ATTORNEY GENERAL v MAALIM KADAU AND 16 OTHERS 1997 TLR 69 (CA) D

ATTORNEY GENERAL v MAALIM KADAU AND 16 OTHERS 1997 TLR 69 (CA) D

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Nyalali CJ, Mfalila JJA and Lubuva JJA E

CIVIL APPLICATION 51 OF 1996

26 February 1997

(Application for revision from the decision at the High Court of Tanzania, Tabora,

Mchome J) F

Flynote

Civil Practice and Procedure - Appeals - Who may appeal - Rule 76 - Reference in

Rule 76 to `any person' meaning any party to the proceedings. G

-Headnote

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 H

Corporation Ltd (KMC) against the respondents who sought an injunction against the

respondents restraining them from interfering with mining operations and also

sought an eviction order against the respondents. Whilst those proceedings were still

pending the respondents applied for the Attorney-General to be joined as a codefendant

in that suit as they alleged that their defence I

1997 TLR p70

A raised basic constitutional rights issues. An order was granted and it was ordered

that the matter be heard by the High Court 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. B

It was contended on behalf of the respondents that as the Attorney-General had a

right of appeal in the matter it was improper for him 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. C

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; D

(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;

E (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.

Case Information

F Order accordingly.

Case referred to:

1. Transport Equipment Ltd v D P Valambhia [1993] TLR 91 (CA)

G Mrs Macha for the applicant.

Maira for the respondents.

[zJDz]Judgment

Lubuva JA:

H In this matter the Attorney-General is seeking to move the Court for an 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 illegalities and improprieties contained therein. A notice

of motion was filed in which the ground for the application was stated:

`There is no procedure for revision which is provided for under the rules and

that there is an impeding order of the High Court that has I

1997 TLR p71

LUBUVA JA

been improperly issued against the Attorney-General, who cannot appeal

against it because A he is not a party to Civil Case No 12 of 1995'.

The application is supported by an affidavit deponed to by Lawrence Kaduri, learned

Principal State Attorney in charge of the Attorney-General's Office Tabora Zone. B

In the affidavit the historical background of the sequence of events giving rise to this

matter is set out. At this juncture it is desirable to outline the facts in brief. It is

common ground that in 1995 the company by the name of Kahama Mining

Corporation limited was licenced by the government of Tanzania to carry out C

mining activities in Kahama District. This company instituted High Court Civil Case

No 12 of 1995 at Tabora against the respondents. That is, the company was the

plaintiff and the respondents in this application were the defendant in the suit. In

that case the plaintiff Kahama Mining Corporation Limited had applied for a D

permanent injunction to restrain the respondents from interfering with the mining

operations in the area. The plaintiff company had also sought an eviction order

against the respondents who, in their written statement of defence counter claimed

for compensation if they were to move out of the area where they claimed to have

been living for years carrying on small scale mining activities. E

While the Civil Case No 12 of 1995 was still pending, the respondents had applied for

the Attorney-General to be joined as co-defendant in that suit. This was so because it

was thought that the respondents' defence raised basic constitutional rights issues. At

that stage, it appears from the record the court having accepted F that the case

involved basic constitutional rights made the following order:

`I therefore declare that this suit involves questions on constitutional basic

rights and duties and has to be dealt with under the provision of the Basic Rights and

Duties Enforcement Act, G 1994. And I refer this case to such court and, according

to section 10 of the Act No 33 of 1994 this matter shall be heard by the High Court

composed of three High Court judges.' H

On Friday afternoon, 2 August 1996, the respondents filed as a matter of urgency an

application seeking a temporary injunction to restrain the Kahama Mining Company

and the government from evicting them (respondents) from the area before the main

suit ie High Court Civil Case No 12 of 1995 is finally determined. In their I

1997 TLR p72

LUBUVA JA

A application, the respondents claimed that the police had been stationed at the

respondents' village ready to evict them. The Attorney-General 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 B 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. C

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. D

At the hearing of this application, Mr Maira learned counsel holding brief for Mr

Kwikima on behalf of the respondents raised a preliminary objection. He argued that

as the Attorney-General had 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 E terms of s

4 of the Appellate Jurisdiction Act, 1979 as amended by Act No 17 of 1993 which

involved 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 F 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 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 G absurdity. He referred us to the

decision of this Court in Transport Equipment Ltd v DP Valambhia (1).

