Esso v Peoples Bank of Zanzibar and Another (Miscellaneous Civil Appeal No. 5 of 1999) [1999] TZHC 506 (21 September 1999)

SOUTHERN ESSO v. PEOPLES BANK OF ZANZIBAR AND ANOTHER 43 SOUTHERN ESSO v. PEOPLES BANK OF ZANZIBAR a AND ANOTHER HIGH COURT OF ZANZIBAR AT VUGA b (Garba Tumaka, DC. J.) MISCELLANEOUS CIVIL APPEAL No. 5 OF 1999 c (From Civil Case No. 4 of 1997 of the Regional Court, Vuga, Zanzibar) Civil Practice and Procedure - Applications - Application for revision - Circumstances under which such application may be granted. p Jurisdiction - Revision powers of the High Court - Applicant for revision raising substantial issues for determination which can come only by way of appeal — Whether revision powers may be exercised. After losing a civil case in the Regional court at Vuga, the applicant did not appeal but E decided to make an application to the High Court for revision of the matter. Counsel for the respondents raised a Preliminary Objection arguing that the remedy open to the applicant was an appeal to the High Court against the decision of the Regional court and not an application for revision. The High Court considered under what F circumstances it may exercise revision powers. Held: (i) While exercising jurisdiction under section 90 of the Civil Procedure Decree, it is not competent for the High Court to correct errors of fact however gross, or even G errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself; (a) The High Court ’ s powers of revision are only exercisable where no appeal lies; H (b) In the application for revision there are substantial issues for determination which can come only by way of appeal. Application dismissed I

44 TANZANIA LAW REPORTS [2001 J T.L.R. A Cases referred to: (1) Abdu Hassan v. Mohammed Ahmed [1989] T.L.R. 181 (2) Mwanahawa Muya v. Mwanaidi Yaro [1992] T.L.R. 78 B (3) Zabron Pangamaleza v. Joachim Kiwaraka [1989] T.L.R. 140 (4) Kulwa Daudi v. Rebeca Stephen [1985] T.L.R. 117 (5) Venka Tagiri v. Mindu Religious Endowment Board 76/ A. 67,1949 c APC 156 (6) DLF Housing and C. v. Sarup A 1971 SC 232 (7) Abbabhai v. Gulamnabi A. 1964 SC 1341 D (8) Khanna v. Dillon A 1964 SC 1497 (9) Shar v. Jag 54 A 466 Statutory provisions referred to: E (1) Magistrate ’ s Court Act Number 2 of 1984, section 44(1)(6) (2) Civil Procedure Decree, section 79(1) (3) Civil Procedure Code 1966, section (79)(1 ) F RULING (Dated 21 September 1999) G Garba Tumaka, DC.J.: This is an application arising from Civil Application Number 72 of 1999. The applicant, represented by Mr Ussi K. Haji, filed for a revision under section 90 of the Civil Procedure Decree against the judgement of the Regional court, Vuga, Zanzibar H Civil Case Number 4 of 1972 which judgement was given on the 25 January 1999 in the presence of the applicant and the respondents counsel Toufiq, state attorney. Mr Ussi in his chamber application filed a 17 paragraph affidavit 1 with his plaint annexing along some other documents. In it, Mr Ussi

SOUTHERN ESSOv. PEOPLES BANK OF ZANZIBAR AND ANOTHER 45 prayed the court to make orders setting aside the judgement of the a learned Regional Magistrates in the said civil case and declare for him that: (1) The mortgage created between the applicant and the first respondent D was a simple mortgage and hence the mortgage property cannot be sold without the courts approval. (2) The first respondent being a lending institution its decision to sell the applicants house in order to recover the loan was illegal. (3) Merging two of the applicants accounts one of which had no connection with the loan agreement was illegal. (4) Charging the applicant interest of 31% instead of 1% was improper. D (5) The costs of this application and proceedings in the Lower court be paid by the respondent and such further orders as the court may deem fit. Clearly, the applicant is dissatisfied with the judgement of the Regional E court and this is manifested more particularly by paragraphs 5 and 16, to wit, that the Regional Magistrate Court clearly erred in failing to understand the implications of sections 13 and 87 of transfer of Property Decree Chapter 150, Laws of Zanzibar and in so doing F gave a decision which was illegal and full of material irregularity; and that the court in its decision failed to address itself to the question of the first respondent being a lending institution as a result of which it gave decisions contrary to the requirements of justice. G Mr Toufiq has however sought to have this application dismissed by way of Preliminary Objection through an oral application. He began by referring to para B of the applicant ’ s plaint in his chamber application, which referred to the Regional Magistrate “ ex- H parte judgement ” . He described this as misleading and erroneous as both of them (Mr Ussi and himself) were in court when the judgement was given. He posited that, perusing the application, what the applicant ought to be asking for or applying for before this court is an appeal i and not a revision.

