heineken brouwerijen bv another vs olepasu t ltd ta maxam east africa 2023 tzhccomd 267 2 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO, 95 OF 2023 (Originating from Misc. Civil Application No. 35 of 2023) HEINEKEN BROUWERIJEN B.V.............................Ist APPLICANT HEINEKEN INTERNATIONAL B.V...........................2nd APPLICANT VERSUS OLEPASU TANZANIA LIMITED T/A MAXAM EAST AFRICA........................................ RESPONDENT RULING A.A. MBAGWA, J. This ruling is in respect of an application for leave to appeal to the Court of Appeal against the decision (ruling) of this Court (Mkeha J) in Miscellaneous Civil Application No. 35 of 2023 dated 24th May, 2023. The court granted respondent extension of time within which to file a notice of intention to appeal against the judgment and decree of this Court in Commercial Case No. 5 of 2018. Aggrieved, the applicants have moved this Court by way of chamber summons made under section 5(l)(c) of the Appellate Jurisdiction Act praying the Court to allow the application in the following orders; i 1. That this Honourable Court be pleased to grant the applicants leave to appeal to the Court of Appeal of Tanzania against the decision of the Court in Miscellaneous Civil Application No. 35 of 2023 dated 24th May, 2023. 2. Costs of the application. 3. Any other relief that the Court shall deem fit to grant The application is supported by an affidavit and reply to counter affidavit sworn by Joesphine Safiel who introduced herself as one of the applicants7 lawyers. In essence, the deponent at paragraph 7 of the affidavit states that the said ruling is sought to be challenged on the following grounds; (a) The application for extension of time was not made promptly as soon as the need to do so arose. It was after the lapse of about six months since the initial appeal was struck out. (b) The respondent who was the applicant failed to account for each and every single day of delay. (c) The application was allowed on grounds that there was illegality in the decision sought to be appealed against and that the applicants did not challenge the said illegality. The applicants seek to appeal against this decision because all their counter affidavits and the 2 skeleton arguments challenged the said illegality and further that the illegality stated in the application for extension of time is not the kind of illegality allowed under the law for seeking extension of time to appeal. (d) The grant of the application for extension of time has been made in vain. The grant of extension of time does not cure the main reasons that made the respondent's initial appeal be struck out by the Court of Appeal. The application was strongly contested by the respondent through an affidavit of Salimu Juma Mushi, the learned counsel for the respondent. The deponent stated that the respondent sufficiently established the reasons for grant of extension in Miscellaneous Civil Application No. 35 of 2023 dated 24th May, 2023 whose ruling is sought to be impugned. He added that the alleged illegality in Commercial Case No. 5 of 2018 was also admitted by the Applicants in their cross-appeal in Civil Appeal No. 321 of 2019 which was struck out. When the matter was called on for hearing, Mr. Joseph Ndazi, learned advocate appeared for the applicants whereas the respondent was represented by Mr. Salum Mushi, learned advocate as well. 3 Mr. Ndazi argued the application orally whereas Mr. Salum Mushi adopted the skeleton arguments which he had filed in court earlier and made some few comments orally. Mr. Ndazi adopted the affidavit and reply to counter affidavit of Josephine Safiel. The learned counsel submitted that the applicants were aggrieved with the ruling granting extension of time on the grounds stated under paragraph 7. He expounded that the law requires an application for extension of time to be made without undue delay but the respondent spent about six months without bringing the application. He lamented that the respondent did not account for each day of delay despite it being a mandatory factor for grant of enlargement of time. The applicants' counsel proceeded that the impugned ruling stated that there was illegality in the judgment sought to be challenged in Commercial Case No. 05 of 2018 whilst the alleged illegality was not sufficiently established by the respondent. Furthermore, the learned counsel submitted that the other ground for seeking leave was that the extension of time was granted in vain because it would not savage the defects which triggered the striking out of the previous appeal namely, Civil