two different types, one of which was probably Mediterranean. If a
Mediterranean tongue was spoken by some of the ancient Sumerians
and by the proto-Eigyptians from whom it descended to the Automoli,
any connection between the languages would be explained and the few
Aramaic words in Borneo may be merely loan-words the result of
subsequent trading intercourse in Solomon's time.
In conclusion, the writer wishes again to suggest that we must
judge the actions of older empires by our own and when we consider
how English and Christianity have spread to races with hardly a drop
of English blood in their veins, we may expect moon goddess worship
and ancient dialects to be found amongst races not connected by blood
with the nations from which they learn their religion and language.
Also from the old world civilisation, adventurers and traders would
have made their way into the unknown even as Europeans have done
recently. Here in Kenya and Uganda on the borders of an old time
civilisation, we may well expect to find traces of its influence, and
when we consider the difficulties of mass migrations owing to desert
and drought we need not expect to find any vast influx of alien blood
amongst the indigenous savages, but only the vague memories of
religious teaching and language, which a few explorers and traders
bore southwards from their civilised home. The peculiar physique
tradition and language of the Masai-Nandi however point to an actual
influx of alien blood and the most likely source of which history tells
us is the Automoli of Herodotus, but even tEey were probably $ negro,
so that the strain of Mediterranean blood in the Masai-Nandi is only
small. Judging by the analogy of the local fauna and flora, we should
expect to find the human race in this area essentially African with a
few immigrant's from Eurasia. Physically this appears to be the
case and any theory of racial origins must be based on physical as well
as linguistic and traditional evidence.
To The Editor, B. A. & U. Nat. Hist. Society.
Dear Sir, —
I wonder if you will allow me to make a few comments on Mr.
Cardale Luck's paper on the "Origin of the Masai" and the authors he
quotes ; not with the idea of criticising its theme for I cannot pretend
to Mr. Luck's patience and erudition, but tq try and remove some
exaggerated and even erroneous ideas about the Nandi and so-called
Lumbwa.
I must give you my excuse for this request, viz. : — that I have
lived 16 years almost continually amongst the Kipsigis (Lumbwa) and
have been fond of wandering on foot in their Reserve and accepting
19
their hospitality. Having always liked and respected this people I
have reached a state of intimacy which few Europeans care to with
natives of East Africa and I myself would not except in the case of
the Nilotic tribes, who seem to differ from the other tribes in some
subtle way which on© can only "describe by saying that they seem
more gentlemanly.
I have not made a study, in the scientific sense, of the Kipsigis;
but I fancy I have considerable understanding of the mentality of the
people. It is now many years since I gave up the use of Swahili
entirely for I believ© the only way to obtain a real understanding of
any people is to speak their language; every day for years.
One seems to notice a tendency in many books on Native Customs
a tendency to approach them with a bias due to previous reading and
the desire to and expectation of finding certain customs and certain
meanings in their beliefs and customs. Frequently there are simple
explanations of names and customs, etc., which should not be entirely
neglected even though there may be abstruse and more exciting
possible origins. Asking questions as to customs, beliefs, etc. , especially
in a foreign and crudely spoken language is hardly reliable. To get
the nett results one must experience sympathetically the customs and
beliefs as they crop up spontaneously.
Tribal Names.
The two very similar tribes known to Europeans to-day as
Iiumbwa and Nandi were not so long ago a single tribe calling
themselves " Kipsigis " as a whole but called by the Masai
" Elumbwa ". The Masai on the other hand were and are still known
to the Kipsigis as " Ikwopek ". A little more than 100 years ago
perhaps, that is in the time of the great grandfathers of the present
old men, the whole tribe of Kipsigis moving Southwards across country
occupied by the Masai, probably the present Uasin Gishu country,
accidentally got split into two by a wedge of Uasin Gishu " (Masai)
living in the Kipchoriat (Nyando) valley. 'One section moved west-
wards to the north of that valley and the other crossing the head of
the valley found it occupied by Masai. They apparently halted first
at a hill, 10 miles along the present Lumbwa Kericho road, which
has retained the name of " Diluapsigis." " The hill of Kipsigis."
Finding the Masai in strong possession of the valley they proceeded
South and West ousting the Sirikwa and Kosopek (Kisii) who were in
possession. It was many years, before the Maasai were driven out of
* Page 169, Natural History Journal.
30
the Kipchoriat valley separating the two halves of the Kipsigis tribe
and when this finally occurred, the two sections had already become
somewhat differentiated, a difference which was perpetuated by the
difficult nature of the Kipchoriat gorge between them.
