Three Judges of the Court of Appeal have failed to reach a consensus judgment in the case involving payments of over 5bn/- to 110 former workers with AMI Tanzania Limited.
Instead, Justices Bernard Luanda, Kipenka Mussa and Ibrahim Juma have written separate rulings, giving two conflicting positions on the matter. The majority, however, ordered a fresh hearing of the matter, in particular, the application seeking to challenge the nullification of sale of AMI properties.
While Justice Mussa and Juma supported each other on the effect of the application for review lodge by AMI Tanzania Limited (applicant), Justice Luanda was of different opinion, saying a decision arising from a review is final and a party to it is barred from filing another application for review.
Justice Luanda warned that if the Court would keep on allowing parties to file a series of reviews there would not be an end to the litigation and by doing so was to set a bad precedent in not following the rules, which are fundamental in the administration of justice.
“I fail to understand what the applicant intends to achieve by filing a series of endless applications both in this Court and at the High Court. This is an abuse of court process,” he concluded and proceeded to dismiss with costs the application in question.
In the application, AMI Tanzania Limited (AMI) were seeking another review on a review decision given by the same panel, which declared as being properly carried out the sale of the houses owned by the company to recover the said decratal amount issued in favour of the workers (respondents).
The panel in its decision when determining Civil Application Number 44 of 2012, further affirmed the buyers of the houses in question being bonafide purchasers and thus directed the High Court to finalize the process, including issuing the certificate of sale in terms of the law under the Civil Procedure Code.
Houses that were sold are situated on Plot Number 6 and 7 at Upanga area, near the TPDC offices along Ali Hassan Mwinyi Road and another at Baobab Village, Masaki area.
The main thrust of the applicant’s complaint in their application was to the effect that when giving its decision on review, the panel invoked revision jurisdictions to quash a decision given by High Court Judge Fauz Twaib, who had set aside the transaction involving sale of the houses. In so doing, counsel for the applicants had contended, condemned them unheard.
In his decision, which was also supported by his brother Justice Juma, Justice Mussa found that the revision was resorted to without according the parties a hearing. The majority of the panel (Justice Mussa and Juma), therefore, vacated such part of the Court’s decision dated July 10, 2013, of nullifying the High Court’s decision, which had invalidated the sale of AMI properties and ordered a fresh hearing on the issue brought under Civil Application Number 35 of 2011.
But in his separate ruling, Justice Luanda said that the decision in Civil Application No. 35 of 2011 form part and parcel of an application for review in Civil Application No. 44 of 2012. According to him, the two applications could not be separated and such combination did not occasion any miscarriage of justice.
“This is because the applicant’s main complaint that they were not heard and the issue of jurisdiction on the part of the executing court were dully addressed and a decision made after the parties had made their respective positions-oral and written,” he said.
The justice said, therefore, that it was not true that the court relied on other sources than other material facts available in Civil Application No. 35 to arrive at such decision. Legal experts who could wish their names to be mentioned told the ‘Daily News’ that the decision of the Court to allow an application for review on a review decision opens a Pandora box and is totally against Rule 66 (7) of the Court of Appeal Rules.
The said Rule provides, “Where an application for review of any judgment and order has been made and disposed of, 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.”
By FAUSTINE KAPAMA, Tanzania Daily News
