Thanki and Ors. v Ned Palace Hotel (Civil Appeal No 26 of 1971) [1972] EACA 25; (17 February 1972)

IN THE COURT OF APPEAL FOR EAST AFRICA

AT DAR ES SALAM

CIVIL APPEAL NO 26 OF 1971

 

BETWEEN

SHYAM THANKI & OTHERS ……………………………………………..APPELLANTS

AND

NED PALACE HOTEL (1964) LIMITED……………………………………RESPONDENTS

[Appeal from the decision and order of the high court of Tanzania at Dar es salaam (Biron,J.) dated 11^th June,1971,In Civil Case No 95  of 1970.]

 

17^th March, 1972.

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The following judgments were read:

JUDGMENT OF DUFFUS, P.

I have had the advantage of reading the draft judgment of Hustafa, J.A. The issue started as a claim by the respondents as landlords of premises known as the New Palace Hotel to recover possession and mesne profits from the two appellants.

On the 24^th March, 1971, the appellants applied for an adjournment of the hearing pending the hearing of an appeal. Both parties appeared and after some discussion Biron, J. before whom the application was heard, granted the adjournment on terms.

The Order stated

“ORDER.”    Hearing adjourned pending outcome of the appeal to the Court of Appeal for East Africa - In the mean­time without prejudice to the right of the parties the defendants to payoff towards the arrears of rent accrued, Shs.25, 000/- by the end of this month ­31^st March, 1971 and Shs.25, 000/- by the end of April, 1971 and thereafter to pay the current rent accruing until the determination of the suit. Also, if any instalment is in arrear by more than 10 (ten) days, the defendant to hand over immediate possession.

24/3/1971.”

"There has been some argument in the subsequent proceedings and before us as to whether this was a consent order or not.

This does not, however, really arise or matter both parties accepted this order as a binding order of the court and there has been no appeal or attempt to set it aside. The next step Bas that on the 14th May, 1971, a Mr. Remtulla, acting on behalf of the respondent company, filed an affidavit in which he averred that the terms of the order of the 24^th March, 1971 had not been carried out.  In his affidavit he applied for an order for possession of the premises and for the attachment of the appellants goods and chattels.

This affidavit came before Biron, J. on the 15^th May, 1971, who treated the affidavit as an application and ordered that an order for possession and also a warrant to attach the moveable property issue. Then on the 18^th May, 1971, the appellants filed a chamber application asking the court to rescind the order for possession and seizure of the goods and also to stay the court broker from acting on these orders.

This application was made under section 38 and/or section 78 and/or section 95 of the Civil Procedure Code and was supported by an affidavit by Mr. Peera of the appellant’s advocates.

It is to be noted that there was no attack or complaint against the order at possession made on the 24^th March, 1971, and that the only complaint then was that there had been no written application for the eviction order to issue. The appellants brought this application ex parte before the Chief Justice on the 18^th May, 1971.

He heard argument from Mr. Peera on that date and granted a stay of execution. The matter again came before the Chief Justice on the 21^st May, 1971, when both the appellants and the respondents were represented and after hearing arguments from both sides the Chief Justice rejected the application and I would here set out his com­paratively short Order

"ORDER. From what has been said by the learned counsel on both sides and upon reading the order of my brother, Biron, J. recorded on 24.3.1971, on the consent of the parties it now seems to me that the application for stay of the exe­cution against the defendant is without merit and unjustified. In making the order for stay of execution on 18.5.71 I had considered the question of owner­ship following the acquisition of the premises by the Government. The argu­ments of learned counsel clearly show that the issue of ownership is separate and distinct from the one concerning the claim of the plaintiff against the defendants. Since the defendants committed a breach of the consent order by de­fault of payment of the 2^nd instal­ment of Shs.25,000/- on 30.4.1971 Biron, J. was justified in ordering the execution to issue in pursuance of the consent order and as such give possession of the premises to the plaintiff. Quite clearly the defendants cannot have it both ways and I am not therefore inclined to entertain the application for re­view of Biron, J's order. Full reasons for my decision will be given later.’

