CITIBANK T LTD VS TELECOMMUNICATIONS CO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC.COMMERCIAL CAUSE NO. 195 OF 2018 (Arising From Misc. Commercial Cause No.6 of 2003) CITIBANK TANZANIA LIMITED................................................. .APPLICANT VERSUS TANZANIA TELECOMMUNICATIONS COMPANY LIMITED......................................................... 1st RESPONDENT TANZANIA REVENUE AUTHORITY................................... 2nd RESPONDENT TANZANIA COMMUNICATIONS REGULATORY AUTHOURITY (AS SUCCESSOR TO THE TANZANIA COMMUNICATIONS COMMISSION).................................................................. 3rd RESPONDENT VIP ENGINEERING AND MARKETING LIMITED............... RESPONDENT THE JOINT LIQUIDATION OF TRITELCOMMUNICATION TANZANIA LIMITED (IN LIQUIDATION)............................. 5th RESPONDENT^ 1 RULING SEHEL. J. This is a ruling on an application for leave to appeal to the Court of Appeal of Tanzania against parts of the decision of this court. The application has been made under Section 5 (1) (c) of the Appellate Jurisdiction Act Cap 141, R.E 2002, Rule 45(a) of the Tanzania Court Appeal Rules 2009 as amended by Rule 6 of the Tanzania Court of Appeal (Amendments) Rules 2017 and Section 220 of the former Companies Ordinance CAP 212, now Section 332(d) of the ’ Companies Act 2002. In support of the application, there ts an affidavit sworn by Dilip Kesaria being an Advocate of the Applicant authorized by the applicant to make an affidavit in support of the applicant's application. On the part of the respondents after being served with the application they have filed counter affidavits in opposition of the application. For record purposes on the part of the respondents there are counter affidavits sworn by the following; for the 1st George Magambo, Advocate, for the 2nd respondent; Yohana Ndila, Advocate, for the 3rd Joannes Karungura, Advocate , for the 4th respondent Nsangizyo Zilahulula, Advocate, for the 5th Gamaliel Mgongo Fimbo, Advocate. When the matter was called for hearing on 29th October,2018, Mr. Dilip Kesaria, Advocate appeared for the Applicant while. 2 Mr.Magambo, Advocate ,Mr. Yohanne Ndila, Advocate, Mr.Happinesss Florian, Advocate, Mr.Michael Ngalo assisted by Didas Respicious, Advocates and Mr. Fimbo, Advocate appeared for the 1 st 2nd 3rd 4th and 5th Respondents respectively. Submitting in support of the application for leave to appeal to the Court of Appeal, Mr. Kesaria, Advocate prayed to adopt his affidavit in its totality and went on to aver that, the applicant is against the decision of this court delivered on 12th June, 2003 relating to winding up proceedings commenced by the Respondents in Misc. Commercial Case No.6 of 2003 against Tritel Tanzania Limited and orders made by the trial judge. He submitted further that, the applicant was not a party yet there was adverse orders made against the applicant by the trial judge, after which the applicant preferred an appeal to the Court of Appeal but the appeal was struck out after the delay of seven years for a reason that the appeal was incompetent for want of correctly dated order, as a result the applicant reverted back to start the application afresh with an application for extension of time to lodge a notice of appeal. It is Mr. Kesaria's submission that, following the extension of time a notice of appeal was lodged on 23rd July, 2017, thereafter an application for extension of time for leave to appeal was made, and the same was granted. He surmised that the affidavit in support of the application outlines the issues to be considered by the Court of Appeal of Tanzania which are illegalities. Attacking the counter affidavit in opposition of the application, the learned counsel submitted that, there is nothing in the counter affidavit other than one common argument that by consenting on appointment of the joint liquidator the applicant cannot pursue the appeal, but that the same issue was considered in Misc.202 of 2017 that the appointment was only to allow the continuation of the appeal. Amplifying, the learned counsel for the applicant, submitted that one of the grounds of appeal is an issue of the appointment of the liquidator and that the failure of the judge to comply with Rule 32 of the rules, hence that illegalities continue to subsist notwithstanding the striking out of the appeal. Concluding his submissions, Mr. Kesaria submitted that, in Misc CC. No 6 of 2003 at pgs 13-15 what to be considered by the Court of Appeal of Tanzania is stated in the case of Consolidated Civil References No. 6,7 and 8 of 2006 and Civil Application No 108 of 2005 and Misc 225 of 2017,Misc 202 of 2017. He thus prayed that the application be granted and costs abide to the outcome of the appeal. In reply submissions Mr. Magambo, Advocate submitted that it should be on record that the 1st 2nd and 3rd respondents reply will be argued by the 2nd respondent, Advocate. Mr. Ndila, Advocate for the 2nd respondent started the reply submissions by praying to adopt the affidavits of the 1st 2nd and 3rd 4 respondents as part of his submissions. Submitting against the application the learned Advocate stated the following that, in the application for leave the applicant should show good ground why leave should be granted and that based on the affidavit of the applicant at para 2 it is devoid of merit. He submitted that the applicant was summoned to appear through advertisement as per winding up rules of 1929 but could not show up. He submitted that the notice was issued to any creditor