) of the Court of Appeal Rules, 1979, the applicant, African Marble Company Limited (AMC) is moving the Court for an order that the file containing the full record of Civil Case No. 233 of 1989 of the High Court at Dar es Salaam be called for examination of the execution proceedings from 1st March, 2001 to 1^st  March, 2007 and set aside the rulings, orders and decisions of Rugazia, J. dated 13^th August, 2004, Shangwa, J. dated 11^th October, 2005; and Kalegeya, J. dated 11^th September, 2006, and order execution of the decree to proceed by way of a garnishee order, on the ground that by operation of law the respondent, the Presidential Parastatal Sector Reform Commission ( PSRC) stepped into the shoes of Tanzania Saruji Company (TSC) which at the time of its divestiture in October 2002, had sufficient assets to meet the decretal amount.

        The facsts giving rise to the application may briefly be stated as follows:-

On 5^th  March, 1998 the applicant obtained an exparte judgment against Tanzania Saruji Company. On 30/12/2002 the applicant applied for execution of the decree by way of a garnishee order. On 2/1/2003 the application was granted by Bubeshi, J. (as she then was).The respondent which had been appointed the official receiver of Tanzania Saruji Company objected to the attachment of its account. On 13/8/2004, Rugazia J. rescinded the garnishee order. This is one of the orders the Court is asked to set aside.

        The garnishee order having been rescinded, the applicant applied for attachment of two houses which formerly were owned by Tanzania Saruji Company. The respondent objected the application on the ground that those houses were taken over by the respondent on being appointed the official receiver.

On 11/10/2005 Shangwa, J. dismissed the applicant’s application on the ground that the application had been overtaken by events as by then the two houses earmarked for attachment had already been sold to a third party. This dismisal order is also among the orders sought to be set aside.

The applicant made another attempt to execute the decree. On 24/5/2006 the applicant filed a warrant of execution praying for a prohibitory/ garnishee order to issue. On 11/9/2006 Kalegeya, J. (as he then was) recorded as follows:-

11/9/2006

Coram: Kalegeya, J.

The application for execution having been made

 more than one year after the date of decree, let the notice be issued to the judgment Debtor to show cause why execution should not proceed against then (sic), pursuant to Order XXI rule 21 (1) (a) of the Civil Procedure Code, 1966

Order: Mention on 27/9/2006.

Sgn Kalegeya, J.

11/9/2006

At this juncture it is imperative to observe that a copy of this order was not included in “the record of complaint” but was found in the original record. We have deliberately used the word “record of complaint” because, as it will transfer later, the applicant does not recognize this application as an application for revision but rather as an application for examination of the orders complained against. All the same, this order is also among the orders sought to be set aside.

        When the matter was called on for hearing Ms Annette W. Kirethi, learned counsel for the respondent, drew the attention of the Court to the two notices of preliminary objection the respondent had lodged. In similar vein Mr. Mumba Mabu, the Managing Director of the applicant Company, who appeared for the applicant, reminded us of his counter preliminary objection. At that stage we posed a question to both parties on whether it was proper for a party to lodge a notice of preliminary objection to counter the preliminary objection already lodged by the other party. Mr. Muba contended that it was proper. In his view a preliminary objection is a pleading, and that the law allows either party to object to the pleading of the opposite party. He cited some provisions in Odgers’ Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 21^st  Edition by D. B. Casson and I. H. Dennis, and some law cases in support of his submission on this.