46 TANZANIA LAW REPORTS [2001] TLR. A He said the applicant was trying to change the Regional courts decision through the “ backdoor ” instead of appealing which is the proper procedure. He quoted section 90 thus: The High Court may call for the record of any case which has been decided g by any court subordinate to such High Court and in which no appeal lies thereto and if such subordinate court appears; (a) to have exercised a jurisdiction not vested in it by law; C (b) to have failed to exercise a jurisdiction so vested; (c) to have acted in the exercise of its jurisdiction “ illegally or with material irregularity, the High Court may make such order in the case as it thinks fit ” . D He contended that the courts power of revision is restricted to the situations covered in Para A, B and C and that the High Court do not have blanket powers. These powers, he said, are limited to keeping the subordinate courts within their jurisdiction. He referred to Sarkar E on Civil Procedure (8 ed 1992) at page 402 where it was stated that the High Court can only exercise its revisional jurisdiction on 3 grounds, which are as of paragraphs A, B and C of section 90. F He submitted also that any court having jurisdiction over a matter may decide it rightly or wrongly. In the present case, he argued the Regional Magistrate Court had jurisdiction to try the case and as far as the points canvassed G are concerned, the courts decision was final, as long as there was no appeal. There was no illegal exercise of jurisdiction or material irregularity in this case otherwise the applicant would have appealed. To buttress his contention, he cited 2 cases, Abdu Hassan v. H Mohammed Ahmed (1) at page 181 and also Mwanahawa Muya v. Mwanaidi Yaro (2) at page 78. The first, he said, held that the revisional powers of the High Court under the Civil Procedure Code are limited to cases where 1 no appeal lies and issues relating to the appropriate exercise of jurisdiction

SOUTHERN ESSO v. PEOPLES BANK OF ZANZIBAR AND ANOTHER 47 by subordinate courts and whether they have acted illegally or with a material irregularity while the second stated that the High Courts powers of revision are usually exercised when exercising its supervisory powers. He was emphatic that since there were serious issues specifically B canvassed by the applicant in his affidavit to be decided by the High Court, it should not and cannot come by way of revision but by way of appeal. c He maintained that where there is a maintainable appeal to the High Court, a revision is not maintainable and in support cited the case of Zabron Pangamaleza v. Joachim Kiwaraka (3) at page 147. He said there were appropriate instances where the revisional D powers of the High Court were applicable but this clearly was not one. He summed up by saying that there were provisions for revisional powers for the High Court where there appeared to be injustice and E no appeal lay. However, where there is no injustice and there are provisions for appeal, the revisional powers of the High Court cannot be exercised. He then urged the court to summarily dismiss the application. Mr Ussi in his reply vehemently opposed Mr Toufiq ’ s submissions F and prayed that the court heard his application. He said his application was made under the provisions of section 90 and “ any others that the court may deem fit ” , not specifically mentioned in his application. He also prayed the court to determine his application alongside the provisions of section 129 of this decree which confers inherent powers on the High Court to “ ... make such orders as may be necessary H for the ends of justice or to prevent the abuse of the process of the court ” . He was asking that the court interfere with a view to removing the injustice occasioned by the judgement of this case. Nothing, he i

48 TANZANIA LAW REPORTS [2001] TLR. A said, prevented the High Court from interfering with the decision of a subordinate court especially where injustice had been occasioned. His application originates from the main Suit Number 4 of 1997, in which, the applicant as plaintiff challenged the decision to sell B his house. He said the main issue was whether the respondent, a commercial institution, had a right to sell the house of the plaintiff/ mortgagor where the mortgagor failed to repay the loan sum, bearing in mind the mortgage deed created was a simple mortgage as defined c in the transfer of property, decree Chapter 150. The decision given by the Regional Magistrate on the type of mortgage deed created between the plaintiff and the bank was wrong, unjust and unfair and was given as a result of the wrong interpretation of the mortgage D deed. This interpretation was contrary to law, he said. The cases Mr Taufiq cited he said, had helped the applicant ’ s case, including Sarkar on Civil Procedure with reference to the revisional powers of the High Court where it was inter alia held that the High Court, while e exercising its revisional jurisdiction can infer the order passed on appeal by the appellate authority only on 3 grounds, i.e. (i) where the original or appellate authority exercise a jurisdiction not vested in it by law or F (ii) where the original or appellate authority exercises a jurisdiction so vested or (iii) where in following the procedure or passing the order, the original G or appellate authority acted illegally or with material irregularity ” . In these 3 instances he said, revisional power is exercisable and this application had been filed to move this court to rectify the illegality and injustice done by the Lower court. H He cited the case of Kulwa Daudi v. Rebeca Stephen (4) where it was held inter alia that “ The revisional powers of the High Court may be invoked by any party to a civil case or on a motion of the High Court to correct an error resulting in injustice committed by 1 a District Court or court of a Resident Magistrate .. That he said

