HAPPY ENGLISH MEDIUM SCHOOL LTD VS GROFIN AFRICA FUND LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 758 OF 2024 (Arising from Application No. 79 of 2017 for execution of the decree in Commercial Case No. 79 of 2017) HAPPY ENGLISH MEDIUM SCHOOLS LIMITED...........................1st APPLICANT DEODATUS R. PANGANI............................................................. 2nd APPLICANT VERSUS GROFIN AFRICA FUND LIMITED............................................. 1st RESPONDENT PRIMUS PANGANI........................................................................................ 2ndRESPONDEN JULIUS RUTASHUMULURWA PANGANI........................................................ 3rdRESPONDEN CLARA JULIUS............................................................................................... 4thRESPONDEN RULING Date ofiastorder:21/03/2024 Date of Ruling: 10/05/2024 AGATHO, J.: The instant application seeks for the following orders: 1. That this Hon. Court to be pleased to extend the time under which to apply for leave to appeal to the Court of Appeal against the ruling delivered on 17th March 2022 by this court High Court of Tanzania at Dar es Salaam (Commercial Division) (sic). i 2. Subject to the granting of prayer no.l above to be granted (eave to appeal to the Court of Appeal of Tanzania. 3. And granting costs of this misc. application and any other order or relief the court deems fit to grant. The application was brought forth by way of Chamber Summons and it 'is supported by an affidavit of Deodatus R. Pangani who is the 2nd Applicant in this application as well as one of the Directors of the 1st Applicant. The same is preferred under section 5(2)(a)(iii) and 11(1) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] as amended by section 10 of the Legal Sector Laws (Miscellaneous Amendments) Act, 2023 GN No. 48 of 2023 and rule 45 (a) of the Tanzania Court of Appeal Rules, 2009. The genesis of this application as extracted from the Applicant's affidavit and the records of this application is to the extent that, on 17/03/2022 this court delivered a ruling in respect of an application for execution of a decree in Commercial Case No. 79 of 2017. In the said application, the 1st Respondent herein being the Decree Holder was the Applicant while the 1st and 2nd Applicants were the 1st and 3rd Judgment Debtors respectively, amongst five Judgment Debtors. The ruling was delivered in their 2 disfavour. Aggrieved, all the five Judgment Debtors filed in this court, a notice of appeal on 19/04/2022, with the view to challenging the said ruling. According to the Applicants, the intended appeal could not be filed on time for reasons stated in the affidavit in support of the application and final written submissions, of which reasons will be disclosed in the due course hereunder. Hence, they have preferred the application at hand for the above-mentioned orders. Hearing of the application was conducted by way of written submissions. Only the Applicants and the 1st Respondent have argued this application. In a nutshell, this application seeks for two main orders; one, is extension of time to apply for leave to appeal to the Court of Appeal of Tanzania, two, is granting leave to appeal to the Court of Appeal of Tanzania. The second relief is dependent on the granting of the first one which is extension of time. Therefore, for purposes of convenience, I will first determine the prayer for extension of time. If the same succeeds, then I will determine the prayer for leave to appeal. 3 On the prayer for extension of time, it is trite law that, extension of time can be granted upon the applicant adducing sufficient cause. There are plenty of precedents on that aspect including the cases of LYAMUYA CONSTRUCTION COMPANY LTD V. BOARD OF REGISTERED TRUSTEES OF YOUNG WOMEN CHRISTIAN ASSOCIATION OF TANZANIA, CIVIL APPLICATION NO. 2 OF 2010, COURT OF APPEAL OF TANZANIA, AT ARUSHA; ATTORNEY GENERAL V. WAFANYABIASHARA SOKO DOGO KARIAKOO COOPERATIVE SOCIETY LTD, MISC. CIVIL APPLICATION NO. 606 OF 2015, HIGH COURT OF TANZANIA, AT DAR ES SALAAM (both unreported). Hence, basing on the above position of the law, the issue for determination is whether the Applicants have adduced sufficient cause for extension of time. It is in the Applicant's affidavit that, the delay in instituting the intended appeal is a result failure to be supplied with copies of the impugned ruling and drawn order as well as the proceedings on time. In cementing this ground, the Applicants through their final submissions insisted that, the delay was attributed by Deputy Registrar's inaction to issue the said documents within 90 days of appeal. Another reason is that, they were not 4 aware of the amendments in Legal Sector Laws (Miscellaneous Amendments) Act of 2023 which removed the requirement of notice of appeal. Apart from that, the Applicants have also argued that the ruling sought to be appealed against is tainted with illegalities which need to be determined by the Court of Appeal of Tanzania. The illegalities include lack of jurisdiction on part of this court to deliver the said ruling and breach of natural justice right to be heard, to mention a few. It now trite law that allegation of illegalities is sufficient cause for extension of time. See LYAMUYA'S case (supra). Looking at the nature of the illegalities alleged by the Applicants herein, I find that, they are serious in nature. As such, the issue is answered in the affirmative. I am aware that the 1st Respondent has disputed the application. However, looking at the nature of the illegalities alleged, I am inclined to grant the prayer for extension of time. This is because, in light of the above stated position of the law and taking into consideration the fact that such allegations are raised at this stage of appeal, my hands are tied to 5 determine them on. Hence, that is only practicable upon granting of extension of time in this matter so that the same can be determined by the Court of Appeal of Tanzania. That being the position therefore, I grant the prayer for extension of time to apply for leave to appeal to the Court of Appeal of Tanzania. Therefore, the prayer for extension of time having been granted, it is high time to determine the prayer for leave to appeal to the Court of Appeal of Tanzania. It is the position of law that, granting of leave to appeal to the Court of Appeal of Tanzania is discretion of the court. However, such discretion must be exercised judiciously. Hence, in order to meet such a judicious discretion, the general principle is that, leave is granted only where the grounds of the intended appeal raise arguable issues for the attention of the Court. See BRITISH BROADCASTING CORPORATION V. ERIC SIKUJUA NG'MARYO, CIVIL APPLICATION NO. 138 OF 2004; RUTAGATINA C.L V. THE ADVOCATES COMMITTEE AND ANOTHER, CIVIL APPLICATION NO. 98 OF 2010 (both unreported). 6 Hence, at this juncture, the issue for determination is whether the Applicants' grounds of the intended appeal raise arguable issues for the attention of the Court of Appeal of Tanzania. Looking at paragraph 14(a)-(k) of the Applicant's affidavit, there are several grounds. For instance, paragraph 14(a) of the affidavit questions the jurisdiction of this court. Apart from that, paragraph 14(c) alleges breach of right to be heard. These grounds amongst others are serious. Thus, basing on the nature of the grounds stated in that paragraph 14 of the affidavit including the ones stated above, I find that, the same raise arguable issues hence, attention of the Court of Appeal of Tanzania is wanting. As such, the issue raised is answered in affirmation. I thus proceed to extend time and grant leave to the Applicants to appeal to the Court of Appeal of Tanzania. The applicant is given 21 days from today to process his appeal. Order accordingly. DATED at DAR ES SALAAM this 10th day of May 2024. 7 JUDGE 10/05/2024 Date: 10/05/2024 Coram: Hon. U. J. Agatho J. For the Applicant: Absent For the 2nd Applicant: Deodatus Pangani For the 1st Respondent: Daniel Yona, Advocates For the 2nd - 4th Respondents: Absent C/Clerk: E. Mkwizu Court: Ruling delivered today, this 10th May 2024 in the presence of 2nd Applicant, Deodatus Pangani, and Happiness Kawiche, Advocate for the 1st Respondent. 8