H Responding 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 world at

large would be opened. I

1997 TLR p73

LUBUVA JA

At the end of the submissions by the learned counsel for both the applicant and the

A respondents or the preliminary objection, we reserved our ruling on the issue until

at the end of hearing arguments on the whole matter before us. That is, depending on

the direction our ruling would take on the objection, such would be embodied in the

body of our decision in the application. We propose to deal first with the preliminary

objection in this ruling. B

With respect, we agree with Mrs Macha's submission on this point. While it is true

that 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 C

person at large even if he is not a party to the original case to take up an 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. An interpretation along the lines canvassed by Mr Maira, D learned

counsel would lead to an absurdity which was not intended in enacting the rules. It is

our view that in Transport Equipment Ltd v DP Valambhia (supra) to which we were

referred is inapplicable to the instant 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 E 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.

We will next deal with the merits of the case. In the first place, the issue is whether

F the learned judge had authority to deal with the application. Mrs Macha, learned

Senior State Attorney categorically submitted that the learned judge had no such

authority. She pointed out that as already indicated, at some stage when an

application was made to join the Attorney-General as a party to the suit in High

Court Civil Case No 12 of 1995, there was an express order of the court to the G

effect that the matter including applications, would be heard by three judges of the

High Court. Unless this order as vacated, Mrs Macha countered, the learned judge had

no authority to deal with the case alone as he did. On the other hand, Mr H Maira,

learned counsel boldly argued that the learned judge cannot be faulted because the

granting of reliefs by way of a temporary injunction is a matter of discretion which,

he said was judicially exercised. As the police were already at the site in the

respondents' villages, Mr Maira went on, speed was necessary in order to prevent a

miscarriage of justice, namely, the eviction of I

1997 TLR p74

LUBUVA JA

A the respondents. Finally, it was Mr Maira's submission that the circumstances of

the case were such as to justify the application of the court's inherent powers under s

95 of the Civil Procedure Code.

With the court order extracted above still on record unvacated, it is clear to us that

the learned judge had divested himself of the authority to deal with the case singly.

B According to the order, because the suit involved constitutional basic rights, the

case was to be heard by a panel of three judges of the High Court. This is in

accordance with the provisions of s 10 of Act 33 of 1994. Apparently, aware of this

order, the learned judge advances two reasons why he still dealt with the matter.

First, as he described it, the affair cries haste and speed must answer it. That is, C as

the police were already stationed at the villages of the respondents, anything could

happen if the application was not heard that afternoon ie, eviction. Secondly, that the

panel of three judges to hear the application could not be convened at that time

because his other two colleagues were absent from the station and he D himself was

due to leave the following day. With due respect to Mr Maira, learned counsel we do

not accept that the learned judge cannot be faulted for what he did in this matter

because he exercised the discretion judicially in the matter which called for speedy

action in order to prevent a miscarriage of justice. It is E elementary that so long as

the court order divesting the court of the authority to deal with the case was still in

force any further dealing with the case outside the terms of the order was

incompetent. It cannot be justified on grounds of F expediency or an apprehension

of a miscarriage of justice. So long as the learned judge had the authority to deal with

the case sitting as a single judge, it is inconceivable that the learned judge still dealt

with the case fully aware of the existence of the court order. This is evident from the

reasons advanced. In the circumstances, we are convinced that the learned judge was

clearly wrong in assuming authority to deal with the application when the court

order was still in force. G

It defeats us why the learned judge overlooked to invoke the otherwise day to day

common procedure in situations of this kind that is familiar to judicial officers.

Perhaps we venture to think, it was because of the peculiar and unusual manner in

which the matter was handled. If the situation warranted to be dealt with so H

urgently, the learned judge could either seek assistance from the Principal Judge in

Dar es Salaam or refer the parties to Dar es Salaam where the matter could be

attended to by a panel of three judges. This, he did not do but instead, he proceeded

to deal with the matter in I

1997 TLR p75

LUBUVA JA

complete disregard of the order. This was as pointed out patently wrong on the A

part of the learned Trial Judge.

There is another ground of complaint in this application raised by the Attorney-

General. That the matter was heard ex-parte and that he was not served with the

notice of hearing of the application. According to Mrs Macha, para 3 of the affidavit

in support of the application which was not countered, Mr Kaduri, the B Principal

State Attorney in charge of the Attorney-General's Office, Tabora Zone deponed that

he was not served with the notice of hearing the application. He was however served

with a copy of the ruling of the application by Hon Mr Justice Mchome personally on

Saturday evening, the day after the hearing of the application. She submitted that

having regard to the fact that the C Attorney-General's Office in Tabora is within

easy reach from the court building in fairness to both parties, the Attorney-General

should have been served with the notice of hearing. On this, Mr Maira's submission

was that the learned judge properly invoked the court's inherent powers under s 95 of

the Civil Procedure Code, 1966. D

From the record, it is shown that the application was filed late in the afternoon,

