equity bank t ltd another vs state oil t ltd 2023 tzhccomd 180 31 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 231 OF 2022 (Arising from Commercial Reference No. 13 of 2022) BETWEEN EQUITY BANK TANZANIA LIMITED.................... 1st APPLICANT EQUITY BANK KENYA LIMITED.......................... 2nd APPLICANT AND STATE OIL TANZANIA LUTED............................... RESPONDENT Date of last Order: 3rd May, 2023 Date of Ruling: 31st May, 2023 RULING MKEHA, J: The applicants are moving the court for an order granting leave for appealing to the Court of Appeal of Tanzania against the decision of this court in Commercial Reference No. 13 of 2022 dated 30th November 2022. The application is made under section 5 (1) (c) of the Appellate Jurisdiction Page 1 of 5 Act as well as Rule 45 (a) and 47 of the Tanzania Court of Appeal Rules. The chamber summons is supported with an affidavit sworn by Mr. William Mang'ena, learned advocate for the applicants. The application is resisted through a counter affidavit sworn by Mr. Anil Nilesh Suchak, Director for the respondent. During the hearing of the application the applicants were represented by Mr. Timoth Vitalis learned advocate. On the other hand, Mr. Juventus Katikiro learned advocate represented the respondent. When Mr. Vitalis learned advocate was invited to argue the application, he adopted the contents of the affidavit supporting the application as well as the skeleton arguments in support of the application as part of his submissions. In terms of the affidavit and the skeleton arguments, the applicants were dissatisfied with this court's decision dated 30th November 2022. Since the applicants could not access the Court of Appeal without obtaining leave of the court, this application was filed. From Paragraph 11 of the affidavit supporting the application, the following are the grounds which the applicant would ask the Court of Appeal to consider if leave is granted: Page 2 of 5 1. Whether paragraph 68 of the Advocates Remuneration Order 2015 was properly applied to justify the decision of the Taxing Master in Bill of Costs No. 78 of 2021. 2. Whether in a suit where there is no claim for liquidated sum it is proper for the Taxing Master to tax the instruction fees based on a counter claim. 3. Whether the Judge was correct to hold that the discretion of the Taxing Master is only applicable in awarding more fees than the one provided in the Scales under the Advocates Remuneration Order, 2015 and not to reduce it. According to the learned advocate for the applicants, the three grounds are contentious grounds fit to be considered by the Court of Appeal. He thus asked the court to grant the application. Mr. Juventus Katikiro learned advocate for the respondent commenced his reply submissions by adopting the contents of the respondent's counter affidavit as part of his submissions. The learned advocate attempted to attack the merits of the intended grounds of appeal. In view of the learned advocate the grounds proposed under Paragraph 11 of the applicants' affidavit are all matters of facts contrary to what is provided under section Page 3 of 5 5 (2) (c) of the Appellate Jurisdiction Act. According to the learned advocate, the Court has at all times directed the matters of facts not to be the basis for certifying a particular case to be referred to the Court of Appeal. When Mr. Vitalis learned advocate rose to rejoin, he reminded the learned advocate for the respondent that the application for leave had not been made under section 5 (2) (c) but under section 5 (1) (c) of the Appellate Jurisdiction Act. According to the learned advocate, the test to be taken into consideration was whether there were contentious issues which could be factual or legal. The only issue for determination is whether the applicants have made a case for grant of leave to appeal to the Court of Appeal. Much as the grant of leave is a discretion of the court, the same is not automatic in the sense that, the court has to be satisfied that the ground for intended appeal raised should merit a serious judicial consideration by the court in order not to waste the precious time of the court. See: SAFARI MWAZEMBE VS. JUMA FUNDISHA, CIVIL APPLICATION NO. 503/06 OF 2021, CAT, (Unreported). There is no denial that this court is not enjoined to determine the merits of the intended appeal as it Page 4 of 5 appeared to be suggested by the learned advocate for the respondent but to determine whether the applicants has advanced issues of general importance to be considered by the Court of Appeal. Having considered the intended grounds of appeal I am satisfied that the applicant's intended grounds of appeal raise arguable issues of law and facts worth determination by the Court of Appeal. For the foregoing reasoning, I see no reason why I should not grant the applicant leave to have his grievances addressed by the Court of Appeal. The application is therefore granted with no order as to costs. Dated at DAR ES^LAAM this 31st day of May 20?-3. C.P MKEHA Hr vMo r JUDGE 31/05/2023 Court: Ruling iswrivered in the presence of Mr. Baraka Msana learned advocate for the applicant and Mr. Juventus Katikiro learned advocatefofetberespondent. C.P MKEHA JUDGE 31/05/2023 Page 5 of 5