Civil Reference No. 7 of 2004
The applicant, Commissioner General (TRA), filed an application for review of the Court of Appeal's decision in Civil Appeal No. 146 of 2015 (dated 9 May 2016). The Notice of Motion invoked rule 66(1)(a) and (2) of the Tanzania Court of Appeal Rules, 2009 as the enabling provisions. The respondent, Pan African Energy (T) Ltd, raised a preliminary objection under rule 4(2) of the Rules, contending that the application had not been properly filed because it failed to cite section 4(4) of the Appellate Jurisdiction Act (as inserted by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016), which had come into force on 8 July 2016 (a Friday) — just five days before the application was lodged on 13 July 2016. The applicant conceded that section 4(4) had not been cited but argued that at the time of filing it was unaware of the new provision because it was not yet in the 'public domain', claiming awareness only arose in March 2017.
1. Whether the respondent's preliminary objection should be struck out for failing to cite the specific paragraph of rule 4(2) of the Rules under which it was brought. 2. If not struck out, whether the Court should overlook the applicant's failure to cite section 4(4) of the Appellate Jurisdiction Act as the enabling provision for the review application, given that the application was filed only five days after that provision came into force.
For the respondent (Mr Bhojani, Dr Ong'wamuhana, Mr Ishengoma): The application for review was defective for failing to cite section 4(4) of the Appellate Jurisdiction Act, the substantive provision empowering the Court to review its own decisions; rule 66(1)(a) and (2) were not the proper enabling provisions. Reliance was placed on China Henan International, Citibank Tanzania, Paskali Arusha and Omary Shabani. On the applicant's counter-challenge, counsel argued the whole of rule 4(2) (all three paragraphs) was applicable so there was no need to specify a paragraph, and that non-citation or wrong citation of an enabling provision is not fatal (citing Mbeya-Rukwa Autoparts and Standard Chartered Bank). Counsel also warned against allowing an ambush 'preliminary objection on the preliminary objection' and against setting a bad precedent by excusing non-citation of the amendment merely because it was recently published.
For the applicant (Mr Malata, Principal State Attorney): First, contended the respondent's own preliminary objection was improperly brought because it failed to specify the exact paragraph of rule 4(2) relied upon, relying on University of Dar es Salaam v. Silvester Cyprian and Mathias Ndyauki. Second, conceded that section 4(4) of the Act had not been cited and that it was in force when the application was filed, but argued the omission should be excused because the amendment (Act No. 3 of 2016) was gazetted on a Friday, followed by a weekend, and the applicant only became aware of the provision in March 2017; urged the Court to apply the reasoning in Zela Adam Abraham, where non-compliance with amended election petition rules was excused because the amendment was not widely known.
The Court held: (1) The respondent's failure to cite the specific paragraph of rule 4(2) of the Rules was not fatal to the preliminary objection. The Rules do not provide a specific provision for preliminary objections in applications (only rule 107(1), for appeals), so the general provisions of rule 4(2), particularly paragraph (a), apply; but consistent with the Court's own jurisprudence (Mbeya-Rukwa Autoparts, Standard Chartered Bank, University of Dar es Salaam, Samson Ng'walida, Haji Hassan Amour), failure to cite or wrongly citing an enabling procedural provision for a preliminary objection is inconsequential and does not warrant striking it out. The Court also disapproved of the applicant's attempt to raise a 'preliminary objection on the preliminary objection' without notice, terming it an ambush contrary to fair and open litigation. (2) On the substantive point, the Court held that section 4(4) of the Appellate Jurisdiction Act (introduced by Act No. 3 of 2016, in force from 8 July 2016) is the mandatory enabling statutory provision conferring the Court's power to review its own decisions, analogous to section 4(3) for revisions, and failure to cite it renders an application for review incompetent, following the Court's consistent treatment of section 4(3) in revision applications (Village Chairman of Igembya, Eliakimu Swai). The Court rejected the applicant's plea to excuse the omission on the ground that the amendment was not yet in the 'public domain'; it distinguished Zela Adam Abraham (which concerned non-compliance with a procedural rule in the more strictly construed context of election petitions) and noted the applicant, as an arm connected to the Attorney General's office (which instigates legislative amendments), failed to explain its inaction on 11 and 12 July 2016 (both working days) before filing on 13 July 2016, and could not credibly claim ignorance for eight months until March 2017. Accordingly, the application for review was incompetent for non-citation of section 4(4) of the Act and was struck out with costs.
The ruling clarifies and reaffirms two procedural principles in Tanzanian appellate practice: first, that failure to cite or mis-citation of a purely procedural provision (such as the specific paragraph of rule 4(2) of the Court of Appeal Rules) governing how a preliminary objection is raised is not fatal, consistent with the line of authority in Mbeya-Rukwa Autoparts and Standard Chartered Bank; second, and more significantly, that section 4(4) of the Appellate Jurisdiction Act (as introduced by Act No. 3 of 2016) is now the mandatory substantive enabling provision for applications for review before the Court of Appeal, analogous to section 4(3) governing revisions, and that non-citation of this substantive statutory provision is fatal and renders an application incompetent. The decision also disapproves of parties raising 'preliminary objections on preliminary objections' without notice as an ambush tactic inconsistent with fair litigation, and recommends legislative/regulatory tidying so that rule 66 of the Rules deals only with procedural aspects of review while substantive review power resides in section 4(4) of the Act.
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