        On her part Ms Kirethi held the view that in an appeal it is only the respondent who has a right to raise a preliminary objection as Rule 100 of the Court of Appeal Rules, 1979 would suggest. The learned counsel conceded that the case at hand is not an appeal but she was quick to point out that in the absence of a specific provision for raising a preliminary objection in an application, and on the principle of parity, the message conveyed by Rule 100 may be applicable in an application of this nature. On whether a preliminary objection is a pleading the learned counsel replied that it is not. She did not elaborate. We considered these submissions and struck out the applicant’s notice of “counter” preliminary objection. We reserved our reasons which we will give in due course. Another question which we posed to the parties was whether it was proper for a party to lodge a series of notices of preliminary objection. We posed this question after realizing that the respondent had lodged two different notices of preliminary objection. Ms Kirethi responded that it all depends on the circumstances of the particular case. The learned counsel contended that in the instant case they lodged the second notice of preliminary objection after the applicant had lodged a notice for affirming the decision.

Mr. Mabu, being a layman, had little useful to say on this save to express his view that it is undesirable. We reserved our comment and proceeded to hear the two preliminary objections by the respondent.

        The first preliminary objection dated 18/7/2007 contains 5 points of objection. Submitting on the first point of objection Ms Kirethi contended that, the three decisions complained against were delivered on 13/8/2004, 11/10/2005 and 11/9/2006 respectively, and that, when this application was lodged on 12/4/2007 it was more than 60 days from the date of delivery. The learned counsel asserted that, an application for revision may only be lodged within 60 days from the date of delivery of the decision sought to be revised. She cited the decisions of the Court in the cases of Halais Pro – Chemie V Welle A. G. (1996) TLR 269, and The Director of Public Prosecutions V Prosper Mwalukasa – Criminal Appeal No. 6 of 2000 (unreported). Supported by those authorities the learned counsel submitted that this application is time barred and should be struck out. Submitting on the second point of objection the learned counsel pointed out that, since the applicant had a right of appeal against the decisions complained against with or without leave, there was no justification for the applicant to apply for revision which is a last resort.

On the 3rd point of objection the learned counsel observed that the decree and drawn orders in support of the application were not signed by the trial judges or their successors in office as required by Order XX rule 7 of the Civil Procedure Code. She held the view that they were defective rendering the application invalid. Submitting on the 4th point of objection Ms Kirethi contended that the decree and drawn orders in support of the application are defective for bearing different dates from the date of judgment and ruling. The learned counsel asserted that, an application which is supported by defective decrees and orders bearing different dates is invalid. She cited the decisions of the Court in the cases of The Director Tilapia Hotel V Ashura Abdulkadri – Civil Appeal No. 111 of 2005 (unreported), Olam Uganda Limited s/t United Youth Shipping Co. LTD V Tanzania Harbours Authority – Civil Appeal No. 57 of 2002 (unreported), and Jovin Mtagwaba & 85 Others V Geita Gold Mining LTD - Civil Appeal No. 109 of 2005 (unreported). Lastly the learned counsel submitted that a copy of the ruling by Kalegeya, J. (as he then was) was not attached to the applicant’s affidavit in support of the application, and that that invalidated the application. She drew our attention to the decision of the Court in the case of Citibank Tanzania LTD V TTCL & Others, Civil Application No. 112 of 2003 (unreported) and prayed the application to be struck out.

        The second notice of preliminary objection dated 5/11/2007 contained two points of objection.

In elaboration on the first point of objection Ms Kirethi asserted that the applicant was not the respondent and therefore had no right to file notice of grounds for affirming the decision, and that the said notice should be struck out. Submitting on the second point of objection the learned counsel submitted that the applicant, in its notice, has deliberately changed the statutory wording of the Court of Appeal Rules, 1979, to render the provisions applicable, while aware that there is no cross – appeal and the whole of Rule 93 relied upon by the applicant is not applicable to the circumstances of the instant application.  Also the appellant did not cite the appropriate provision under which the said notice of grounds for affirming the decision was made. The learned counsel held the view that failure to cite a proper provision is fatal since in such circumstances the Court is not properly moved. She cited the decision of the Court in the case of Citibank Tanzania Limited V Tanzania Telecommunications Company Limited, Civil Application No. 64 of 2003 (unreported). For the foregoing reasons the learned counsel urged us to strike out the notice of grounds for affirming the decision.

