IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: MUNUO, J.A., MSOFFE, J.A., And MASSATI, J.A.)

CIVIL APPLICATION NO. 35 OF 2011

1. OTTU ON BEHALF OF P.L. ASSENGA & 106 OTHERS

2. SUPPER AUCTION MART & COURT BROKERS
3. THE ROYALE ORCHARD INN LTD. …. APPLICANTS
4. AMIKAN VENTURE LIMITED

VERSUS
AMI TANZANIA LIMITED ……………………………………. …..RESPONDENT

(Application from the Ruling and Order of the

High Court of Tanzania at Dar es Salaam)

(Twaib, J.)

dated the 7th day of February, 2011

in
Civil Appeal No. 96 of 1998
----------------

RULING OF THE COURT

20 July & 5 August 2011

MASSATI, J.A.:

P.L. ASSENGA and 106 others were employed of the

Respondent. Sometime in 1995 they were declared redundant.

OTTU, their trade union took up the matter and instituted an inquiry

in the defunct Industrial Court of Tanzania, which dismissed it. On

appeal, the High Court, quashed the decision of the Industrial Court.

The Respondent’s intended appeal to this Court was struck out for

want of a decree. Meanwhile the Applicants filed an application for

 2

execution of the decree in the High Court by attachment and sale of

the Respondent’s properties. The second Applicant was appointed to

broker the sale. After some unsuccessful objection proceedings by

the Respondent, the third and fourth Applicants emerged as

purchasers of the Respondent’s properties in Baobab Village and

Upanga, respectively. The sale did not amuse the Respondent. It

applied to set aside the sale under O 21 r. 88 (1) of the Civil

Procedure Code (Cap 33 RE 2002). This time, Dr. Twaib J. granted

the application. The sale of the properties was set aside on account

of irregularities. The Applicants are aggrieved by that decision and

have filed a Notice of Motion in this Court to challenge it by way of

revision.

In this Court the Applicants are represented by Mr. Mbwambo,

Mr. Matunda and Mr. Kamara, Mr. Buberwa, and Mr. Sylvester Shayo

for the 1st, 2nd, 3rd and 4th Applicants in that order. On the other

hand, the Respondent is represented by Mr. Richard Rweyongeza,

Mr. Mpale Mpoki, and Mr. Walter Chipeta jointly.

 3

The Respondent does not think that the application deserves a

day in this Court. Counsel have therefore launched a number of

preliminary objections against it. There are two sets. The first set

contains three, while the second one, contains two objections. They

were argued by Mr. Mpoki and Mr. Chipeta respectively. They were

resisted by Mr. Matunda and Mr. Kamara, supported by Mr.

Mbwambo, Mr. Buberwa and Mr. Shayo.

The first objection was that the application was incompetent

because there was an appeal pending in this Court; or, alternatively

which is also the second objection, that at the time of lodging the

application, there was already an appeal pending in this Court. Mr.

Mpoki forcefully submitted that since the Applicants had already filed

a notice of appeal they could not file an application for revision,

because the two matters could not coexist. He cited the case of

TANZANIA TELECOMMUNICATIONS COMPANY LTD. V

TRITELECOMMUNICATIONS (T) LTD. (2006) 1 E.A. 393 to

augment his argument.

 4

Mr. Matunda, learned counsel argued in response that although

there was a notice of appeal filed in this Court, they had already

written a notice to withdraw it and filed it on 5/5/2011. So no appeal

is pending here.

After retiring in chambers for deliberations on the preliminary

objections, we called for the necessary records from our registry. It

is true that, there was a notice of withdrawal, which was filed on

5/5/2011, followed by a formal order of the Court dated 6/6/2011 to

mark the Notice of Appeal withdrawn. So with respect, there are no

parallel proceedings in this Court at the time of hearing the

application. We think this sufficiently and practically disposes of the

first two preliminary objections.

Mr. Mpoki’s third preliminary objection is that the Notice of

Motion cited a wrong provision of the law to move the Court. He

pointed out that Rule 65 of the Court of Appeal Rules 1999 does not

exist because they are no such rules, but even if the Applicants

meant to refer to the Court of Appeal Rules 2009, the cited Rule does

not confer jurisdiction on the Court but only prescribes the

 5

procedure. In his view, the correct provision to cite was section 4 (3)

of the Appellate Jurisdiction Act. He referred to us a number of

decisions of this Court to that effect including CITIBANK v TTCL &

4 OTHERS, Civil Application No. 64 of 2003 (unreported). He went

on to argue that even if Rule 48 of the Court of Appeal Rules, 2009

allowed citation of a specific rule, this was a defect in draftsmanship.

