Shyam Thanki & Others v. New Palace Hotel Ltd. Civ. App. 26-D-71; E.A.C.A. 17/3/72; Duffus P. Mustafa and Lutta JJ. A

Shyam Thanki & Others v. New Palace Hotel Ltd. Civ. App. 26-D-71; E.A.C.A. 17/3/72; Duffus P. Mustafa and Lutta JJ. A

The issue started as a claim by the respondents as landlords or premises known as the New Palace Hotel to recover possession and mesne profits from the two appellants. On the 24^th March, 1971, the appellants applied for an adjournment of the hearing pending the hearing of an appeal. The application was heard by Biron J. who ordered that pending the appeal the appellants should pay off towards the arrears of rent accrued, Shs. 25,00/= by the end of that month, 31^st March, 1971 and Shs. 25,000/= by the end of April, 1971, and thereafter to pay the current rent accruing until the determination of the suit. Also if any installment is in arrear by more than 10 days, the defendant to hand over immediate possession.” The next step was on the 14^th May, 1971 were not carried out and asked for an order for possession of the premises and for the attachment of the appellants’ goods and chattels. This affidavit came before Biron, J. on the 15^th May, 1971, who treated the affidavit as an application and ordered that an order for possession and also a warrant to attach the moveable property issue. On the 18^th May, 1971 the appellants filed a chamber application asking the court to rescind the order for possession and seizure of the goods and also to stay the court broker from acting on these orders. This application was made under section 38 and/or section 78 and/or section 95 of the Civil Procedure Code. The chief Justice who heard it granted a stay of execution. The matter again came before the Chief Justice on the 21^st May, 1971, and after hearing arguments from both sides he rejected the application holding that from the order of Biron, J., on the consent of the parties, it seems that the application for stay of the execution is without merit and unjustified. Meantime, on the 20^th May, 1971, the appellants filed yet another application, very similar to the first application. This application, however, asked that the order for possession only be – (a) discharged or rescinded, or (b) be reviewed or set aside and was, in this case, made not only under sections 38, 78 and 95 of the Civil Procedure Code but also under section 19(5) of the Rent Restriction Act. It was not brought to the attention o the Chief Justice. On the 11^th June. 1972, it was brought before Biron, J. By that time, however, the respondents had already re-entered

Into possession of the premises and were running the business. Biron, J. refused to make the order holding that he could not interfere with the order of the Chief Justice. The present appeal is against the order of Biron, J. rejecting the application.

            Held: (1) “In fact, section 19(5) of the Rent Restriction Act would appear to have no application to the facts in this case so that in effect this application was also made under the three sections of the Civil Procedure Code.” (2) “The first issue on this appeal is whether the order of the Chief Justice dated 21^st May, 1971, was made without jurisdiction and therefore a nullity. If that order was a nullity then clearly this appeal must be allowed and the application referred back to Biron, J. for further hearing. If, however, the order made by the Chief Justice was within his jurisdiction and therefore not a nullity, then the question is whether Biron, J. was correct in refusing to adjudicate on a matter already dealt with by the Chief Justice. Here the principles of res judicata as set out in section 9 of the Civil Procedure Code, would apply … This application was made by the appellants under three separate sections of the Civil Procedure Code but in effect it was a simple application to set aside Biron, J’s order of the 15^th May, 1971. The application could have been made under any of the three sections; that is sections 38, 78, and 95 of the Civil Procedure Code but the appellants chose to make the application under all three sections. There appears to be no dispute as to the Chief Justice’s jurisdiction to act under section 38 or section 95 of the Civil Procedure Code but it is submitted that the Chief Justice had no jurisdiction to act under section 78, the review section of the Civil Procedure Code, as Biron, J., the judge who made the order for the writs to issue was available and should, under mandatory provisions of rule 5 of Order 42 have heard the application. I will consider these three sections. The question arises whether if, in fact, the Chief Justice had no jurisdiction to act under section 78 he would still have had jurisdiction to act and hear the application under either or both o the other two sections. The relevant portion of section 38 of the Civil Procedure Code states – (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by charge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. ‘Court’ here means the High Court and there appears to be no question but that the Chief Justice had jurisdiction, as a judge of the High Court, to act under this section. This section does not require that the application be heard or dealt with by the individual judge who passed the decree or ordered the execution.” (3) “the appellants’ main ground for the decision of the order of possession was that the application for execution was not in writing in accordance with rule 10(2) of the Civil Procedure Code and accordingly they argued that the order for possession was a nullity. The order of Biron, J. of the 24^th March, 1971 would in my view have been a “decree” within the meaning of section 3 of the Civil Procedure Code, but if not a decree then it was an “order” within the meaning of that section and by virtue of