After the separation the Northern Kipsigis began to be called
' ' Chemngal(ek) ". The reason given by old men of the Kipsigis (whose
people have been in touch with the Nandi continually) is ready and
simple though of course it may not be correct. At the time of the
separation the elders of the section of the tribe which went North were
fond of standing up on the rocks and haranguing the people (talking
a lot literally) Kikocham kotelel en goinwek barak sikomwai ngalek
chechang]
Ngaliot (singular) = word.
Ngalek (plural) = words, news, talk, conversation.
It is very commonly u&ed of persons who have too much to say
or as we say colloquially " hot air." And it seems to have been
considered that the elders had " too much talk."
Corresponding to the Maasai word Blmegi the the Kipsigis apply
the word Lemek (sing Lemindet) only to uncircumcised tribes, i.e.,
all the Kavirondo tribes but not to the Kikuyu and Kisii.
Prom their name then and their present numerical superiority
it would seem that the Kipsigis (Lumbwa) are the main section of
the tribe. I would suggest that there is no more reason for calling
them Lumbwa than there is for calling the Maasai Ikwop, or the Jaluo
Lemek. Might we not then call them by their proper name of Kipsigis.
It would be very interesting if Mr. Luck could find a derivation fo*
the word. The root " Sigis " means, Kick, but is not thought by the
people to have anything to do with the proper name. If one asks why
they are called Kipsigis they will reply " Why is an Elephant called
an Elephant."
II. Sun worship.
It may interest Mr. Luck to know that Asis (ta)* has other names
which are only used in the sense of God and not as Asista is used for
the actual sun in the everyday sense. These names are " N'golo "
and " Chebtalil. " Their derivations I do not know (c.f. the Elephant
reply above).
Mr. Luck is correct in thinking that special woods and scented
ones at that were used in the sacred fire at the " Kapkorosit." Being
no botanist I can only give the Kipsigis names for them.
The generic name for all plants and woods used at ceremonies
is " Korosek." The one chiefly burnt at the Kapkorosit is (1)
* Pages 160-162, Natural Hiitory Journal.
21
Segejuwet (or Chegechewet), a plant about 6 ft. high with rather ft
climbing habit. It has bluish pink rosettes of flowers and strongly
scented leaves. The sacredness of cowduing seems a little doubtful,
for naturally amongst a pastoral people it is used for a great variety
of domestic purposes, as also is goat and sheep dung.
The quotation from Mr. Ward's article on the " Kapkorosit "
rather gives the idea that the festival is still celebrated. It is about
22 years or so since the last Kapkorosit (which used to be roughly
annual and held during any month but August) was held. The
occasion of its abandonment was the building of the military road
from Lumbwa Station to Kericho. Possibly the people thought it
was no use praying to God after that, for they say " we were scattered
and families separated."
As to the orgies and debaucheries! so often referred to by
Europeans, without, I think, sufficient evidence, I wish to say most
emphatically trat I have never been able to hear of them or find them
amongst the Kipsigis. At the Kapkorosit, for example, which I take
is one of the " high places " Mr. Luck refers to, cohabitation during
the day and night of the festival was strictly prohibited, man and wife
•3ould not sleep together.
To say that " practically unrestricted free love exists " amongst
the Kipsigis is most misleading. It is very difficult for Europeans to
believe that when men and girls before initiation live freely together
cohabitation is not the rule. It is nevertheless a fact that about 75%
of unmarried girls are virgins. Nearly every girl has her sweetheart
and sticks to him and more often than not is married to him after she
comes out of the six months initiation unless he happens to be too poor
and even then there are recognised ways of overcoming that
impediment.
Considering again the statement that " they take particular
trouble not to cover themselves before girls and unmarried women."*
It had already been stated in the same paper that it is the custom of
the men to go naked, i.e., it is natural to them (and their womenfolk)
and so the fact of nakedness is not felt by them as it is by people
accustomed to be clothed. Therefore to say that they take particular
trouble not to cover themselves is hardly appropriate. Eather does
it seem to them and to those familiar with them that they take
" particular trouble " to cover themselves before married women (all
grown-up women are ip«o facto married women except a few outcasts.
An example of the effect of point of view may be apropos. When
the Kipsigis see for example a picture advertising gramophones of
t Page 156, Natural History Journal.
* Page 156, Natural Hi$tory Journal.
22
men and women dancing they think it is indecent. If Victorian
women saw our present day dress and behaviour or some of our
illustrated papers what would they think of us, even though they are
of the same race ?
The Kipaigis-Nandi have faults enough without our exaggerating
them.