        Responding to the first ground of objection on time limitation Mr. Mumba Mabu contended that, the application before us is not for revision but for examination of the record on the correctness or otherwise of the proceedings from 1/3/2001 to 1/3/2007, especially the decisions complained against. He observed that the applicant’s complaint is about the whole execution process within that period and that the whole process was continuous. In the circumstances he held the view that, at the time the applicant lodged this application on 12/4/2007 sixty days had not yet expired from the last event complained against.

        Responding to the second ground of objection on why the applicant decided to invoke the revisional powers of the Court instead of appealing with or without leave, Mr. Mumba Mabu reiterated his earlier observation that the applicant was not applying for revision but for perusal of the record with a view to correct it in case it is found wanting, especially in respect of the decisions complained against. He also doubted whether the decisions complained against were appealable with or without leave, especially the one by Kalageya J. (as he then was) which he thought was administrative rather than judicial.

        Responding to the third ground of objection on the competence or otherwise of the application in view of being supported by a decree and drawn orders signed by the Registrar instead of the relevant judges or their successors in office, Mr. Mumba asserted that the High Court which issued them is to blame. He asserted that, the applicant should not be blamed for an error made  by the court because an error by the court should not prejudice anybody. He referred us to Chitaley on the Indian Limitation Act No. IX of 1908 at pages 304 – 305. Mr. Mumba exetended his blame to the High court also when responding to the fourth point of objection on the  competence or otherwise of the application in view of being supported by invalid decrees and drawn orders bearing different dates from those appearing on the judgment and rulings.

        On why the applicant did not attach a copy of the ruling or order by Kalegeya J. (as he then was) Mr. Mumba contended that, Section 4 (3) of the Appellate Jurisdiction Act, does not specify which documents a party must attach to an application made under that provision.

        As for the second notice of preliminary objection lodged on 5/11/2007 Mr.Mumba conceded the two points of objection raised.

        We have carefully considered the submissions of both parties.  As indicated above, at the commencement of hearing the main notice of preliminary objection we posed a question on whether it was proper for a party to lodge a series of notices of preliminary objection in this court.  We posed this question after realizing that the respondent had lodged two notices of preliminary objection.  Both Ms. Kirethi and Mr. Mumba Mabu addressed us on this.  We have given their submission on this the attention they deserve.  In our view we think it is not a good practice to lodge a series of notices of preliminary objection where all the points of objection could have been presented in one notice of preliminary objection.  But where new matters arise after the notice of preliminary objection has been lodged, we think a supplementary notice of preliminary objection can be lodged in respect of the new matter.  In short, whether or not it is proper to lodge a series of notices of preliminary objection depends on the circumstances of the particular case.  In the instant case we allowed the second notice of preliminary objection to be argued because it was in respect of a new matter which had arisen after the first notice of preliminary objection had been lodged. 

         Another question which we posed to the parties was whether or not it was proper for a party to lodge a “counter” notice of preliminary objection to counter the preliminary objection already lodged by the other party.  We had the opportunity to hear Ms. Kineth and Mr.Mumba Mabu address us on this.  We have carefully considered their submissions on this. On our party, we are of the settled mind that it is improper for a party to lodge a notice of preliminary objection to pre-empty the notice of preliminary objection already lodged by the opposite party.  This Court expressed a similar view in the cases of Damas Ndaweka v Ally Saidi Mtera, Civil Appeal No. 5 of 1999 (unreported); and Juma Ibrahim Mtale v K.G Karmali (1983) TLR 50.  We could not agree with Mr.Mumba Mabu that a preliminary objection being a pleading can be lodged by the other party even after the opposite party had already lodged one, because the authority he referred to us does not support this view.  The passage at page 135 of Odgers’ Principles of Pleading and Practice in Civil Actions in the High Court of Justice cited to us by Mr. Mumba Mabu appears to refer to plaints and written statement of defence in the courts below.  It reads as follows:-

Either party may object to the pleading of the opposite party on the ground that it does not set forth a sufficient ground of action, defence or reply as the case may be.

