20060927 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 53 OF 2006 BETWEEN CITIBANK TANZANIA LIMITED ......................... 1sT APPLICANT MAYANK MALIK ................................................................ 2ND APPLICANT AND PETER CLAVER BAKILANA (THE LIQUIDATOR TRI- TELECOMMUNICATION TANZANIA LIMITED (IN LIQUIDATION) ........ RESPONDENT {Application for extension of time to file a Notice of Appeal and extension of time to file an Application for leave to appeal out of time from the Ruling, Findings and Orders of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Kimaro, J.} I. th Dated the 12 day of June, 200~ In ·Misc. Commercial Cause No. 6 of 2003 RULING KILEO J, A. The applicants, Citibank Tanzania Limited and Mayank Malik who are represented by Mr. Kesaria filed an application for 1 ~ extension of time to file a Notice of Appeal and for extension of time to file application for leave to oppeal. The Notice of motion was made under section 5(1) of the Appellate Jurisdiction Act and rules 8,46(1) and 76(2) of The Tanzania Court of Appeal Rules, and section 220 of the repealed Companies Ordinance. The decision intended to the appealed against is the decision of the Commercial Court (Kimaro J. as she then was) in Misc. Commercial Cause No. 6/2003 delivered on 15/12/2004. Madam Justice Kimaro found the applicants to have been guilty of contempt of Court Orders. By her decision she gave the applicants a period of two months to comply with the Court orders after which she were to decide whether or not they .should be penalized for the contempt. The respondent who is represented by Prof. Luoga raised four grounds of Preliminary objection. The 4 th ground was abandoned. The three grounds are: 1. That the Application is incompetent because no appeal lies against the interlocutory orders of the Commercial Court delivered by 2 H Madam Justice Kimaro (as she then was) on 15h December 2004 as the said orders are still subjudice at the Commercial Court. 2. That the Application is hopelessly time barred 3. That the Application is an abuse of the due process of the Court. On the 1st ground Prof. Luoga argued that since the extension of time sought is in respect of an intended appeal against an interlocutory decision, then the application cannot be maintainable in view of the provisions of section 5 (2) (d) of the Appellate Jurisdiction Act. Prof. Luoga submitted that the Commercial Courts' decision of 15/12/2004 did not finally conclude the matter as the question of sanction was yet to be determined. On the other hand, Mr. Kesaria argued that conviction of the applicants of contempt meant final and conclusive determination of the issue of contempt that was brought before the Court. Prof. Luoga in responding to Mr. Kesarias' argument argued that an appeal cannot be pref erred ' before sentence and further submitted that disposition of matters with finality means the pronouncement of decisions on all 3 . _, the issues including imposition of sentences, penalties or sanctions. I agree with Prof. Luoga's argument. Section 5 (2) (d) of the Appellate Jurisdiction Act provides as follows: - "No appeal shall lie against any preliminary or interlocutory decision or order of the Commercial Division of the High Court unless such decision or order has the effect of finally determining the suit'~ I am of the considered view that finalization of a matter means the pronouncement of a decision on all issues including imposition of penalties or sanctions. The matter in the Commercial Court has not been finally determined. The applicants were given a period of two months to comply with the orders of the Court after which the Court was to decide whether or not to met out penalties against them. The record does ·not show that the Court dealt with the matter of penalty after conviction was entered. In fact the record shows that the matter in the Commercial Court was to be mentioned on 17/02/2005 to make a follow up of the ruling of 15/12/2004. 17/02/2005 was roughly two months after 15/12/2004. There is nothing on record to 4 ' .J I show that the parties went to Court in follow up of the ruling of I 15/12/2004. The matter is still pendfng and is yet to be brought to a finality.In the circumstances II find the first ground of j Preliminary Objection to be with substance and I accordingly l uphold it. I I j Having upheld the pt ground ofl Preliminary Objection I see . I no reason to embark on a discussion of the other grounds as a I st determination of the 1 ground d.isposes of the matter. I I accordingly find the application to be incompetent by virtue of ,I the provisions of Section 5 (2) (d) 9f the Appellate Jurisdiction Act. I accordingly strike out the ap~lication with costs. 1 Dated at Dar es Salaam this 27 th day of September, 2006. I I KILEO J\ A. I JUSTICE OF, APPEAL I I I certify that this is a true c~py of original. ' .~,.-pp - . I j . . )jt ;\1~\ 5.~RA 0 I. tf- ;-,~- . i.J ~ ,, ,-~-- · .,f1f~ 1 \~_:~: \~ '1. \ ';),r{.~;. •;t" ,(\1~;;,:,-:A: "<I'. . jj• · .. .. ;, . 1 I SENIOR DEPUTY REGISTRAR -~-f- .•·_ ----~ 5