III. The Chemosit.
Amongst the Kipsigis one finds no belief that the Chemosit is 8
devil or spirit or god or man. The only reference to its being like a
man is that some say that at a distance it looks like a huge man
because it stands up on its hind legs. Even those who say it has only
one leg say that it has no arms and that its footprint is something
between that of an elephant and a rhino and insist very strongly that
it is only an animal. A few old men even say they have seen it at
night and give descriptions — very wild ones but all quite unlike man
or spirit, for they include fur, whiskers (" wawechik " = whiskers or
antenae of animals and insects only). The crutch of Hollis' book is
quite unknown here for they say how could an animal use a crutch.
A curious detail is that the urine of the Chemosit is said to be so evil
smelling that no man can stay near it. All the young men deny
having seen it or knowing what it is like, but love to tell children and
unsuspecting Europeans fancy tales of it.
The name Chemosit however omight not be said at night just as
in the case of the Chief Witch Doctor. At night it was given another
name, viz., " Gononet," of which I do not know the derivation.
Chemosit is a fairly common man's name and it is also used by
mothers to make their children obey, e.g., " If you don't eat your
food the Chemosit will come and eat you."
Iletnemie and Iletneya are quite unknown to the Kipsigis.
Ilet, the lightning, however, is universally and firmly believed to be
a huge birdlike animal.
Saturday, October 29, 2016
Full text of "Origin of the Maasai (Criticism of Cardale Luck's treatise)"
THE ORIGIN OF MAA SOCIETY
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General Information
Before starting to outline assumptions of the history of the MAA Society, we must actually explain who these people are, known as MAA. The Maasai still have much of their culture, customs, and tradition as they did thousands of years ago. The structure of age grouping in this society is still more or less intact, coupled by the fact that Maasai up to date maintain the stages of their lifestyles from that of childhood, initiation (warriorhood or motherhood), and finally elderhood. This is further explained later.
Truly, many groups of people speak the Maa language but it is necessary to analyze how and why these groups have come to split from each other. Generally, these groups talking the same language differ in one way or another by "SECTIONS" as follows:
Each SECTION lives in its own specific territory. Though one SECTION’s language and dresses are almost the same as those of another, there are slight differences. Their customs and cultures are always the same; therefore all SECTIONS can easily communicate with each other, thereby strengthening their brotherhood and unity.
Some of the obvious differences are based on the economic structures depended upon by each section. Among the nineteen sections mentioned earlier, only four (IL’ARUSA, IL’PARAKUYU, IL’PUSI-KINEJI (SAMBURU) AND IL’TIAMUS (NJEMPS)) are agro-pastoralists. The remaining fifteen depend entirely on livestock economy.
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Where did the MAA society originate?
Taking into account that the MAA society does not have a clear written history, it will be difficult to give precise answers to where they actually originated. However, according to the technical languages research (PHILOLOGY), the MAA language is HERMETIC and not one of the numerous BANTU-languages on the African continent.
The above shows that the founders of the MAA community originated from ASIA MINOR (MESOPOTAMIA- the area between TIGRIS and EUPHRATES Rivers in IRAQ).
The presumptions of the Maa people’s origin are based on early written works in which the word MAA frequently occurs. If this present MAA community is really the one being referred to and mentioned in those writings, the truth of that depends on individual’s conviction or belief since there is no concrete evidence available.
One example of such an early written work, where the name MAASAI is mentioned, can be found in the BIBLE. In the old testament, the first book of CHRONICLES – section 9 (1 chronicles: verses 10-13) it is written as follows:
“Of the priests: Jedai ‘ah, joeho ‘arib, Jachin and Azariah the son of Hilki, ‘ah, son of the Meshul’Iam, son of Zadok, son of Mera’ioth, son of Ahi’tub, the Chief Officer of the House of God; and Adai’ah, the son of Jero’ham, son of Pashhur, son of Malchi’jar and MAASAI, the son of Adiel, son of Jah’zerah, son of Mesh’ul lam, son of Meshil’ lemith, son of Immer; besides their Kinsmen, heads of their fathers houses, one thousand seven hundred and sixty, very able men for the work of the service of the House of God.”
Other writings that show the early existence of the Maasai community are those by HERODOTUS, the famous GREEK HISTORIAN who lived 500 years B.C. In his book, he mentions that in an area of ASIA MINOR (MESOPOTAMIA) he found “people known as MAASAI who braid their hair, haircut both two sides of their faces and during the battles they use skin shields”.
Setting the above aside, we can estimate the arrival time of the MAA on the African continent by counting the number of years taken between one age group and another of these people. A ca. 25 years period passes before a name of an age group changes to a new name for a new age group. There are seventeen known age groups up to the present time:
Probably, the MAA people arrived in the areas from the far North of Kenya through Central Tanzania (Tanganyika) southwards to the Northern boundary of Zambia.
