ZAINAB SOMJI AND ANOTHER v MINISTER OF HOUSING AND LANDS 1997 TLR 187 (CA)

 

ZAINAB SOMJI AND ANOTHER v MINISTER OF HOUSING AND LANDS 1997 TLR 187 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Makame JJA, Ramadhani JJA and Lubuva JJA

B

CIVIL APPEAL 27 OF 1997

4 July 1997

(Appeal from the judgment of the High Court of Zanzibar at Zanzibar, Dahoma J) C

Flynote

Civil Practice and Procedure - Appeals - Requirements - Order III Rule 3 of the

Zanzibar Civil Procedure Decree Cap 8.

-Headnote

At the hearing of an appeal against the rejection of an appeal by the High Court of

Zanzibar both D parties expressed the fact that they were experiencing difficulty in

respect of the further hearing of the appeal because of the inadequacies of the record.

The parties had difficulty particularly with determining which part of the

proceedings was a judgment and which was not. E

Held:

(i) A glance through the record revealed a confusing state of the matter as

correctly observed by counsel;

(ii) While there was no indication in writing to show that it was either a

judgment, ruling or order of the learned judge, the judge had taken the view that as

the suit was being F instituted by the appellant, a woman, through her authorised

attorney, the power of attorney was not acknowledged in terms of Order III Rule 3 of

the Zanzibar Civil Procedure Decree Cap 8. Having taken that view, the judge was of

the opinion there was nothing before him and the appeal was not properly before the

court and it ws accordingly rejected. This was an interlocutory order and on this basis

the decree was extracted and duly signed by the G judge;

(iii) The judge's view on the power of attorney was based on oversight or in

complete ignorance of the proviso to Rule 6 under which, if a woman resided outside

Zanzibar, it was not necessary to acknowledge the power of attorney in the way the

learned judge H envisaged. The power of attorney could be received and acted upon

in Zanzibar;

(iv) The Court invoked its powers under Rule 3 and dispensed with the

requirements of Rule 89 and quashed the decision of the High Court.

Case Information

Order accordingly.

No cases referred to. I

1997 TLR p188

A Patel for the appellant.

Uhuru Khalfan for the respondent.

[zJDz]Judgment

Lubuva JA:

In this appeal Zainab J M Somji through her authorised attorney is appealing against

the decision of B the High Court of Zanzibar (Dahoma J) dated 26 February 1997. In

Civil Case No 54 of 1996 before the Regional Court at Vuga, Zanzibar, the appellant

had filed a suit against the respondent seeking vacant possession of house No 3362

situated at Mwembeladu within the municipality of C Zanzibar. The respondent had

leased the house to tenants who were staying in it. At the commencement of the

hearing of the suit before the Regional Court, a preliminary objection was raised by

the respondent on the grounds that the suit does not disclose cause of action and that

the D suit is time barred. After analysing the submissions of both parties, the learned

regional magistrate overruled the objection. It was further held that as there were no

triable issues, judgment was passed in favour of the appellant. An order for vacant

possession of the house was issued. From that decision, in a three point memorandum

of appeal the respondent appealed to the High E Court of Zanzibar. The learned

judge, held that the appeal was not properly before the Court, he rejected it. This

appeal is against that decision.

In this appeal, the appellant and the respondent are respectively represented by Mr

Aja Patel, F learned counsel and Mr Uhuru Khalfan learned State Attorney before

the Courts below. The memorandum of appeal filed by Mr Patel, comprised four

grounds of appeal. Before us, at the commencement of the hearing of the appeal, Mr

Patel, learned counsel in what appeared to us as candid professional frankness

confessed that he was in difficulty as to how to proceed with this G appeal. This is

because, he said, the manner in which the appeal was determined and the decision

arrived at by the learned judge was confusing. Upon the Court's inquiry as to which

part of the record is referred to as the judgment, Mr Patel was quick to respond to the

effect that, that is one of H the aspects which is indicative of the confusion

surroundings this case.

Following Mr Patel's submission on the alleged confusion in the case, the Court

invited the learned counsel for both parties to address us on the alleged confusion and

the unsatisfactory way in which I the appeal was handled at the High Court of

Zanzibar and how to proceed with the appeal. In further elaboration, Mr Patel,

1997 TLR p189

LUBUVA JA

learned counsel referred to pp 40 and 41 of the record of appeal. That part of the

record concerns A the proceedings of the hearing of the appeal on 26 February 1997.

From the proceedings he said, two things emerge. Firstly, the first paragraph at p 40

to the effect that the suit was not instituted according to Ord III Rule 3 of the Civil

Procedure Decree regarding the acknowledgement of the B power of attorney was

not stated by him, Mr Patel or Mr Uhuru. He said it was introduced by the Court.

Secondly, the decision by the learned judge rejecting the appeal does not indicate

whether it is a judgment, ruling or order. For that reason, he said, it was difficult to

show which part of the C proceedings is the judgment and which is not. He further

pointed out that the appeal having been rejected in such a manner the hearing of the

appeal before the High Court on merit was left unheard. Consequently, he submitted,

it is not clear as to the effect of the High Court decision on the Regional Magistrate's

decision. He invited the Court to set aside the decision of the High Court D so that

the decision of the Regional Court in which the appellant was successful could be

executed.

