Court name
Court of Appeal of Tanzania

Zee Hotel Management Group & Others vs Minister of Finance & Others () [1997] TZCA 24 (26 September 1997);

Law report citations
1997 TLR 265 (TZCA)
Media neutral citation
[1997] TZCA 24
Ramadhani, J.A.

Ramadhani, JA
The appellants had applied in the High Court of Zanzibar for leave to apply for prerogative orders of certiorari, mandamus and prohibition against the Principal Immigration Officer (hereinafter referred H to as PIO) and the Labour Commissioner, that is the last two respondents. However, that was changed to an application for leave to apply for judicial review against all the twelve respondents. We could not find whether or not such leave was granted but there were a number of rulings given by the learned judge, not on procedure but on substance, giving instructions to the tenth and the I

A eleventh respondents. Anyway, be that as it may, the appeal here is against some those rulings.
On 3 February 1997 the appellants filed a notice of appeal against five different rulings of the learned judge dated 29 October 1996, 12 December 1996, 6 January 1997, 9 January 1997 and 29 B January 1997. Now under Rule 76(2) a notice of appeal is required to be lodged within fourteen days of the date of the decision against which it is desired to appeal. So, the notice of appeal filed on 3 February 1997 is valid only for the ruling of 28 February 1997 and the advocates for the appellants conceded that.
C On 28 January 1997 Dourado, Ag J, gave the following order:
   `[P.I.O.] is once again, and finally, ordered to issue an Entry Permit or Special Pass for two years. If he feels that he needs another meeting with the A.G. and the Applicants Counsel, he should arrange to see them immediately. He D should then comply with the order and then complain, if he so wishes.
   I am adjourning to 28 January at 8.30 am to satisfy myself that the order has been complied with.'
E However, come 28 January, the learned judge prevaricated and issued another order:
   `The above conditions guaranteed by the Deputy Attorney-General in the view of the court substantially meets with the spirit of the order of the court.
F    I hope that there will be co-operation on both sides. Should any difficulty arise, Mr Patel should immediately get in touch with the Deputy Attorney-General Othman.'
The `above conditions' referred to in the ruling cited above are
G    `A-G's Office and P I O undertakes to do the following:
   (a)   To give 3 months Pass renewable after 3 months.
   (b)   Process 1 will keep on being renewed until arbitration proceedings between Government and Zee Hotels Management is finally settled.
H    (c)   Pass holders will pay $100 each, renewal -- no fee payable. (For two years they would pay $400 each).'
Now Mr Patel and Dr Lamwai, the learned advocates for the appellants, submitted that the learned judge could not suo motu review his order of 24 January without there being an application for I review. The learned advocates pointed out that the learned judge

was functus officio. Mr Salum Toufiq, learned Senior State Attorney for the respondents, argued that A the order of 24 January was for the issue of entry permit or special pass for two years. However, Mr Salum continued to inform us that he had not consulted the PIO when he became party to the consent order and that while he eventually contacted him, they came to a workable understanding B which was reduced to the three conditions given above. We submitted that the conditions do substantially implement the order of 24 January. Mr Patel, on the other hand, pointed out that he was not a party to that understanding and he was not allowed by the court to make any comments before the new order was given on 28 January. C
We agree with Mr Patel and Dr Lamwai that the learned judge was functus officio after he had given his order on 24 January in which he said `he is once again, and finally, ordered to issue an Entry Permit or Special Pass for two years' and that on 28 January he was going to satisfy himself that the order was complied with. As we have amply demonstrated, none of the two was done. And D worse, there was no application for review, yet the learned judge went on to review his previous order. Apart from that, there was an officer from the Immigration Department in the Court at the time of hearing this appeal and he assured us that if permits for two years are granted, that period or any remaining portion of it can be cancelled at any moment. Dr Lamwai, in response to our E question, said that the two years should be ordered retrospectively from the date Dourado, Ag J, gave the order.
We, therefore, allow the appeal, quash the order of 28 January and reinstate that of 24 January. The F PIO is to issue to the appellants with the necessary documents for two years from 24 January 1997. We order costs for one advocate only for the following reasons: one, costs were not prayed for two advocates and two, we do not think that this appeal needed two advocates. It is so ordered. G