The movement of the MAA tribe from the North of the African continent is verified by the tribal related names given to different areas in Egypt, Abysinia, Ethiopia, Sudan and the Nile Riverside valley where they were shifting southwards with their herds of livestock.
When these people where shifting with their livestock, they drove away, married or absorbed other tribes they encountered in their way. Other groups in the journey, who got tired or decided that the areas reached were convenient and adequate to their needs of water and pastures for their livestock, settled within as their land up today. Nevertheless the IL’PARAKUYU group is still moving southwards as has now reached the Tanzanian-Zambian boarder.
Other groups started to rely on MIXED ECONOMY of pastoralism and crop husbandry, according to the conducive environments they found in the areas of their shifting (such as the indigenous people whom they besieged and intermarried).
Due to the differences in life styles between groups, those who depended entirely on pastoralism had to shift constantly for adequate needs of their livestock and so their housing needed to be smaller and temporary while those on crop farming economy had to have large and semi permanent houses.
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Saturday, October 1, 2016
SELECTED TOPICS IN CIVIL PROCEDURE
TOPIC 6. SUPPLEMENTAL PROCEEDINGS:
(a) Temporary Injunction
-Law applicable
O. XXXVII Cap 33 R.E. 2002
Trasgem Trust v. Tanzania Zoisite Corp Ltd (1968) H.C.D. no. 501
Attilio v. Mbowe [1969] HCD no. 289
Giella v. Cassman Brown [1973] EA 358(EA)
American Cyanamid Co v. Ethicon Ltd [1975] 1 ALL ER 504
Chavda v. The Director of Immigration Services & Others [1995] T.L.R. 125
Registered Trustees of Social Action Trust Fund & another v. Happy Suasages Ltd and Others [2004] T.L.R. 264
General Tyre East Africa Ltd v. HSBC Bank PLC [2006] T.L.R. 60
-Procedure for applying for temporary orders
-Key principles
Notice requirement
Tanzania Knitwear Ltd v. Shamshu Esamail [1989] T.L.R. 48
i. The combination of two application in one is not bad in law since court of law abhor multiplicity of proceedings
ii. The law of limitation Act 1971 does not apply to an application for discharge of temporary injunction
iii. The requirement of giving notice to the other party per Order 37 r.3 of CPC is mandatory
iv. Where the requirement to serve the notice will defeat the object of the injunction the same can be dispensed
v. Where all share holders are offered purchase of the new shares on the prorate basis, the applicant cannot be heard to complain that the resolution was oppressive to him
Whether temporary injunction can be granted against the stranger to the suit
National Bank of Commerce v. Dar es Salaam Education and office Stationary T.L.R 272
i. Where a mortgagee is exercising its power of sale under the mortgage deed the court cannot interfere unless there was corruption or collusion with the purchaser in the sale of the property
ii. Order 37 Rule 1 was inapplicable in the circumstances of the case because there was no court decree in execution of which the house was sold.
iii. Order 37 Rule 1 was inapplicable on the account that it could be sold in execution of the mortgage without resort to the court decree
iv. A temporary injunction cannot be issued strangers to the suit
Dominic Daniel and Agness Dominic Daniel versus Crdb Bank Plc Ltd and Alex Mwita Msama [Commercial Division] Case No. 39 of 2011 Hc Dar
Any supplementary affidavit filed without the leave of the court must be impugned under G.N. no.508 of 1991, an order for temporary injunction has to last for a period of 6 months only, but, such an interim order is subject to renewal or further orders of the court upon sufficient reasons. In Misc. Civil application no.53 of 2003 between Peter Lucas versus Pilli Hussein and Sud Said Masoud (H.C) Shangwa, J.), (unreported), where it was held that an application for temporary injunction pending the hearing and determination of the main suit is not legally maintainable. Also Civil Revision no.5 of 1996, between A.I.CC versus Charles Wambura (H.C) (unreported). if the temporary injunction is not dissolved during pendency of the suit or renewed that is the end of the matter.
Being aware that Judges of the same court should not give conflicting decisions over similar issues, unless it is absolutely necessary.
(See J.S.Mutungi versus University of Dar es salaam (2001) T.LR.261 (C.A) and Ali Linus and 11 others versus Tanzania Habours Authority and Labour Conciliation Board of Temeke (1998) T.L.R.5 (C.A).
Nyangarika J in Dominic Daniel and Agness Dominic Daniel Versus Crdb Bank Plc Ltd and Alex Mwita Msama reluctantly hold a different view, that,
“It is not correct to say that the period of six months set forth in the Government Notice Number 508 of 1991, must be necessarily stated in the application for interlocutory injunction. I say so because granting a temporary injunction order is purely on the discretion of the court, and shall always be exercised judiciously on the facts and circumstances of each particular case”.