Section 31. The provisions of the Code relating to the execution of decree are, as far as applicable, deemed to apply to the execution of orders. This would therefore appear to be a proper application for determination under section 38 of the Civil Procedure Code and in my view the court, presided over by the Chief Justice, had jurisdiction to hear the application.” (4) “Section 95 preserves the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Here again I think that it is unquestionable but that the Chief Justice would have had jurisdiction to hear this application acting under his inherent powers as preserved by section 95 but, of course, it is another matter as to whether he would have granted any relief in the exercise of his inherent jurisdiction.” (5) “There is the reviewing section, section 78. Here again it is not in dispute that the application for review should have been heard by Biron, J. by virtue of the express and mandatory provisions of Order XL11, rule 5(1) as he had made the order complained of and was still attaché to the court and available to hear the application for review, [counsel], for the respondents however pointed out that it was the appellants themselves who brought this application before the Chief Justice and caused him to adjudicate and determine that matter and further that his hearing of the application was completed without objection b either side. He submitted that the hearing by the Chief Justice was only an irregularity in procedure and was not a case of a complete lack of jurisdiction. He submitted that the High Court did have jurisdiction and that the Chief Justice could properly have heard the application if Biron, J. was not still attached to the court when the application was presented. This Court must presume that the appellants or at an rate their legal advisers, knew of the provisions of rule 5 and it does seem to be most unfair and inequitable that the appellants should seek the ruling to the Chief Justice and then, when this ruling is unfavorable, turn around and Endeavour to have it set aside and obtain another hearing on grounds which have been of their own making.

            All the courts in Tanzania are created by statute and their jurisdiction is purely statutory. It is an elementary principle of law that parties cannot by consent give a court jurisdiction which it does not possess. Mr. Lakha, however, argues that in this case the High court did have jurisdiction to hear the application under all three sections of the Civil Procedure Code relied on by the appellants and that the directions under o. XL111 R. 5(1) as to the hearing of the application to review would be only a procedural matter, a breach of which would be an irregularity curable by consent or acquiescence of the parties and did not deprive the High Court of jurisdiction. There is some authority in support of this proposition; thus, I would refer to the majority judgment of the Court of Appeal in England in the case of Shrager v. Basil Dighton Ltd. (1924) 1K.B. 274, where it was held that an irregularity in the appointment of an Official Receiver to hear a High Court case did not render the trial a nullity but could be waived by the parties ……..

There are other cases on this subject but I do not find it necessary to make a definite ruling on this aspect of the appeal as in my view the Chief Justice clearly had jurisdiction to hear this application under the provisions of the two other sections relied on by the appellants: (6) “The main question on this appeal was, therefore, whether Biron, J. was correct in refusing to make an order on the application before him. [Counsel] for the appellants, referred to the application before Biron, J. as being the same application which came before the Chief Justice. With respect, this is not altogether clear as the application before the Chief Justice would appear to have been that made on the 18^th May, 1971, whilst that before Biron, J. appeared to be that made on the 20^th May, 1971. In fact, both applications dealt with the same issue, the setting aside of the order for possession of the premises, and although there were some differences between the two applications and he affidavits in support, the issues in each application appeared to have been identical and in each case the appellants relied on the same three sections – sections 38, 78 and 95 of the Civil Procedure Code. The issue was finally determined by the Chief Justice in his decision of the 21^st May, 1971, and in my view the principles of res judicata apply.” (7) Appeal dismissed.