bukoba municipal council vs new metro merchandise 2020 tzhc 4247 4 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA MISC. CIVIL APPLICATION APPEAL NO. 11 OF 2019 (Arising from civil appeal No. 15/2017; Originating from civil case No. 30/2011 of the Resident Magistrates' Court of Bukoba) BUKOBA MUNICI PAL COUNCIL. ........... .................................APPLICANT VERSUS NEW METRO MERCHANDISE ............................................ RESPONDENT RULING Date of last order 09/11/2020 Date ofjudgment 04/12/2020 Kilekamajenga, J. The appellant approached this Honourable Court seeking leave to appeal to the Court of Tanzania. The application is made under section 5(1)( c) of the Appellate Jurisdiction Act, Cap. 141 RE 2002 and accompanied by an affidavit sworn by Josephat M. Kyebyara (the applicant's principal officer). In response, the respondent also filed a counter affidavit deposed by the respondent's principal officer, Mr. Abdallah Bulembo Majura. The parties finally appeared before this Court to argue the application. The applicant was 1 represented by the learned solicitor, Mr. Athuman Msosole whereas the respondent enjoyed the legal services of the learned advocate, Mr. Kaiza Msosa. In his oral submission, the counsel for the applicant prayed to adopt the applicant's affidavit to form part of his submission. He further submitted that the intention to appeal to the Court of Appeal is hinged on the need to get a clear position on when time begins to run after the decision is made because there are two schools of thought. The first school of thought believes that the time begins to run after the delivery of judgment while the second of school of thought believes that the time begins to run after the judgment is supplied to the applicant/person. Based on these two contradicting positions of the law, the applicant seeks leave to reach (iJthe Court of Appeal of Tanzania in order to get a clear interpretation of the law. On the other hand, Mr. Kaiza prayed to adopt the respondent's counter affidavit to form part of his submission. He further submitted that leave to appeal to the Court of Appeal of Tanzania is a matter of procedure. However, the applicant must show point of law which calls for the Court of Appeal to determine. In the applicant's affidavit and oral submission, the applicant wishes to reach the Court of Appeal so that it can provide legal position on computation of time on the time to appeal. The Court of Appeal has already made it clear that the time begins to 2 f1n application for leave is usually granted if there is good reason/ normally on a point of Jaw or on a point of public importance/ that calls for this Court's intervention. ' See also, the case of Venance Msendo v. AG and TRA, Misc. Civil Case No. 37 of 2001 (unreported), Lazaro Mabinza v. The General Manger, Mbeya Cement Co. Ltd, Civil Application No. 1 of 1999 (unreported), where the court provides for the same principle. In my view, despite the alleged two schools of thought on computation of time limitation, which need the clear direction of the Court especially on the application of section 19(2) of the Law of Limitation Act, Cap. 89 RE 2009. Furthermore, I have considered the nature of the dispute which suggests the existence issues worthy determination by the higher court. I therefore grant leave for the applicant to appeal to the Court of Appeal of Tanzania. No order as to costs. Order accordingly. DATED at BUKOBA this 04th Day of December, 2020. 4 ,, 0 Court: Ruling delivered this 04th December 2020 in the presence of the counsel for the applicant, Mr. Athuman Msosole and Mr. Salum Omande Chama for the respondent. 5