The Nyangarika J holds further that
“Whether the specific period as provided for under G.N.NO.508 of 1991 is stated in the application or not, or whether the period stated is "pending final determination of the main suit" is immaterial.
Second respondent as bona fide purchaser at a public auction is protected by the law. Making further reference to section 135(2) (c), (3) and (4) of the Land Act, cap. 113 R.E. as amended by Act no.2 of 2004, he surmised that if at all the applicant has been prejudiced, he can be remedied through damages, and further that the legal protection to a bona fide purchase is offered by Act no.17 of 2008 vide the Mortgage finance Special Provision Act, under part II which amends the section 16 of the Land Act, cap.113 which introduces new sub section (5). He went on to submit that the title has already passed to the second respondent who has already taken possession of the same and therefore the application has been overtaken by the events. There is no prima facie case as the second respondent is a bona fide purchaser protected by the law and that the applicant had notice before sale. There cannot be irreparable loss because the property can be valued in money terms. Additionally, he contended that the applicants knew the consequences of default and therefore they cannot have both money and the property
On the test of the balance of convenience, he submitted that it was in favour of the second respondent because he had paid the purchase price and had obtained a title deed but still cannot utilize the property due to standing orders of this Court to preserve the status quo. He said that if injunction order is granted, the property will remain in the hands of the applicants and as such, great injustice to the second respondent will ensue.
Lord Diplock once remarkably observed the following in that regard and I quote him here under;
"The Object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in action if the uncertainty were resolved in his favor at the trial, but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights"(See also American Cyanamid Co. versus Ethicon [1975] 1 All E.R 504)~
And when implementing such object, the conditions or factors upon which the
Court must take into consideration had already been spelt out in the cases of Atilio versus Mbowe (supra) and Giella versus Casma Brown & Co. Ltd ,[1973] EACA
358, _namely that
- There must be triable issues between the parties with a probability that it may be decided in the applicant's favour. However, that requirement of the probability of applicant's success in the main suit cannot be interpreted to mean that the facts at hand should declare the applicant a winner, but rather the applicant should show that though evidence has not been given, the allegations so far made by him, prima facie portray him as having been aggrieved by the respondent entitling him to the reliefs being sought in the main suit.[See Commercial Case No.5 of 1999, Tanzania Tea Packers Ltd versus The Commissioner of Income Tax and Another)
- The circumstances should be such that if the Court does not issue the order, then the applicant would suffer irreparable loss even if subsequently he succeeds in the actions(main case) and
- On the balance of convenience, the applicant stands to suffer more if the injunction is not granted than what Respondent would suffer if granted.
Kalegeya J (as he then was) in the case of Millo Construction Company Limited versus NBC Ltd and Saddoti Dotto Magai, Commercial Case no.105 of 2003 which is yet to be reported,
“It is a trite law that all the three conditions underlined in Atilio case must be fulfilled”.
The other sees the principles as having two distinct criteria (i) "prima facie case" and (ii) "probability of success"., The former is construed to the first school of thought, while the latter refers to the relative strength of the case. But the controversy was settled by the court of appeal in the case of C.P.C International Inc. versus Zainabu Grain Millers Limited, civil appeal no 49 of 1995 (C.A) (unreported) where it was held that
“in dealing with the proceeding for interlocutory injunction, a judge should not decide issues which will be resolved and determined in the main suit, but should only consider whether on the facts as disclosed from the affidavits and pleadings, a prima facie case has been shown”.
N. B. It does not follow however that whenever a prima facie case is made out showing a fair question for trial, an injunction must issue. The question of irreparable injury and balance of convenience must also be considered.
If the loss thereof, if any, can be adequately monetarily compensated since the suit premise is a commercial one. Additionally to this argument, that land is not life and can be quantified to monetary value.
It is now a settled law that while passing an interim order of injunction, the court is required to consider three basic Principles, namely
a) The applicant has a prima facie case to go to trial with probability of success
b) The mischief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise from granting it
c) That protection is necessary from that species of injury known as “irreparable" before his legal right can be established
In addition to the above mentioned three basic principles, a court, while granting temporary injunction must also take into consideration the conduct of the parties. The mere institution of a suit does not entitle the applicant to relief.
Further, it is an established law that the court should not interfere only because the property is very valuable one. Grant and refusal of temporary injunction has serious consequences depending upon the nature and circumstances of each particulars case. In dealing with such matter, the court must make all endeavors to protect the interest of all parties.