This was on the 21^stMay, 1971, but in the meantime, on the 20^th May, 1971, the appellants' advocates filed yet another application, very similar to the first application. This application, however, asked that the order for possession only be

(a) Discharged or rescinded, or

(b) Be reviewed or set aside

and was, in this case, made not only under sections 38, 78 and 95 of the Civil Procedure Code but also under section 19(5) of the Rent Re­striction Act. In fact, section 19(5) of the Rent Restriction Act would appear to have no application to the facts in this case so that in effect this application was also made under the three sections of the Civil Procedure Code.

Although this application was filed a day before the hearing by the Chief Justice it does not appear to have been brought to his attention.

We then had the ruling of the Chief Justice on the 21^st May, 1971, (supra) and on the 11^th June, 1971, the matter was again brought before Biron, J.

The application before Biron, J. was apparently based on the application filed on the 20^th May, 1971, but basically both the application before the Chief Justice and that before Biron, J. were similar and sought to set aside the order for possession made by Biron, J. on the 15^th May, 1971. Both the appellant and the respondent were represented at the second hearing and in their submissions it also now appeared that the plaintiff/respondents had already re- entered into possession of the premises and were running the business since the 18^th May, 1971. Biron, J. refused to make the order. He said:-

“Although applicant is not undeserving of sympathy, as indicated I cannot interfere with the order of the Chief Justice rejecting the application for review. And as for a stay of execution, apart from the fact that the Chief Justice would also appear to have refused a stay, I find Mr. Tarimo’s submission that the Court can not now grant unassailable. I therefore must as I do reject the application in toto.”

This appeal is against the order of Biron, J. rejecting the application. The first issue on this appeal is whether the order of the Chief Justice dated 21^st May, 1971, was made without jurisdiction and therefore a nullity.  If that order was a nullity then clearly had already re-entered into possession of the premises and running the business since the 18^th May, 1971.Biron, J. refused to make the order.

He said “Although applicant is not un­deserving of sympathy, as indicated I cannot interfere with the order of the Chief Justice rejecting the appli­cation for review. And as for a stay of execution, apart from the fact that the Chief Justice would also appear to have refused a stay, I find Mr. Tarimo's submission that the Court cannot now grant a stay unassailable. I there­fore must as I do reject the application in toto.”

This appeal is against the order of Biron, J. rejecting the application. The first issue on this appeal is whether the order of the Chief Justice dated 21^st May, 1971, was made without juris­diction and therefore a nullity. If that order was a nullity then clearly this appeal must be allowed and the application referred back to Biron, J. for further hearing.

If, however, the order made by the Chief Justice was within his jurisdiction and therefore not a nullity, then the question is whether Biron, J. was correct in refusing to adjudicate on a matter already dealt with by the Chief Justice. Here the principles of res judicata as set out in section 9 of the Civil Procedure Code, would apply.

The first issue then is, had the Chief Justice jurisdiction to hear the chamber summons on the 18^th May, 1971? This application was made by the appellants under three separate sections of the Civil Procedure Code but in effect it was a simple application to set aside Biron, J's order of the 15^th May, 1971. The application could have been made under any of the three sections: that is sections 38, 78, and 95 of the Civil Pro­cedure Code but the appellant chose to make the application under all three sections.

There appears to be no dispute as to the Chief Justice's jurisdiction to act under section 38 or section 95 of the Civil Procedure Code but it is submitted that the Chief Justice had no jurisdiction to act under section 78, the review section of the Civil Procedure Code, as Biron, J., the judge who made the order for the writs to issue was available and should, under mandatory provisions of rule 5 of Order 42 have heard the application.  I will consider these three sections. The question arises whether if, in fact, the Chief Justice had no jurisdiction to act under section 78 he would still have had jurisdiction to act and hear the application under either or both of the other two sections.'

The relevant portion of section 38 of the Civil Procedure Code states

"(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, 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. "

'Court' here means the High Court and there appears to be no question but that the Chief Justice had jurisdiction, as a judge of the High Court, to act under this section.

