French and Hastings vs Euroconsult (Africa) B.V (Civil Appeal No. 27 (and 30) of 1992) [1998] TZHC 2248 (29 October 1998)

.. • THE UNITED REPUBLIC OF TANZANIA . IN TIB HIGH COURT OF TANZANIA AT DAR E.S SALAAM ~ ... ,.____,,..~ CIVIL APPEAL NO. 27 (AND ;/J) OF 1992 FRENCH & HASTINGS • ·O O • ♦ O • e • e e • • • • t • O e • • • e o • e versus EURO CONSULT (AF'RICA) B. V •· •••••••••••o•o••o• ---,,.-------- ' . . . ' APPLICANT RESPOfillENT This is an applicationtunder sction 5 of the Appellate Jurisdiction Act., 1979 and/or rule 43(9) and rule -44 of the TG-.Uzania Court of Appeal Rules 1979 for leave to appeal to. the . ' . Court of Appeal of Tanzania against th, .. decision of this Court (Mkwawa J) dated ;23.-3.1998. , • • • ,~ I ~ The Background of the matter is as ·follows: ·. ' At the cent!~ -of the dispute is a tenancy agreement between . . . ~ the parti'es. In: 1988'• BISff & PARTNERS· N.V. , grated a lease in •• ' ... t • ~ ~ r • respet ·of their"premises situated at Plot No. 12:;4 Msasani .. Peninsular to Frenc~ and Hastings for 5 years with effect from 1st January at us $1,000 plr·mnth •. At o.me st.ag BISH & PARTNERS ~ . ~ . . , ~ ·' .. transferred all its assets ·to BLSH INTERNATIONAL B.V. which in •■ 4 ~ , .• .; ~-. • turn changed its name to EUROCONSULT(AFRICA)B.V. fhe tenant, . . . FRENCH & HASTINGS paid rent according to.the terms of the.lease: 1' t ,.. ' . • •• ~ ~ • • ~ for a period of 18. months then st0pped. _ EUROCONSULT (AFRICA)B. V •, the Respondent, filed ·0ll application to the Dar es Salaam Regional Housing Tribunal, being ~pplication No. 392 of 1989 seeking an . . ord.~r of:viction of. the :tena.."lt as well as for payment of arrears of rent. The application was granted. Being·disatisfied, the present Applicant (FRENCH & HASTINGS) appealed to the Housing Appeal Tribunal in Housing Appeal No. 68 of 1991.. The appeal was dismiss_ed. French and Hastings furt!'ler . appealed to the High Court in Civil Appeal No.27 (and 30) of 1992-. Kyando, J. allowed ·the Appeal. The order of ejectmcnt was quashed and the order directing pa;yment of arrears of rent was set aside • ... ••• /2

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• 2 - Euroconsult (Africa) B.V. the present Respondent appealed to the Court of Appeal of Tanzania in Court of Appeal Civil . Appeal No. 20 of 1996. ·When the matter reached the Court of Appeal it transpired that none of the exhibits tendered in the Regional Housing Tribunal were on record• In view of the complexity of the legal issueS .involved in the case, the .Appellant Eu:· •consult (Africa)B. V. 1 was allowed to file a supplementary record. Even with the filing of the supplementary record, the record of appeal was still incomplete. The appeal was consequently struck out • EUROGONSULT (AFRICA) B.V., the current Respondent, applied to the High Court under sections 5(c) and 11 of the Appellate Jurisdiction Act, 1979 and Rules 3, 43 and 44 of the Tanzania Court of Appeal Rules 1979 for an order directing FRENCH & HASTINr.S, the current Applicant, to produce office copies of exhibits tendered in the Regional Housing Tribunal. On 23.3.98 Mkwawa J. granted the application. .FRENCH & HASTINGS, bei·ng dissatisfied, intend _to .Appeal to the Court of Appeal .of Tanzania against Mkwawa, J • 1 s decision dated 23.3.98. Hence this application. The application was heard by way of written submissions. The Applicant was represented by Mr4 P.M. Majithia 1 learned adv~cate while the Responde:p.t had the services of Mr. J.R. Marandu, learned advocate. .The gist of Mr. Majithia's submission indicate the main grounds of the intended appeal to the Court of Appeal to be as follows:

1. That··the High. Court being an appellate eourt and not a court of original ,jurisdiction in this matter had no jurisdiction to entertain an application for ob~aining exhibits;
2. That since the Notice of Appeal to the Court of .Appeal was struck out when the appeal was struck out, the ·High Court cannot derive power ·and jurisdiction to order exhibits under Rules 3 and 44 of . the Tanzania Court of Appeal Rules 1979. In his submission Mr. Marandu argued thnt the High Court had jurisdiction. to entertain tl1e Respondent's application and its decision ••••• /3 .I.

