20171107 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CORAM: LUANDA, J.A., MZIRAY, J.A. And MWAMBEGELE, J.A.) CIVIL APPLICATION NO. 354/16 OF 2017 ADVATECH OFFICE SUPPLIES LIMITED ••••••••••...••••.•••••••.•..•.•••••• APPLICANT

VERSUS MS. FARHIA ABDULLAH NOOR ........................................ 1 ST RESPONDENT ; ND · BOLSTO SOLUTIONS LIMITED ••••••••••••••••••••••••••••••••••••••••••• 2 RESPONDENT ~ . . (An 1Application for Deposit of security for costs by the Applicant in Civil Appli~ation iNo. 270/16 pending in the Court of Appeal of Tanzania arising from Commercial case No. 167 of 2014) (Mruma,J.) dated 3 rd day of May,2017

RULING OF THE COURT 30 th October & 10th November, 2017 MZIRAY, J~A.: 1Before this Court is an application expressed to be brought under I I Rule ~(1),4(2)(a), 4(2)(b), 4(2)(c) and 120(3) of the Tanzania Court of Appe~I Rules, 2009 (the Rules), seeking the respondent to deposit secudty for costs in the tune of twenty thousand United States Dollars i for th e hearing of Civil Application No. 270 of 2017 pending before this 1 I ' Courtl on the ground that the respondent is a foreign national (a

I I I citize~ of Somalia) without any tangible property movable and ' 1 immovable in Tanzania which is known to the applicant. The affidavit of Mr. Hlassan Kiangio, is in - support ----· of the applicatLofl. - - ··--· - -· _Jo__ butt[ess the. ___ ~ __ ---- ·- ·- motiqn, the applicant has filed written submissions. :The application has been challenged by the respondent through the affidavit in reply of Farhia Abdullah Noor, the first respondent, premi sed on two grounds; First, that the Court is not properly moved 1 lI for the non- citation of an enabling provision of the law. Second, the I i appli~tion is without merit. [At the hearing of the application, the applicant was represented by

I I I Mr. Nduruma Majembe, learned counsel. The respondents were i represented by Dr. Kibuta Ong'wamuhana, learned counsel assisted by I Mr. "flilson Mukebezi, learned Counsel. Mr. Majembe adopted his I affidavit, written submission and list of the authorities and briefly i i submitted I that in as far as Rule 120(3) is cited alongside with Rule i 4(2)(~) of the Rules then, the application is competent and properly I befor~ this CI:ourt. I! ~s to the merit of the application, the learned counsel submitted !i that t~e 1st respondent is a Somali national and not a Tanzanian. In that I case, the applicant is seeking for an order that the respondent be 2 -1 I com1elled to deposit security for costs in the tune of twenty thousand Unit~d States Dollars, which amount the applicant will incur in defe~ding Civil Application No. 270/6 of 2017 pending in this Court. The bpplicant is claiming security for costs in a fear that the first respdndent being not a Tanzanian and having no sufficient properties in the ~ountry may run away leaving the applicant without being . reim~ursed.: The learned counsel however, disagreed with the resident permit, share certificate and a class "A" permit to work in Tanzania attac~ed tq the affidavit in reply. He argued that unless the bank guarantee I i~ issued, the documents attached do not provide guarantee to th+ applicant that will have its costs in

prosecuting CivU Application I I - No. 2 0 of 2017. On His part, Dr. Ong'wamuhana urged the Court to dismiss the appliTtion fuecause the Court has not been properly moved. He pointed out tlilat it Was not proper for the applicant to cite both applicable and inapp icable provisions and leave it to the Court to pick and choose which prov\sion vests the Court with the requisite jurisdiction. He howeler, a\:@cked the provision of Rule 120(3) by stating that the proviJion is inapplicable in the circumstance of this case as it deals only I with Jecurity for costs in appeals and not in applications. 3 As to the merits of the application, the learned counsel submitted ; that [there is no requirement- in-- --law-- --deman_9Ln_g _a_ for~ign_er: to. _have-~ _ ~ ---- - - ~ -- --·- -~ - - ·--·--t- . - ·-··- -- - ·- - -- -- - - ---· . - - - - imm1vable property in the Country. The only requirement is for a I foreigner to have property be it movable or immovable. i !Arguing the issue of depositing security for costs, the learned i ! I coun 1el submitted that for an application seeking to deposit security for lI costs! to be successful, it must be explained and proved that the i respohdent is in a state of poverty or insolvency to meet the costs. To I bolster his argument the learned counsel referred this Court to the i casesj of Noor Mohamed Abdulla V. Ranchhodbhai J. Patel and Another,[1957]