In the case of National Bank of Commerce versus Oar es Salaam Education and Office Stationery [1995] T.L.R 272(C.A), it was held, interalia, as follows:
(i) Where a mortgagee is exercising its powers of sale under a mortgage deed, the court cannot interfere unless there was corruption or collusion with the purchaser in the sale of the property.
(ii) Since the order setting aside the sale of the house was a nullifying act, it could not be obtained in an application for temporary injunction under Order 37 rule 1.
The object of temporary injunction is preventive, the whole purpose is to prevent or restrain so as to preserve the subject matter of the suit in status quo for the time being. The word "status quo" is defined in the case of Garden Cottage Food Limited versus Milk Market Board as follows: "Is the state of affairs existing immediately before the filling of the application"
The object of grant of temporary injunction should be to maintain the existing status before determination of the suit and any order which has the effect of changing or disturbing or altering the status quo is not covered by Order 37 rule 1 ( see Chitley and Rao, volume iii 6th Edition, page 3966).
The learned author, Sarkar, on page 1419 of his book, Sarkars , The Law of Civil Procedure Volume 1, 8th Edition, went on to say;
"If a court is called upon to grant any relief on any interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumspect in the matter of granting such a prayer".
(See India Cable Company versus Sumitra Chakraberty, A, 1985, C 248).
Therefore in absence of fraud and the like, the mortgagee will not be restrained from exercising his statutory powers under a mortgage deed only because the mortgagor object to the manner in which the said mortgage powers under the deed are carried out.
In assessing the balance of convenience, the courts will consider the following factors:
(i) The significant of the detriment,
(ii) Whether damages are an adequate remedy,
(iii) Whether as a result of the injunctive relief sought, the preservation of the status quo is equivalent to the final relief.
7. REMEDIES WHERE A PARTY IS DISSATISFIED BY COURT DECISIONS.
N,B)At the end of the course students are expected to be able to;
Draft memorandum of appeals, revisions, pleadings seeking for review and reference.
a) Appeals
Khalfan Bushiri Kikuyu v. Tanzania Investment Ban, Misc. Civil Application No. 108/2008, HCT at DSM (unreported) Mruke,J. Extension of time within which to appeal
N.B For other condition and principle for appeal refer topic 3 supra
b) Review
USANGU LOGISTICS (T) LTD APPLICANT v. TANZANIA NATIONAL ROADS AGENCY, MINISTRY OF INFRASTRUCTURE, DEVELOPMENT THE HON. ATTORNEY GENERAL
An application for review of order and decree, it falls within the ambit of section 78 of the Civil Procedure Code, which is the substantive provision for entertaining a review application and Order XLII Rule l(l)(a) and (b) which lays down the preconditions for accepting the prayer of review of a judgment. For better appreciation of the case, section 78 and relevant provisions of Order XLII of CPCare extracted below for ready reference:
"78. Subject to any conditions and limitations prescribed under section
77, any person considering himself aggrieved-
(a) by decree or order from which an appeal is aI/owed by this Code but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is aI/owed 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 XLII
"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 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.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. " (the emphasis is of this Court).
Precisely, a judgment can be reviewed on: (i) discovery of fresh evidence, which after the exercise of due diligence, was not within the knowledge of the applicant and could not be produced by him at the time when the decree was passed or order made or (H) on account of some mistake or error apparent on the face of the record, or (Hi) for any other sufficient reason. In the case of CHHAJJU RAM V5. NEKI AND OTHERS
(AIR 1922 P.C.112), the Honourable Privy Council had the occasion to examine contours of the words "sufficient reason' incorporated under Order XLVII Rule 1 of the Indian Code of Civil Procedure, which is pari materia with our Order XUI Rule 1. After delineating the differences of review powers prescribed under the Code of Civil Procedure, 1877 and 1908 (India), their Lordships in that case have held that the court cannot travel beyond the parameters laid down in Rule 1 under the garb of "any other sufficient reason."
As regards the existence of a Notice of Appeal and review, I am alive to the observation by Hon. E.M.E. Mushi in the case of VENANCE
MWINGIRA V. HARLINDA MWINGIRA, Civil Appeal No. 81 of 1997,
(High Court of Tanzania)(Dar es Salaam),(unreported) where His Lordship
stated that:
"In an application for a revie~ two vital facts should be considered, namely:-
"(a) Firstly, in a case where the party is not appealing/ he may nevertheless apply for a review of the judgment decree or order even if an appeal by some other party is pending. (The emphasis is of this Court);
(b) Second, an application for a review can be based on any of the three conditions or a combination of them. "
c) Revision
d) Reference
e) Supervision
f) Objection proceedings
Thomas Mbando v. LART and Liquidation Mwatex, Civil Appeal No. 30/2001, CAT (unreported)- it is the court which made a decision which has powers to handle objection proceedings; the period of limitation to set aside a sale in execution of a decree of a court exercising civil jurisdiction, is two years.