or contributor either to support or to oppose, and that it was through this notice the 4th respondent appeared and joined as a party, hence that it is irrelevant to claim that he was not a party because the said ruling of Hon. Kimaro, J at pg 22 it is clearly stipulated how the applicant was given an opportunity to be heard. He submitted further that the applicant cannot fault anyone but should blame herself for not taking any step for joining the proceedings. The learned counsel went on to submit that, the applicant slept on her right as she was negligent for not applying as a party. On the issue of illegality the learned counsel surmised that he refrain from submitting on the issue as those are the matters to be considered by the Court of Appeal of Tanzania once leave is granted. He went on to submit that there are mischief on the affidavit by the applicant at para 7-12 contains matters of law, arguments and conclusions hence offending rules governing affidavit Order XIX rule 3 of the Civil Procedure Code, he referred the case of MMG Gold Ltd vs Henz (T), 5 Ltd, Misc .CC 118 of 2015 at pg 8, the consequence is 'to expunge the paras , he thus prayed that the application be dismissed with costs. On the part of the learned counsel for the 4th respondent, Mr.Didas, Advocate, prayed to adopt the contents of his counter affidavit and associated himself with the submissions of Advocate Ndila. He submitted that the winding up proceedings were not opposed at the High Court as a result the High Court granted an order winding up Tritel Communications and proceeded to appoint liquidator and that by that time Tritel had ceased operations when winding up proceedings were pending at the High Court. He submitted further that the applicant was aggrieved by the appointment but after the death of Peter Bakilana {former liquidator), parties . by consent appointed the 5th respondent meaning the present l iquidator can perform their functions under the law taking into considerations the interest of the parties who appointed them. Mr. Didas in the course of his submissions, he pointed out that indeed the applicant is not a party but he observed that can a party who was not a party to the proceedings at the High Court file an appeal to challenge a proceedings at the Court -of Appeal of Tanzania, that the answer is no hence they cannot be heard on the application for leave to appeal to the Court of Appeal of Tanzania, to support his assertions he cited the case of Selcom Ltd vs Gaming. Management Tz Ltd and Gaming Board of Tanzania, Civil Application No 175 of 2005. He concluded that the appeal lacks merit because Tritel cannot resume its business so any appeal is an academic exercise, he thus prayed that the application be dismissed with costs. On the part of t he 5th respondent, Mr.Fimbo, Advocate had the following to submit. That he adopts his counter affidavit and associates himself with the submissions made by the [st 2nd and 3rd respondents regarding para 7-12 of the affidavit of Dilip Kesaria and that if the said paras will be expunged then they will be nothing to support the application. He went further by submitting that the applicant was not a party to the original proceedings in this court hence he cannot appeal, to bolster his submissions the learned counsel cited the case of AG vs Maalim Kadau and 16 others (1997) TLR at pg 73. Mr.Fimbo contended further that, this court lacks jurisdiction because the applicant has no arguable prima facie case as a party thus he has no right to appeal, according to him it will be futile to grant leave as long as he has no right to appeal; to that submission the learned counsel cited the case of Alex Moganga vs Director Msimbazi Center, Civil Appeal No 81 of 2001 at pg 4. He thus prayed that the application be dismissed with costs to the respondents. In rejoinder submissions, Mr. Dilip briefly submitted the following, that on the jurisdiction no notice of preliminary objection has been raised hence that court is not possessed with all relevant materials. On the issue of notice through publication, the learnedcounsel averred that failure to summons Citibank was illegality and that illegality will be decided by the Court of Appeal of Tanzania once leave to appeal.is granted. On the validity of an affidavit, the learned counsel submitted that para 7 makes reference to a previous decision and extracted findings quoting verbatism and no argument made, while para 11 lists additional grounds to be considered by the Court of Appeal of Tanzania without going into the argument, in conclusion he reiterated his prayer for the • grant of an application. Having summarized the submissions by the parties to this application, it is incumbent for this court now to determine what is the fate of the application before it. Admittedly, though there are lengthy submissions from the parties for and against the application, the only issue for this court is whether to grant or not to grant the leave sought. I should point out here from the outset that although there is a kind of preliminary objection raised in a style that, the court has no jurisdiction and that the applicant was not a party to the proceedings before the High Court hence she cannot be heard on an application for leave to appeal against the decision which she was not a party I will not entertain it because there is now a laid down principle on the issue of a notice of preliminary objections. See, the case of James Burchard Rugemalira vs the Republic and Harbinder Sing Seth, Criminal Application