E.A 447 and Marco Tool and Explosives Ltd V. Mam~jee Brothers LTD [1986-1989] E.A 337. ! I Based on the cited authorities, the learned counsel submitted that apart from the first respondent being a Somali national, a fact which is not d nied, there is nothing in the applicant's affidavit suggesting that I the fifist respondent is in the state of poverty or insolvency. The learned : coun~el strongly submitted that the first respondent is a person of I substi nee. She holds a first class work permit and owns substantial amou t of a'.ssets in the country including shares in two companies; M/S Acco ondiai Company and Pimak Limited. In the absence of evidence 4 proving insolvency and poverty of the first respondent, the learned counsel urged the Court to dismiss the application for lack of merit. . We have carefully considered the submissions of both parties on the e:ited enabling provision of the law. With great respect, on this, we shoul;d be guided by the decision of this Court in the unreported case of I Bitar1t International Enterprises Ltd V. Mished Kotak, Civil Appeal I No. ~O of 2012 quoting with approval the case of Abdallah Hassani v. Jum~ Hamis Sekiboko, Civil Appeal No. 22 of 2007 in which among I otherj things, the Court held; I "We have gone into details of the provisions of section 44 because we are satisfied that the appellant's application for revision was

wrongly entitled He should have indicated section 44 (1) {b) only. Although the court should not be made to swim in or pick and choose from a cocktail of sections of the law simply heaped up by a party in an application or action in the present situation we are satisfied that citing subsection (a) as well was superfluous but that this did not affect competency of the application for subsection. {b) is clearly indicated " s fince ~he applicant cited Rule 4(2)(a) in the appliication which is ' an en~bling provisions there is no specific provision in the rules and the ' ! I ' I curre~t po~ition of the __ law __ being __ clear in __ Jhe __ case __o.f Bitan • ··-·- 1 --- I ••• ! I Inter~atio~al Enterprises Ltd V. Mished Kotak (supra) to the effect that : a mere citation of the inapplicable provisions where the corre I provision moving the court is cited, the application does not beco1e inctmpetent. On that basis, we buy the argument of Mr. Maje1be th1t the citation of inapplicable provisions in the case at hand I . along~ide R~le 4(2)(a) of the Rules cannot make the application inept. I The atlicauon therefore is competent and properly before this Court. We now turn to the merits of the application. It is deponed in the I ! I affida~it in reply at paragraph 5 and 6 and submitted that the first respo1dent ~olds a resident permit No AC/340/l 45A and a class A work permit to cdnduct

business in Tanzania. It was further submitted that I I the fiJst respondent indeed has two limited liability companies; M/S Acco ondia , Company and Pimak Limited, where she owns shares. These averrrents are not in anyhow challenged by the applicant's I : : learne Advcbcate. I fonsid~ring these undisputed deponed facts and guided by the I decisiJns in the cases of Noor Mohamed Abdulla V. Ranchhodbhai I - 6 • J. ~atel ~nd Another, [1957] E.A 447 and Marco Too.I and I Explpsives Ltd V. Mamujee Brothers LTD [1986-1989] E.A 337, ; I cited! as authorities, of which we cherish, It Is aptly clear that in depositing security for costs, poverty is the underlying limit. One has to prove and satisfy the court that the respondent is in state of poverty or ! bankruptcy; to meet the litigating costs. In the case at hand, given the I . exte~t of h'er investments and business undertakings in Tanzania and i the f~ct that the first respondent is holding a working permit which had i been regularly renewed, we have no flicker of doubt in our mind that I - - the first I respondent is a person of substance and therefore capable of , i meeting the costs of litigation. ! i i l We would have ended up here, but, since the application is for i ! depo~iting security for costs in the tune of twenty thousand United I Statds Doll~rs, then, we say albeit in brief, as rightly pointed out by

Dr. I Ong\lvamuhana that the amount to be deposited is without justification. The requirement I of the law in terms of Rule 120(1), to which we take i i inspiriation, 1is clear that security for costs in civil appeals is in the sum of i two thousand shillings only. However, we are of the considered view I I that this I amount is in the lower side and by any standard it has been ,; I 7 • . • overtaken by events. In the foregoing, we propose a reasonable figure be cdnsidered in the Rules. I i In sum, we find the application as a whole to have no merit. We I i accotidingly dismiss it in its entirety with costs. i It is so ordered. ' i IDATED at DAR ES SALAAM this 7th day of November, 2017. I B. M. LUANDA

JUSTICE OF APPEAL R. E. S. MZIRAY

JUSTICE OF APPEAL J. C. M. MWAMBEGELE

JUSTICE OF APPEAL I certify that this is a tr. e copy of the original.

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