SOUTHERN ESSO v. PEOPLES BANK OF ZANZIBAR AND ANOTHER 49 is the purpose of this motion. He contended that the court will only a be able to determine whether there was injustice or not when the main case was tried. He said the case of Mwanahawa Muya v. Mwanaidi Maro (2), cited by his learned colleague had no relevance to the present case. Similarly, he said the case of Zabron Pangamaleza b (3) cited by Mr Toufiq did not apply to the instant case. He concluded that whether injustice was occasioned or not in the Lower court, it is for the High Court to determine and therefore requested that the applicant be allowed to make his case. c He urged the court to dismiss the oral application for summary dismissal and order a full trial on its merits. In reply to the points raised by Mr Ussi, Mr Toufiq reiterated his submission that even if the Regional Magistrate erred in law in D determining the case, it cannot be rightly remedied by the High Court through its power of revision and that the use of the power of revision must be restricted to the circumstances provided by paragraph (a), (b) and (c) of section 90. E He stated that the holding most relevant is in the case of Mwanahawa Muya v. Mwanaidi Maro (2). “ It is wrong, indeed improper for the High Court to resort to its revisional p powers where (as in this case) there are specific issues calling for determination by the court ” . From the grounds filed by the applicant in support of his application, there are substantial issues to be determined and these cannot be determined by revision; he added. G I have gone through the submissions of both counsels and their cited authorities. I am of the opinion that the provisions of section 90 must be closely studied because in there lies the key to the true position of the law. Section 90 provides: H The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto and if such subordinate court appears;

50 TANZANIA LAW REPORTS [2001]T.L.R. A (a) to have exercised a jurisdiction not vested in it by law (b) to have failed to exercise a jurisdiction so vested (c) to have acted in the exercise of its jurisdiction illegally or with material B irregularity, the High Court may make such order in the case as it thinks fit. Mr Ussi in his application apart from relying on this provision also enjoined the court to exercise its inherent powers to “ ... make such orders as may be C necessary for the ends of justice or to prevent the abuse of the process of court ” along “ any others that the court may deem fit ” to cure the injustice engendered by the Lower courts decision. The pertinent question here is, under what circumstances can the High Court exercise its revisional powers? D I have gone through the case of Kulwa Daudi v. Rebecca Stephen (4) [1985] T.L.R. 117 Cited by the learned applicant, where it was held inter alia, that “ The revisional powers of the High Court may be invoked by any party to civil case or on a motion of the High Court to correct an error resulting in injustice committed by a District Court or court of a Resident Magistrate. ” F The application here was made under the provisions of section 44(1)(6) ofthe Magistrate ’ s Court Act Number 2,1984 which enabled it. Substituted service was in this case, to all intents and purpose ordered, in wrongful exercise of the courts discretionary power when the defendant was known to be absent and to compound it, ex-parte judgement was given against the defendant without calling on the plaintiff to prove her case. Revisional authority was appropriately exercised. H The case, Zabron Pangamaleza v. Joachim Kiwaraka and Amin (3) was also cited by counsel. The revisional power of the High Court had been sought to be invoked under section 79(1 )(c) of Civil Procedure Code in addition to the provisions of section 44(1) of the Magistrate Courts Act “ and any other enabling provision of law ” as in the instant case.

SOUTHERN ESSOv. PEOPLES BANK OF ZANZIBAR AND ANOTHER 51 It was held that section 79(1) which is a kin to section 90 of the A Civil Procedure Decree, applied only to issues of jurisdiction and thus could not be invoked but that section 44 of the Magistrate Court Act had served to broaden the scope of the powers of the High Court and ... “ goes beyond jurisdictional issues and covers all situations b where it appears that there has been an error material to the merits of the case involving injustice ” . Merits of the case, can in this instance be looked into by the High Court, where there appears that there has been an error material to the case involving injustice. In that c case, the appellant had challenged the impartiality of the presiding Magistrate and accordingly applied for the case to be tried by another Magistrate, and it was brushed aside. This admittedly, amounted to an error material to the merits of the case involving injustice to the appellant. The applicant herein is seeking for similar consideration and contended that the issue of injustice can only be determined by the High Court if the applicant is allowed to make his case. Similarly, reference was made to the case of Abdu Hassan v. E Mohammed Ahmed (1) at page 181. A case in which the plaintiff filed claiming over TZS. 280 000 for goods delivered on contract to the respondent in a District Court. The Resident Magistrate forwarded the record to the High Court, F questioning the trial magistrate pecuniary jurisdiction in the matter and recommending revision, if considered appropriate. This case, to me is very poignant in its exposition of the position of the law. The court held that the High Court has no power to interfere G in revision under this section (79)( 1) of the Civil Procedure Code, 1966, except in the three cases mentioned in paragraph (a), (b), and(c), which is a replica of section 90 (a), (b), and c of Civil Procedure Decree. Vindicating the above view, the court citea the Privy Council H case of Venka Tagiri v. Mindu Religious Endowment Board (5). That commented on section 115 of the Indian Civil Procedure Code

