20050908 TZCA Dar es Salaam

IN THE COURT OF APPE'L OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 138 OF 2004 In the Matter of an Intended Appeal BRITISH BROADCASTING CORPORATION ........................... APPLICANT VERSUS ERIC SIKUJUA NG'MARYO ............................................... RESPONDENT (Application for leave to appeal to the Court of Appeal of Tanzania from the decision of the High Court of Tanzania at Dar es Salaam) dated the 3 rd day of September, 2003 in Misc. Civil Application No. 77 of 2001 RULING NSEKELA, J.A.: This is an application by the applicant, British Broadcasting Corporation, for leave to appeal to this Court against the decision of the High Court, (Ihema, J.) in Misc. Civil Application No. 77 of 2001. The application is made under section 5 (1) (c) of the Appellate Jurisdiction Act, 1979; Rules 43 (b) and 46 of•the Court Rules, 1979. It is supported by an affidavit sworn by one Sarah Jones, the applicant's Head, Litigation Department and a Solicitor of the· Supreme Court of England and Wales. The respondent, Eric Sikujua Ng'maryo, did not file a counter-affidavit. 2 The background giving rise to thj,s application may be stated as follows: The applicant on the 30.7.2004 made an oral application to file an application for leave to appeal. The High Court (Ihema, J.) granted the application and further ordered that a reply should be filed by the 18.8.2004 and a rejoinder, if any, by the 18.8.2004. The parties were then to submit written submissions and the Court was to 01ake a Ruling on the 29.9.2004. On the 6.8.2004! the applicant filed · a chamber summons under section 5 (1) (c) of the Appellate Jurisdiction Act, 1979; Rule 43 (b) of the Court Rules, 1979 and Order XLIII Rule 2 of the Civil Procedure Code, 1966 seeking an order to be granted leave to appeal to this Court from the Ruling of the High Court (Ihema, J.) delivered on the 3.9.2003. It would seem that the respondent did not comply with the court order as aforesaid. However, the parties on the 19.8.2004, filed in court under Order XLIII Rule 2 of the Civil Procedure Code, a memorandum for a Consent Order. On the 29.9.2004 the learned judge (Ihema, J.) correctly in my view, disregarded the said memorandum. It was a fresh application which did not emanate from the _order of the High Court given on the 30.7.2004. This meant that what was before the 3 High Court was the chamber summon?' by the applicant supported by an affidavit of Wilbert Basillius Kapinga. The learned judge in his Ruling stated~ inter alia - "Given the specific order of this court dated 30 th July 2004 to the effect · that the application be disposed of by way of written subrnissiops, . . . . I have found. the memorandum . . for a consent order signed· by Dr. Wilbert Basillius Kapinga and Eric Sikujua Ng'maryo learned advocates to be in total disobedience of the court order dated -30 th July 2004 and with no effect in the circumstances. I will accordingly strike it out. Having struck out the memorandum for a consent order it remains clear to me that the application for. leave to appeal remains unprosecuted, thus amenable for dismissal which I hereby do". Thus the· applicant's application for leave to appeal to this was dismissed· by the High Court. Rule 43 (b) of the Court Rules provides as follows - 4 '/ "43. In civil matters - (b) where an appeal lies with the leave of the Court, application for leave shall be made in the manner prescribed in Rules 46 and 47 within fourteen days of. the · decision against which it is desired to appeal or, where application for leave to appeal has been made to the High Court and refused, within fourteen days of that refusal." The learned judge dismissed the application for leave to appeal because it remained "unprosecuted" as he put it. Dr. Kapinga, learned advocate who advocated for the applicant contended that there were points of law suitable for consideration by the highest court of the land. These points can be gleaned from paragraph 10 of the affidavit in· support sworn by Sarah Jones. Before the High Court the applicant had singled out the following grounds in the application for leave to appeal, namely - 5 I. • '/ "l. The High Court erred in holding that Rules 2 and 4 and not 9 and 44 of the advocates Remuneration and Taxation of Costs Rules 1991 were relevant to this application; 2. The High Court erred in applying Schedule IX (relating to liquidated claims) of the Advocates Remuneration and Taxation of Costs Rules, 1991 to damages in defamation and libel which wee general damages concerned with assessing non-pecuniary losses; 3. The proceedings were not heard and the matter was settled out of court in which settlement the plaintiff was compensated TShs. 10,000,000.00 hence there was no basis upon which the High Court can award a colossal sum in the excess of the settlement amount as costs of the unheard suit; 6 4. No defence was filed1 by the respondent on behalf of the applicant· and •the negotiations were conducted at the instance of the applicant, who arranged meetings with· the plaintiff on its own, hence there is no basis for awarding the sum in the decree as instruction fees; and 5. The. Bill oLCosts was taxed on flc1grant. disregard of the law of taxation of costs". It is evident from the Ruling of the learned judge that he did not dismiss the application after due consideration of the issues raised by the applicant. The affidavit in support of the application wa~, before the. court and the. learne.d trial judge. should have subjected the issues to analysis to see if they merited re- consideration by this Court on appeal. 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 judiciously exercised and on the materials before the court. As· a matter of 7 general principle, leave to appeal will,.,be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie or arguable appeal. (see: Buckle v. Holmes (1926) All ER Rep. ·go at page 91). However, where the grounds of appeal are frivolous, vexatious or useless or hypothetical, no leave will be gra·nted. As was lucidly stated by this ,·. Court in Civil Reference No. 19 of 1997 1 (i) Harban Haji Mosi (ii) Shauri Haji Mosi v. (i) Omar Hilal Seif (ii) se·it Omar (unreported) - "Leave is grantable wh~re the. proposed appeal stands reasonable chances of success or where, but not necessarily, the proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal. The purpose of the provision is therefore to -spare the Court the specter of unmeriting matters and to enable it to give adequate attention to cases of true public importance." Speaking for myself, the issues raised by the applicant cannot be labeled as frivolous, vexatious or useless. I think there is need for 8 this Court to resolve the rival contenti,0ns of the parties and have an authoritative interpretation by this Court on the disputed provisions of the Advocates Remuneration and Taxation of Costs Rules, 1991. ·r accordingly grant leave to appeal to this Court as sought. H.R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. (S.~RA) SENIOR DEPUTY REGISTRAR