, was proper because according to the decision of the East African Court of Appeal in NOONI I-'ii\TENGO CO-OPER£-1.TIVE- UNION LTD V. ALI M:lHAI1ED OSf-tiN (1959) E.A. 577 the striking out of the record of appeal because it was deficient did.no~ hay,e -the' ·effe._ . f strildng out. the Notice of Appeal. rihis ubmission the dcsoh o/ the •'; Court of Appeal in ABASI MWINGAMNO V. KIGOMA M/'i.LIMA, Civil Appeal No 7 of 1987 (unreported) to the eff0ct that a notice of appeal forms part of the recor:d of aweal and t_hat when an appeal is struck out the notice of appeal is also struck out was given per incuriam the decision of the East African Court of Appeal in the NGONI MAT.SNGO case. In ISRL~EL SOLOMON KIVUYO V• WAYANI LANGOI AND NAISHOOKI WAYANI (1989) TLR 140, Honourable Nyalali, C.J. held that it is trite law that an interlocutory application for discovery or inspection cannot be entertained unless it relates to a legal action or step pending in court. In NGONI MAT~,po CO-OPERfiTIVE WtRKETING UNION Vo .ALI MOHAMED . .- .. : .... ~ .. ·•,. OSMN (1959) E.A. 577, the East African Court of Appeal held that the. ' passage in HARMilN SINGH BHOGAL V• JADWA KARSAN (1953) 20 EACii. 17 to the· effect that an appeal which h.:i.s been dismissed for failure to comply ., with the prescribed conditions cannot be restored by an application •' for an extension of time to file an appeal in accordance with the rules· ·· was abiter and not binding on the court; therefore it was open to tl+e court to permit the applicant to lodge an appeal if the applicant can show sufficient reason for an extension of time for that purpose. Windham, J.I ... at P• 580 said; 11 In the present case, therefore, as in BHOGAL's case, when the appeal came before this court it was incompetent for lack of the necessary decree, as in BHOGAL's case for lack of the necessary order. This court accordingly had no jurisdiction to entertain it, what which was before the court being arbotive, anu not a properly constituted appeal at all. What this court ought strictly to have done in 'each case was ·to strike out the appeal as being incompetent rather than to have g 1 dismissed• 1 it, for the latter phrase implies that cl <?.pmpetent appeal . _': ·., has been disposed of, while the former phrase implies/ that there was no proper appeal capable of being disposed of. But it is the substance of the matter tha.t must be looked at, rather than the words used; and •••• /5 ,#.;,,,,.•·'::. - • , .t • ..,,,.- .,_"f!·,.,,·1• -~ • ,,-.-, ... ,\,. .

since neither the appeal in BHOGhL'S case, nor the preoent appeal was capable of being dismissed, that is to say of being treated as something properly before the court, each must be treated as if it had been struck out, which in effect it was.. It seems to me that the reasoning in the passage from the judgment on the application in BI:!OGAI.'S case: which I have set out is based upon the inadvertenf assumption that what the court had previously dismissed was a competent appeal, so tho.ta subsequent attempt to restore it would 9 or might, be met · by a plea of HES JUDICiLTA. But since both there and in the present case, the earlier appeal was incompetent there was no lIBS before the court capable of becoming J1JDICATite The ruling in BHOGAL' s case should not, th-::refore, now be followed. It is, therefore, in my opinion, open to us to permit the appellant to lodge an appeal if he can show sufficient reason for an extension of time for th:::t purpose.n This decision indicates that when an appeal is struck out it can still be revived, in other words the notice of appeal is still operative. In Ji.B,:lsI M\HNG.MNO Vo KIGHOM[;. Mi11Ir1/,, Civil Appeal No.? of 1987 (unreported) Mustafa J .;i.. said "In the first place a notice of appeal forms part·of the record of appeal; when an appeal is struck out the notice of appeal is also struck out.ii The learned Justice of 11.ppeal went on to say; ern our view tho matter is clearly res judicata." The NGONI Wi.TENGO case was not cited in tho KIGOMA titLLIMA case. In th.:::.t case Mustafa, J ••lo said: "Mr. N2,~':l.Sala concedes that no appeal is new in existencB as that had been struck out by this court. Wl:D.t he is now applying is for extension of time to file ti1e appeal itself. He asserted, without any &uthority, that although the appeal had been struck out the notice of appeal he had filed still remained intact and he is 1101:1 applying for time to file the appeal a fresh.n Fr9m the two contradictory cases ~oted above the situation appears to be as follows: According to the NGONI MA.TENGO case an appeal struck out does not becorne res judicata and is capable of being revived. Accordingly Mkwawa,J· order of 23. 3. 98 ,•ould appear proper. However, according to the decision • 0 •• • /6

in KIGOHA tJ!j..LIMA I S case an appeal which is struck out becom-=s res judicata and cn never be revived. This ma){es Mkwawa J's order appear to have been made without jurisdiction as it was made when there was no case pending in Court. In BLUE S1'AR SERVICE S'I'A'J. 1 ION Vo JACKSON MUSSETI t/a MUSSET ENTERPRISES M2' Civil Application No. 11 of 1997 Honourable Nyalali, c.J. On the question whether it is proper to lodge a fresh application or stay of e1ecution after ciismissal of a similar earlier application had this to say: "I am $atisfied that where an aplication for stay of execution of decree of other •order is dismissed on the merits, it would be an abuse of cort procss to subsequently file a similar application in the Court. tiowever where the application is dismissed not on the merits as was in the present case, where it was dismissed for lack of the appropriate decree, it wold be proper to subsequently file a fresh application, subject of course to the requirements of the law of limitation. Such a course of action is not prohibited by the Tanza..."lia Court of Appeal Rules, 19~ 7 •. One wonder:, whether suoh a principle is applicable to an appeal wh,ich is t5truck out for failure to comply vii th the prescribed conditior..s. I a~ sqtisfied that these issues merit consideration by the Court of Appeal of Tanzania. Issues which merit consideration by the Court of Appeal in this application are: . 1. Whether the High Court had jurisdiction to entertain an application for obtaining exhibits, the High Court being an appellate court. 2. \·/hether the High Court had power to make the order i: made there being no legal action or step pending in court. I so certify and leave to appeal is granted~ ···- /··--·- L:=:;.:...,~ ····,-- f J !

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• 6 - Delivered in chambers in the presence of Mro Marandu, advocate for the Respondent in the absence of Mr. Maji thia, advoca.te for the Afplicant this 29th dai of October 1998. Majithia came later. JUDCIB r=- • ...- .... --...., ....... 29/10/98