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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
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 1st March, 2007 and
set aside the rulings, orders and decisions of Rugazia, J. dated 13th
August, 2004, Shangwa, J. dated 11th October, 2005; and Kalegeya, J.
dated 11th 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.
On
5th 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J. rescinded the garnishee order.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rescinded, the applicant applied for attachment of two houses which formerly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, 21st 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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