National Housing Corporation & Another vs Jing Lang Li & Another (Consolidated Civil Appeals No. 45 & 47 of 2013) [2014] TZCA 2146 (12 September 2014)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MSOFFE. J.A.. BWANA. J.A. And MASSATI, J.A.^ CONSOLIDATED CIVIL APPEALS Nos. 45 & 47 Of 2013
- NATIONAL HOUSING CORPORATION
- LARS ERIC HULSTROM } APPELLANTS VERSUS
- JING LANG LI
- MANYONI AUCTIONEERS RESPONDENTS (Appeals from the judgment and decree of the High Court (Land Division) at Dar es Salaam) 1st & 12thday of September, 2014 MSOFFE. J.A.: Civil Appeal No.45 of 2013 between LARS ERIC HULSTROM and JING LANG LI, NATIONAL HOUSING CORPORATION and MANYONI AUCTIONEERS was filed on 5/7/2013. Civil Appeal No. 47 of 2013 between NATIONAL HOUSING CORPORATION and JING LANG LI was filed on (Nqwala, J.) dated the 27t h day of April, 2012 in Land Case No. 129 of 2006 RULING OF THE COURT i
9/7/2013. Both appeals arise from the decision of the High Court (Land Division) dated 27/4/2012 in Land Case No. 129 of 2006. On 11/2/2014 this Court invoked Rule 110 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and consolidated the appeals. Henceforth, the citation of the parties in the appeals, as consolidated, is that NATIONAL HOUSING CORPORATION and LARS ERIC HULSTROM are the Appellants. JING LANG LI and MANYONI AUCTIONEERS are the respondents. For purposes of this Ruling, NATIONAL HOUSING CORPORATION and LARS ERIC HULSTROM will be referred to as the first and second Appellants, respectively; and JING LANG LI and MANYONI AUCTIONEERS will be referred to as the first and the second Respondent, respectively. At the hearing, Dr. Masumbuko Lamwai and Mr. Edward Chuwa, learned advocates, appeared on behalf of the first Appellant. The second Appellant was represented by Mr. Karoli Tarimo, learned advocate. On the other hand, the Respondents had the services of Ms. Fatma Karume and Mr. Alex Mgongolwa, respectively, learned advocates. Very briefly, the first Respondent instituted a suit based on a tenancy agreement against the Appellants and the second Respondent. After a full trial the case was decided in her favour. In the Judgment dated 27/4/2012 2
(Ngwala, J.) she was awarded special damages to the tune of Tshs. 25,000,000/= and USD 177,450; general damages of 25,000,000/=; punitive damages of a sum of 20,000,000/=; and interest on the decretal sum at the court's rate of 7% per annum. There was a further order for the second Appellant to surrender or give vacant possession of the suit premises, and for the first Respondent to be restored into the said premises. It was against this very brief background that the appeals, as consolidated, were filed. Before the appeals, as consolidated, could be heard on merit the Court had to deal with preliminary objections taken at the instance of the first Respondent notices of which were given earlier in terms of Rule 107(1) of the Rules. In the notices filed on 31/3/2014 and 10/4/2014 there are several objections against the appeals, as consolidated. In view of the position we have taken on the appeals, as consolidated, we will not address all the objections. Instead, we will concentrate on, and henceforth address, one single point which is common to both appeals because we are of the view that it will be enough to dispose of the consolidated appeals. 3
The point is premised on the provisions of Rule 96(1) (i) of the Rules on the requirement to incorporate in the record of appeal the Order, if any giving leave to appeal. Ms. Fatma Karume urged very strongly before us that no such order was drawn/extracted and incorporated in the records of appeal. In the absence of an Order to that effect, she contended, the appeals, as consolidated, are incompetent and should be struck out. On the other hand, Dr. Lamwai, Mr. Karoli Tarimo and Mr. Alex Mgongolwa were of the strong view that copies of the Ruling given by Mziray, J. on 20/6/2012 appearing at page 582 of the record of appeal in Civil Appeal No. 47 of 2013 and at page 560 in Civil Appeal No.45 of 2013 were sufficient for purposes of the requirement under Rule 96(1) (i). In their view, since the copies form part of the records of appeal, there was they urged, the Civil Procedure Code (CAP 33 R.E.2002) (the Code) does not provide for the extraction of an order from a decision giving leave to appeal. Citing this Court's decision in Edward Marealle Versus Marealle clan and Akilei Marealle [1992] TLR 275 at page 777 that.. "//7 many legal contexts these words "order" and " ruling" carry the same meaning an Order for purposes of Rule 96(1) (0. At any rate^
