20060925 TZHC Dar es Salaam 1

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 130 OF 1998 CITY PROPERTIES LIMITED AND OTHERS ... APPLICANTS VERSUS VIDYADHAR GIRDHARLAL CHAVDA ......... RESPONDENT Date of last order - 23/8/2006 Date of Ruling - 25/9/2006 RULING Shangwa, J. This is an application for leave to appeal to the Court of Appeal of Tanzania against the ruling of this Court made by Massati, J. on 4/10/2004 in which he dismissed the applicants' I, I preliminary objection to the hearing of Civil Case No. 130 of 1993. At paragraph 3 of his affidavit in support of this application Mr. Majithia for the applicants states that there are two points of 2 law which are involved in the ruling of Massati, J. One, that the trial Judge refused to hear their objections. Two, that the issue of jurisdiction is involved. Whereas I agree with learned counsel for the applicants that the second point of law above listed is involved in the ruling of Massati, J, I do not agree with him that the first point of law above listed is involved in the said ruling. The following are my reasons for agreeing with him on the second point and for disagreeing with him on the first point. First of all, the point of jurisdiction was one of the points which was raised by counsel for the applicants Mr. Majithia and Mr. Marando in their preliminary objection to the hearing of Civil Case No. 130 of 1993. This point reads as follows and I quote: 3 "That the court has no jurisdiction to entertain a suit concerning land as averred in paragraphs 3, 4, 5 and 6 of the chamber summons and paragraphs 2,3,4,5,27,29,31 and 32 of the affidavit of Vidyadhar Chavda". One of the prayers which was raised by the respondent/plaintiff in the suit was for an injunction to restrain the applicants/ defendants from disposing of any or all of the trust properties. In his ruling Massati, J. took time to consider the parties' submissions. Finally, he disallowed the objection on jurisdiction. This can clearly be seen at page 8 of his typed ruling where he stated as follows and I quote: "For those reasons I would disallow the objection on jurisdiction" - 4 My reasons for disagreeing with learned counsel for the applicants on the first point are that the learned brother Judge gave sufficient opportunity to the applicants to argue the five points of preliminary objections by way of written submissions. After filing the same, he considered their submissions and arguments in depth. He then dismissed all of their preliminary objections with costs. This is very clear if one reads his concluding remarks at page 11 of his typed ruling where he stated as follows and I quote: "When all is said, I have to conclude by saying that I find no merit in the preliminary objections, and dismiss them with costs". As already indicated, there is a point of law which is involved in the ruling of this court Massati, J. That is, whether or not this court has jurisdiction to entertain Civil Case No. 130 of 1993 which partly involves trust properties which include land. This is a very important question which I find to be worthy of . 5 consideration by the Court of Appeal of Tanzania. I therefore grant this application for leave to appeal to the said court. Each party to bear its own costs. A. Shangwa JUDGE 25/9/2006 Delivered in open court this 25th day of September, 2006. A. Shangwa JUDGE 25/9/2006