This section does not require that the application be heard or dealt with by the individual judge who passed the decree or ordered the execution. The appellants' main ground for the recision of the order of possession was that the application for execution was not in writing in accord­ance with rule 10(2) of the Civil Procedure Code and accordingly they argued that the order for possession was a nullity.

The order of Biron, J. of the 24^th March, 1971 would in my view have been a "decree" within the meaning of section 3 of the Civil Procedure Code, but if not a decree then it was an "order” within the meaning of that section and by virtue of section 31. The provisions of the Code relating to the execution of decree are, as far as applicable, deemed to apply to the execution of orders.

This would therefore appear to be a proper application for deter­mination under section 38 of the Civil Procedure Code and in my view the court, presided over by the Chief Justice, had jurisdiction to hear the application.

Section 95 preserves "the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court". Here again I think that it is unquestionable but that the Chief Justice would have had jurisdiction to hear this application acting under his inherent powers as preserved by section 95 but, of course, it is another matter as to whether he would have granted any relief in the exercise of his inherent jurisdiction.

Then there is the reviewing section, section 78 here again it is not in dispute that the application for review should have been heard by Biron, J. by virtue of the express and mandatory provisions of Order XLII, rule 5(1) as he had made the order com­plained of and was still attached to the court and available to hear the application for review.

Mr. Lakha, for the respondents however pointed out that it was the appellants themselves who brought this application before the Chief Justice and caused him to adjudicate and determine the matter and further that his hearing of the application was completed without objection by either side.

He submitted that the hearing by the Chief Justice was only an irregularity in pro­cedure and was not a case of a complete lack of jurisdiction. He submitted that the High Court did have jurisdiction and that the Chief Justice could properly have heard the application if Biron, J. was not still attached to the court when the application as presented. This Court must presume that the appellants, or at any rate their legal advisers, knew of the provisions of rule 5 and it does seem to be most unfair and inequitable that the appellants should seek the ruling of the Chief Justice and then, when this ruling is unfavourable, turn around and endeavour to have it set aside and obtain another hearing on grounds which have been of their own making.

All the courts in Tanzania are created by statute and their jurisdiction is purely statutory. It is an elementary principle of law that parties cannot by consent give a court jurisdiction which it does not possess. Mr. Lakha, however, argues that in this case the High Court did have jurisdiction to hear the application under all three sections of the Civil Procedure Code relied on by the appellants and that the directions under O.XLII R. 5 (1) as to the hearing of the application to review would be only a procedural matter, a breach of which would be an irregularity cureable by consent or acquiescence of the parties and did not deprive the High Court of jurisdiction.

There is some authority in support of this proposition; thus, I would refer to the majority judgment of the Court of Appeal in England in the case of Shrager v. Basil Dighton Ltd. (1924) 1 K.B. 274, where it was held that an irregularity in the appointment of an Official Receiver to hear a High Court case did not render the trial a nullity but could be waived by the parties.

In delivering his judgment Bankes, L.J. said at p.281

"In my opinion the Rules of Court relating to the distribution of business, whether among the Official Referees or the judges of the Chancery Division, are rules of procedure intro­duced for obviously good reasons, but they do not touch the question of juris­diction at all.”

And the following short extract from the judgment of Younger, L.J. would seem appropriate to this case.

"The judgment was not in his favour, and he now, any imputation of bad faith being disclaimed, applies to have that judgment set aside on the ground only of an irregularity in the proceedings of which he was aware, I think, all through, but certainly long before they were con­cluded. In my judgment elementary justice requires that such an application should fail. "

There are other cases on this subject but I do not find it necessary to make a definite ruling on this aspect of the appeal as in my view the Chief Justice clearly had jurisdiction to hear this application under the provisions of the two other sections relied on by the appellants; that is section 38 and 95 of the Civil Procedure Code.

The provisions of section 38 are particularly appropriate to the facts complained of in this application. The Chief Justice had all had all the facts before him, including the fact that the Government had recently acquired these premises and as I have mentioned earlier there was the fact that the original order for possession made by Biron, J. on the 24^th March, 1971, was not questioned. There was also the fact that the affidavit previously referred to made by Mr. Remtulla on the 30^th May, 1971, did, on the face of it, appear to be an application in writing sufficient to comply with the require­ments of rule 2 of the Civil Procedure Rules.

