access bank tanzania limited currently known as access microfinance bank tanzania limited vs ashif fatehali ladhan ltd 2023 tzhc 17158 28 april 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA DISTRICT REGISTRY AT MWANZA MISC. LAND APPLICATION No. 137 OF 2022 (Arising from the Judgment and Decree in Civil Appeal No. 45 of2021 delivered before Hon. W.P. Dyansobera, J. on the 2$h day of October 2022) ACCESS BANK TANZANIA LIMITED (CURRENTLY KNOWN AS ACCESS MICROFINANCE BANK TANZANIA LIMITED) .......................................................... APPLICANT Vs ASHIF FATEHALI LADHAN LTD................................................. RESPONDENT RULING 13/3/2023 & 28/4/2023 ROBERT, J:- The applicant seek to be granted leave to appeal to the Court of Appeal of Tanzania against the Judgment and Decree of this Court in Civil Appeal No. 45 of 2021 delivered on October, 2022. The application is supported by the affidavit of one Patrick Suluba Kinyerero, learned counsel for the applicant, and stood uncontested up to the date of hearing. When this application came up for hearing, Mr. Sikundi B. Sikundi, learned counsel for the respondent informed the Court that the i respondent do not intend to oppose this application and prayed that the application be granted without costs. On his part, Mr. Constantine Mutalemwa, learned counsel for the applicant prayed for the application to be granted as the respondent opted to concede to the application and left the prayer for costs in the discretion of the Court. As a result, this Court proceeded to consider this application without any conflicting evidence or argument. The question for determination is whether this application meets the legal threshold for its grant. The applicant averred that, she instituted Civil Case No. 72 of 2019 at the Resident Magistrates' Court of Mwanza claiming for, among others, payment of USD 21,000,000 being unutilized money in respect of clause 7.2.3 of the lease agreement entered between parties on the 4th of September, 2012. In turn, the respondent herein filed a counter-claim against the applicant herein which was decided in favour of the respondent following the dismissal of the applicant's suit. The trial Court ordered the applicant to pay USD 10500 to the respondent as rent from 1st August, 2019 to the date of handover of the premises, among others. Aggrieved, the applicant appealed to this Court unsuccessfully in Civil 2 Appeal No. 45 of 2021. Dissatisfied, the applicant seeks to challenge the decision of this Court at the Court of Appeal of Tanzania. The reasons in support of this application as stated at paragraph 8 of the affidavit reveals that, the applicant wants the Court of Appeal to consider the following points of law and facts:- (a) Whether the /earned Judge acted properly in upholding the decision of the trial Court that the counter-claim was entertained leading to the awarded amount of USD 10500 from 1st August, 2019 to the date of handling the suit premises while the same was not prosecuted or proved by the respondent; (b) Whether the learned judge was justified in upholding the Judgment in respect of the counterclaim while the trial court was not clothed with jurisdiction to entertain the same; (c) Whether the decision sought to be impugned can lawful (sic) stand in view of the fact that the evidence on record adduced by the Appellant's witnesses was not considered by the Appellate Judge in reaching his decision. (d) Whether the learned Judge was justified to fault the evidential value in respect of exhibit P4 and P5 that provided the Appellant's case. In order to be granted leave to appeal to the Court of Appeal of Tanzania the applicant is required to demonstrate that, the intended appeal raises issues of general importance or novel points of law or an arguable appeal (see Abubakari Ally Himid vs Edward Nyalusye, 3 Civil Application No. 51 of 2007, CAT (unreported) and British Broadcasting Corporation (BBC) vs Eric Sikujua Ng'maryo, Civil Application No. 138 of 2004, CAT (unreported). The role of the Court at this stage is limited to making determination on whether there are arguable points worth of determination by the Court of Appeal. Having perused the documents in support of this application and examined the reasons thereof, this Court is satisfied that there are arguable points worth of determination by the Court of Appeal regarding the jurisdiction of the trial Court to entertain the respondent's counterclaim, the prosecution of the counterclaim and the weight of evidence in respect of consideration of the testimony of witnesses and specific exhibits used to prove the applicant's case. On the basis of the noted issues, I am of the considered view that this application meets the threshold for this Court to grant leave to appeal to the Court of Appeal. As a consequence, I proceed to grant leave for the applicant to appeal to the Court of Appeal of Tanzania. I give no order for costs as the application stood uncontested. It is so ordered. JUDGE 28/4/2023