Robert Marko Naibala and Another vs Sabina Paulo Naibala (Arusha Civil Application No. 11 (b) of 2012) [2014] TZCA 2275 (6 March 2014)

\IN TH cOIJRT OF APALTZANIA ATDARESSALAAf1 ARUSHA CIVILAPPLICATION NO. 11(b) OF 2C12 ROBERT MARKO NAIBALA1 FLOR.A PiiLJLO Lii KUI4A1 J............................................ APPLICANTS VERSUS SABINA PAULO NAIBALA ............................................... I.ESPONDENT (Application for Revision of Proceedings and Orders of the High Court of Tanzania at Arusha) (Sambo]) Dated 24th September, 2012 and 5th day of October2012 in Civil Case No. 34 of 2010 RULING OFTHE COURT 5th & 7 th March, 2014 BWANA J . ). A.: By Notice of motion made under Section 4(3) of the Appellate Jurisdiction Act, Cap 141(Cap 141) the applicants moved this Court to examine and revise the proceedings before the High Court of Tanzania at Arusha and subsequently issue appropriate orders and directions to establish the propriety, consistency, rationality and credibility of the procedure adopted by the said High Court in the conduct of proceedings in Clvi! Case No 34 of 2010.

Thëiai grounds - of tontenUonre that the triai: - court adOpted strange and illegal procedure on 24th September, 2012 by receiving into the proceedings a secret report from one Amani Lekisalie Lukumai who was neither a party to the proceedings nor called as a witness. Further, it is the applicants' averment that they (or their advocate) were not involved/did not participate in the said proceed in gs/proced u re of receiving such secret report, thus denying them of the right to be heard, a fundañiental right. Again, it is the applicants' averment that the procedure adopted by the High Court on 5 th October, 2012 was strange and improper by deciding to fix hearing of oral evidence in Civil Case No. 34/2010 despite being aware and reminded by counsel for the applicants of the existence of a pending appeal in this Court (the Court of Appeal of Tanzania) emanating from High Court Matrimonial Cause No. 2 of 2009 which conclusively was decided in favour of the 2nd applicant. The affidavits of Robert Marko Naibala (first applicant) and Boniface Joseph, learned counsel for the applicants, were attached in support of the notice of motion. The said 2

affidavits clarify furtier as so what s meant by 'strange and ilIegl" and "strange and improper" procedure. - -is A notice of preliminary objection was, however, filed by Mr. Alute Mughwai, learned counsel for the respondent, raising three points of law , as follows:- • The application for revision does not (sic) lie because the proceedings and orders sought to be revised were interlocutory and did not finally determine the suit, Civil Case no. 34 of 2010 that is still pending before the High Court of Tanzania at Arusha. • The Notice of Motion does not specify any specific order that is prayed for by the applicants. • The affidavits in support of the Notice of Motion are incurably defective since they contain defective jurats of attestation. - Both counsel addressed us on the three points of objection. Given the current state of decisions of - this Court on the issue of jurat of attestation, we advised counsel not to labour too much on the issue as there are currently two conflicting positions taken by members of the Court. We 3

• toughte should ho. add cofysionon thattime - when the dust is settled., We must further note at this stage that we did bring, suo motu to the attention of counsel, the long settled practice of this Court that a party who raises an application for revision must attach copies of the impugned order to be revised (See: Benedict Mabalanganya vs Romwald Sange, Civil Application No 1 of 2002 (unreported). The logic behind this long established practice is that the court cannot revise an order or proceedings which is not before it or which it has not seen. In the instant application there are allegations that the two orders (of 24 September and 5th October,

2010. were strange and illegal or strange and improper. The Court has however, been denied the opportunity and thus to form its Opinion as to whether the two orders are strange and illegal or strange and improper - as avered by the applicants and controverted by the respondent. The purpose of revision, is to correct errors apparent on the record and enable the Court to determine whether such errors have caused injustice to the applicant. Where the application for revision is lodged by a party, it is the responsibility of the said party to take all the necessary measures including 4 I -:4

attaching to the record the impugned order and to cfIect service of copies of the same to the adverse party within a prescribed period. Rule 65(4) and (5) provide thus:- - "R. 65(4) Where the revision is initiated by a party, the party seeking the revision shall lodge the application within sixty (60) days from the date of the decision sought to be revised. (5) The notice of motion and affidavits shall be served on the respondent within fourteen (14) days from the date of filing. The party fifing the notice shall file proof of service with the Court' In the instant application, as started earlier, no proceedings or order that has been attached. This was, in our settled minds, a fatal omission. This Court would not consider something which it is not before it. Accordingly, we strongly believe that. this application for revision is incompetent for want of copies of the impugned orders emanating from Civil Case No. 34 of 2010. Being incompetent, it should be struck out. 5

