Esmail Choka v. National Transport Corp & another Civ no 75 of 2005

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 75 OF 2005

In the Matter of Intended Appeal

BETWEEN

ESMAIL CHOKA          …                         APPLICANT

          AND

1.   NATIONAL TRANSPORT                          }                                  

CORP. (NTC)                                            }                                  

                                                                  } RESPONDENTS        

2.   THE LIQUIDATOR,                                   }                                  

KAMPUNI YA                                           }

USAFIRISHAJI LTD. DODOMA (KAUDO)}                                

(Application to Stay Execution of the Decision of the High Court of Tanzania at Dar es Salaam)

(Bubeshi, J.)

dated the 20^th day of September , 2001

in

Civil Case No. 352 of 2000

RULING

RAMADHANI, J.A.:

The applicant, Esmail Choka, was employed by Respondent 1 National Transport Corporation and was later made the General Manager of KAUDO, the post he held up to the time both, Respondent 1 and KAUDO, were put under receivership. The applicant sued both Respondent 1 and Respondent 2 in Civil Case No. 352 of 2000. Respondent 1 raised a preliminary objection which was dismissed by BUBESHI, J. on 20^th September, 2001. That ruling is the subject of appeal in Civil Appeal No. 49 of 2003.   

Meanwhile, the applicant, being represented by Mr. Francis P. Mgullu, learned advocate, seeks two orders: One, to restrain Respondent 2 from processing any bids for KAUDO properties, and two, to strike out Civil Appeal No. 49 of 2003 filed by Respondent 1.  

Mr. Mgullu started his submissions with the second prayer of striking out the notice of appeal by Respondent 1. He said that the ruling of BUBESHI, J. is not appellable because it did not “finally determine … the suit” as provided by section 5 (2) (d) of the Appellate Jurisdiction Act, 1979, (AJA, 1979) as amended by Act No. 25 of 2002. Mr. Jovin Lyimo, learned advocate for the Respondent 1 underscored that the application is to strike out the appeal and not the notice of appeal. He pointed out that the notice of appeal was lodged on 02 October, 2001 while the new section 5 (2) (d) of the AJA, 1979, came into force on 20 December 2002. So, he submitted, the notice of appeal cannot be caught up by the amendment. Mr. Wilfred Mnzava, learned counsel for the Respondent 2, adopted the submissions of Mr. Lyimo.

In reply Mr. Mgullu said that the notice of appeal is an expression of an intention to appeal and that it is not the appeal itself. He also cited William Shija v. Fortunatus Masha [1997] TLR 213 as authority that once an appeal has been struck out then the notice of appeal is also struck out.

Notice of appeal in civil matters is dealt with by Rule 76 and sub-rule (3) provides:

Every notice of appeal shall state whether it is intended to appeal against the whole or part of the decision and where it is intended to appeal against part only of the decision, it shall specify the part complained of … (The emphasis is mine)

The word “intended” also appears in sub-rule (5) as follows:

Where it is intended to appeal against a decree or order, it shall not be necessary ….

Every notice of appeal is required to be substantially in the Form D which again bears a title “In the matter of intended appeal/Criminal/Civil Appeal No. ………of 20…”. May be I better reproduce some relevant parts of the Form:

NOTICE OF APPEAL

TAKE NOTICE that ………………………. being dissatisfied

With the decision of the Hon Mr. Justice ………………….

given at ………………………………on the ……………………..

day of ……………………20…. intends to appeal to the

Court of Appeal of Tanzania against ….

(Emphasis is mine)

It is obvious that the notice of appeal is a declaration of an intention to appeal and that an appeal is instituted under Rule 83 (1) by lodging:

(a)        a memorandum of appeal;

(b)        the record of appeal

(c)         the prescribed fee; and

(d)        security for the costs of the appeal.

A civil appeal is different from a criminal appeal under Rule 61 (1) where it is stated “the notice of appeal shall institute the appeal”.

Now, the new section 5 (2) (d) of the AJA, 1979, provides that “no appeal … shall lie against or be made in respect of any preliminary or interlocutory decision or order of the High Court …” The prohibition is against an appeal and not an intention to appeal. The appeal in the instant case was instituted on 25 July, 2003, that is, after the new provision had come into force. Therefore, the appeal is incompetent and I hereby strike it out.

What is the fate of the notice of appeal lodged on 02 October, 2001? It was held in William Shija, which followed an earlier decision of this Court in Arusha International Conference Centre v Damas Augustine Ndemasi Kavishe, Civil Appeal No 34 of 1988 (unreported):

Applicant was correct in contending that when the appeal had been struck out the notice of appeal was also struck out: in that situation if a party still wished to appeal a fresh application had to be filed in the High Court seeking extension of time in which to give notice of appeal;

Now that I have struck out the appeal, and consequently the notice of appeal, then there is nothing before the Court. Can I then entertain an application for restraining the Respondents from disposing the property of KAUDO? Mr. Mgullu submitted that this Court can step into the shoes of the High Court under section 4 (2) of the AJA, 1979 and also under the authority of Mathias Eusebi Soka v. Registered Trustees of Mama Clementina Foundation, Civil Appeal No. 40 of 2001.

Section 4 (2) provides as follows:

For all purposes of and incidental to the hearing and determination of any appeal in the exercise of the jurisdiction conferred upon it by this Act, the Court of Appeal shall, in addition to any other power, authority and jurisdiction conferred by this Act, have the power of revision and the power, authority and jurisdiction vested in the court from which the appeal is brought.

This provision can be used for “purposes of and incidental to the hearing and determination of any appeal” and then this Court may exercise its powers of revision and step into the shoes of the lower court from which the matter has come.

In Mathias Eusebi Soka this Court was asked to strike out the notice of appeal and it did so saying:

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. Therefore, we invoke the provisions of section 4 (2) of the Appellate Jurisdiction Act, 1979, and exercise our jurisdiction to cure the illegality at the High Court.

In that appeal a party was joined to a suit at the High Court without there being leave to do so as was required by law. That was the basis of the preliminary objection. The Court then, suo motu, decided to revise the proceedings before the High Court so as to cure what this Court was satisfied to have been an illegality. In fact the Court acted under section 4 (3) which empowers the Court to call for records of lower court suo motu. That was in order.

In the present application there is no illegality at the High Court and so, I cannot purport to revise anything. Besides, I am of the decided opinion that the power of this Court to revise cannot be exercised by a single Judge who does not have jurisdiction to hear an appeal.

Since there is no notice of appeal in this Court and since I cannot step into the shoes of the High Court, then I have no jurisdiction to order injunction or restraint as requested by the applicant and, therefore, there is no point of dealing with it.

The application succeeds in one ground and fails in another as explained above. As the issue of this Court’s jurisdiction to entertain injunction after striking out the notice of appeal was raised by the Court, I order that the applicant gets half his costs.

DATED at DAR ES SALAAM this 25^th day of August, 2005.

A.   S. L. RAMADHANI

JUSTICE OF  APPEAL

I certify that this is a true copy of the original.

( S. M. RUMANYIKA )

DEPUTY REGISTRAR

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