(a) A.D Mashoto vs A.H Kaunga [1986] TLR 67. HC at Tabora (Chipeta, J). Since the agreement was with a consideration and possession of both the property and the title deed passed
as long as consent has not been refused the objector has an interest in the property which interest a court of law ought not to disregard with abandon. Objection succeeds.
(b) Commercial Case No. 50/00 – CRDB Bank Ltd vs Mamba Enterprises Ltd and Charles Mulokozi. HC (Commercial Division) at Dar (Nsekela, J). -Order XXI rules 57 (1); 58; 59 and 60 are central to this ruling and are the ones relied upon by the objector. -When the court is dealing with an objection under Order XI Rules 57, 58, 59 and 60 of the CPC, the court should concentrate on the question of possession of the property the subject of the attachment and then decide whether the judgment –debtor is in possession of the property on his own behalf or on account of or in trust for some other person. If the property is in the actual possession of some other person other than the judgment-debtor, then the court has to decide whether the possession is in trust for or on behalf of the judgment –debtor.
The court should not be concerned with the question of title unless necessary for its decision on the question of possession. - It is I hope clear by now that the scope of the investigation under
Order XXI Rules 57, 58, 59 and 60 is confined to the question of possession and not title or fraud for that matter. The investigation should be directed as to who is in possession of the mortgaged property. -Order XXI Rule 60 provides as to when the claim to property attached should be disallowed and this happens when the court is satisfied that the property at the time of the attachment was in the possession of the judgment-debtor as his own property and not on account of any other person or was in the possession of some other person who was holding the property in trust for the judgment-debtor or that the property was in physical possession of a tenant or other person who was paying rent to the judgment-debtor.
It is evident that what has to be investigated and decided is who, as between the judgment-debtor or the objector, was in possession on the date of the attachment of the property. -Since the property was in possession of the objector, I proceed to find out whether that possession of the objector was on his own account for himself or as trustee or on account of the judgment-debtor. -To conclude, for reasons stated above, as the mortgaged property was in the possession of the objector in trust for the judgment-debtor, that is, the third respondent, Charles Mulokozi. I do hereby disallow with costs the objection by Calvin Mafuru.
(c) Commercial Case No. 67/00 – Joyce Mpinda vs CRDB Bank Ltd and others. HC (Commercial Division) at Dar (Dr. Bwana, J). -Objection to attachment by a wife-matrimonial property- Caveat must be registered -S. 48(1) of the CPC, 1966 not relevant in the situation. -Section 59(1) of the Law of Marriage Act, 1971 interpreted.
(d) Civil Revision No. 123/00 – Donald Nkwao vs Elite Sisters Academy and Another. HC at Dar (Kyando, J). -A person who objects to attachment does not have to be a party to the suit in which the order of attachment was made. All he needs to have is some interest in the attached property which he then protects by objecting to attachment (See Order XXVI rr. 57-58 of the CPC,
1966). -Objection has to be heard by the court which made the order for attachment.
(e) Civil Application No. 15/02 – BOT vs D.P. Valambhia. CAT at Dar. It is abundantly clears to me that there is no right of appeal to this Court once an objection to an attachment has been adjudicated upon. The remedy open to the objector is to file a suit to establish the objector’s right to the claim of the property in dispute.
(f) Thomas Mbando v. LART and Liquidation Mwatex, Civil Appeal No. 30/2001, CAT (unreported)-
It is the court which made a decision which has powers to handle objection proceedings; the period
of limitation to set aside a sale in execution of a decree of a court exercising civil jurisdiction, is two years.
8. SPECIAL PROCEEDINGS
N,B)At the end of the course students are expected to be able to;
a) draft application for certiorari and Mandamus
Procedure for seeking certiorari & mandamus
Certiorari
Mandamus
Misc. Civil Cause No. 144/93 – Workers of Tanganyika Textile Industries Ltd vs
Registrar of The Industrial Court of Tanzania and others. HC at Dar (Kalegeya, J). -
Application for leave to file an application for orders of certiorari and mandamus – “I should out rightly point that seeking leave to file an application for prerogative orders requires the applicant to merely raise arguable points. He is not required to prove the alleged errors for, that proof would only be required, during hearing of the main application if leave is granted. Regard being had to the statement and the attached supporting document”.
Misc. Civil Application No. 68/94 – Sylvester Cyprian and 210 others vs DSM University. HC at Dar (Kyando, J). “Certiorari is used to bring up into the High Court a decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed i.e. it is declared completely invalid, so that no one need respect it. As for mandamus it is a command issued from the High Court ordering the performance of a public legal duty. Both certiorari and mandamus are discretionary remedies and courts assume a free discretion to grant them in suitable cases and withhold them in others.”
