Mansoor Daya Chemicals Limited vs National Bank of Commerce Ltd (Civil Application No. 464/16 of 2014) [2020] TZCA 1966 (9 April 2020)

{:..1; IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM -:ti1/ ::,·, ... ,; (CORAM: MZIRAY, l.A., MWANDAMBO, J.A. And KEREFU,J.A.) CIVIL APPLICATION NO. 464/16 OF 2014 MANSOOR DAYA CHEMICALS LIMITED ....................................... APPLICANT - VERSUS NATIONAL BANK OF COMMERCE LTD .................................... RESPONDENT 1· ' • 1 (Application for Revision of the proceedings of the High Court of Tanzari'i 1 : ,·, !,.. .• (Commercial Division) at Dar es Salaam) · ,- · 24 th March & 15 th April, 2020 MZIRAY, J.A.: (Makaramba, J.) dated 7 th day of December, 2015 in Commercial Appeal No. 3 of 2014 RULING OF THE COURT .f 1J ·;!i ' Before the Court is an application filed by way of notice of motion rilade under section 4(3) of the Appellate Jurisdiction Act, Cap. 141 · R:£: ;002 (AJA) and Rule 65(1) (2) and (3) of the Tanzania Court of Ap;:; Rules, 2009 as amended, seeking for the following orders, namely: - ,·' 1 ··n 1 i].i

"1. That this Honourable Court may be pleased to call for :o..:~ ; and examine the record and proceedings of the High iij: n Court of Tanzania at Dar es salaam (Commercial Division) in Commercial Appeal No. 3 of 2014 for the purpose of satisfying itself as to the correctness, .. legality and propriety of the said proceedings. .f"c, 1 { 2. That this Honourable Court be pleased to find out that the entire proceedings were conducted by a court lacking jurisdiction to hear the appeal which did not . arise from a commercial dispute. " The notice of motion is supported by the affidavit deponed by one Sakerhanoo M. Daya, the applicant's advocate. .- ; ~ ·;: J. 1 On being served with the notice of motion, the respondent through the services of Mr. Gaspar Nyika from IMMMA Advocates vehemently resisted the motion and in addition raised a preliminary point of objection '·· , r, ~ontending that; "The application for revision is not maintainable in law for being preferred as an alternative to appeal. " 2 !,J. ,l ., •. , ·I ,

i i At the hearing of the application, Mr. Ashiru Lugwisa assisted by M,r . . ,·:_ :: Dimesh Mawji, learned advocates represented the applicant; whereas Mri Denis Maringo, learned advocate appeared for the respondent Bank. We think that before moving any step forward, a brief background bf the matter is necessary. The applicant was operating an account \A/ith

• t. 1 i ,.., the respondent Bank. She entrusted one of her accountants to operate the account. Acting dishonestly, the said accountant fraudulently forgd some cheques and managed to withdraw on different occasions cash amounting to TZS. 80,380,000/= in the Bank account of the applica;;,Jj :''-T l: ·: ihe theft was reported to police. As a result the said accountant int~~ ' .. . ' .~f - r" iiame of Venance Lumumba was prosecuted and convicted in the Distrfbt : .. ; :.• Court of Temeke in Criminal Case No. 669 of 2009. There was an ordei ' made by that court which directed the respondent to pay the applicant ,'.._. ,.; the money stolen. The order was not complied with. As a result, ·th ' . . . ' :bplicant successfully filed Civil Case No. 64 of 2013 in the ResidHt · . ./ ,,, . ' Magistrate's Court of Dar es Salaam at Kisutu claiming TIS} 80,380,000/= as loss suffered due to the respondent's negligence. Th§ respondent was aggrieved by the decision. She successfully filed 3

·./ ,,. ommercial Appeal No. 3 of 2014 in the High Court of Tanzania at Dat:e; Salaam (Commercial Division) which reversed the decision of the trial court. Being dissatisfied, the applicant lodged a notice of appeal in thi~ ;: ' ' : -:' - t " " i-, ( ~ • r Court on 21/12/2015. Few days later, on 28/12/2015 she lodged anot~~i (: "''.'f ':; pplication for leave to appeal to this Court. On 26/2/2016 she lodgetr a : .,. notice of withdrawal of the notice of appeal which was granted by th . , . ; y'. Court on 3/3/2016. She did not end there; on 31/4/2016 she filed ah , .. I, '':' ~ ~ f . ,• ·q•,, ·.: ,i application for extension of time to file revision which was granted by tt!h ' ··•) 1} ..:. - tourt on 13/9/2016. The only pending application was for leavf:i.tb V. ·-•~~~~'.• ppeal which unfortunately was dismissed by the Court on 18/5/2Oi6! Having bounced in almost all these applications, he opted to file thig revision. ·' . · •. :;-fji:,j As it is the practice, we started with the hearing of the prelimii:,ry f• , .. ··hc1F pjection. Submitting in support of the preliminary point of objection, .!Yli <{. {; Maringo submitted briefly that revisional powers of the Court can only·b~ ·.,' ·I .· ·: :: ~ invoked where there is no right of appeal. He placed reliance on th~ . ' '.' '\ decisions of this Court in Hallais Pro-Chemie v. Wella A.G. (1996) TLR ttfr 1 · Fi 4