Although it is not necessary to consider the correctness of the Chief Justice's ruling I must say, with respect, his order appears to have been entirely correct and equitable in the circumstances of the case. The fact that matters, however, is that the Chief Justice acted with juris­diction when he made his order of the 21^st May, 1971.

The main question on this appeal was, therefore, was whether Biron, J. was correct in refusing to make an order on the application before him. Mr. Dastur, for the appellants, referred to the application before Biron, J. as being the same application which came before the Chief Justice.

With respect, this is not altogether clear as the appli­cation before the Chief Justice would appear to have been that made on the 18^th May, 1971, whilst that before Biron, J. appeared to be that made on the 20^th May, 1971. In fact, both applications dealt with the same issue, the setting aside of the order for possession of the premises, and although there were some differences between the two applications and the affidavits in support, the issues in each application appeared to have been identical and in each case the appellants relied on the same three sections - sections 38,78 and 95 of the Civil Procedure Code.

The issue was finally deter­mined by the Chief Justice in his decision of the 21^stMay, 1971, and in my view the principles of res judicata apply. Very little argu­ment was raised before us on this question and the main question was whether the Chief Justice had jurisdiction to hear the first chamber application.

If he did, then I gather it was accepted that Biron, was correct and this appeal would be dismissed.

I agree that this is the correct position here. The issue had, in fact, already been determined  and dismissed by the learned Chief Justice and Biron, J. had no further jurisdiction to decide the same issue on the same facts. I therefore agree with the order made by Biron, J. and I would dismiss this appeal.

As Mustafa and Lutta, JJA also agree, the appeal is dismissed with costs to the respondents.

MUSTAFA, JA

The appeal was first argued before the court on 26.10.71 when judgment was reserved. When considering our judgment we felt we needed further argument on the following point

"Whether the application before Saidi C.J. and heard by him on 21.5.71 could be and/ or was dealt with as a question relating to the execution, discharge or satisfaction of a decree in terms of section 38 of the Civil Procedure Code and was thus within his competence and jurisdiction."

The Court then set the appeal down for further argument on 7.2.72 when the same counsel who had earlier appeared addressed us. We are indebted to them for their assistance.

The facts leading up to this appeal are briefly as follows. The respondents herein had filed an action against the appellants for possession of certain premises known as the Palace Hotel on the ground that the lease under which the appellants held the premises had expired, and for mesne profits.

The appellants claimed interalia that they had the right to continue in occupation as statutory tenants. The issue whether the premises in question were subject to the Rent Restriction Act was crucial, and the issue had been referred to this Court in Misc. Civil Appeal 16 of 1970.Before the decision of this Court was arrived at on 24^th March, 1971 the appellants applied to Biron, J. for an adjournment of the action, pending the decision of this Court as to whether the subject premises were caught by the provisions of the Rent Restriction Act.

The respondents raised no objection to the adjournment provided the appellants "pay the arrears of rent”. Biron, J. granted the adjournment but also ordered the appellants to payoff the "arrears of rent" by instalments of Shs. 25,000/­at the end of March and at the end of April, and "if any instalment is in arrear by more than ten days, the defendant (i.e. the appellants) to hand over immediate possession".

This was not a consent order. It would seem Biron; J’s order for adjournment must have been made under Order 17 rule 1 of the Civil Procedure Rules. It seems to me that when an order granting an adjournment is made, the Court can only grant to the other party costs of and occasioned by the adjournment and cannot, as was done here, unless by consent, on default pass a decree for possession without taking evidence. It is perhaps doubtful if tile order of Biron, J. on 24.3.71 was made with jurisdiction, but as it was not appealed, I will not pursue the matter.