Mr Uhuru, learned State Attorney also addressed us. He supported Mr Patel on the

fact that the issue relating to the power of attorney was introduced by the Court, it

was not one of the grounds of E appeal. He was of the firm view that as there was no

judgment indicated in writing, the appeal was not properly before this Court because

Rule 89(2)(iv) of the Court's rules was not complied with. That is, no copy of the

judgment or order was contained in the record of appeal. He urged the Court to

invoke Rule 3 and order the matter to be remitted to the High Court with direction to

hear F the appeal on merit.

We have given close and anxious consideration to the submissions by the learned

counsel for both parties. A glance through the record at pp 40 and 41 reveals a

confusing state of the matter as G correctly observed by the learned counsel. We

agree with the submission by Mr Patel that the decision of the learned judge on

appeal is in such a format that it is difficult to tell where the proceedings of the appeal

end and the start of the judgment, ruling order or decision on the matter. This can be

seen from the following extract at p 41: H

`Mr Patel:

Mr Uhuru should have taken an objection as sorn (sic) as he first

represented the appellant on 7.11.1995.

On hearing both the advocates the Court is still of the opinion that the

suit was instituted contrary to Ord III r. I 3 of Civil

1997 TLR p190

LUBUVA JA

A Procedure Rules and therefore this appeal is not before the Court and is

rejected.

Sgd. Saleh A. Dahoma -- Judge

26/2/1997.'

B While we agree that there is no indication in writing to show that it was either a

judgment, ruling or order of the learned judge in essence or perception of the matter

is as follows: That the learned judge took the view that as the suit was being instituted

by the appellant, a woman through her authorised attorney, the power of attorney

was not acknowledge in terms of Ord III Rule 3 of the C Zanzibar Civil Procedure

Decree, Cap 8. With that view, the learned judge therefore held that there was

nothing before him ie the appeal was not properly before the Court. Consequently,

the appeal was rejected. it is to be observed however, that as can be seen from the

extract above, the learned D judge did not say this in so many words. That in our

understanding was the import of the decision. Both Mr Patel, learned counsel and Mr

Uhuru, learned State Attorney had expressed the view that the decision as extracted,

was confusing, it was not easy to tell if it was a judgment, order or ruling. On this, we

think it is relevant to examine closely the submissions by Mr Patel and Mr Uhuru on

the E issue of the validity of the power of attorney. It was their submission that it

was brought up by the learned judge himself at the commencement of the hearing of

the appeal. That to our minds, is indicative of the learned judge's anxiety to ensure

himself of the propriety of the acknowledgement F of the power of attorney. Before

going into the merits of the appeal, the learned judge made a decision on that point.

Though it was not indicated, we are firmly of the view that it was an interlocutory

order in which the learned judge decided to reject the appeal, the subject of complaint

G in this appeal. It was on the basis of this order that the decree was extracted and

duly signed by the learned judge.

Next we intend to deal with the propriety of the interlocutory order issued. As

pointed out earlier, it H was the view of the learned judge that under Ord III Rule 3

of the Civil Procedure Decree, as the power of attorney was not acknowledged, it was

invalid and so, he rejected the appeal. This we are convinced was done by the learned

judge by oversight or in complete ignorance of the proviso to Rule 6 of Ord III of the

Civil Procedure Decree. under that proviso, if a woman resides outside I Zanzibar

which was then referred as to the Protectorate, it is not necessary to acknowledge

1997 TLR p191

LUBUVA JA

the power of attorney in the way that the learned judge envisaged. It is enough to

have an A authenticated power of attorney here in Zanzibar. In this case, it is our

view that the power of attorney could be received and acted upon here in Zanzibar.

With respect, the learned judge erred and misdirected himself in law in rejecting the

power of attorney on the basis of Ord III Rule 3 of the Civil Procedure Decree. B

Finally, we come to the issue whether Rule 89(2)(iv) was complied with. This is

important because if the rule was not complied with then the appeal would not be

competently before us. Mr Uhuru, learned State Attorney was of the view that Rule

89(2)(iv) was not complied with. He however C invited us to invoke Rule 3 in order

to dispense with the requirement of Rule 89. We think Mr Uhuru is right in that

suggestion. In view of the circumstances of the case, we are in agreement with Mr

Uhuru in invoking our powers under Rule 3 and dispense with the requirement of

Rule 89. This we have done in dealing with this appeal. D

Consequently, on a proper application of the law and the acceptance of the power of

attorney which was rejected in error, the fall back position is that the appeal which

was before the High Court would still remain undetermined on merit. Accordingly,

for the foregoing reasons the decision of the High E Court of 26 February 1997

rejecting the appeal is quashed and set aside. It is further ordered that the matter be

remitted to the High Court with direction to hear the appeal on merit by another

judge. It is so ordered.

In conclusion, we wish to make the following observation. In order to avoid

confusion of this kind F and time wasting inconvenience, judicial officers

particularly at the Regional and High Court level would well be advised as far as

possible to conform with the elementary guidelines set out under Ord XXIII Rule 3 of

the Civil Procedure Decree in writing Court decisions. G

1997 TLR p192

A