20151103 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT.ARUSHA MISC.CIVIL APPL.NO 43 OF 2015 ! (Based on Misc. Civil Application No 86 of 2006 c/f High C0urt Civil Application No 41/ 1999 original High Court Misc. Civil cause No 256/1995) I i BANK OF TANZANIA •.••••.••••.••••••••.••••.••••.•••••••••.• ~ ••••••••••• APPLICANT VERSUS MINISTER FOR LABOUR AND YOUTH DEVELOPMENT .................................... ..1,•••• 1ST RESPONDENT RAMADHANI J.N. HAMIS................................................ 2ND RESPONDENT MARGARETH KUMALIJA .............................................l...... 3RD RESPONDENT EVA MSAMO •••••••••••••••••••••••••••••••••••• •!•• ••••••••••••••••••••• ■■■ •••••• 4TH RESPONDENT TH LUCAS MASIGAZWA ••••••••••••••••••••••••••••••••••••••••••••••••••• ~ ••••••• S RESPONDENT i. ZUHURA MBULU ............................... ~························.l....... 6TH RESPONDENT ZUHURA MNYIMWA ••••••••••••••• I • • • • • • • • • • ,• • • • • • • ■■■ •• I •••• ■■■ 111 1 ••• ~ ••••••• 1TH RESPONDENT EVARIST MUZE ••••••••••••••••••••••••• ■■ •••••••••••••••••••••••••••••••• l••••••• 8 TH RESPONDENT I RULING MAGHIMBil ! The applicant lodged this application under the provision of Section 5(1) (c) i of the Appellate Jurisdiction Act, Cap 141 R.E 2002 and Rule 45 (a) of the I Tanzania Court of Appeal Rules, 2009 Seeking for the following orders:- ·1 1. That the applicant be given leave to appeal to ithe Court of Appeal against ruling and orders in High court Miscellaneous civil Application 1 No. 86 of 2006 decision by Madame Justice F. Massengi delivered on the 19th day of December, 2012. 2. Costs be borne by the respondents. The application was supported by the affidavit of the applicant's counsel one Mr. Elvaison E. Maro, the 1st respondent was represented by Ms. Twide learned State Attorney,the 2nd , 3rd , 4th, ih and 8th respondents were represented by Mr. Lawena learned advocate,Sth and 6th respondents were served by substituted services but in vain henc~ the application was heard in their absence. By order of this Court, the applicationwas disposed of by way of written submission. Arguing the application, Mr. Maro submittedthat it is common ground that in an application for leave to appeal the court entertaining the application for leave is not sitting as an appellate court, neither is it expected to dwell into the details and merits or otherwise of the intended appeals. That it suffices if the court is satisfied that the intended grounds of appeal raises a prima facie or arguable appeal, or where the intended grounds of appeal raise an issue of general importance or a novel point of law. Mr. maro submitted further that the affidavit in support of the application is accompanied by a proposed memorandum of appeal which sets out five grounds of appeal which establish that the matter is a fit case for consideration by the Court of Appeal. In his reply, Mr. Lawena submitted that since the applicant in his previous applications made the Attorney General as a party she cannot be heard now to remove him from this application as any decision that may be given 2 shall have some effect to the Attorney General.He argued thatthe applicant was aware that the matter beforehand was concerned with prerogative orders and that since the respondents are in agreement with the decision of Madame Judge Massengi, the intended Memorandum of Appeal do not raise any legal issue necessary for determination by the Court of Appeal. He prayed for this application to be dismissed with costs. I have considered the chamber application, the supporting affidavit and the partiessubmissions thereto. It is common ground that an application for leave to appeal to the Court of Appeal will only be granted if there is some merits in the intended appeal. As it was stated by the Court of Appeal in the case of GaudensiaMzungu vs. The I.D.M Mzumbe, Civil Application No. 94 of 1999 that; ''leave is not granted because there is an arguable appeal. There is always an arguable appeal. What is crucially important is whether there is prima facie grounds meriting an appeal to this court'~ I am in further guidance of the case ofWambeleMtumwaChamte vs. Asha luma, Civil Application No. 45 of 1999, (CAT-unreported), that; "Unfortunately, it is not provided what factors are to be taken in account when considering whether or not to grant leave to appeal to this court. However, it is obvious that leave will only be granted if the intended appeal has some merits whether factual or legal. " Taking the cited decision into consideration, it is evident that the issue for consideration before the Court of Appeal is whether the intended appeal has some merits to be so considered by the Court. Having gone through 3 I I I I the Applicant's draft memorandum of Appeal main issues for consideration i before the Court of Appeal are one; whether or not the Attorney General I should have been made a party in an application fo;r leave to appeal to the ' Court of Appeal, two; whether it is proper to subject the proceedings in Misc. Civil application No. 86/2006 to the provision of Section 18 of the Law Reform( Fatal Accident and Miscellaneous Provisio~) Act, Chapter 310 R.E I 2002 and to the requirements of section 10 of the ~overnment Proceedings I Act, Chapter 5 R.E 2002 of the Laws of Tanzania and three; whether non- , joinder of the Attorney General as a respondent ir!I High Court Misc. Civil I application No. 86/2006 automatically rendered the application I I incompetent. I I Considering the above situation, I find that these arecontentious issues i which need an attention of the Apex Court of the country and I hereby I allow this application with no order as to costs. 1 I / Application Allowed. I i I Dated at Arusha this 3rd day of Noverpber, 2015 I SGD S. M. MAGHIMBI JUDGE I I hereby certify this to be a true cop f the original. I istrar High Court Arusha 4