Mr. Mumba Mabu could not cite any appropriate authority to support his view that a party may lodge a notice of preliminary objection in this Court so as to counter or pre-empty the notice of preliminary objection already lodged by the opposite party. That was the reason why we struck out the notice of preliminary objection lodged by the applicant.

        We now come to the main notice of preliminary objection lodged by the respondent on 18/7/2007.  It is common ground that the decisions complained against were delivered on 13/8/2004, 11/10/2005 and 11/9/2006 respectively. It is also common ground that the instant application was lodged on 12/4/2007. Equally it is common ground that time within which an application for revision may be made/ lodged is sixty (60) days from the date of delivery of the decision complained against. The only dispute is whether or not the instant application is for revision.

According to Mr. Mumba Mabu it is not. It is merely an application for examination of the record and that it is not covered by time limitation applicable to applications for revision. According to Ms Kirethi it is an application for revision because it has been made under provisions applicable to applications for revisions, and that the orders sought can only be granted by the Court when exercising its revisional jurisdiction.  

        In our view we think at this juncture it is prudent to know the meaning of “revision.” According to Black’s Law Dictionary, Seventh Edition the meaning of revision is “a re examination or careful review for correction or improvement.” According to the Reader’s Digest Wordpower Dictionary the word revision is defined as “the action of revising.” And the meaning of “revise” is “examine and improve or amend. Reconsider and alter an opinion or judgment.” In both dictionaries the catchwords appear to be “a careful examination for correction or improvement.” Section 4 (3) of the Appellate Jurisdiction Act upon which the application is founded provides as follows:-

4 (3): Without prejudice to subsection (2), the Court shall have the power, authority and jurisdiction to call for and examine the record of any proceedings before the High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision made thereon and as to the regularity of any proceedings of the High Court.

In the light of this provision and the meaning of “revision” demonstrated above we now carefully examine the application before us. According to the notice of motion, the applicant is asking the Court to call for Civil Case No. 233 of 1989 for examination of the execution proceedings, to set aside the three rulings/ orders complained against, and to order the High Court to issue a garnishee order. We ask ourselves: How can the Court grant the orders sought without invoking its revisional jurisdiction under section 4 (3) of the Appellate Jurisdiction Act? In our view, according to the circumstances of the case, the orders sought can only be granted by the Court when exercising its revisional jurisdiction. For the foregoing reasons we agree with the respondent’s learned counsel that the matter at hand is an application for revision.

Having held so we are satisfied that it ought to have been lodged within sixty days from the date of delivery of the decisions complained against as held by the Court in Halais Pro – Chemie V Wella AG (1996) TLR 269 and in other numerous decisions of the Court. There is no dispute that when this application was lodged on 12/4/2007 it was outside the sixty days limit, and that no extension of time had been sought and granted. We do not subscribe to Mr. Mumba Mabu’s submission that the decisions complained against were a continuous process.

In our view each ruling / order formed a separate event. Even if, for the sake of argument, they formed a continuous process, still the application would be out of time because the last event complained against was the order made by Kalegeya J. (as he then was) on 11/9/2006. On 12/4/2007 when the application was lodged the sixty days had already expired.

Since the application was lodged out of time without leave of the Court, we sustain the first point of objection as contained in the respondent’s first notice of preliminary objection, and declare the application incompetent for being time barred, and strike it out with costs. The applicant is at liberty either to apply for extension of time or to proceed with the process of executing the decree according to law.

Having held the view that the application is time barred, we do not think that it is necessary to decide also on the other points of objection.

DATED at DAR ES SALAAM this               day of January, 2008.

J. A. MROSSO

JUSTICE OF APPEAL

S. N. KAJI

JUSTICE OF APPEAL

N. P. KIMARO

JUSTICE OF APPEAL

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