and are mutually interchangeable. .... "they emphasized that the Ruling by Mziray, 1 {supra) was sufficient. It is common ground that in terms of section 47(1) of the Land Disputes Courts Act (CAP 216 R. E.2002) a person aggrieved by a decision of the High Court (Land Division) in the exercise of its original, territorial or appellate jurisdiction, may with leave from the High Court (Land Division) appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act. The crucial question falling for consideration and decision in this appeal is whether or not the decision giving leave to appeal has to be extracted for purposes of Rule 96 (1) (i). Our starting point will be the definition of an Order. Under Section 3 of the Code an Order is defined as the formal expression of any decision of a civil court which is not a decree. This definition fits in well with the definition of an Order in BLACK'S LAW DICTIONARY, NINTH EDITION by Brian Garner at page 1206 that: - An Order is the mandate or determination o f the court upon some subsidiary or collateral matter arising in an actionf not disposing o f the merits, but adjudicating a preliminary point or directing some step in the proceedings.
Ideally therefore, a decision of the High Court giving leave to appeal, as happened in this case, is an order for purposes of the Code. But, this does not answer the basic question posed in this appeal on whether or not the decision has to be extracted for purposes of Rule 96 (1) (i). Rule 96(1) reads in part as follows:- 96-(l) For the purposes o f an appeal from the High Court or a tribunal, in its originaljurisdiction , the record o f appeal shall, subject to the provisions o f sub-rule (3), contain copies o f the following documents - (a) N/A (b) N/A (c) N/A (d) N/A (e) N/A (f) N/A (g) the judgment or ruling; (h) N/A (i) the order, if any, giving leave to appeal; 0) n / a (k) N/A (Emphasis supplied.)
In our judgment, it is true that the Code does not make provision for the extraction of an order for purposes of the requirement under Rule 96(1) (i) of the Rules. At best, the mandatory provisions of Order XXXIX Rule 1(1) read together with Order XL Rule 2 require that every appeal from a subordinate court should be accompanied by a copy of the decree (Order) appealed from but there is nothing more in relation to appeals from the High Court to this Court. Indeed, even the High Court Registries Rules and section 47(1) of the Land Disputes Courts Act do not make provision for that. In other words, it seems to us that the High Court does not have an equivalent provision to Rule 40(1) of the Rules requiring every decision of this Court on an application or appeal other than a decision on an application made informally in the course of hearing to be embodied in a formal order prepared by the Registrar. It is also true that in Marealle (supra) a single judge of this Court observed that in many legal contexts the words "order" and "ruling" carry the same meaning and are mutually interchangeable. In our view however, the case of Marealle {supra) is distinguishable for three reasons. One, the application before the single judge was "a second bite," so to speak, in terms of Rule 46 (3) of the old Rules in which it was imperative to annex a copy of the Order of the High Court refusing leave to appeal. Two, the said case, or the
application for that matter, had nothing to do with the then Rule 89(1) (i) which is now Rule 96(1) (i) of the current Rules. Three, by virtue of the two points above, it will be obvious that the requirements under Rule 46 (3) and 89 (1) (i), respectively, were in respect of two distinct and separate "regimes" and do not, therefore, answer the issue raised in this appeal. In our reading and construction of Rule 96(1), particularly part of paragraph (g) and paragraph (i) thereto, we are increasingly of the view that it was not intended that a "ruling" and an "order" should mean or carry one and the same meaning for purposes of the Rules. If it had been intended that the words should mean one and the same thing the Rules would have stated so in no uncertain terms. The fact that in its general scope Rule 96(1) differentiates a "ruling" and an "order" fortifies our thinking that for purposes of the sub-rule "an order is a separate entity which has to be abstracted from the rulingsupplied and exhibited" as observed in the persuasive decision of the High Court (Mapigano, J.) in Yusufu Mntambo and Others Versus Moez Alidina [1985] TLR 145. Furthermore, if we may respectfully add by way of emphasis, if it had been intended that a "ruling" and an "order" should mean one and the same thing we think that Rule 96 (1) (i) could have been framed in such a
