indian ocean hotels ltd vs al azizia t ltd 2023 tzhccomd 215 13 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 228 OF 2022 INDIAN OCEAN HOTELS LIMITED............................... APPLICANT VERSUS AL-AZIZIA (T) LIMITED......................................... RESPONDENT RULING A.A. MBAGWA J. This is an application for leave to appeal to the Court of Appeal against the decision of this Court (Hon. Maruma J) delivered on 23rd day of November, 2022 in Commercial Case No. 48 of 2021. The application is by way of chamber summons made under section 5(1) of the Appellate Jurisdiction Act. The applicant is praying for the following orders: - (a) Leave be granted to the applicant to appeal to Court of Appeal against the judgement/decision of the High Court (Commercial Division) Maruma J. given at Dar Es Salaam on 23rd November 2022 in Commercial Case No.48 of 2021. (b) Costs of this application be borne by the respondent and i (c) Any other order the Hon. Court may deem fit and just to grant in the circumstances. The application is supported by an affidavit affirmed by Jitesh Jayantilal Ladwa, the applicant's shareholder and director. On the other side, the application was resisted by the respondent via a counter affidavit affirmed by Ramesh Babu Nimmagadda, the respondent's Managing Director. At paragraph 8 of the affidavit in support of the application, Jitesh Jayantilal Ladwa stated that the applicant was aggrieved by the judgment and decree of this Court in Commercial Case No. 48 of 2021 hence she is determined to challenge it. She thus attached copies of the notice of appeal, judgment and decree which are sought to be impugned. Furthermore, at paragraph 9 of the affidavit, the applicant raised two grounds for leave to appeal which she intends the Court of Appeal to consider namely, one, whether it was right for the Hon. Judge to decline the prayer to amend written statement of defence before the suit started to be heard on merits and two, whether it was right for the court to decide that there was a supply of goods without proof of electronic fiscal device receipts tendered in court. In contrast, the respondent opposed the application through the counter affidavit of Ramesh Babu Nimmagadda contending that the grounds 2 a* / stated in the applicant's affidavit are not sufficient to warrant grant of the leave to appeal. During the hearing of this application, the applicant was enjoying the legal services of Mr. Sisty Bernard, learned counsel whilst the respondent was represented by Mr. Selemani Almas, learned counsel. The application was argued by way of written submissions and both parties duly filed their respective written submissions as per the court schedule. Submitting on the first ground to wit, whether it was right for the Hon. Judge to decline the prayer to amend written statement of defence before the suit started to be heard on merits, the learned counsel told the Court that Order VI rule 17 of the Civil Procedure Code together with rule 24(1) and 3(a) & (b) of the High Court (Commercial Division) Procedure Rules provide that amendments can be done at any stage of the proceedings but before judgement. It was thus his strong submission that the trial Judge erred in law by refusing to allow the applicant herein to amend the written statement of defence. The counsel was therefore opined that much as the amendment of pleadings can be made at any stage of proceedings, the trial Judge erred to refuse the prayer to amend the written statement of defence given that the intended amendments were 3 necessary and important for the determination of the real question in controversy between the parties. Regarding the second ground namely, whether it was right for the court to decide that there was a supply of goods without proof of electronic fiscal device receipts tendered in court, the learned counsel was of the view that the trial Judge erred in law by refusing to order amendment and yet decided in favour of the respondent despite the fact that the respondent failed to prove its case. The learned counsel for the respondent stressed that the two issues pointed above need the attention of the Court of Appeal hence, according to him, the application for leave to appeal is meritorious. In reply, the respondent's counsel opposed the application stating that grounds raised have no any speciality to require the intervention of the Court of Appeal. He continued that there is no law which prescribes as to what documents should be tendered to prove the claim rather what is required for claimant is to tender the documentary evidence which could establish that there was a contractual relationship between the applicant and the respondent for supply of goods on credit. He thus urged the Court to dismiss the application with costs. In rejoinder, the applicants counsel reiterated his earlier submission in chief and insisted that the Court denied applicant its right to amend the written statement of defence. I have carefully read the parties' depositions as well as the submissions by both sides. It is undisputed that the leave to appeal is sought in order to challenge the judgment and decree of this Court (Hon. Maruma J) delivered on 23rd November, 2022 in Commercial Case No. 48 of 2021. This is clearly gleaned from the chamber summons under the first prayer and paragraph 8 of the applicant's affidavit. Furthermore, there is no gainsaying that the said judgment was delivered by the Court while exercising its original jurisdiction. The pertinent question therefore for determination of this matter is whether in the circumstances of Commercial Case No. 48 of 2021, leave to appeal is a requirement of law for an appeal against its decision. Section 5(l)(a) and (b) the Appellate Jurisdiction Act provide for matters which do not require leave to appeal. The stipulated matters include an appeal against a decree issued by the High Court in the exercise of its original jurisdiction. As alluded to, the intended appeal in this application is against the decree issued by this Court in its original jurisdiction. 5 Therefore, in view of the provisions of section 5 of the Appellate Jurisdiction Act, it is my considered opinion that since the decree sought to be assailed was delivered by this Court in the exercise of its original jurisdiction, the matter falls under the provisions of section 5(l)(a) hence there is no legal requirement for leave to appeal. In the circumstances, I am of unfeigned findings that the application is misconceived and for that reason I hereby dismiss it with costs. It is so ordered. The right to challenge the decision is explained. A. A. MBAGWA JUDGE 13/07/2023 6