Appeal No. 321 of 2019. He referred this Court to 4 annexure Heineken 1 to the affidavit for the Court to appreciate the reasons which led to the striking of Civil Appeal No. 321 of 2019. The applicants' counsel was thus opined that the application at hand sufficiently demonstrates important issues worth consideration by the Court of Appeal and for that reason, he urged the court to allow the application and grant the applicants leave to appeal to the Court of Appeal against the ruling and drawn order in Misc. Civil Application No. 35 of 2023. In rebuttal, the respondent's counsel opposed the application stating that the applicants have not met the threshold established by law for grant of leave to appeal. While citing the case of Bulyanhulu Mine Limited and 2 Others vs Petrolube (T) Limited and Another, Civil Appeal No.364/16 of 2017, CAT at Dar es Salaam, the respondent's counsel said that leave to appeal is not automatic right of the party rather it is conditional upon the applicant demonstrating that the intended grounds of appeal raise arguable issues of law or facts worth consideration by the Court of Appeal. In addition, the respondent's counsel expounded that leave to appeal is granted where the grounds of appeal raise issues of general importance or novel points of law or where the grounds show prima facie arguable appeal. On this, the respondent's counsel relied on the case of British Broadcasting 5 Corporation vs Eric Sikujua Ng'maryo, Civil Application No. 138 of 2004. Moreso, the respondent's counsel assailed the grounds raised by the applicants stating that they are more befitting grounds of appeal than grounds for leave to appeal. In fine, the respondent's counsel concluded that there is nothing worth determination by the Court of Appeal and for that reason, the counsel urged the Court to dismiss the application with costs. I have keenly navigated through the parties' depositions and the submissions for and against the application. The issue I am called to determine in the matter is one namely, whether the applicants' intended appeal raises arguable issues of facts or law with sufficient importance or novel point of law worth consideration by the Court of Appeal. As rightly submitted by the respondent's counsel, it is noteworthy that leave to appeal is not an automatic right of the parties but it is dependent on whether the issues involved carry any sufficient importance as to require the indulgence of the Court of Appeal. The requirement for leave to appeal is intended, among other things, to spare the Court of Appeal from dealing with trivial and unmerited matters. In granting leave to appeal, this Court should satisfy 6 itself that the intended appeal really calls for consideration of the Court of Appeal. In the case of Kadili Zahoro and Another vs. Mwanahawa Selemani, Civil Application 137/01 of 2019, Court of Appeal of Tanzania, Hon. Wambali J .A. at page 6 of the ruling quoted with approval the holding in Harban Haji Mosi and Another vs. Omari Hilal Seif and Another, Civil Reference No. 19 of 1997 (unreported) to the following effect; "Leave is grantable where the proposed appeal stands reasonable chances ofsuccess or where but not necessarily, the proceedings as a whole reveal such disturbing features as to require the guidance of the Court ofAppeal. The purpose of the provision is therefore to spare the court the spectra of unmeriting matters and to enable it to give adequate attention to cases of true public importance" Furthermore, it is worthwhile to note that it is not the function of this court to investigate on the merits or otherwise of the intended appeal because that function is exclusively bestowed in the Court of Appeal. As such, this Court cannot comment at this juncture whether the ruling sought to be impugned by the applicants is correct or not. Having assessed the applicants' grounds as contained in the affidavit vis a vis the guiding principles on the grant of leave to appeal, I do not see any 7 arguable issue of sufficient importance or novel point of law as to require the intervention of the Court of Appeal. Alive to the fact that the requirement for leave to appeal is intended, among other reasons, to filter the matters that go to the Court of Appeal, I am inclined to hold that the applicants have failed to establish issues of sufficient importance. Consequently, I am of the view that the application is meritless and therefore I proceed to dismiss it. The applicants should bear costs of this application. It is so ordered. The right of appeal is explained. A.A. Mbagwa JUDGE 02/08/2023 8