• the equivalent of section 90 of the Decree thus: I

52 TANZANIA LAW REPORTS [2001]T.L.R. A Section 155 applied only to cases in which no appeal lies and where the legislature has provided no right of appeal ... the section empowers the High Court to satisfy itself on three matters: (a) that the order of the subordinate court is within its jurisdiction B (b) that the case is one in which the court ought to exercise jurisdiction and (c) that in exercising jurisdiction, the court has not acted illegally, that C is, in breach of some provisions of law, or with material irregularity this is by committing some error of procedure in the course of the trial which is material, in that it may have affected the ultimate decision. If the High Court is satisfied on these three matters, it D has no power to interfere, because it differs however profoundly from the conclusions of the subordinate court on questions of fact or law. As far as section 90 is concerned, that is all. The High Courts revisional E powers herein are restricted; very circumscribed, and while discretionary, they are limited to the aforestated conditions enumerated therein. This position seems to me to be in consonance with learned Taufiq ’ s contention that the High Courts revisional powers are not blanket. F As he contended, they must be in strict compliance with the circumstances enumerated by the Decree. Gleaning further from the Privy Council, “ ... it has no power to interfere because it differs however profoundly from the conclusions of the subordinate court on questions of facts or law ” , it is clear that it is immaterial whether the courts decision is wrong or right as along as the adjudicating court has jurisdiction over the matter. H Considering the issue of error in judgement further, it has been held that “ merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion, would hardly justify interference in revision when no illegality or material irregularity was committed by the subordinate court “ ... Sarkar ” Law of Civil Procedure Volume I.

SOUTHERN ESSO v. PEOPLES BANK OE ZANZIBAR AND ANOTHER 53 Further illumination is brought on the issue thus “ the position A is firmly established that while exercising jurisdiction under section 115 (replicated verbation by section 90). It is not competent for the High Court to correct errors of fact however gross or even errors of law, unless the said errors have relation to the jurisdiction of the b court to try the dispute itself ’ . Mr Ussi talked of “ illegality ” or with material irregularity warranting the exercise of the High Courts revisional power but it has been held that these words “ ... do not cover either errors of fact or of law; they c do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated relate either to the breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not errors either of facts or of law, after D the prescribed formalities have been complied with. ” DLFHousing and C. v. Sarup A. (6). On this issue of error, I will like to conclude with the holding of the Supreme Court of India in the case of Abbabhai v. Gulamnabi E A. (7) that “ ... when a court has jurisdiction to decide a question, it has jurisdiction to decide it rightly or wrongly, both in fact and law. The mere fact that the decision is erroneous does not amount to illegal or irregular exercise of jurisdiction. ” F In the case of Mwanahawa Muya v. Mwanaidi Maro (2) at page 78 it was held that “ it is wrong, indeed, improper, for the High Court to resort to its revisional powers where (as it was in this case) there are specific issues calling for determination by the court ” . G I agree with Mr Toufiq, that going through Mr Ussi application, there are substantial issues for determination which can come only by way of appeal. The serious issue canvassed by Mr Ussi in his affidavit in support of his application cannot come by way of revision but by appeal. Section 90 appears succinct to me:

54 TANZANIA LAW REPORTS [2001JT.L.R. “ The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies ... ” It appears to me incontrovertible that the High Courts powers here are only exercisable where no appeal lies. In support of this is the decision in the case of Khanna v. Dillon, A. (8), where it was held that “ the High Court shall not, under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to the court subordinate thereto. The powers given are clearly limited to the keeping of the subordinate courts within the bounds of their jurisdiction ” . It would also appear to me that this revisional jurisdiction has been conferred on the High Court for the effective exercise of its superintending and visitorial powers over subordinate courts, which is purely discretionary. It is part of the general appellate jurisdiction of the High Court, though this jurisdiction is strictly restricted by section 90 which invests it. The power is very limited and advisedly not to be exercised except in the rarest of rare cases, however seriously erroneous, the jurisdictional error. As decided in the case of Shar v. Jag (9) “ the revisional power should not be exercised unless as a last resort for an aggrieved party ” . It has been held also that “ if a person fails to avail the remedy of appeal against the order of the rent controller (subordinate court in this instance) instructed, he cannot invoke the revisional jurisdiction of the High Court. This application is consequently dismissed and the applicant is advised to file his action through the appropriate procedure.