amos njile lili vs amana bank limited another 2022 tzhccomd 165 10 june 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT MWANZA MISC.COMMERCIAL APPL. No.08 OF 2021 (Arisingfrom Misc. Commercial Application No.8 of2019) AMOS NJILE LILI pLICANT VERSUS AMANA BANK LIMITED S.L.ISANGI AUCTION MART &COURT BROKER PONDENT Last Order: 02/06/2022 Date RUL NANGELA, J. This api| mder section 5(1) (c) of the Appellat R.E 2019. According to the cham this Court, supported also by an ^^^pplicant, the Applicant is seeking for the 1. That, this Honourable Court be pleased to grant leave to appeal to the Court of Appeal against the decision of Hon. Fikirini, J (as she then was) dated, 1st of August 2019 in Misc. Commercial Application No.08 of 2016. 2. Costs be provided for. Page 1 of 7 3. Any other and further orders as this Honourable Court deems just and equitable to grant. Through the services of AD ARI LAW ATTORNEYS, the Respondent filed a counter affidavit contesting the application. On the 2nd day of June 2022, the parties appeared befor^&is Court for ?on,<^^ye s^^ied upt||be as follows: jg|^l. Th^^he l^^^^^ge erred in law and in holding that the deposit -he Applicant’s Account could in no way tell whether the phoney was intended to be used to satisfy the decretal amount. 2. That, the learned judge erred in law and in fact as she failed to examine the Applicant's Annexures accompanying the Affidavit. He submitted that, as regards the first ground there is an arguable issue which is whether it was proper for the Court to Page 2 of 7 deliver its decision without disclosing the reasons why it decided the way it did. He contended that due to failure to appreciate the annexures the Court failed to appreciate that the mode of repayment of the secured loan was vide the Applicant’s loan account. He contended that, as a result ,the right of the J^^icant for a refund has been blocked by the Court’s rhting, He ^tanised^ annex^^TO^^d by "^^Respondents. Mr Benson submitted that, the Re^^de^^ks not s|||fusly contested this application and so, . In ^^re^^submission, Ms Beatrice submitted that, for an ^^licatior^p this kind to be granted the Court must be shown that the^^^^ff appeal is tenable having there been cogent grounds that reveal an arguable point of law. She relied on the case of Kadili Zahoro vs. Mwanahawa Selemani, Civil Application No. 137/01 of 2019 to support her submission. Page 3 of 7 She submitted that, the ground stated by the Applicant’s learned counsel was unsound since the basis of the decretal amount was a settlement deed and that, TZS 119,000,000 had been deposited in the Client’s Account. As such, she contended that, the ruling was very clear that, all evidence was considered by the Court and reasons were given that the Applicant^^ failed to prove that the monies deposited were for tl|||gepayme^^pf the, trial Court. She relied on th^^fee ofwnion Macha vs. Mary Kimambo, oAm9 to support a view that, the Court of Apjilal cannofibe callidApon to entertain a new issue not canvassed bfbthe leaver dismiss this applic^^n. rej^^er, Mr Benson reiterated his earlier submis^^ Applicant has disclosed an arguable ^^^^^a^^^he dSfition of the Court of Appeal .He contended that, the ^^ur^^ecided but never disclose the reasons for its flgcision anpjhat suffices for the Court of Appeal to intervene. As for ^^^Miission that the Applicant was raising a new issue, he submitted that, there was nothing new since the issue is whether the monies deposited by the Applicant were for the purposes of liquidating the loan or not and whether the Court ought to make a finding and give direction on that fact. Page 4 of 7 I have dispassionately considered the rival submissions by the learned counsel for the parties herein. The gist of the matter here is whether this Court has been convinced that there are indeed legal issues warranting the attention of the Court of Appeal. As a matter of principle, an application of this kind is granted at the discretion of the Court, naturali^^ exercised judiciously having been satisfied that the]^^^e co^^ legal, grounds worth being brought to the ^tentio^)f^^^^o^^^ Appeal. In other words, this Court has co^^S^t^fc- the proposed grounds of appeal raise i^iost cases a novel issues or a point of l^^^orth^^agi^^^^minds of the Court of Appeal. In tl^^^^’s c^^supr^^he Court of Appeal, was of the view that: If grounds show a prima-facie or arguable appeal. (See Buckle v ^Holmes (1926) All ER 90 at page 91). However, where the grounds of appeal are frivolous or useless or hypothetical, no leave will be granted.” The same point was reiterated in the case of Rutagatina (supra). In that case, the Court of Appeal was of the views that: “An application for leave is usually granted if there is good reason, normally Page 5 of 7 a point of law or point of public importance that calls for this Court's intervention. Indeed, on the aspect of leave to appeal, the underlying principle was well stated by this Court in Harban Haji Mosi and Another v Omar HilaL Seif and Another, Civil Ref.No.19 of^^ 1997 (unreported) thus: 'La^^.is where, but proceedings ai disturbing tea guid^^^^tk . The purpose of the lur J^e^ spectre of atters d to enable it to htion to cases of true ince." e question that follows is whether the libited such features pointed out in the IjBBC’s casWsupX) or Rutagatina’s case (supra). I have carefully ri issions of Mr Benson and I am indeed convinced that, the Applicant has an arguable case or ground befitting this Court to grant him leave to appeal to the Court of Appeal. In particular, the issue is whether in delivering a decision the Court should give reason for the decision and if so, whether the Court in Misc. Commercial Application No.08 of 2016 considered Page 6 of 7 the relevant annexes to the Applicant’ s affidavit and gave reasons for her decision. In my view, since it is not for this Court to state whether the Court in the decision intended to be appealed against had disclosed reasons or not, I find that the Applicant has an arguable case warranting attention of the Court of Appeal. Page 7 of 7