He strongly argued that from past case law, the mischief was that

there was no provision that directed parties to cite provisions of the

law that enabled courts to dispose of matters; this Court should now

use a purposive approach, and interprete rule 48 and read into the

words “provision of the law” instead of “the rule”.

Mr. Matunda’s reply rested on the wording of Rule 48 of the

Court of Appeal Rules, 2009 which requires the citation of the specific

rule for the relief sought. To cite other provisions would be

superfluous. On the citation of the Rules as “1999”, he said, this was

a mere slip of the pen and did not embarrass the Respondent. It

was meant to refer to the Court of Appeal Rules, 2009.

 6

In the course of arguing this point, counsel have referred to

Article 107A (2) (e) of the Constitution, and rule 2 of the Court of

Appeal Rules 2009. We are grateful to them, but we feel that it is

not necessary to refer to the Constitution in disposing the present

preliminary objection because as we shall demonstrate below the

issue can be resolved without resorting to it.

We first think that the reference to the Court of Appeal Rules,

“1999”, was a mere mistake in the name, but the description “the

Court of Appeal Rules, … preceding it sufficiently identifies the Rules

that it was meant to refer to. Mere false description does not make

the Rules non existent. We therefore agree with the Applicant that

the misdescription was harmless; and curable.

In defence of citing only Rule 65 in support of the application

for revision the Applicants have relied on Rule 48. The wording of

Rule 48 has come under heavy criticism from Mr. Mpoki.

Rule 48 (1) of the Court of Appeal Rules provides as follows:-

 7

“Subject to the provisions of subrule (3) and

to any other rule allowing informal
applications, every application to the Court
shall be by notice of motion supported by
affidavit. It shall cite the specific rule under
which it is brought and state the ground for
the relief sought.”

Rule 3 defines the term “Rules” to mean:-

“--- these Rules or any amendment thereto or

any other additional Rules made thereto, and
includes the Schedules appended to these
Rules.”

We appreciate Mr. Mpoki’s forceful argument that the mischief

that Rule 48 was intended to cure was the need to cite a provision of

the law that clothes a Court with jurisdiction over a particular matter

placed before it. As this Court observed in MBEYA-RUKWA

AUTOPARTS & TRANSPORT LTD. vs JESTINA GEORGE

MWAKYOMA Civil Appeal No. 45 of 2000 (unreported). Section 4

(3) of the Appellate Jurisdiction Act should have been cited in an

application for revision in NBC v SADRUDIN MEGHJI Civil

 8

Application No. 20 of 1997, now (1998) TLR 503. So ideally that

provision should also have been cited in the present application.

However, MEGHJI’S case was decided before the new Rules came

into force. The 1979 Rules had no provision equivalent to Rule 48

(1). So case law filled in the gap. But case law cannot amend

statute.

Mr. Mpoki, has convincingly argued that we adopt the

purposive construction of Rule 48 (1) to cure the mischief. However,

this rule cannot be used to change the language of a statute from

one thing to a significantly different thing which has its own name,

especially if the language has no evident ambiguity or uncertainty

about it, and secondly there is no presumption that if there were

many problems before the enactment of a statute, in an effort to

solve some of them, Parliament intended to solve all. (See Justice

G.P. SINGH PRINCIPLES OF STATUTORY INTERPRETATION (9th ed. P

120).

In the present case, by implication, Mr. Mpoki asked us to read

the words “Section of the law” into Rule 48 (1) so that it may reflect
 9

the relevant provision of a statute that confers jurisdiction on this

Court. Since in Rule 48 (1) the word “Rule” has been defined, we

cannot give it a different definition. Therefore short of an

amendment to the Rule we are unable to fault a party who files a

Notice of Motion by relying and citing only a specific rule in question,

although we encourage the practice of also citing the relevant

statutory enabling provisions whenever they are there. We say so

because in some cases, such as review, there are no enabling

provisions in the Appellate Jurisdiction Act, but there is a rule

prescribing how to institute it.

The next set of preliminary objections was argued by Mr.

Chipeta.

His first point was that the application for revision was

incompetent for containing uncertified/unsigned proceedings of the

High Court. His argument is anchored on case law. He argued that

it was held in MABALANGANYA v SANGA (2005) 1 E.A. 236 (CAT)

that, proceedings were important for any meaningful revision by the

Court. He went on to argue that since judicial proceedings were

 10

public documents for purposes of Sections 85 and 87 of the Evidence

Act, and as these are required to be certified under the Civil

Procedure Code, it was wrong to include uncertified/unsigned

proceedings in the application for revision. These, he argued, make

the application incompetent and amenable to be struck out.

