Attorney General vs Oysterbay Villas Limited and Another (Civil Application No. 168/16 of 2017) [2017] TZCA 1261 (25 October 2017)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT.,DARESSALAAM (CORAM: MBAROUK 1A. , MLJGASHA, IA. 1 AND MWAMBEGELEI J.A.,) CIVIL APPLICATION NO. 168/16 OF 2017 AORN EY GEN ERAL ........................... ....................... APPLICANT VERSUS OYSTERBAY VILLAS LIMITED KINONDONI MUNICIPAL COUNCIL ................ RESPONDENTS [Application for revision of the judgment .of the High Court of Tanzania (Commercial Division) at Dar es Salaam] (Nchimbi, 1) dated the 11th day of March, 2014 ........... in Commercial Case No. 88 of 2011 RULINGOFTHECOURT. .. .. 5th & 31st October, 2017 . MWAMBEGELEI 1A.: Against this application for revision filed by the Honourable the Attorney General, the first res,p.onde.nt;: Oysterbay Villas Limited., through the, services of a law firm going by the name IMMMA Advocate, filed the following paraphrased four-point preliminary objection:
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- That the application for revision is hcornpetent and J not maintainable in law for being made contriry to the provisions of section 17 (1) and (2) of the Office of the Attorney General (Discharge of Duties) Act, 2005, Act No 7 of 2005; -/ • 2. That the application is incoinpetent and unmaintainable in law forbeingmadeasan alternative to the right of appeal enjoyed by the second Respondent and the Applicantjn.vio]ation of the position set by various cases of this Court including Halais Pro-Chemie v. Wefla A.G. [ 1996 ]TLR 269;
- That the application is incompetent for want complete proceedings and pleadings in Commercial Case No.. 88 of 2011 which is :the violation, of the requirement set in severaidedded cases of the Court • of Appeal including Benedict Mabalanganya v. Romwald Sanga, Civil Application No. 1 of 2003 and Brittania Biscuits Limited v. National Bank 2
of Corn merce Limited & Doshl Hardware (T) Limited, CivIl Application No. 195 of 2012; and 4. That the affidavit in support of the application is incurably defective for containing a defective jurat. When the application was called •dn for hearing or :. .:. 11.10.2017, Mr. , Ponziano Lukosi, learned Principal State Attorney, appeared for the applicant. Mr. Gaspar Nyika, learned Advocate, appeared for the first respondent. Mr. Hussein Ughulum, learned Solicitor, appeared for the second respondent. As the . practice of the Court has it, we had to order the disposal of the preliminary objection first ahead of. hearing the substantive application. . But before we could allow Mr. Nyika, address us on the preliminary points ..Lobjection, Mr. Lukosi rose to intimate to the Courtthat hewasconceding to thethtrd1DoirIt objection. The learned Principal State Attorney, exhibiting the qualities of a true officer of the Court, conceded that the record of appeal lacked pleadings and exhibits tendered at the trial 3
which made it incomplete and hence an incompetent application. He thus had no qualms if the application would be struck out. However, the learned Principal State Attorney was quick to urge us make no order as to costs because of his concession at the very outset. Mr. Ughulum for the second respondent, joined hands with • the concession of Mr. Lukosi as well ashis prayer to have costs dispensed. with. . . On his part, Mr. Nyika, had no problem with the concession to the third point of the preliminary objection and its resultant wrath of the application being struck out for that reason. . However, he pressed for costs. . Mr. Nyika did not stop there. Seemingly not contented with the concession and. the outcome.,. .he pressed to argue-the first . and second points of the preliminary objection as well. He predicated his course of action on what he called "for completeness of the matter" and to bar the applicant to come to 4
this Court again on the reasons encapsulated in the first and second points of objection. Having adequately deliberated on the matter, the Court felt it prudent to allow Mr. Nyika quench his thirst by submitting on the fIrst and second preliminary points of objection despite the applicant's concession on the third point. With leave of the Court, Mr. Nyika argued the first and secondpoints together.. However, we wishto point odtàt. this ...-.- juncture that Mr. Nyika, as shown above, had filed four points of preliminary objection but did not say anything in respect of the fourth point. In the premises, we take it that Mr. . Nylka abandoned it and, accordingly, mark it as abandoned. . W ........ Submingr the first and second preliminary points of objection, as consolidated, Mr. Nyika was brief but to the point. ...... . He.subrnitted that under the provisionsof.sectioni7T( . .) - and;(2) • oiThé Office of the Attorney General (Discharge of Duties) Act, 2005 (the Act); the Attorney General was ñ61 legally justified to institute a fresh matter in the Court as there was no pending matter in the Court. What the Attorney General ought to have 5
done in the circumstances was to join.the suit. ..However, the........- suit having been finalized in the High Court and there being no proceedings in this Court stemming from the matter sought to be revised, the course taken by the applicant was not backed by law. Mr. Nyika added that the Attorney General is an advocate S for the Government; he does not haVases of his vii. In thë case at hand; he argued, the Attorney General's client is the -. - second respondent.. As such, he argued, it was surprising that the Attorney General is suing the second respondent who opted not to appeal and whose interests he seeks to protect. He argued that since the second respondent had recourse to the Court by way of appeal but opted not to exercise that right, she, nmh raw in.essence, is "appealing" through the Attorney General, against th e decision of the High Court through the back door. He asserted that if this practice will be entertained, the Attorney General, being a legal representative of the Government and 11
