20060410 TZCA Dar es Salaam4

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 103 OF 2005 CITIBANK TANZANIA LIITED ....................................................... APPLICANT VERSUS 1. TANZANIA TELECOMMUNICATION COMPANY LIMITED ] 2. TANZANIA REVENUE AUTHORITY ] 3. TANZANIA COMMUNICATIONS REGULATORY ] AUTHORITY (AS SUCCESSOR TO THE ] TANZANIA COMMUNICATIONS COMMISSION) ] ... RESPONDENTS 4. VIP ENGINEERING AND MARKETING LIMITED ] 5. THE LIQUIDATOR OF TRITELECOMMUNICATION ] TANZANIA LIMITED (IN LIQUIDATION) ] (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.) dated the 12th day of June, 2003 in Commercial Cause No. 6 of 2003 31/3/2006 & 10/4/2006 RULING MUNUO, J.A.: The applicant, CITIBANK (T) Ltd., through the services of Mr. D. Kesaria, lear~ed advocate, filed the present Notice of Motion under Section 5 (1) (c) and 11 (1) of the Appellate Jurisdiction Act, 1979 and Rules 8, 44 and 45 (i) of the Tanzania Court of Appeal Rules, 1979 seeking: 2 (a) extension of time to file a Notice of Appeal under Rule 76 ( 1) of the Tanzania Court of Appeal Rules, 1979 to enable the applicant to appeal against the Ruling, findings and Orders in Miscellaneous Commercial Cause No. 6 of 2003 on the 12th June, 2003, before Kimaro, J., which among other things invalidated the Applicant's Debenture dated the 6th April, 2001 and all Orders consequential to that finding. (b) Extension of time to file an application for leave to appeal against the Ruling and Orders in Miscellaneous Commercial Cause No. 6 of 2003. ( c) The costs of the application abide the result of the intended appeal. The 1st, 3rd and 4th Respondents were represented by Mr. C. Tenga, learned advocate. The second Respondent was represented by Mr. Lugaiya, learned advocate. The fifth Respondent was represented by Dr. Luoga, learned advocate. 3 Counsel for the 1st, 3rd and 4th Respondents abandoned the preliminary objections which had been filed against the applicanT. Counsel for the 2nd Respondent filed a preliminary objection praying that the application be struck out with costs because it is incompetent for want of a copy of the Ruling and Orders of the High Court on the 12th June, 2003. Mr. Lugaiya submitted that the applicant omitted to annex a copy of the Ruling and Orders delivered by the trial court on the 12th June, 2003, the subject of the present application. The said omission, counsel for the second respondent submitted, is a material irregularity which renders the application incompetent so it should be struck out with costs. Mr. Kesaria conceded that the material Ruling and Drawn Order were not annexed to the application. Denying that the said omission was a fundamental irregularity which renders the application incompetent, Mr. Kesaria contended that annexing a copy of the Ruling and Drawn Order would have been material if the application had been for leave to appeal under Rule 46 (3) of the Tanzania Court of Appeal Rules, 1979. This application he observed, was not 4 brought under Rule 46 (3) so the omission of the Ruling and Drawn Order does not render the application incompetent. Furthermore, counsel for the applicant contended, the material Ruling and Drawn Order, are annexed to the counter-affidavit of James Burchard Rugemalira for the 4th Respondent so the preliminary objection lacks merit. It is true that the present application was filed in compliance with Rule 46 (1) of the Court Rules, 1979 which provides, inter a/ia: 46 (1) Every formal application to the Court shall be supported by one or more affidavits of the applicant or of some other person or persons having knowledge of the facts. Although the affidavit of Bashir Awale was deponed in support of the application, in practice the copy of Ruling and Drawn Order had to be annexed to the Notice of Motion to enable the Court to peruse the same and decide whether or not the grounds of this application are sufficient to sustain the application for extension of time. Since the Ruling and Drawn Order were not annexed to the Notice of Motion it follows that the application would have to be struck out. But because the said Ruling and Drawn Order have been 5 filed by the 4th Respondent, it would be mere technicality to strike out the application. For that reason, I overrule the preliminary objection. On the merits of the application, counsel for the applicant adopted the affidavit deponed to by Bashir Awale in support of the application. He complained that the applicant was not a party in the trial court proceedings so the learned Judge erroneously made adverse orders relating to debentures without giving the applicant a hearing. He said that the applicant sought relief by applying for revision in Civil Application No. 112 of 2003. The Court dismissed the revision on the ground that the applicant had a right of appeal under Section 220 of the Companies Ordinance, Cap 212 which states: 220. Appeals from an order or decision made or given in the matter of the winding up of a company by the Court may be had in the same conditions as appeals from any order or decision of the Court in case within its ordinary jurisdiction. The Respondents' counsel contended that the applicant wasted time applying for review and filing revision instead of appealing 6 within time. The delay, the Respondents' counsel contended, was caused by the applicant's deployment of wrong procedures instead of straight away appealing against the Ruling of the trial court. Besides, the Respondents' counsel further contended, the winding up petition was published in the Daily News and in the Guardian so the applicant should have applied to be joined in the petition which the applicant negligently failed to do so the application for extension of time should be dismissed with costs just as was dismissed by the High Court. The issue is whether there is sufficient ground for extending the time to file a Notice of Appeal and for applying for leave to appeal. While I appreciate the Respondents' counsel's contention that the applicant wasted time pursuing wrong procedures of review and revision, it is trite law that before adverse orders are made against a party, the said party must be accorded a hearing. The applicant's complaint has been that the trial court exceeded its jurisdiction in the winding up Order by making orders relating to debentures. The problem was not solved because the review and revision were 7 unsuccessful. Hence the present application for extension of time to file a Notice of Appeal and apply for leave to appeal. The delay did not occur because the applicant sat on the fence or remained idle. In view of the above, the applicant's only remaining venue is appeal, if the application is granted. This constitutes sufficient ground for extending time. I accordingly grant the application. The applicant should lodge the Notice of Appeal within fourteen days from today. The applicant should apply for leave to appeal within the same period, that is, fourteen days from today. Costs to abide the result of the intended appeal. DATED at DAR ES SALAAM this 10th day of April, 2006. E.N. MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original.