Mr. Kamara tackled this objection, first, by submitting that Rule

65 does not require the proceedings to be attached to the Notice of

Motion. Only an affidavit is sufficient. Secondly, the proceedings are

there. The Respondent has not been prejudiced by their being

uncertified or unsigned; or complained that the proceedings are

incorrect. If that is so, then the omission to sign or certify was

curable in the light of the decision of this Court in SAMSON

NG’WALIDA v THE COMMISSIONER GENERAL TANZANIA

REVENUE AUTHORITY Civil Appeal No. 86 of 2008 (unreported).

There is no serious dispute that if there is to be any meaningful

revision of any proceedings, this Court must be seized of those

proceedings on which revision is being sought. MABALANGANYA’s

case said it all. But there is a difference between what the law
 11

demands and the practice. A person is said to have acted contrary to

the law who does what the law prohibits or circumvents its intention.

In an application for revision, Rule 65 (3) of the Court of Appeal

Rules, 2009 requires:-

“The notice of motion shall be supported by

one or more affidavits of the applicant or
some other person or persons having
knowledge of the facts”

In none of the remaining subrules is a party required to attach

proceedings, much as it may be to the applicant’s advantage to do

so. But in our view, that omission does not render the application

incompetent as Mr. Chipeta suggests. The uncertified proceedings

may be expunged and still leave the application intact.

We now visit the second leg of the argument advanced by Mr.

Kamara. In NG’WALIDA’s case there was a statutory requirement

for a copy of the judgment to be signed/and certified by all the

assessors of the Tax Appeals Tribunal. In that case one of the

assessors did not sign. This Court held that:-

 12

“The fact that it was the Registrar who

certified that the copy of the decision was a
true copy of the original did not occasion a
miscarriage of justice ….. It would have been
different if there was a complaint that the
copy of judgment in the record did not reflect
a true copy of the original.”

Of course, unlike in the NG’WALIDA case, in this case the

proceedings were neither signed nor certified, even by the registrar,

but the two situations are similar in that there is no complaint that

the attached record does not reflect a true copy of the original

record. So, like in NG’WALIDA’s case we cannot fault the Applicant

on this account.

The last preliminary objection argued by Mr. Chipeta is that the

record of revision is defective because it contains records that have

not been properly paid for, or at all. The learned counsel argued that

according to the Court Fees Rules, 1964, the Applicant should have

paid Shs. 23,200/= for the copy of the ruling, but the record reveals
 13

no exchequer receipt for such payment. This renders the

proceedings improper.

Mr. Kamara’s response was that as the objection admits of an

inquiry into evidence, it was not a preliminary objection, properly so

called. Even if it were so, this did not deprive the Court of its

jurisdiction to hear the application. He referred to us the case of

MELITA MEYASI vs THE NATIONAL BANK OF COMMERCE

(1977) TLR. n. 42.

We agree with Mr. Kamara that the question whether or not

the Applicant paid court fees, required some evidence to answer it

one way or the other. Indeed even the learned counsel for the

Respondent had to have –

“a close look of the record to discover that

there is no exchequer receipt for that amount
as “evidence of payment of the requisite fees”

It was held in MUKISA BISCUIT MANUFACTURING CO.

LTD. v WEST END DISTRIBUTORS LTD. (1969) E.A 696 no

 14

preliminary objection can be raised if some fact has to be

ascertained, or which if argued would not dispose of the suit.

In the present case, the question of whether or not court fees

had been paid for the proceedings is a question of fact that had to be

resolved by evidence, but even if found in favour of the Respondent,

it would not deprive this Court of its jurisdiction to hear the

application. As observed by the defunct East African Court of Appeal

in MELITA MEYASI v THE NATIONAL BANK OF COMMERCE

(1977) LRT n. 42 –

“I do not know of any authority for the

proposition that underpayment of fees
deprives a court of jurisdiction. A court can
always, if fees have been underpaid, require
payment of the proper amount”

Similarly, should this Court discover that no fee has been paid,

or underpaid, it can always require payment of the proper fees.

The Respondent had fronted the above preliminary objections

to challenge the competency of the application. We have

 15

endeavoured to demonstrate above that those objections have no

merit. We accordingly overrule them with costs.

Order accordingly.

DATED at DAR ES SALAAM this 29th day of July, 2011.

E.N. MUNUO
JUSTICE OF APPEAL

J.H. MSOFFE
JUSTICE OF APPEAL

S.A. MASSATI
JUSTICE OF APPEAL

I Certify that this is a true copy of the original.

(J.S. MGETTA)
DEPUTY REGISTRAR
COURT OF APPEAL