The appellants paid the sum of Shs. 25,000/- due at the end of March. On 13.5.71 a director of the respondents filed an affidavit deponing that the appellants had failed to pay the sum of Shs. 25,000/- due at the end of April and prayed for an eviction order to issue and for possession of the premises. On 15.5.71 Biron, J. made an exparte order granting the prayers of the respondents. On 18.5.71 the appellants filed an application to rescind Biron, J's order of 15.5.71.The application came before Saidi C.J. On 21.5.71 the application, was argued by counsel for both the parties before Saidi C.J.

The appellants had filed an affidavit stating (1) that there was an error in procedure as there3as there was no written application for execution and it was not in proper form and (2) that by virtue of the Acquisition of Buildings Act No. 13 of 1971 the suit premises were vested in the Registrar of Buildings on or about 23.4.71 and that they had paid the rent for April to the said Registrar of Buildings in terms of the said Act.

Saidi C.J. who was under the impression that the adjournment order of Biron, J. of 24.3.71 was a consent order declined “to entertain the application for review of Biron, J's order" of 15.5.71.

On 11.6.71 the appellants renewed their application for rescission of the order of 15.5.71 before Biron, J.. Biron, J rejected the application on the ground that he could not interfere with the order of Saidi C.J. who had already rejected the said application. From the refusal of Biron, J. the appellants appeal to this Court.

The main ground of appeal is that Biron, J. was wrong in refusing to review or rescind or set aside his own order of 15.5.71 on the ground that he could not interfere with the order of Saidi C.J. of 21.5.71. Mr. Dastur for the appellants has submitted that Saidi C.J.'s order of 21.5.71 was made without jurisdiction and was null and void. Mr. Dastur admitted that the appellants themselves were wrong to have in the first place moved Saidi C.J. for a review of the order of Biron, J., and the proceedings before Saidi C.J. were incompetent and misconceived. He submitted that an application for review of an order must be heard by the same judge who had made the order.

He referred to Order 42 rule 1(1) and 5(1) of the Civil Procedure Rules which read:

"1. (1) any person considering himself aggrieved­

(a)  by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is allowed, and who, from the discovery of new and important matter or evidence and which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

 

5. (1)

 Where the judge or judges, or any of the jud68s, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for rovi0w is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges shall hear the application, and no other Judge or Judges of the Court shall hear the same."

Mr. Dastur submitted that the only judge who had jurisdiction to hear the application for review in the circumstances was Biron, J. as he was still attached to the Court, and was not precluded by absence or other cause for a period of 6 months next after the application from considering the order to which the application referred.

In the commentaries by Chitaley in relation to the corresponding provisions of the Indian Civil Procedure Code, it was stated that the application for review must be heard by the same judge who made the order.

Mr. Lakha for the respondents conceded that if the application was for review it had to be heard by the same judge who made the order. However, he submitted that the application for review had to be submitted to the Court which made the order, in this case the High Court. The High Court had jurisdiction to entertain the said application, only the wrong judge had heard it.

Since the Court had jurisdiction the erroneous action of such Court in the exercise of that jurisdiction was merely an irregularity in procedure and did not affect the jurisdiction of Saidi C.J. The order of Saidi C.J. was not therefore null and void. The appellants themselves had moved Saidi C.J. to hear the application, and having done so, cannot now be heard to complain.

Order of 24.3.71 and was therefore a matter relating to the execution, discharge or satisfaction of a decree and was within the provisions of section 38 of the Civil Procedure Code. Even if the order of 15.5.71 was irregular, and such irregularity amounted to a nullity, such a question would have to be determined by an executing court in terms of section 38 of the Civil Procedure Code; see for instance Bhan Kumar Chand and another v.Lachmi Kanta and others AIR (1941) Patna 566.

Mr. Dastur has submitted that the order of Biron, J. dated 24.3.71 was not an 0xecutable order or decree in terms of section 3 of the Civil Procedure Code and that the order of Biron, J. dated 15.5.71 could not relate to execution proceedings as execution proceedings pre-suppose a valid and executable order or decree.

As I have said the order of 24.3.71 was not challenged and must be considered as valid, and in my view that was an executable decree within the meaning of section 3 of the Civil Procedure Code.