-That 4 is ncta11 The other point raised in the preliminaryobjection is that the orders sought to be revised were interlocutory and as the law now is, parties may not appeal (or take steps in that direction such as filing am application of this kind) against interlocutory orders or rulings. The two orders sought to be revised arise from civil case No. 34 of 2010. It is not in dispute that the said suit is still pending before the High Court. Section 5 (2) (d) of The Appellate Jurisdiction Act, Cap 141 as amended by the Written Laws (Misc. Amendments) Act No. 25 of 2002 provides thus:- No appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision or Order of the Hiih Court unless such dedsion or Order has the effect of finally determining the. ... suit... "(emphasis provided). (See also:• SGS Society General de Surveillance SA vs VIP Engineering and Marketing Ltd, (2004) TLR 135,141) As stated above the suit from which this application emanates, is still pending in court Mr. Bonifas, counsel, made a spirited attempt to convince us that application before the Court touches on a new and fundamental avenues in the law as

t is intended to correct the misapplication" of he aw particu1a ly where his clients were• denied their fundamentaF righ by. the court receiving a secret report without the applicants being accorded an opportunity to see and cross examine on it. He is of the view that for such gross irregularities, the Court can invoke its revisional jurisdiction and call for the record, under section 4(3) of Cap 141. He relies on the decision of this Court in Miroslov Katic vs Ivan Makobrad (1999) TLR 470 to support his views. With due respect to learned counsel, it is our firm stand that what he is trying to impress upon us is not the way forward, to put it lightly. In addition to what we already stated above that the orders and proceedings being impugned were not availed to us, following the enactment of Act 25 of 2005, the law on the issue has since been settled. An interlocutory order is un appealable, unless such order brings the suit to its finality. That was not the case here as Civil Case No 34 of 2010 is still pending before the High Court. Therefore, this application was prematurely brought before this Court. The principle of law advanced in the Miroslav Case (supra, page 477) has since been over taken by events, following the 7

enactment of Act 25 of 2002 (See also Tanzni Motor Services v Mehal Singh. Civil Appeal No. 115 of 2005, unreported). The other issue that we would like to draw our attention to is what may be said to be moving the court by citing a wrong provision of the law. The applicants moved the Court citing section 4(3) of Cap 141. When the issue was raised by the Court, Mr. Bonifas was of the view that section 4(3) was sufficiently invoked. There was, therefore no need to cite Rule 65 of the Court of Appeal Rules, 2009 (the Rules). It is suffice to state here that section 4(3) is the empowering provision of the law but Rule 65 is the appropriate provision under which the Court ought to be moved in applications of this kind (See: Juma Mhina vs Fancis Kisampa, Civil Application No 1 of 2011 (unreported). What are the consequences, then, of citing a wrong provision of the law. There is no dearth of decisions of this Court on the subject. They all irresistibly point to the settled principle of law that wrong citation of a notice of motion is defective and renders the application incompetent as the application is totally misconceived (Juma Mhina, case, supra). An incompetent application amounts to no application (See: Leons Silayo Ngalai vs Alfred Salakana, Civil Appeal•

4 No 8;of 1996, Ghat. Mathus&a Matiko Maribo, Civil Application io Gof 2006, Edward Bwachav Au, Civil Application No 128 of 2006 - unreported). It should, therefore, be struck out. All the foregoing considered, we are of the firm view that this application for revision is incompetently before the Court. Accordingly, it is struck out with costs. DATED at ARUSHA this 6th day of March, 2014. S. J. BWANA JUSTICE OF APPEAL W.S. MAN DIA JUSTICE OF APPEAL K. K. ORIYO II IlT A I1 In A I Ic