Alfred Lakaru vs Town Director [1980] TLR 326 HC at Arusha (Maganga) –
The jurisdiction of the High Court to make orders of mandamus or any other prerogative writs is given by S. 2 (2) of the JALO, Cap. 453. The order of mandamus is defined in
Halsbury’s Laws of England (Third Edition Vol. 2) at page 84 as follows: -
“the order of mandamus is an order of most extensive remedial nature, and is in form, a command issuing from the High Court of justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his nature of a public duty. Its purpose is to supply defects of justice…”
Affidavit in support of the application must disclose the conditions precedent for the issue of an order of mandamus, namely:-
i. legal right must exist
ii. duties must be public
iii. right must be in the applicant application
iv. must be made in good faith
v. demand of performance must precede the application
vi. there must exist the possibility of enforcement
vii. there must be no other legal remedy
Republic Ex-parte Peter Shirima vs Kamati ya Ulinzi na Usalama, Wilaya ya Singida, The Area Commissioner and the AG.[1983] TLR 375 HC at Dodoma (Lugakingira, J). –
The practice of seeking leave to apply for prerogative orders has become part of our procedural law by reason of long user. –
The existence of the right to appeal and even the existence of an appeal itself, is not necessarily a bar to the issuance of prerogative orders, the matter is one of judicial discretion to be exercised by the court in the light of the circumstances of each particular case. - Where an appeal has proved ineffective and the requisite ground s exist, the aggrieved party may seek for, and the court would be entitled to grant, relief by way of prerogative orders”
Sanai Murumbe and other vs Muhere Chacha [1990] TLR 54 CAT at Mwanza. –An order of certiorari is one issued by the High Court to quash the proceedings of and decisions of a subordinate court or tribunal or public authority where, among others, there is no right of appeal. - The High Court is entitled to investigate the proceedings of a lower court or tribunal or public authority on any of the following grounds apparent on the record:-
(1) Taking into account matters which ought not to have taken into account
(2) Not taking into account matters which it ought to have taken into account
(3) Lack or excess of jurisdiction
(4) Conclusion arrived at is so unreasonable that no reasonable authority could ever come to it?
(5) Rules of natural justice have been violated
(6) Illegality of procedure or decision.
Jana Yusuph vs Minister for Home Affairs [19990] TLR 80 HC at Dar (Kyando, J). –
If an administrative authority is acting within its jurisdiction or intra vires, and no appeal from it is provided by statute, then it is immune from control by a court of law. But if it exceeds its power, or abuses them so as to exceed them, a court of law can quash its decision and declare it to be legally invalid.
Misc. Civil Cause No. 42/04- Sugar Board of Tanzania vs. Minister for Land and others HC at Dar (Massati, J.)
There is no dispute that the High Court has jurisdiction to issue an order of certiorari to quash the proceedings of and decisions of a subordinate court or tribunal or public authority where, on the face of the record it:-
(a) Has taken into account matters which it ought not to have taken into account.
(b) Had not taken into account matters which it ought to have into account.
(c) Lacks jurisdiction, or has acted in excess of jurisdiction.
(d) Has arrived at a conclusion so unreasonable that no reasonable authority could ever come to it.
(e) Has violated rules of natural justice and if
(f) The decision is illegal a contrary to procedure.
- These requirements were set down by the Court of Appeal in SINAI MURUMBE AND ANOTHER VS MUHERE CHACHA (1990) TLR 54;
“The remedy of certiorari has to bring up to the High Court and quash something which is a determination or a decision”.
(m) Miscellaneous Civil Cause No. 42/04 - Sugar Board of Tanzania vs Minister For Labour HC at Dar (Massati, J)
- First and foremost I must commend all counsel for their industry and able legal arguments in this application.
- From the submissions of the parties, there is, I think, no dispute that the High Court has jurisdiction to issue an order of certiorari to quash the proceedings of and decisions of a subordinate court or tribunal or public authority whee, on the face of the record it:-
(a) has taken into account matters which it ought no to have taken into account.
(b) Had not taken into account matters which it ought to have taken into account.
(c) Lacks jurisdiction, or has acted in excess for jurisdiction.
(d) Has arrived at a conclusion so unreasonable that no reasonable authority could ever come to it.
(e) Has violated rules of natural justice and if
(f) The decision is illegal a contrary to procedure.
There requirements were set down by the Court of Appeal in SINAI MURUMBE AND ANOTHER VS MUHERE CHACHA (1990) TLR 54;
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