It follows that the order of 15.5.71 related to execution proceedings and came within the provisions of section 38 of the Civil Procedure Code. In the circumstances Saidi C.J. had jurisdiction to make the order he did and Biron, J .was correct in refusing to interfere with the order of Saidi C.J.

I would dismiss the appeal with costs

LUTTA, J.A.

The facts out of which this appeal arises) the issues and the grounds of appeal are set out fully in the judgments prepared by the learned President and Mustafa, J.A. which I have had the advantage of reading and it is unnecessary for me to repeat them.

Mr. Peera (counsel for the applicant then) is shown on the record as having stated th2t he made his application to the High Court under sections 38, 78 and 95 of the Civil Procedure Code 1966.

Section 38 is concerned with the determination, by the court executing the decree, of questions arising between the parties to the suit in which the decree was passed, and relating to the execution, satisfaction or discharge of the decree.  Thus such questions must, firstly, relate to the execution of the decree and not to its validity, and secondly) must be decided in the execution proceedings.

Section 78 of the Civil Procedure Code 1966 provides as follows:­

"Subject as aforesaid any person considering himself aggrieved­

(a) By a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred or

(b) By a decree or order from which no appeal is allowed by this Code, may apply for a review of judgment to the court which passed the decree or made the order; and the court may make such order thereon as it thinks fit.

Order 42 rule 1 provides for a review of judgment to the court which passed the decree or made the order. Rule 5 of this Order provides that:-­

"Where the Judge or Judges, or anyone of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from consider­ing the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application and no other Judge or Judges of the court shall hear the same."

The combined effect of section 78 and Order 42 rules 1 and 5 is to give entitlement to an aggrieved person to apply to the judge, who passed the decree or made the order, for a review of judgment.

In my opinion the  word "Court” which appears in both section 78 and Order 42 rule 1 must mean “judge" as used in rule 5 Order 42.

In other words, an application for review under section 78 and Order 42 rule 1 is required to be made to the judge who passed the decree or made the order.

Biron, J., ordered, on 24^th March, 1971, the appellants to pay sh.25,000/- by the end of 31^st March, 1971 and shs.25,000/­ by the end of April 1971 and thereafter to pay the “current rent accruing until the determination of the suit" and also that if any instalment was in arrear by more than 10 days the appellant was to hand over immediate possession.

This was an order within the meaning of "order" under section 3 of the Civil Procedure Code

1966. Then on 15^th may, 1971 he ordered as follows:-­

"I. Leave for an eviction order granted;

2. Leave to attach all the moveable properties described in the affidavit is granted,

3. Order for possession be issued forthwith; and

4. Warrant to attach all the moveable properties be issued.

This was an order within the meaning of "order” under section 3 and was merely carrying into effect the order of 24^th march 1971 by Biron, J., as the appellants were in arrears by more than 10 days.

In other words, it was an enforcement order.

It was in execution of the order made on 24^th March, 1971 and by reason of section 31 of the Civil Procedure Code 1966, the provisions of the Civil Procedure Code relating to execution of decrees, would apply to it.

In their application of 18^th may, 1971 for a rescission of the order of 15^th may, 1971 the appellants stated, as per Mr. Peera 's affidavit of 18^th may and Pyarali Jaffer mawji' s affidavit of 20^th May 1971, interalia,that the (plaintiffs) respondents did not file a written application for the execution of the order of 24^th March, 1971 as required by Order 21 rule 10 of the Civil Procedure Rules and that the appellants had been accepted by the Registrar of Buildings (to whom the rent for April had been paid) as his tenants and that they (the appellants) were entitled to the occupation of the suit premises and therefore the respondents we e not entitled to possession thereof.

It seems to me that Mr. Peera's application of 18^th May, 1971 was against the procedure for the execution of the order and an objection to attachment of the property, or, rather, to the handing over of possession of the suit premises to the respondents, in which case these are matters which must be determined under section 38 rather than under section 78 of the Civil Procedure Code 1966.

In my view the learned Chief Justice was not barred from hearing the application of 18th May 1971_ he had jurisdiction by virtue of section 95 to make the order of 21st May, 1971.

I would accordingly dismiss the appeal with costs.