manner as to provide for something to the following effect: - "ruling or order, if any giving leave to appeal" The fact that this was not done, the more reason for saying that for purposes of Rule 96 (1) (i) the two words do not carry one and the same meaning. Hence it is our positive view, and we so hold that, for purposes of Rule 96 (1) (i) the Rules envisage that a decision giving leave to appeal has to be extracted/drawn and then annexed to form part of the record of appeal. Leaving aside the law, this Ruling will not be complete without saying something about the obtaining practice. In other words, a question one would ask is this-: If the adage "practice makes perfect" is anything to go by, what is the actual practice obtaining on the ground? In illustrating the above point, a look at this Court's records in Toico Limited Versus B. F. Technical Services and General Supplies Ltd, Civil Appeal No. 68B of 2010; Abubakar Ali Himid Versus Edward Nyelusye, Civil Appeal No. 70 of 2010; and Hamisa S. Mohsin and Two Others Versus Taningra Contractors, Civil Appeal No. 51 of 2013; will show that ALL these are records of appeal from the High Court (Land Division) in which Orders giving leave to appeal under Section 47(1) 9
( , supra) were extracted for purposes of the requirement under Rule 96 (1) ( 0 - Further to the above records, yet again as examples, we also have records of appeal in respect of Mzumbe University Versus Gaudensia Mzungu, Civil Appeal No. 30 of 2010 and Paul Juma Versus Diesel & Auto Electric Services (DAS) and Two Others, Civil Appeal No. 48 of 2008 of the High Court, Dar es Salaam; and the High Court (Commercial Division), respectively; in which the respective decisions giving leave to appeal were extracted/drawn for purposes of forming parts of the said records of appeal as per Rule 96 (1) (i). It is discerned from the above records of appeal that there is a long established and unbroken rule of practice that decisions of the High Court giving leave to appeal to this Court are extracted so as to form parts of the records of appeal in line with the requirement under Rule 96 (1) (i). We are aware that in John Naiman Mushi Versus Kombo Rural Cooperative Society Limited, Civil Appeal No. 45 of 2006 (unreported) this Court stated as follows: - 10
"The second objection was in respect o f the order granting the appellant leave to appeal. The learned counsel for the respondent submitted that in terms o f rule 89(2)(a) o f the Court Rules, the extracted order which granted leave to appeal had to form part o f the record o f appeal. The learned counsel for the appellant conceded this requirement of the law as well. However, he was o f the opinion that since the ruling o f the High Court that granted leave forms part o f the record, the omission is not fatal and cannot render the appeal incompetent. Mr. Sandi informed us in his reply that the appellant was required to comply with the requirement of the law.^ We respectfully agree with him but in this respect if all other procedures had been complied with, we would have considered the omission a minor irregularity which could be ignored without occasioning any injustice, .IJMgttlfjZr- and dismiss the objection. Emphasis supplied.) In our view however, the so called "minor irregularity" mentioned above was not the ratio decidendi of this Court's decision in the above appeal. 11
Otherwise, in the said appeal this Court was emphatic and positive that the extracted Order giving leave to appeal is a requirement of the law. In conclusion, we are of the settled view that in both law and practice, the Order envisaged under Rule 96 (1) (i) of the Rules is the extracted/drawn Order and not the Ruling giving leave to appeal. For the above reasons, in the absence of a drawn Order, the appeals, as consolidated, are incompetent. They are hereby struck out with costs. DATED at DAR ES SALAAM this 10th day of September, 2014. S.A. MASSATI JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEAL S.J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 1 2