269, Moses J. Mwakibete v. The Editor - Uhuru, Shirika :I~ Magazeti ya Chama and National Printing Co. Ltd. (1995) TLR 134~ Transport Equipment Ltd. v. D.P. Valambhia (1995) TLR 161 c;1nd ' !,Ii j .. i,. F.elix Lendita v. Michael Long'idu, Civil Application No. 312/17 of 2QJ7, ·' ,./ I ; ~ (unreported). ..-, t' ·,.;. .... / t·~ The learned advocate went on to submit that, in the present case;, ' ' ·, .. , the applicant had a right of appeal because what she complained of w·a~ . ('! on the issue of jurisdiction to the effect that the High Court (Commercial. r: :St~'. Division) had no jurisdiction to entertain an appeal from the Residen1: -· ( Magistrate's Court of Kisutu in a suit based on the tort of negligence. '6 ' : ~ that basis, he urged the Court to sustain the preliminary objection raised. 1 ( On his part, Mr. Dimesh Manji, learned advocate responded ,by / .. . .:Jin ?!.J.bmitting that, the objection has no merit and that the same shouldi);>e i r' ·_:--~~i ;; overruled. He pointed out that since the High Court (Commercial Division) r )· .:(: ;.t had no jurisdiction to entertain a tortious issue arising from Resideq:I; Magistrates' Court, then, the most appropriate way was to file revisional proceedings. On the basis of the above, the learned advocate for th~ ' I - ~- ;t L ~ ,".1-: ~~; Oli i 5

/ .. f l !"-· f. l '. 1 :, ! I, . -~ ~ ~ applicant submitted that the preliminary objection raised was witho.ut merit and urged us to dismiss it with costs. ' ,· .i We have duly considered the submissions made by the parties ·oq~ :i·{/11··· !0 support and against the objection. All the same, under the provisiqn; 6f section 4 (3) of the AJA, proceedings for revision may be initiafcl . ( -J ,: • • ). l • either by any interested party moving the Court to exercise revisiona! jurisdiction or by the Court suo motu. In exercising the revisiona.l jwrisdiction, the Court has established circumstances under which it E'.BH ' . xercise such jurisdiction. It has insisted that revisional jurisdictWen ': .... • .. :. ;.; tannot be invoked as an alternative to the appellate jurisdiction exc;:ep under exceptional circumstances like in situation where the appellat ' .process has been blocked by judicial process. This is evident from th~ decisions of the Court in a number of cases. For instance, in Hanj:1~ l)ro-Chemie v. Wella A.G. (1996) TLR 269 the Court inter alia statedt 1 )U\ ! '. 11/;} l // ...... . (ii) Except under exceptional circumstances, a party to proceedings in the High Court cannot invoke the 6 ' ,;, :; '.1

revisional jurisdiction of the Court as an alternative to the appellate jurisdiction of the Court. " ·, '' ; {1~~ ~~ J: ' )£;-f.. A· similar view was expressed in cases of Moses J. Mwakibete v. The ''' l'i ., Editor - Uhuru, Shirika la Magazeti ya Chama and National Printing Co. Ltd. (1995) TLR 134 and Transport Equipment Ltd.· D.P. Valambhia (1995) TLR 161. Relying on the above authorities, we find that it is a settled princlpl t .>iii<;'.'' ; .rt·~~ o.f law that if there is a right of appeal then that right has to be pursu 1 9 . . r . : . : '.' : f:J- t first unless there are sufficient reasons amounting to exceptio_n~I 'f •·, { I circumstances which will entitle a party to resort to the revisiorial jurisdiction of the Court.

• j;rJ= In his submission Mr. Maringo is of strong view that revision is-;t-)1tj~ t' J.C. i. h:,aintainable in law for being preferred as an alternative to an appeal.·::·~ 'j ~ . f submitted that revision is only filed if the right of appeal has been blockeq by judicial process, which according to him is not the case here. He maintained that the applicant had a right of appeal but she never utilisd ' t. ·,··, 7

t' 1d '· it. He ended by stating that the revision filed is an abuse of the Court process. On the other hand, Mr. Mawji submitted that the appeal processd~ ·. ' this case was blocked after the application for leave to appeal had bri ,, . ~ :i dismissed by the High Court. He argued that the only way the applicant could have approached the doors of this Court was to file an application for revision. However, upon being grilled by the Court he changed :his : -f.··: ·1. ;· ' ' direction and readily conceded that the appeal process was not bloceti • ! .t '~ f. ; after the dismissal of the application for leave. He further conceded tna·, the option to file a revision was inappropriate. In our view, when the application for leave to appeal was refused; . l •· the dismissal order did not block the appeal process to make the applicaht resort to revision. We believe that still the applicant had chance to lodge an application of the nature in the Court as a second bite. It is du:f considered view that refusal to grant leave will not fall under the .- ,,, " ': exceptional circumstances articulated in the case of Hallais-Pro-Chemikf ' ~ ' ,;'!, (supra). f' ., ~ : t f ,, 8 '. ' "

. ·,J That said and for the foregoing reason, we uphold the preliminary ' objection raised and find the application to be misconceived. ~vent, we strike out this application for revision with costs. In the , ( DATED at DAR ES SALAAM this 9 th day of April, 2020. R. E. S. MZIRAY JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL R.J. KEREFU JUSTICE APPEAL ; , .. '. ·'t 1 • J ) ,, _-. i The Ruling delivered this 15 th day of April, 2020 in the presence ·ot

• ' Mr. Dimeshi Mauji, counsel for the Applicant and in the absence of th~ - . ' i.. . respondent despite being dully served, is hereby certified as a true copy of the original. i - DEPUTY REGISTRAR COURT OF APPEAL 9 ',!' . ~ .. ••._ t- ~' ,I