therefore has no case of his own, will always have a second bite and that will be tantamount to an abuse of the court process. On his part, Mr. Lukosi responded that the second respondent is a legal person who could enter into contracts and S_ sue and/or be sued in her own name This is not afresh suit as Mr. Nyika would want this Court to believe, he argued, and added that the Attorney General had a right to intervene byway o ....................... revision in any proceeding whenever he thought public interest was at stake. This, he submitted, is the gist of sections 7 (1) (b), 8 (1) (f), 14 (a).and.(d) and 17 of the Act.: Mr. Lukosi added that that was not the first time the Attorney General intervened in incidences of this nature. The learned Principal State Attorñéy promised to bring a decision in which such a course of action was resorted to by the Attorney General and, indeed, he walked the talk by later availing the Court with its unreported decision of the Attorney General v. Tanzania Ports Authority, Civil Application No. 87 of 2016. The course of action taken by the 7
Attorney General in the present case was therefore justified by law, he argued. Mr. Ughulum, joined hands with the submissions of the learned Principal State Attorney. Rejoining, Mr. Nyika submitted that all the provisions cited p by Mr. Lukosi referred to the duties of the Attorney General a n d qW that those duties must be discharged in conformity with section 17 (1) and (2) of the Act; which allow him to join proceedings . ....• . not to institute fresh proceedings. There were no proceedings in the Court in which the Attorney General could join, he stated On the authority referred to by Mr. Lukosi, the learned counsel doubted if there was one to that effect and if so, he argued that it might have been decided per incur/am. We have subjected the arguments by the learned counsel for the parties to proper scrutiny. We must confess at the outset to our finding difficult to comprehend Mr. Nyika's argument of having proceedings in Court which the Attorney General could
loin to make the present application appropriate; Our surprise hinges on a string of decisIons by the Court on the point. We have hed, times without number, that the only recourse to a person who was not a party to the suit that has affected his interests is challenging that decision by way of revision - see: Ahrned Ally Salurn V. Ritha Baswali and another, Civil Application No. 1 of 1999, Chief Abdaflah Said Fundikira v. S Hiillal A., HiUa, Civil Application No. 72 of 2002, Arcopar (aM.). S.A v.. Harbert Marwa and Family & 3 others, Civil Application No. .94 of 2013 and . Attorney General v. Oysterbay Villas Lmaed & another, Civil Application No 299/16 of 2016 (all unreported). In all those cases, we did not put as a condition precedent that there should be proceedings in saw the Court to justify a party to seek recourse by way of revision against .a case which has been flnalized and has adversely affected its interest. In Oysterbay Viila.(su•pra) we observed that the Attorney Gerieral, in such circumstances, was entitled to intervene by way of an application for revision. 9
Regarding Mr. Nyika's argument to theeffed that te•• second respondent, through the Attorney General, is coming through the back door to challenge the decisions she was comfortable with from the outset as she did nctcftallenge it, and that the applicant cannot legally make Kinbidoni Municipal . Council a respondent while at.the sath ..t iehese.ks:toprotect . his interest, we are of the view that the assertion, though sounds enticing at first sight, cannot be legally correct in the circumstances of this case. What transpired in the matter under scrutiny as far as the point is concerned, was aptly summarized by a single justice of the Court in Oysterbay Villas (supra) in which leave to bring the present application was sought and successfully obtained in the following passagewhich we think MAL merits citation for a better understanding of the background to NNW the present matter before us: ... .. .• , "On 14 1h July 2016, the Applicant became aware of the legal dispute between the Respondents after it 10 4
received a letter referenced as number CS. 981235102144 of 607 JUly 2016 from the Permanent Secretary, Presidentc Office, Regional Administration and Local Governments. In that letter, the Applicant was informed of the pending
- appeal - initiated by theFirst RW Respondent before this Court and then requested to intervene so that the decision of the Hi'h Court, Commercial V Division decreeing that the First Respondent be registered the owner of the suit properties could be challenged on the ground that the said
V respondent, beingV a non- dt/zen, couid VV not legally own land in Tanzania in its own name. " 1]
- Thus the applicant became aware of the contract and suit
- between the respondents which adversely affected his interests after having been requested to intervene by the Permanent Secretary of the Ministry responsible for Local Government Authorities which oversees the activities of the second respondent. That suit had already been finalized in the High Court. On the authorities cited above, we think, the only recourse open to the applicant was to file an application for revision. With due respect to Mr. Nyika, we do ñot- think the provisions of section 17 (1) and (2) of the Act are applicable in instances of revision like the present one. The provisions are, in our considered view, applicable in situations where there is a pending matter in court in which the Attorney General wants to intervene on grounds of public interest. That is to say, the provisions deal with situations when the Attorney General seeks audience in a "suit, inquiry or any other proceedings [which] is pending before the court, tribunal or any other administrative body" as per subsection (3) or in "proceedings of any application, 12