Friday 2 August 1996. Because of the circumstances of the case the learned judge

decided to hear the matter ex-parte. And what are the circumstances. As shown on

record, it was feared that the applicants, the villagers, would be evicted E any time

by the police who were already stationed at the applicant's villages. The evidence in

support of this apprehension was based on the reports from the news papers and the

radio broadcast. We will advert to this aspect later. At this stage, F we pose to ask

ourselves whether the learned judge's decision to proceed to hear the application exparte

without notifying the Attorney-General was justified. As shown the urgency of

the matter was that there was an apprehension that the government by use of the

police was threatening to evict the respondents from their villages. In that case, the

government represented by the Attorney-General G was a necessary party to be

heard in the application for a temporary injunction the subject matter of the

application. Granted that the matter was of extreme urgency, still it is our view that

the Attorney-General's Office in Tabora could have been H 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 I

1997 TLR p76

LUBUVA JA

A personally handed over a copy of the ruling to the Principal State Attorney.

Unusual though it was, if the learned judge obliged to take a copy of the ruling in

person on Saturday evening to the Principal State Attorney, we see no reason why he

did not make a similar effort to notify the Principal State Attorney by telephone B

or by physical contact as he did the next day when he delivered a copy of the ruling.

This would accord with the principles of natural justice which the learned judge

commendably and underscores in the course of his ruling when he states:

C `Natural justice requires that even a poor peasant at least 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 D

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.

In the ruling, the learned judge sets quite correctly the legal position regarding the

issuances of a temporary injunction against the government. He states that the E

application could not be granted under Order 37 of the Civil Procedure Code 1966

because the government was not a party yet to Civil Case No 12 of 1995. The learned

judge also considered the Government Proceedings Act 1967 as F amended by Act

No 30 of 1994 which provides for a period of three months before the government

can be made a party to proceedings. So, he took the view that irreparable damage

would be caused to the respondents (then applicants) if the court were to wait for

three months before issuing the injunction order. The application was thus granted by

invoking the inherent powers of the court under s 95 of the Civil Procedure Code,

1966. We must at once point out that this was a G misapplication of this section.

The reason is not far to seek. It is trite knowledge that the inherent powers of the

court provided under this section of the Civil Procedure Code are invoked in

situations where the court has authority or H jurisdiction to deal with the matter

and there is no specific provision of the law in place. Where as in this case the court

has no jurisdiction or authority and there are express provisions of the law as was the

case here, which previsions were elaborately set out by the learned judge, it was an

error on the part of the learned judge to invoke such powers. Mr Maira's submission

on this point is, with respect, rejected. I

1997 TLR p77

LUBUVA JA

As stated before, the learned judge treated this matter with extreme urgency and A

haste. It was filed late on Friday afternoon, 2 August 1996 and was finally determined

the same day. The learned judge did so because the respondents in this application

who were then the applicants were in danger of being evicted by use of the police. In

support of this view, the learned judge stated: B

`There is probable truth in this as this morning I was reading two news

papers, Mtanzania and the Guardian, confirming that the government has decided to

evict the applicant from the area. Radio Tanzania, which I also listen to has been

broadcasting this over the last two days or so.' C

It hardly needs to be overemphasized that it is highly improper on the part of the

court to rely on or to take into account radio and newspaper reports as the basis of

deciding the case. Time and again this Court has expressed the correct position in D

law for the courts in administering justice. The Courts should base their decisions on

nothing else other than the evidence adduced in court and the applicable law 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 courts to

refrain from such practices in future. E

Consequently, in the circumstances of the case, the application succeeds and we agree

to assume our revisional jurisdiction and exercising such revisional powers we set

aside the order made by the High court for the reasons set out in this ruling. The

matter is left open for the parties to pursue in terms of the law if they so wish. F It is

so ordered.

Finally, though not part of the decision in this matter, we feel it appropriate to make

G the following observation. From the proceedings in this case it is apparent that the

errors and the unsatisfactory features are, in our considered opinion, glaringly of such

a nature that with some diligence and a lesser sense of overzealousness, recurrence

could be avoided. It is earnestly trusted that the relevant authorities in the judiciary

would take the necessary appropriate steps in drawing the attention of H the

relevant judicial officers to be extra careful in order to avoid a recurrence of such

errors. This is particularly so because if the unfortunate impression is created that the

judicial officers themselves do not respect the law, it would be difficult for other

people, including the government, to respect the law. I

1997 TLR p78