AMETAN CONTRACTORS LTD VS NAUTILUS LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 83 OF 2015 (Original Misc. Comm Case No. 242 of 2014) AMETAN CONTRACTORS LIMITED................... PLAINTIFF VERSUS NAUTILUS LIMITED.................................... RESPONDENT RULING ON AN APPLICATION FOR LEAVE TO APPEAL TO THE COURT OF APPEAL Mansoor, J: Date of the Ruling 19 June 2015 The Applicant filed an application for leave to appeal to the Court of Appeal against the decision of this Court delivered on 19/03/2015 by Hon. Songoro J. The Applicant contends that there are points of law worth consideration of the Court of Appeal, and these are: 1 i. Whether it was necessary for an application for extension of time to be accompanied by the copy of the Ruling which struck out the original petition: The Counsel for the Respondent Mrs. Libby Ringo contended that the points of law outlined above have been properly dealt with by Hon. Songoro Judge in his Ruling, the Court ruled that it was not necessary to annex a copy of the Ruling which struck out an application or petition, when applying for extension of time to file another fresh application. The Counsel submitted that the Counsel for the Applicant needed not to wait for three months to file a fresh petition as it is not required under the law to annex a copy o f the Ruling or order which struck out the petition. She said, since the petition was struck out the remedy was to file a fresh one immediately. The Counsel for the Respondent submitted that no point o f law has been established by the Applicant to warrant Court of Appeal interference. Brief facts of the matter is, the Applicant herein filed an application to set aside an award given by the Arbitrator, the application was struck out for the reason that the Petition was not accompanied by the certified copy of the award. The Applicant wrote a letter to court asking for copies of the Ruling, and he was supplied with the Ruling after three months from the date o f the Ruling. He then applied for extension of time to file a fresh petition, the application was dismissed by Hon. Songoro J on the grounds o f failure o f the applicant to annex a certified copy of the award in the original petition, and the Judge ruled that this was not a sufficient reason to grant an extension of time to file a fresh application. 2 The Counsel for the Applicant stated that there is no authority so far on the subject herein above, thus the Court of Appeal intervention is necessary. Appeal is a matter of right however that right should be exercised judiciously, taking into account the rights of both parties, and leave should only be granted if the intended appeal has some merits whether factual or legal as held in the case of Gaudensia Mungu vs The IDM Mzumbe, Civil Application No. 94 of 1999 (unreported) where the Court of Appeal had this to say: . Again, leave is not granted because there is an arguable appeal. There is always an arguable appeal. What is crucially important is whether there are prima facie, grounds meriting an appeal to this Court” On another case of Harban Haji Mosi and Another v Omar Hilal Seif and Another, Civil Reference No. 19 of 1997 (unreported), is of good reference, where the Court of Appeal of Tanzania have given the underlying principle for granting the leave to appeal, they said:- “Leave is grantable where the proposed appeal stands reasonable chances o f success or where, but not necessarily, the proceedings as a whole reveal such disturbing features as to require the guidance of the Court o f Appeal. The purpose o f the provision is therefore to spare the Court the spectra o f unmeriting matters and to enable it to give adequate attention to cases of true public importance. The same principle was re-stated in the case of British Broadcasting Corporation v Eric Sikujua Ng’maryo, Civil Application No. 133 of 2004 (unreported) as follows: - Needless to say, leave to appeal is not automatic. It is within the discretion of the Court to grant or refuse leave. The discretion must, however be judiciously exercised on the materials before the court. As a matter of general principle, leave to appeal will be granted where the grounds o f appeal raise issues of general importance or a novel point o f law or where the grounds show a prima facie or arguable appeal (see: Buckle v Holmes (1926) ALL E.R. Rep. 90 at page 91). However, where the grounds o f appeal are frivolous, vexatious or useless or hypothetical, no leave will be granted. The Applicant has not only shown that the ground of appeal is not frivolous, vexatious or useless or hypothetical, the applicant has demonstrated that the ground of appeal is important and it is worthy the consideration of the Court of Appeal. I refuse the contention by the Counsel for the Respondent that since the High Court have adequately addressed the point of law raised by the Applicant then the Court of Appeal should not consider them. As submitted by the Counsel for the Applicant, the question of law raised in this issue on whether or not a person applying for extension of time to file an appeal or application needs to annex 4 to the application the copy of the Ruling/Order he is appealing against, has not been determined by the Court of Appeal, and as stated in the above cited cases the question or point of law as a whole reveal such disturbing features as to require the guidance o f the Court o f Appeal. If leave is not granted, the Applicant’s doors to justice will be closed, and the Applicant will be condemned unheard. I find that the point of law raised by the Applicant in his submissions are important grounds showing an arguable appeal, and it is proper that they should be considered by the Court of Appeal. Consequently, the applicant is granted leave to appeal to the Court of Appeal within the time prescribed by the law. Application is hereby granted with no orders as to costs. DATED at DAR ES SALAAM this 19* day of JUNE, 2015 MANSOOR JUDGE; 19™ JUNE 2015 5 COURT: Ruling delivered in the presence of Advocate Lebby Ringo appearing for the Respondent and also holding brief for Advocate Lukuyo for the Applicant. JUDGE 19t h JUNE 2015 6