Civil Reference No. 7 of 2004
The applicants, SGS Societe Generale de Surveillance SA and SGS Tanzania Superintendance Company, were aggrieved by the Court of Appeal's decision of 10th February 2015 in Civil Revision No. 5 of 2011. On 18th February 2015 they filed a Notice of Motion seeking review of that decision, primarily on the ground that it contained a manifest error on the face of the record resulting in a miscarriage of justice. The application was supported by an affidavit and jointly prosecuted by several counsel for the applicants. The 1st respondent, VIP Engineering and Marketing Limited, opposed the application and, on 3rd March 2015, filed a Notice of Preliminary Objection challenging its competence on four grounds: (1) non-compliance with Rule 66(2) of the Court of Appeal Rules, 2009, which requires a review application to be instituted in the same mode as a revision, allegedly necessitating attachment of the Court's proceedings; (2) absence of a corporate resolution authorising the applicants' advocates to institute and prosecute the application, contrary to Rule 30(3) of the Rules; (3) the principle that litigation must come to an end (lites finiri oportet); and (4) that the application constituted an abuse of court process given a history of multiple applications since 2000. The 2nd respondent, Tanzania Revenue Authority, took no substantive position on the objections.
(1) Whether an application for review under Rule 66 of the Court of Appeal Rules, 2009 must be accompanied by the record of 'proceedings' in the same manner as an application for revision, and whether failure to attach such proceedings rendered the present application incompetent. (2) Whether Rule 30(3) of the Rules, requiring lodgement of a corporate resolution authorising representation, applies to advocates appearing for a corporate applicant, such that the absence of such a resolution deprived the applicants' advocates of locus standi. (3) Whether the principle that litigation must come to an end, and the allegation that the application was an abuse of court process, could be determined as pure points of law at the preliminary objection stage.
The 1st respondent, through Mr. Ngalo, argued that Rule 66(2) required a review application to follow the same procedural mode as a revision, and that since applicants in revisions must attach the proceedings of the lower court, applicants for review must similarly attach this Court's prior proceedings; failure to do so, as in cases such as Mabalanganya v Sanga and TTCL v Shaha, rendered the application incompetent. He further argued that Rule 30(3) required any person appearing for a corporation—including advocates—to lodge a resolution evidencing authority to appear, and since no such resolution was filed, the applicants' advocates lacked locus standi. On the remaining grounds, he contended that litigation must have finality and that the application, viewed against a long history of multiple applications by the applicants, was an abuse of process, relying on Leonard Mrosso v National Housing Corporation. The 2nd respondent's counsel made no submissions on the objections. The applicants, through Mr. Malimi and Mr. Vedasto, countered that a review application differs materially from a revision because the Court is already seized of the judgment or decision sought to be reviewed, obviating any need to attach 'proceedings'; they distinguished Mabalanganya and TTCL as concerning revisions from the High Court. They conceded Rule 66(2) requires review applications to follow the revision mode 'subject to necessary modifications,' arguing this permitted dispensing with attachment of proceedings in review matters. On Rule 30(3), they argued it must be read together with the whole of Rule 30 governing rights of audience, and that it applies only to non-advocate representatives of a corporation (such as directors, managers, or secretaries) and not to advocates, relying on Leonard Mrosso. On the remaining grounds, they submitted these were better addressed after a hearing on the merits and urged dismissal of all objections.
The Court dismissed all four preliminary objections and ordered that the application for review proceed to a hearing on its merits, with costs awarded against the 1st respondent. On the abuse of process and finality-of-litigation objections, the Court held that whether the application constituted an abuse of process could only be properly determined after a hearing on the merits, and thus these were not pure points of law suitable for determination as preliminary objections. On the locus standi objection, the Court held that (a) resolving whether a corporate resolution existed required evidence and could not be decided from the bar, and (b) following its earlier decision in Leonard Mrosso v National Housing Corporation, Rule 30(3) (formerly Rule 28(3) of the 1979 Rules) does not apply to advocates but rather to non-advocate corporate representatives such as directors, managers, or secretaries. On the principal objection concerning attachment of 'proceedings', the Court undertook a detailed statutory analysis, noting that the Court's revisional jurisdiction under section 4(3) of the Appellate Jurisdiction Act expressly refers to examining the 'record of proceedings', justifying the established practice of attaching proceedings in revision applications. By contrast, Rule 66(1), which confers the review jurisdiction, refers only to reviewing the Court's 'judgment or order', a narrower concept than 'proceedings' in its broad sense (which, per Black's Law Dictionary, encompasses the entire course of an action including pleadings, trial, and judgment). Since Rule 66(1) restricts review to the judgment or order itself, and the impugned Ruling was in fact attached to the Notice of Motion, the applicants had fully complied with the applicable procedural requirement. The authorities cited by the 1st respondent (Mabalanganya and TTCL) were revision cases and thus distinguishable and inapplicable to review applications.
The ruling clarifies the procedural distinction between applications for revision and applications for review before the Court of Appeal of Tanzania under the Court of Appeal Rules, 2009. It establishes that the requirement to attach 'proceedings', long entrenched in revision practice, is rooted in the specific statutory language of section 4(3) of the Appellate Jurisdiction Act referring to the 'record of proceedings', and does not automatically transfer to review applications under Rule 66(1), which is confined to reviewing a 'judgment or order'. The decision also reaffirms and applies the precedent in Leonard Mrosso v National Housing Corporation that the requirement under Rule 30(3) to lodge a corporate resolution of authority applies only to non-advocate corporate representatives and not to advocates instructed to appear for a corporate party. Additionally, it reinforces the principle that objections alleging abuse of court process, which require assessment of substantive conduct and history, are generally unsuitable for determination as preliminary points of law and should instead be addressed at a full merits hearing.
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