suit, appeal or petition In Court, or Inquiry on adrninlstrative body" as per subsection (1). The true import of the provisions of section 17 of the Act, as amended by section 15 of the Written Laws (Miscellaneous Amendments) (No. 2) Act, 2017, can be deciphered from tha ordinary and natural meaning—of - thewordingused by the S legislature Let the provisions speak forthenhiës "17 - (1) Notwithstanding the provisions of any written law to the contrary, the Attorney General shall have the right of audience in proceedings of any application, suit, 41161 appeal or petition in court, or inquiry Ow on administrative body which the Attorney General considers- (a) to be of public interest or involves public property; or 13
(b) to involve the legislative, the judiciary or an independent department or agency of the Government. '2) In the exercise of the powers -
- -. vested in the Attom GëTfèTälLwith-
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- regardstãpro isJôn.ófubethon (1), • - the Attorney General shall: notify any court, tribunal or any other administrative body of the intention to be joined to the suit, inquiry or administrative proceedings; and satisfy the court, tribunal or any other administrative body of the public interest or public property involved, and comply with any direction of the court, tribunal or any such other 14
administrative body on the nature of pleadings or measures to be taken for purposes of giving effect to the effective discharge of the duties of the Office of the Attorney General. : proceedings is pending before the court, tribunal or any other administrative body to which the Law Officer or the State Attorney do not have a right of audience, it shall be sufficient for such Law Officer or State Attorney to file a certificate of the intention of the Attorney General to be joined and the court, tribunal or any such administrative body shall immediately forward the record of the proceedings to the nearest court, 15
tribunal or administrative body for purposes of enabling such Law Officer or State Attorney to appear." [Emphasis ours]. By the use of the words "pending before the court, tribunal rnother adtFi'e of audience in proceedings of any application, suit, appei or petition in court, or inquiry on administratiVe body" in subsection (1) presupposes existence of or pending proceedings which the Attorney General, by virtue of section 17 of the Act, has the right of audience. We think it is important to distinguish situations when there are proceedings pending before the court, tribunal or any other administrative body which the Attorney General thinks it is in public interest to have audience in and situations when proceedings have been finalized in court which adversely affects the interests of the Attorney General. In the former, the Attorney General would seek audience under section 17 of the Act and in 16 1
- the latter he would seek to have those proceedings revised under section 4 (3) of the Appellate Jurisdiction Pd. Cap. '141 of the Revised EditIon, 2002 (the AJA). The present case falls under the latter situation. For the avoidance of do.ubt, . i.ar.a.wa-re...that the
applicant has 'relied UpOb However, we think the proper provisions to move us should have been those of the AJA. As the applicant moved the Court under -• -' - the proper provisions as well as purporting to move the Court under improper provisions, we still think the application had enough legs on which to stand in Court. ---- - --- - . As rightly submitted by 'Mr. Lukosi, that is not the first time - the Attorney General sought to have proceedings he thought adversely affected his interests revised-.. The Court allowed the - -
- Attorney General to have that recotëiTanzania Ports' Authority (supra); a case relied upon by the applicant and in Oysterbay Villas (supra) which cases we think were not decided per incur/am as Mr. Nyika would want us to hold. 17
To recap, we are of the firm view that any person, including the Attorney General, who was not a party to the court proceedings which has adversely affected his interests and therefore could not have appealed against it, revision is the only remedy through which he can challenge that decision. The
application is therefore legally apposite We therefore are of the considered view that Mr. Nyika's argument is misplaced and incorrect and is tantamount to locking the doors of justice. Thus it cannot be left to stand. In the premises, we find the first and second points of objection wanting in merit and dismiss them. Walk Regarding costs, the general rule is that, unless there are now special reasons, they must follow the event. We do not see any special reasons herein to deprive the seconciresi5oridéñtbf costs. It is evident that the respondent incurred costs in terms of time and resources to prepare for the hearing including appearance in Court. 18
The foregoing said and done, for the concession by the applicant on the third point of the preliminary objection, we strike out the application with costs to the first respondent. Order accordingly. • DATED 5VoTQct6b2QT77 M. S. MBAROUK • JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. P.W. 7 ampikya SENIOR DEPUTY REGISTRAR COURT OF APPEAL 19