Mrs Vonnie Virginia Ruth Chopra vs M/S Lake Duluti Estates Ltd (Civil Application No. 17 of 2013) [2014] TZCA 2316 (18 March 2014)

. . . IN THE COURT OF APPEAL OF TANZANIA (\ S),-- . AT ARUSHA ~~ '\ . (CORAM: BWANA, J.A; MANDIA, l:A; And ORIYO, J.A.,~ C, S .";;, ,,::;_ CIVIL APPLICATION NO. 17 OF 2013 .· r . '\i~~; MRS VONNIE VIRGINIA RUTH CHOPRA .............................. APPELLAN.T . ~-- ---- - ---- - ----~~ ~- VERSUS M/S LAKE DULUTI ESTATES LTD ....................................... RESPONDENT (Arising from the proceedings at the High Court, Commercial Division, at Arusha) (Bukuku, J.) Dated 19 th day of March, 2013 In Commercial Case No. 3 of 2008 RULING OF THE COURT Date 7& 20 th March, 2014 BWANA, J.A. On 23 April 2013 the applicant herein lodged a Notice of Motion made under section 4(3) of the Appellate Jurisdiction Act, Cap 141, moving the Court to examine and revise the proceedings before the High Court, Commercial Division, Arusha Registry, and subsequently issue appropriate orders and directions to re-establish within those proceedings, propriety, consistency, rationality and credibility as behalves a trial in civil suits in the said High Court. The applicant proceeded to list four particular areas that this Court was required to make specific determinations. Those areas are- . . . 1

• That the court erred in not resolving and deciding on the contested issues such as but not limited to whether security for costs, in terms of Order XXV R. 1(1) of the Civil Procedure Code (the CPC) can be ordered by way of cash deposit. • That the court having failed to deliver its decision within the statutory 90 days, in terms of sections 28 of the CPC, lost jurisdiction to entertain the application. • That the court erred in entertaining application for security for costs which was made well beyond the statutory period. - • The applicant prayed for costs of this application for revision. This is an application for revision lodged by Mr. Elvaison Maro, learned counsel for the applicant, while Mr. Alute Mughwai, learned counsel represented the respondent. The application led the respondent, to present three points of preliminary objections, notice having been filed earlier. When the matter came up for hearing, the first point of preliminary objection was withdrawn. The remaining two are couched in the following words- 2

• • That the notice of motion is incurably defective as it contravenes the mandatory provisions of Rule 48 (2) of the Court of Appeal Rules, 2009 (the Rules). ___ ---~--- • That the application for revision is misconceived as the order and proceedings sought to be revised are not revisable in law. Both counsel presented well researched written submissions in support of their respective positions, supported by case law. We will consider both points together. Rule 48 of the Rules clearly requires a Notice of Motion to show the orders sought and the grounds for such orders being sought. It is then signed and dated either by the applicant or his/her advocate. Before us counsel pointed out two contested areas of controversy. One such area is the positioning of counsel for applicant's signature. While Mr. Mughwai thought it is not in conformity with form A and therefore making the Notice defective, Mr. Maro on his part believes that such positioning is not fatal. What is important, according to him, is the substance of the contents of the notice of motion. Any defect or 3

deficiency which does not affect the substance of the format and claims therein is minor. We would not like to prolong this matter. In Atlantic Electric Limited versus Morogoro Region Cooperative Union (1984) Ltd, this Court held, when dealing with an alleged defective notice of appeal thus:- " ... the provision that notice of appeal shall be substantially in the Form D ... means that in drawing a notice of appeal the format given in form D may be disregarded but not the substance of the information listed.." (Emphasis provided) We subscribe to those views. The same principle may apply in a Notice of Motion. Therefore counsel's signature at the very end of the document, is a curable defect. An important aspect of this matter (compliance with Rule 48 (2)) however, is whether the applicant indicated the orders prayed for and the ground(s) for such prayer(s). Mr. Maro argued both in 4

the affirmative and negative. In the affirmative in the sense that by . requesting this Court to revise the proceedings and subsequently issue appropriate orders and directions to re- establish propriety, consistency, rationality and credibility, he was compryrng with the requirements of the law. In the negative, in the sense that section 4(3) of Cap 141 does not require the stating of such prayers and grounds in support. We should state at this stage that Section 4(3) of Cap 141 used to be invoked when the old court Rules (1979) were in force. Following the coming into force of the 2009 Rules, the application of that provisions of Cap 141, is no longer necessary. Instead, Rule 65 of the Rules is, by itself, adequate. That provision clearly requires a party, lodging a notice of motion, to indicate the order being sought and the grounds for the application. Having examined the applicant's notice of motion, we are left with no doubts that that basic requirement was not complied with. Even if we were to consider the claims against the decisions of both Makaramba and Bukuku (JJ) as being inconsistent, improper, irrational and lacking credibility, still, such deficiencies would be grounds for appeal, not revision. 5

The law on revision as opposed to appeal is long settled. (See Halais Pro- Chemic versus Wella A.G. (1996) TLR 269; Moses Mwakibete versus The Editor Uhuru !t~(J995) TLR _____ _

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134;) It evolves around the principle that revisional powers conferred to the Court are not meant to be used as an alternative to the appellate jurisdiction of the Court. Therefore the Court cannot be removed to use its revisional jurisdiction where an applicant may invoke his/her right of appeal to the Court. In the instant application, as stated earlier, the purported prayers and grounds that appear in the Notice of Motion may be taken up in an appeal. That being the position of the law, then this application cannot stand. That is not all. Even if we were to consider this application under our appellate jurisdiction, there still is another hurdle to be overcome. In their addresses to us both counsel did admit that there were no procedural irregularities in the proceedings before the High Court, Commercial Division. It is now settled that a party cannot take up an appeal against a preliminary or interlocutory decision unless such decision has the effect of finally determining a suit (Act 25 of 2002). 6

I .. In the instant matter, it is not controverted that Bukuku J'S Ruling which is the subject matter of this application, is dated 19 March, 2013 . . Thereafter the proceedings were adjourned to 27 May 2013. However, the applicant decided to lodge this application on 23 April 2013, that is, even before the final determination of the matter pending in the Commercial Division of the High Court. That was contrary to the provisions of the law (Act 25 of 2002). All the above considered, we firmly hold that this application for revision is prematurely before the Court. Therefore we uphold the preliminary objections and dismiss the application. Each party to bear its costs of this application. DATED at ARUSHA this 18 th day of March, 2014. S.J. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. M.A. MALEWO DEPUTY REGISTRAR COURT OF APPEAL 7