20170421 TZHC Dar es Salaam

' IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 339 OF 2016 (Originating from Misc. Civil Application No. 104/2016 Before: A. Munisi, J.) INTERBEST INVESTIMENT CO. LTD ........................ APPLICANT VERSUS STANDARD CHARTERED BANK (T) LTD ................ RESPONDENT RULING: This is an application made under Section 5(1):c) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Edition of the Laws of Tanzania 2002 and Rule 45(a) and 4 7 of the Tanzania Court of Appeal Rules. In this application Interbest Investment Company Limited, the applicant is seeking indulgence of this Court for the following orders:- 1. An order another granting leave to the applicant to appeal to the Court of Appeal against the decision of the High Court of Tanzania at Dar es salaam (Hon. Munisi, J.) dated May 18, 2016 in Misc. Civil Application No. 104 of 2016. 2. Costs of this application. 3. Any other relief that to the Court appears just to grant in favour of the applicant. The affidavit of Audax Kahendaguza Vedasto, learned Advocate, has been filed in support of the application. The respondent Standard 1 Chartered Bank (T) Ltd has, through Mr. Sylvantus Silvanus Mayenga, learned advocate, filed a counter affidavit. Before me, the applicant was represented by Mr. Audax Kahendaguza Vedasto, learned advocate while respondent is being advocated for by Mr. Sylvatus Silvanus Mayenga, learned Counsel. Supporting the application, Mr. Vedasto submitted that Section S(l)(c) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2002] under which this application has been preferred does not state the matters to be satisfied by the applicant seeking leave. He, however, contended that the Court of Appeal of Tanzania has developed the criteria the Court should consider when granting leave to appeal. He referred this Court to the Case of Abubakar Ali Himid Vs. Edward Nyelusye: Civil Application No. 51 of 2007 (Unreported). It is learned counsel's contention that a draft of a memorandum of Appeal (Ann. AA3) identifies six distinct matters which discloses the distinctive features warranting the Court to grant leave. Mr. Vedasto endeavoured · to summarise tho~e distinctive features in his submission and -urged this Court to give leave to the applicant to appeal to the Court of Appeal so that those features as shown in the draft of the memorandum of Appeal are addressed to. Mr. Sylvatus Silvanus Mayenga, on the h?.nd, replied to the submission in chief. He told this Court that the contents of the deponent's affidavit do not contain any point of law worthy consideration by the Court of Appeal. As regards the draft of a memorandum of appeal, Learned Counsel for the respondent is of the view that it is not a document to be relied on by this Court as it is intended to the Court of Appeal. It is his argument that the applicant ought to have listed clear points in the affidavit for 2 consideration and what, Mr. Vedasto 1s submitting 1s a mere statement from the bar. According to learned advocate, this Court (Hon. Munisi, J.) considered two important aspects that is a cause of action and the extent of the disclosure. That there was no prayer made on compound interest and there was no disclosure as such the Court came to the right decision. Mr. Vedasto, in rejoinder submitted that the point on which, he was referring to are contained in the ruling of the Court and paragraph 4 of the affidavit. Else, learned counsel was of the view that what is important is to note down the matters that are worthy consideration by the Court of Appeal and that not all matters should be contained in the affidavit. I have considered the affidavit and the counter affidavit together with the rival submissions by learned advocates. It is true and I am bound by the decision of the Court of Appeal in the case of Abubakar Ali Himid V. Edward Nyelusye (s"'..lpra) that: - "Leave is grantable where the proposed..' appeal. stands reasonable chances of success or where, not necessarily, the proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal. The purpose o..f tf!,e provision is, therefore, to spare the Court the specter of unmeriting matters and to enable it to give adequate attention to cases of true public importance,, Going by the said guidance, it can be stated that in order for leave to appeal to be granted, the proposed appeal stands reasonable chances of success or where the proceedings as a whole reveal such disturbing features as to require the guida_--i.ce of the Court of Appeal. 3 ' ' • I agree to the contention of the Mr. Mayenga that the contents of the affidavit of Audax Kahendaguza Vedasto do neither indicate that the proposed appeal stands reasonable chances of success nor indicate that the proceedings as a whole reveal such disturbing features as to require guidance of the Court of Appeal. These matters had to be indicated in the affidavit since submissions are not evidence. However, this Court is satisfied that the proceedings as a whole reveal some disturbing features as indicated in the draft of the memorandum of appeal annexed to the deponent's counter affidavit. The application, 1s accordingly granted~.:-,--"-''·····-<, ,,,;:;;oYuRT :;.., .. ;1/c o>- · !/ *;1(1·~\~. ,..,\\ W. P. D ~S? ( ({~~~,/-f-»; If\ ,'. ~ :1 "'• II {{.-. .-".J, •.Jj , ,,/t~· /~•~ i, , "<:1;' '1 ;;,- o era, J. 21/4/2017 1 1 ::r.: -~ b~(i\t{,·;,J:;e~;\, /1':J' 21 \~. '2'~'11.!i~;~t:f~/-~ f'. <":,;-f''' ✓£¾ / f· ,,.., ~,t.l '-...._ __ .,.._.,/ ~ \ .,/ •,, ..J~ ' Coram: Hon. W. P. Dyansobera, J. For the Applicant: Mr. Vedasto for. For the Respondent: Ms. Sabha for. C.Clerk: Janet Court: