Ami Tanzania Limited vs Ottu on Behalf of P.l. Assenga & 109 Others (Civil Application No. 151 of 2013) [2013] TZCA 2447 (12 December 2013)
Judgment
I , I l / IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 151 OF 2013 (CORAM: LUANDA, l.A., MUSSA,l.A. And JUMA, l.A.} AMI TANZANIA LIMITED ••.•••••.••••••••••••••••••••••••••••••••••••••••••• APPLICANT VERSUS
- OlTU ON BEHALF OF P.L. ASSENGA & 106 OTHERS
- SUPER AUCTION MART & COURT BROKERS
- THE ROYALE ORCHARD INN LTD ....... RESPONDENTS
- AMIKAN VENTURE LIMITED (Application for review of the decision of civil Application No. 35 of 2011 contained in Application for Review No. 44 of 2012) (Luanda, Mussa and luma. lll.A.} dated 10 th day of July, 2013 in Civil Application No. 35/2011 and 44/2012 RULING OF LUANDA. l.A (DISSENTING} 25 th September & 19 th December, 2013 LUANDA, J.A.: I have read in draft the Ruling of my brother Mussa, J.A who is of the settled view that a portion of our Ruling in review is a subject to a further review. My brother Juma, J.A supports that standing. I have a different view. 1
In· order to appreciate what is involved, I find it appropriate to start by giving a detailed historical background. It is to this effect. Having successfully appealed in the High Court of Tanzania against the decision of the defunct Industrial Court of Tanzania, the 1 st respondents commenced execution process in the High Court by attaching and sale of four houses, the properties of the applicant. The application for execution was met with a number of objections and some steps to appeal to this Court were taken but they did not materialize. One of such step objection taken under section 38 (1) of the Civil Procedure Code Cap 33 R. E. 2002 (the CPC), which empowers the executing Court to determine on any question relating to execution, discharge or satisfaction of the decree whereby High Court (Rugazia, J.) did not acceded to, was that the decree sought to be executed was not capable of being executed beca_use it was merely a declatory one. At last, however, the three houses of the applicant were sold through public auction by the 2 nd respondent as ordered which houses were bought by 3 rd and 4 th respondents. The 3 rd and 4 th respondents had paid all the monies due. 2
;; After the sale of the houses, the applicant moved the executing Court, that is, the High Court by way of Chamber Summons supported by an affidavit to set aside the sale on the ground of irregularity as per Order 21, Rule 88 (1) of the CPC. The High Court (Twaib, J.) set aside the sale on the ground of irregularity in that the sale was conducted hurriedly and before the expiry of the statutory period of thirty days and further it was done on a public holiday (Boxing day - 26/12/2010). It is not irrelevant to mention at this juncture that the applicant also "raised" in the cause of hearing the application to set aside the sale because the High Court had no jurisdiction to execute the decree. However, the High Court (Twaib, J.) played safe, in that it declined to entertain that ground lest it overruled the decision of the same Court. It is the same Court (Rugazia, J.) which ordered the sale of the houses by public action. Since the order to set aside sale made under 0.21, Rule 88 (1) of the CPC is not appealable, hence the application for revision vide Civil Application No. 35 of 2011 lodged by the 1 st respondents. On 8/12/2012 the parties to that application argued their respective position orally after they had filed their written submissions. In a nutshell 3
the 1 st responden~ in that application contended that the High Court failed to consider the scope and application of the provisions of 0.21, Rule 88 (1) of the CPC. They were of the view that sale can only be set aside under the said Rule if it is shown there were material irregularity or fraud in publishing or conducting of the sale and further that the applicant must prove to the satisfaction of the Court that they had suffered substantial injury by reason of such irregularity or fraud. On the other hand, the applicant maintained that the High Court gave a reasoned decision. Again the applicant raised the issue of jurisdiction of the executing High Court that it had no such jurisdiction to execute the decree. After hearing the parties, the matter was adjourned to a date to be communicated for ruling. In the course of writing the Ruling, the Court did not address and consider the points raised during the hearing of the application. It _revised the High Court proceed_ings suo motu ~~· under section 4 (3) of the Appellate Jurisdiction Act, Cap 141 R. E. 2002 by nullifying all execution proceedings, proclamation of sale and the ruling and 4
Order of the High Court and ordered the transmission of the decree on appeal to the High Court (Labour Division) for execution. The Court was of the firm view that in terms of Rule 48 of the Labour Rules, 2007 the ordinary High Court had no jurisdiction to execute that decree. The 1 st respondents were not comfortable with that Ruling because they were not given opportunity to comment on that Rule. They accordingly filed an application for review vide Civil Application No. 44 of 2012. Their main complaint was that the Court did not give them opportunity to say something in connection with the applicability of Rule 48 of the Labour Rules, 2007 which amounted to condemning them unheard. The Court, after hearing the parties, agreed with the respondents. That decision alone and not the entire proceedings was vacated and the orders made thereof were quashed and set aside. Since, the parties had already submitted both orally and written, the Court proceeded in the same application to determine Civil Application No. 35 of 2011 on the strength of the aforesaid submissions of the parties. The Court said:- ''But the Court did not at all discuss and made decision in respect of the revisional proceedings 5
filed by the applicants. We find proper and appropriate under the circumstances to discuss and make a decision otherwise the said application namely Civil Application No. 35 of 2011 will be hanging in the air. Fortunately the parties had already made their submissions." (Emphasis supplied). The Court then revised the decision in Civil Application No. 35 of 2011 by quashing it, set aside the order made thereof and declare the sale to have been properly conducted and the 3 rd and 4 th respondents as bona fide purchasers for value. And corollary of that, we directed the High Court to finalize the process of sale as per the dictate of Rule 90 (1), 92, and 93 of Order 21 of the CPC. Turning to the question of jurisdiction of the executing High Court which was also raised in the course of hearing the application, we said as follows:- ''Finally is the question of lack of Jurisdiction of the appellate High Court to execute the decree. This should not detain us for the following reason. The High Court was moved under O.XXL Rule 88 (1) of 6
the CPC to consider the setting aside the sale on the ground of irregularity or fraud There is no . application on the record to consider the question of Jurisdiction of the executing Court It was no wonder the issue was not canvassed in the High Court and decision made. So, we find it is not proper to venture into a matter which was not properly raised" In making that decision, we had in mind s.38 of the CPC which requires all questions relating to execution of a decree, including the issue of jurisdiction of the executing Court be raised and be raised only in the Court executing the decree. I wish to make it clear that the powers to execute should not be treated on equal footing with the powers to adjudicate. The latter determines the right~ or otherwise of the parties; whereas the former deal specifically with enforcement of those rights already determined by the competent Court. And it is those "adjudicate powers" which can be raised at any time even at the appellate stage. It is for this reason that we declined the invitation to discuss and make a finding on the issue of jurisdiction of the executing Court. The issue of jurisdiction of the executing Court, which are objection proceedings in nature, ought to have 7
been raised in that Court executing the decree and not in this Court or any other Court as envisaged under section 38 (1) of the CPC which reads:- 38 (1) All questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. [Emphasis supplied]. Be that as it may, following that decision, the applicant filed this application for review under Rule 66 (1) (a) (b) and (c) of the Court of Appeal Rules, 2009 (the Rules) under certificate of urgency supported by an affidavit of Mr. Walter Chipeta one of the learned counsel of the applicant for review of the decision contained in Civil Application No. 44 of 2012 on two grounds as follows:- (1) The applicant herein was denied an opportunity to be heard when the Court suo motu revised its decision in Civil Application No. 35 of 2011 without · affording the applicants the right to be heard, which is a fundamental right. 8
(2) The decision of this Court is based on manifest error on the face of the record resulting in the miscarriage of Justice for:- (i) The Court in dealing with the review went beyond the statutory powers of review and sat as an appellate Court (ii)The Court in dealing with the application for review did not consider that the Court was not properly constituted to hear and determine the review in violation of the Court of Appeal Rules, namely Rule 66 (5) of the Court of Appeal Rules, 2009. (iii) The Court in dealing with the application ' before it exceeded its mandate on review and instead of correcting the decision of the Court it went on to issue directions to the executing Court, therefore denying and pre- empting the applicant in making any application for reason that the decision of the Court of Appeal is final and cannot be reversed by the High Court. 9
(iv) The Court abdicated its duties and misdirected itself by using written submissions meant for review as a basis of hearing an application for revision. (v) The Court erred in law in departing from the well established principle of stare decisis by departing without reasons from the judgment of the same Court which founded the criteria for Review, as laid down in the case of Blueline Enterprises Limited Versus East ,_- Africa Develo12_ment Bank {CAT) Civil Application No. 21 of 2012 CUnreported) an act which will lead to chaos and dilemma in the administration of justice for having two differing decisions of the same Court on the same issue. (vi) The Court wrongly dealt with the execution proceedings in the High Court instead of concentrating with the only disputed aspect of the decision in Civil Application No. 44 of 2012 which is the reference to Rule 48 of the Labour Court Rules, 2007 without affording the 10
respondents the right to be heard. Rules 48 of the Labour Court Rules, 2007 was not the basis for the Court's decision in Civil Application No. 44 of 2012 when it nullified all the execution proceedings, proclamation for sale therein including the rulings. (vii) The Court wrongly dealt with the High Court execution proceedings and restored the ruling of Rugazia, J. which were all nullified by this very court in its decision in Civil Application No. 44 of 2012 which had not been reversed, causing a serious conflict in its decisions. The application was met by a preliminary objection jointly raised by all the respondents to this effects:- ''In view of Rule 66 (7) of Tanzania Court of Appeal Rules, 2009 the decision of this Court in Civil Application No. 44 of 2013 dated 1 dh July, 2011 which revised the Court's decision in Civil 11
Application No,. 35 of 2011 is final and not amenable to further application for review. " Under normal circumstances, we would have heard the point of objection raised first and make a decision and thereafter embark on the merits of the application if we are satisfied that there is no merit to the point of objection raised. However, since the matter was filed under certificate of urgency, parties suggested and we agree to hear both i.e. the preliminary point and the application on merit without filing any written submissions. In this application, Mr. Richard Rweyongeza, Mr. Amour Hamisi and Mr. Agbon Rwegasira advocated for the applicant; Mr. Rosan Mbwambo learned counsel appeared for the 1 st respondent; Mr. Mpaya Kamara and Mr. Martin Matunda learned advocates appeared for the 2 nd respondent; Mr. Erasmus Buberwa learned counsel represented the 3 rd respondent and Mr. Sylvester Shayo advocated for the 4 th respondent. 12
Submitting on the preliminary objection raised on behalf of all the respondents, Mr. Kamara was very brief and focused. He said the decision which the applicant intends the Court to review emanate from a decision arising from a review of 10/7/2012. And as the conduct of the Court is governed by the Court of Appeal Rules, 2009 (the rules), in terms of rule 66 (7) of the Rules the decision handed on review whether right or wron/ is final and no further application for review is allowed to entertain the same matter. The word "shall" is used. It is Mr. Kamara's submission that it is mandatory. It is his contention that the Court in terms of Rule 66 (7) of the Rules, has no jurisdiction to entertain the matter. The Rules should be followed, otherwise the Court will set a bad precedent if it does not abide with its Rules. Elaborating, he said, it would appear the applicant considered the ) . Ruling to contain two limbs and intends to separate them. That is not ~ / . rf "fl1'/s possible as there is one decision arising from a review. If the Court will '-f__ ::t accept the application, then there would be no an end to litigation. He urged us to dismiss the application with costs. 13
Responding, Mr. Rweyongeza in the first place join hands with Mr. Kamara on the construction of Rule 66 (7) of the Rules. However, he said Mr. Kamara did not give any interpretation of Rule 66 (6) of the Rules. It is his submission that that portion of the decision of revision is subject of review. He contended that the Court exercised two powers of review and revision. That part of revision is reviewable by the Court without interfering '. with the first as the applicant was not heard. He prayed the point of objection be dismissed with costs as the same was raised prematurely. In reply Mr. Kamara reiterated his position that there is one decision contained in the application for review and not two. As regards Rule 66 (6) of the Rules, he said the Court had wide powers. It can make any such order it deems fit. Turning to the applicant to have not been heard, he said they were heard. Earlier on I have shown that after the Court had vacated its decision (not the entire proceedings) in Civil Application No. 35 of 2011 it proceeded in Civil Application No. 44 of 2012 to dispose of that revisional application on the str~ngth of the submissions both oral and written of the parties which are on the record. It did not ·use the written submissions 14
meant for review as a basis of it decision as portrayed by the applicant. In actual fact the decision in Civil Application No. 35 of 2011 form part and parcel of an application for review in No. 44 of 2012. The two cannot be separated as suggested by Mr. Rweyongeza. The court might be wrong to have done that but that is another issue all together. The truth is that the two applications are contained in one decision for the reason stated earlier on. And this combination as we shall see shortly hereinafter did not occasioned any miscarriage of justice. Indeed it is no wonder that even the notice of motion of the applicant referred to the decision contained in the application for review which reads thus:- "Application for review of the decision in Civil Application No. 35 of 2011 contained in Application for Review No. 44 of 2012 (Emphasis supplied)." According to the Oxford Advanced Learner's Dictionary, Fourth Edition the word "contain" has been defined as "have or hold within itself." So, the Ruling of Application No. 35 of 2011 as contained in application No. 44 of 2012 forms one decision which is inseparable. And that procedure of combining the two applications in one decision per se, in 15
this case did not occasion any injustice on the part of the applicant. This is because the applicant's main complaints namely that they were not heard and the issue of lack of jurisdiction on the part of the executing Court, were duly addressed and decision made after the parties had made their respective positions -oral and written. It is not true that the Court relied on other sources other than material facts available in Application No. 35 of 2011 to arrive at a decision. In the light of the foregoing therefore, it is my considered opinion that the present application is another application for review; it is a review on a review. The question now is whether this Court is clothed with jurisdiction to I 1 review its decision arising from a review. ; ...J Mr. Kamara said in terms of Rule 66 (7) of the Rules, the Court has no mandate to do so. Luckily Mr. Rweyongeza was at one with Mr. Kamara on the correct interpretation of Rule 66 (7) of the Rules that it bars a party to a review to make an application for another review. But he argued that the second limb of the Ruling is a subject of review. I am unable to go along with Mr. Rweyongeza for the reasons stated supra that you cannot 16
separate the two applications whose decision is contained in Application No. 44 of 2012 and be a subject of a further review. Having read the said Rule and the submissions of the parties, I entirely agree with both learned counsel that a decision arising from a review is final and a party to it is barred from filing another application for review. This is what Rule 66 (7) of the Rules is all about. The reason for it . is not far to seek. If such course is allowed by the Court then no litigation . will come to an end. This goes contrary to the public policy which demand ,--- .. ·- the need for litigation to come to an end - Interstei rei publicae ut finis litium. If the Court will keep on allowing parties to file a series of reviews, --- '· as in this case, then no litigation will come to an end. Indeed a review should be invoked sparingly and in deserving cases.
In Patrick Sanga V R Criminal Application No. 80 of 2011 (CAT) the Court stated:- ''In any properly functioning justice system, like ours, litigation must have finality and a judgment of 17 ,·
the final court in the land is final and its review should be an exception." In view of the foregoing therefore, I find the point of objection raised has merits that a party to a review cannot file another review on the same matter. To allow and entertain another review basing on the same parties and same subject matter goes contrary to Rule 66 (7) of the Rules which reads:-. "66 (7) Where an application for review of any judgment and other has been made and disposed ot a decision made by the Court on the review shall be final and no further application for review shall be entertained in the same matter. " That should not be allowed to happen as the Court will have no jurisdiction to entertain such application. To do so is to set a bad precedent as correctly observed by Mr. Kamara in not following the Rules which are ~,. fundamental in the administration of justice. 18
Assuming the point of objection has no merits, are the grounds raised in the application meritorious? When submitting orally, Mr. Rweyongeza raised and clarified two issues only. One, the issue of lack of jurisdiction on the part of the executing Court. Two, they said they were not heard. By necessary implication they had abandoned other grounds. Whatever the position, the two grounds they had clarified are repetition of what they had raised and argued in application No. 35 of 2011. I have shown very clearly in this Ruling how and where the issue of lack of jurisdiction of the executing court should be raised. I repeat, it ought to have been raised in the High Court and not in this Court as per the wording of section 38 (1) of the CPC. This is because the powers to execute are different from the powers to adjudicate. Whereas the powers to adjudicate can be raised at any stage even at the appellate stage the powers to execute which are objection proceedings in nature are specifically provided under section 38 (1) of the CPC and that they should be raised in the Court executing the decree and not to be raised as and when one wishes to do so and in any Court. It is clear then that this is not the proper forum to raise such issue. If the applicants were serious with 19
the question of jurisdiction of the executing Court common sense demanded that they ought to have raised it much earlier even before the filing of the application to set aside the sale. The way I see it, by challenging the manner in which the sale was conducted, shows very clearly that they had no complaint with the executing High Court otherwise they would have not kept mum not to have raised such issue for that long. And it is no wonder, from the record, the applicants paid two of 107 1s t respondent namely Eliache Lyakunda and Mustafa Ally by cash and cheques as a settlement of a decree in July, 2009 and November, 2009 respectively. To raise it now and at this stage is in my view an afterthought intending to deny the decree holders the fruits of the decree and frustrates the innocent buyers. Courts of law should be alert and careful not to accept and condone such evil plans of the such judgment debtors and alike. As regard the question that they were not heard, it is on record that the parties made both written and oral submissions. They were fully heard. The Court did not use the written submissions meant for review Civil Application No. 44 of 2012 to make a decision. The Court used both oral and written submission in Application No. 35 of 2011 as pointed out earlier 20
,: on contrary to the picture painted by the applicant. And since the High Court had already confirmed the sale and certificates issued, as contained in the affidavit of Mr. Mustapha Omar Nyumbamkali Managing Director of the 2 nd respondent whose his evidence was not challenged in anyway, the titles have already passed to the buyers - 3 rd and 4 th respondents. (See Peter Adam Mboweto v Abdallah Kulala and Another [1981] TLR 335.). I fail to understand what the applicant intends to achieve by filing a series of endless applications both in this Court and the High Court. This is an abuse of Court process. In sum, I sustain the point of objection raised. I dismiss the application with costs. It is so ordered. DAED at DAR ES SALAAM this 12 th day of December, 2013 B. M. LUANDA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A. MARUMA DEPUTY REGISTRAR COURT OF APPEAL 21