Hashim Madongo & 2 others v. Minister for industry and trade & 2 other Civ no 27 of 2003 (Certiorari and mandamus)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: LUBUVA, J. A., MSOFFE, J, A. And MBAROUK, J. A.)

CIVIL  APPEAL NO. 27 OF 2003

1. HASHIM MADONGO

2. CHARLES LEOLE                         ............... ................................ APPELLANTS

3. DAMAS KAGERE

VERSUS

1. MINISTER FOR INDUSTRY AND TRADE                            

2. ATTORNEY GENERAL                                   ..................................RESPONDENTS

3. DAR ES SALAAM REGIONAL TRADING CO. LTD

(Appeal from the Ruling and Order of the High

Court of Tanzania at Dar es Salaam)

(Kyando, J.)

dated the 2^nd  day of  August, 2002

in

Miscellaneous Civil Application No. 78 of 2001

JUDGMENT OF THE COURT

22^nd November, 2007 & 28^th December, 2007

MSOFFE, J. A.:

        This matter has had a chequered historical background which may be stated as follows. In the Industrial Court, Labour Dispute No. 17 of 1992 was filed by the then Organization of Tanzania Trade Union, commonly known by its acronym “OTTU”. The appellants in this matter were representing other employees whose employment had been terminated by the employer, DARTEX. The appellants lost, their application was dismissed. Thereafter, they filed in the High Court Miscellaneous Civil Cause No. 2 of 1995 seeking leave to apply for prerogative orders of certiorari and mandamus. The High Court (Kalegeya, J. as he then was) struck out the application on 24/7/1998 for, among other things, being time – barred. In striking out the application Kalegeya J. reasoned in part as follows:-

“ With respect to Mr. Mkongwa, I need not remind him that ignorance of the law (in this case regarding the period of limitation) is no defence, let alone ignorance on how  to pursue  one’s rights in a situation where there is no application to enlarge the time within which to take essential legal steps.  Having realized their error the applicants should have first filed an application for extension of time within which to apply for the leave sought. Having failed to take those steps which could have possibly secured them the prerequisite enlargement of time the present application is incompetent.”

(Emphasis supplied).

        The appellants did not give up. They filed Miscellaneous Civil Cause No. 44 of 1998 in the High Court seeking three orders:  First; extension of time to file an application for orders of certiorari and mandamus.  Second; orders of certiorari and mandamus.  Third; leave to file a representative suit. Bubeshi J. holding the application to be defective, dismissed the application on 8/2/1999.  She stated, inter alia, thus:-

“The issue is whether the applicant was right to ask for leave for enlargement of time to allow the applicants to file an application for orders of certiorari and mandamus, out of time, simultaneously with asking for leave to file a representative application.  Application for enlargement of time can only be determined where the applicants have been clothed with the necessary locus standi and not before.  It would therefore be improper, in my view to consider the issue of enlargement of time where the representative capacity of the applicants has not first been determined”.

        Yet again, the appellants did not give up, they filed Civil Application No. 13 of 1999 in this court seeking two orders: First, extension of time to file an application for orders of certiorari and mandamus.  Second, orders of certiorari and mandamus.  A single Judge of this court (Lubuva, J. A.)  dismissed the application on 13/8/1999 mainly on the ground that if the appellants were dissatisfied with the decision of Bubeshi, J.  the remedy was to appeal against it, instead of seeking the same orders before a single Judge of the Court.

        Thereafter, the appellants went back to the High Court and filed Misc. Civil Application No.60 of 2001 seeking leave to file a representative suit.  Kimaro, J.(as she then was) granted the application on 21/2/2001.

        Once the application for leave to file a representative suit was granted, the appellants filed in the High Court Misc. Civil Application No.78 of 2001 seeking extension of time to apply for prerogative orders of certiorari and mandamus.  Kyando, J. dismissed the application on 2/8/2002.  He stated in part as follows:-

“Under Section 3(1) of the Law of Limitation Act, 1971, a proceeding instituted outside the period of limitation prescribed for it by law must be dismissed.  And a proceeding which is dismissed cannot be resurrected in the manner which the applicants adopt in this matter.  This is because if I grant this application, I will be granting them an opportunity to bring back an application which Kalegeya, J. dismissed.  This cannot lawfully be done.  If the applicants were aggrieved by the dismissal of their application by Kalegeya, J. they should take the steps known to law against it, e.g appealing to the Court of Appeal.  If they were not, then the matter lies there.”

       

The appellants have now come to this Court appealing against the decision of Kyando, J. Mr. Martin Matunda, learned advocate for the appellants, filed a memorandum of appeal containing four grounds.  At the hearing of the appeal, he abandoned the third and fourth grounds and argued the remaining first and second grounds together.

