ZEE HOTEL MANAGEMENT GROUP AND OTHERS v MINISTER OFFINANCE AMD OTHERS 1997 TLR 265 (CA)

 

ZEE HOTEL MANAGEMENT GROUP AND OTHERS v MINISTER OFFINANCE AMD OTHERS 1997 TLR 265 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makame JJA, Ramadhani JJA and Lubuva JJA

B

CIVIL APPEAL 18 OF 1997

26 September 1997

(An appeal from the decision of the High Court of Zanzibar, Zanzibar, Dourado AgJ)

C

Flynote

Civil Practice and Procedure - Judgment - Review of - By judge suo motu - After

becoming functus officio

-Headnote

The appellants had applied in the High Court of Zanzibar for certain orders relating to

the issuing of D entry permits or special passes. The learned judge granted an order

against the 11th respondent ordering him to issue an entry permit for two years and

adjourned the matter for a few days to satisfy himself that the order has been

complied with. At the resumption the judge approved a modification in terms of

which renewable three months passes would be granted. On appeal E against this

subsequent order,

Held:

(i) The judge was functus officio once he had given his original order and

in the absence of an application for a review of his earlier decision he had no

authority to so review it. F

Case Information

Appeal allowed and original order reinstated.

Patel and Dr Lamwai for the appellants.

Salum for the respondents. G

[zJDz]Judgment

Ramadhani, JA

The appellants had applied in the High Court of Zanzibar for leave to apply for

prerogative orders of certiorari, mandamus and prohibition against the Principal

Immigration Officer (hereinafter referred H to as PIO) and the Labour

Commissioner, that is the last two respondents. However, that was changed to an

application for leave to apply for judicial review against all the twelve respondents.

We could not find whether or not such leave was granted but there were a number of

rulings given by the learned judge, not on procedure but on substance, giving

instructions to the tenth and the I

1997 TLR p266

RAMADHANI JA

A eleventh respondents. Anyway, be that as it may, the appeal here is against some

those rulings.

On 3 February 1997 the appellants filed a notice of appeal against five different

rulings of the learned judge dated 29 October 1996, 12 December 1996, 6 January

1997, 9 January 1997 and 29 B January 1997. Now under Rule 76(2) a notice of

appeal is required to be lodged within fourteen days of the date of the decision against

which it is desired to appeal. So, the notice of appeal filed on 3 February 1997 is valid

only for the ruling of 28 February 1997 and the advocates for the appellants conceded

that.

C On 28 January 1997 Dourado, Ag J, gave the following order:

`[P.I.O.] is once again, and finally, ordered to issue an Entry Permit or Special

Pass for two years. If he feels that he needs another meeting with the A.G. and the

Applicants Counsel, he should arrange to see them immediately. He D should then

comply with the order and then complain, if he so wishes.

I am adjourning to 28 January at 8.30 am to satisfy myself that the order has

been complied with.'

E However, come 28 January, the learned judge prevaricated and issued another

order:

`The above conditions guaranteed by the Deputy Attorney-General in the

view of the court substantially meets with the spirit of the order of the court.

F I hope that there will be co-operation on both sides. Should any difficulty

arise, Mr Patel should immediately get in touch with the Deputy Attorney-General

Othman.'

The `above conditions' referred to in the ruling cited above are

G `A-G's Office and P I O undertakes to do the following:

(a) To give 3 months Pass renewable after 3 months.

(b) Process 1 will keep on being renewed until arbitration proceedings

between Government and Zee Hotels Management is finally settled.

H (c) Pass holders will pay $100 each, renewal -- no fee payable. (For two

years they would pay $400 each).'

Now Mr Patel and Dr Lamwai, the learned advocates for the appellants, submitted

that the learned judge could not suo motu review his order of 24 January without

there being an application for I review. The learned advocates pointed out that the

learned judge

1997 TLR p267

RAMADHANI JA

was functus officio. Mr Salum Toufiq, learned Senior State Attorney for the

respondents, argued that A the order of 24 January was for the issue of entry permit

or special pass for two years. However, Mr Salum continued to inform us that he had

not consulted the PIO when he became party to the consent order and that while he

eventually contacted him, they came to a workable understanding B which was

reduced to the three conditions given above. We submitted that the conditions do

substantially implement the order of 24 January. Mr Patel, on the other hand, pointed

out that he was not a party to that understanding and he was not allowed by the court

to make any comments before the new order was given on 28 January. C

We agree with Mr Patel and Dr Lamwai that the learned judge was functus officio

after he had given his order on 24 January in which he said `he is once again, and

finally, ordered to issue an Entry Permit or Special Pass for two years' and that on 28

January he was going to satisfy himself that the order was complied with. As we have

amply demonstrated, none of the two was done. And D worse, there was no

application for review, yet the learned judge went on to review his previous order.

Apart from that, there was an officer from the Immigration Department in the Court

at the time of hearing this appeal and he assured us that if permits for two years are

granted, that period or any remaining portion of it can be cancelled at any moment.

Dr Lamwai, in response to our E question, said that the two years should be ordered

retrospectively from the date Dourado, Ag J, gave the order.

We, therefore, allow the appeal, quash the order of 28 January and reinstate that of 24

January. The F PIO is to issue to the appellants with the necessary documents for

two years from 24 January 1997. We order costs for one advocate only for the

following reasons: one, costs were not prayed for two advocates and two, we do not

think that this appeal needed two advocates. It is so ordered. G

1997 TLR p268

A