No. 59 of 2107 (unreported) ; in which the Court of Appeal of Tanzania held that; the notice of objection has to provide such particulars so as to enable the adversary party as well as the Court to understand the nature and scope of the point of objection raised. Let me now address the issue I have raised herein above, from the case law and practice leave to appeal is generally grantable where the intended appeal stands reasonable chances of success, where the proceedings in question as whole reveals disturbing features as to require the Court of Appeal to go into them for guidance , see the case of Harban Haji Mosi and Another v Omar Hilal Seif and Another,Civil Reference No. 19 of 1997 (unreported). Appeal is right of an individual but although it is a matter of right the same should be excised judiciously, that is why the court is tasked to look at the questions or grounds raised and usually it has to be on point of law or of public importance that may be discerned in the proceedings or the decision sought to be appealed by the applicant and see whether they warrant the grant of leave for consideration by the higher court of the land. The submissions against the grant of leave as raised by the respondents all suggest one thing in common, in their oral submissions learned counsels for the respondents admits that the applicants was not a party to the proceedings upon which her^ intended appeal is pegged but surprisingly in their counter affidavit of which they sought to adopt they state that the applicant was aware of the winding up proceedings and indeed participated and hence she is estopped from denying knowing the existence of the said proceedings; See the counter affidavit of the 1st respondent at para 14 and para 14 of the 4th respondent counter affidavit. In their submission the learnedcounsels seem to suggest that since • the winding up proceedings were concluded and now there is a liquidator in place , the appeal intended is futile because in reality Tritel now do not exist . But as I have i ntimidated earlier i n, this court is sited to determine whether the l eave sought by the applicant should be granted or not, and as a matter of l aw and practice what this court need look at is the affidavit in support of the application and see if it discloses grounds or questions worth consideration of the highest court of the l and. As it would appear from the submissions by the l earned counsel for the respondents against the grant of the application, they also seem to raise objection that the affidavit in support of the application specifically from para 7 to 12 the applicant counsel has included the matter of law and arguments which offends the rule governing affidavits hence the remedy is to expunge the said para which in the end leave, the court with nothing to consider in determining the grant of the application. Normally, it is a practice that a party i ntending to raise a preliminary objection should issue 10 notice to the other party so as to allow the other party to be fully prepared and to do Justice to him/her. This requirement was emphasized by the Court of Appeal of Tanzania in M/s Majembe Auction Mart Vs Charles Kaberuka, Civil Appeal No. 110 of 2005 (Unreported) when it said:- “lt is emphasized that in fairness to the parties and in the interest of justice, counsel intending to raise preliminary objection are enjoined as far as possible to serve the notice of preliminary objection within reasonable time" Since there was no notice served upon the applicant in the matter at hand, I will not further entertain the'objection.. Gathering from the affidavit in support of the application, I think the applicant ' has demonstrated the question as to why she intends to appeal against the decision of this court by Kimaro, J (as she then was), that the said decision was fraught with several illegalities and irregulaties as detailed in annexture DKl to the affidavit and that the said decision was void ab initio because of failure to comply with the l aw. The applicant has shown through her submissions and affidavit in support of the application that the grounds raised are worth for consideration by the Court of Appeal. The technicalities raised by the respondents in their submissions that the applicant has no right of appeal was settled by the Court of Appeal and in any event the same can be raised during the 11 determination of the appeal .To me, I find that the applicant has demonstrated there are reasonable grounds for the grant of the leave sought, if leave is not granted the applicant’s door will be closed and she will go unheard. It is my considered opinion that the grounds raised by the applicant directly and substantially affect her right and calls for discussion and alternative views of the highest court of the land. At this stage this court is not supposed to look or make a finding on the merits or demerits of the intended appeal as suggested by the counsels for the respondents that Tritel no longer exist and hence that the intended appeal is an academic exercise and futile, but it suffice to say that the issues raised are serious and demonstrateably arguable in nature, whence worth consideration by the Court of Appeal of Tanzania as prayed by the applicant. In the final analysis, I will allow the application for leave to appeal to the Court of Appeal, and costs of the application to abide the outcome of the intended appeal. It is so ordered. DATED at Dar es Salaam this 28th day of November, 2018. B.M.A Sehel JUDGE 28th November, 2018. 12