        The thrust of Mr. Matunda’s submission before us was that once the application was struck out by Kalegeya, J. it was still open to the appellants to file in the High Court the application which was determined by Kyando, J.  In support of this proposition Mr. Matunda cited the case of Mohsin Mohamed Taki Abdallah Vs Tariq Mirza and 4 others, Civil Application No. 100 of 1999 (unreported) where a single Judge of this court stated, inter alia:-

“... 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...”

(Emphasis supplied)

Mr. Matunda went on to emphasize that Kalegeya, J. struck out the application, he did not dismiss it.  That being the case, it was open to the appellants to file the application subject of this appeal.  Furthermore, Mr. Matunda contended, Kyando, J. should be faulted for not determining the application on merit. 

        On her part, Ms. Monica Otaru, learned Senior State Attorney for the respondents, maintained that there is no basis for faulting Kyando, J. Under Section 3(1) of The Law of Limitation Act, 1971 an application which is time barred has to be dismissed.  At any rate, she went on to submit, Kalegeya, J. did not dismiss the application, he struck out the application.  Nevertheless, the end result was the same in that once the application was struck out by Kalegeya,J. it was not open to the appellants to bring a fresh application, she concluded.

 With respect, we wish to pause here and observe  that, for reasons which will be apparent hereunder, Ms. Monica Otaru  was correct in the assertion that after the application was determined by Kalegeya, J. the appellants were not at liberty to bring a fresh application, notwithstanding that the Judge “struck out” the application instead of “dismissing it.”

        It occurs to us that in determining the application before us, the starting point is the decision of Kalegeya, J.  As already indicated, he struck out the application, he did not dismiss it. 

        In the case of Ngoni Matengo Cooperative Marketing Union Ltd. Vs Alimahomed Osman (1959) EA 577 at page 580 the Court of Appeal for Eastern Africa had occasion to discuss the distinction between “striking out” and “dismissing” an appeal.  The court stated:-

“...This court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted appeal at all.  What this court ought strictly to have done in each case was to “strike out” the  appeal as being incompetent, rather than to have “dismissed” it; for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies that there was no proper appeal capable of being disposed of.  But it is the substance of the matter that must be looked at, rather than the words used...”

(Emphasis supplied)

        At this juncture, the issue is whether Kalegeya, J. was correct in law in striking out the application instead of dismissing it.  With respect, we think that he ought to have dismissed the application before him. 

        Section 19 (3) of The Law Reform (Fatal Accidents miscellaneous) Act (Cap 310 R. E. 2002), provides:-

(3) In the case of an application for an order to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed under any Act, and where the proceeding is subject to appeal, the Court or judge may adjourn the application for leave until the appeal is determined or the time for appeal has expired.

(Emphasis supplied)

And Section 46 of The Law of Limitation Act (Cap 89 R. E. 2000) provides:-

Where a period of limitation for any proceeding is prescribed by any other written law, then, unless the contrary intention appears in such 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.

(Emphasis supplied)

        Under Section 3 of The Law of Limitation Act, a proceeding which is instituted after the prescribed period has to be dismissed. Therefore, reading Section 3 together with Section 46 thereof, and Section 19 (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, it occurs to us that Kalegeya, J. ought to have dismissed the application after he was satisfied that it was time – barred. It was not open to him to strike out the application as it happened in this case.

In the circumstances and as indicated earlier, Kalegeya, J. observed, correctly in our view, that after the appellants realized that they were late in filing an application for prerogative orders they ought to have filed an application for extension of time to apply for the orders.  We think, they could have invoked the provisions of Section 14 (1) of The Law of Limitation Act, 1971 in instituting such application.  Having failed to do so, there was no further opportunity for them to file the application before Kalegeya,J.  In the circumstances, it was inevitable that the application before Kalegeya,J. had to be dismissed.

        Having said so, we are in agreement with Ms. Monica Otaru, learned Senior State Attorney, that after the application before Kalegeya, J. was dismissed, as it should have been, it was not open to the appellants to go back to the High Court and file the application subject of this appeal.  In fact, even the applications before Bubeshi, J. and Kimaro, J. were untenable in law.  We say so because, as far as the High Court was concerned, the issue of time limitation had already been determined by Kalegeya,J.  The issue was determined when Kalegeya, J. held that an application for extension of time ought to have been filed prior to filing the application for prerogative orders.  In the circumstances, the only remedy available to the appellants after the dismissal of the application was to appeal to the Court of Appeal against the decision of Kalegeya,J. as opined by Kyando,J.  Since they did not do so, the matter rests there.

In the event, for the reasons stated, the appeal has no merit.  We dismiss it with costs.

DATED at DAR ES SALAAM this 18^th  day of December, 2007.

D.Z LUBUVA

JUSTICE OF APPEAL

J.H. MSOFFE

JUSTICE OF APPEAL

M.S.MBAROUK

JUSTICE OF APPEAL

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

I. P. KITUSI

DEPUTY REGISTRAR