ipsos tanzania ltd vs scholastika mutakesi ndyanabo 2022 tzhccomd 359 27 september 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPL. NO. 98 OF 2022 (Arising from the Drawn Order of the High Court (Commercial Division) in Commercial Case No.36 of 2021, dated 19th May 2022) IN THE MATTER OF COMPANIES ACT, CAP.212 R.E 2002 AND IN THE MATTER OF IPSOS TANZANIA LIMITED AND IN THE MATTER OF APPLICATON FOR UNFAIR PREJUDICE UNDER SECTION 233 (1), (2) AND (3) OF THE COMPANIES ACT, CAP 212 R.E 2002 BETWEEN IPSOS TANZANIA LIMITED…………..........................APPLICANT AND SCHOLASTIKA MUKATESI NDYANABO (Petitioning as the Administratix of the Estate of the Late Julius Inshengoma Francis Ndyanabo)…..………..……..RESPONDENT Date of Last Order: 17/08/2022 Date of Ruling: 27/09/2022 RULING NANGELA, J:. This application was brought under section 5(1) (c) of the Appellate Jurisdiction Act, Cap.141 R.E 2019, Rules 45 (a) and 46(1) of the Court of Appeal Rule, 2009 (as amended by GNs Nos.36 of 2010, 362 of 2017 and 344 of 2019. The chamber Page 1 of 15 summons filed in Court is supported by an affidavit of Mr. Gasper Nyika, learned counsel for the Applicant. In her application, the Applicant is seeking for the orders that: 1. This Honourable Court be pleased to grant the Applicant leave to appeal to the Court of Appeal of Tanzania against the Ruling and Drawn Order of the High Court of Tanzania (Commercial Division) at Dar-es-Salam, (Hon. Dr. Deo John Nangela, J.), dated 19th May 2022 in Commercial Cause No.36 of 2021. 2. Costs of this application abide in the outcome of the intended appeal 3. Any other relief(s) this Honourable Court deems fit to grant thereof. On the 13th day of June 2022, the application was called on for orders of this Court. At the material time, Mr. Pascal Page 2 of 15 Mwanyika and Ms. Lilian Mawalla, learned Advocates, appeared for the Applicant while Mr. Claudio Msando, learned Advocate too, appeared for the Respondent. On the material date, this Court directed the parties to dispose of the matter by way of written submissions. A schedule of filing was issued and the learned counsels for the parties have duly complied with it, hence, this ruling. Submitting in support of the Applicant’s prayers, Mr. Nyika and Ms. Samah Salah, learned advocates for the Applicant,submitted that, this application should be granted. They submitted, however, that, leave to appeal is not granted as an automatic right but one conditioned upon there being grounds that the intended appeal raises arguable issues before the Court of Appeal or that, they merit a serious judicial consideration by the Court of Appeal. They submitted, and rightly so, that, the rationale is to spare the Court of Appeal from unmerited matters. (See the case of Bulyanhulu Gold Mine Ltd and Two Others vs. Petrolube (T) Ltd and Another, Civil Appl. No.364/16 of 2017.) The learned counsels for the Applicant did as well Page 3 of 15 contend that, the Court from which leave is sought has to determine the merits or demerits of the grounds of appeal raised when seeking leave to appeal. Indeed, that is a correct view as well and, such a Court will not even go to the substantive issues before the appeal itself is heard. (See Bulyanhulu Gold Mine Ltd(supra).In the affidavit of Mr. Gasper Nyika, four grounds have been raised as the basis for this application for leave. The respective grounds are as follows: 1. That, the learned High Court Judge erred in law and fact by declaring the Respondent as a lawful shareholder without affording the beneficial owner (Mr. Roger Harold Steadman) and transferee (Steadman Group International Ltd) an opportunity to be heard. 2. The learned High Court Judge erred in law and in fact in invalidating the Trust Deed and Transfer of Shares Agreement Page 4 of 15 without affording the beneficial owner (Mr. Roger Harold Steadman) and transferee (Steadman Group International Ltd) an opportunity to be heard. 3. The learned High Court Judge erred in law and in fact in invalidating all acts, deeds, and decisions made by the Applicant without evidence proving existence of the complained acts, deeds and decisions. 4. The learned High Court Judge erred in law and in fact in finding that the Respondent was not availed information regarding status of the Company from 2007 to date without any evidence on record that the Respondent requested for the complained information and was not availed by the Applicant. Page 5 of 15 In a further support for the above grounds and why this Court should grant the prayers sought reliance was placed on the case of Mbeya-Rukwa Autoparts & Transaport Ltd vs. Jestina George Mwakyoma [2003] TLR 251 regarding the right to be heard as a cardinal principal of natural justice. The learned counsel contended that, the above raised grounds constitute serious issues warranting consideration by the Court of Appeal. Mr Claudio Msando has contested the application. He raised, in the first place, the issue that, the application is hopelessly time barred. He submitted that, according to Rule 45(a) of the Court of Appeal Rules, 2009 (as amended), it is expressly provided that, an application for leave to Appeal to the Court of Appeal may be given, either informally on the date when the decision was delivered or by way of a Chamber Summons within 30 days of the decision. To support his submission, he relied on the case of Tumaini Nikodemu vs.Olam Tanzania Ltd, Civil Appl. No.32 of 2021 (unreported). Page 6 of 15 He contended that, the ruling of this Court was delivered on the 19th day of May 2022 and the Applicant herein filed this present application for leave on the 20th day of June 2022. He contended that, the time line for this application expired on the 17th day of June 2022 as the time started to run on the 19 th May 2022. He contended that, as per section 60(1) (a) of the Interpretation of Laws Act, Cap.1 R.E 2019, where a period of time is expressed to be at, on or within a specified day, that day shall be included in the period. He backed up his submission by referring to the Court the case of Kenafrc Industries Ltd vs. Lakairo Investment Co. Ltd, Commercial Case No.7 of 2019 (unreported). He contended, therefore, that, what the Applicant ought to have done in the first place was to apply for extension of time in accordance with section 11(1) of the Appellate Jurisdiction Act, Cap. 141 [R.E 2019]. He, thus, prayed that, I be pleased to dismiss this application forthwith and with costs. He submitted further that, thought the preliminary point of law is raised at this stage this Court should not hesitate to rule on it based on the case of Parseko Vincent Konev vs. Page 7 of 15 Mike Wilhelm Kitwana (As the Lawful Attorney of Floyd Vernon Hammerand Katheryn Mare Hamilon) Civil Ref. No.4 of 2019 (unreported). He also relied on the case of John Barnabas vs. Hadija Shomari, Civil Appeal No.195 of 2018 arguing that, a preliminary objection in respect of time limitation can be raised at any time. In his response to the submissions made by Mr. Nyika and Ms. Salah, it was Mr. Msando’s submission that, the Applicant has not been able to raise arguable issues to warrant the granting of the prayers’ sought. He urged this Court to dismiss it. The Applicant filed a rejoinder submission. It was rejoined that, the Respondent’s submissions are baseless and misconceived. The Applicant’s learned counsel charged that, the Respondent’s counsel did not respond to the submissions regarding the grounds upon which consideration for the granting of this application should be based. They rejoined that, instead, the Respondent has dwelled on a point of law which he has raised. Page 8 of 15 Mr. Nyika and Ms. Salah rejoined further that, it is true that under Rule 45(a) of the Court of Appeal Rule 2009 it is provided that, an application for leave to appeal to the Court of Appeal may be given either informally on the date when the decision was delivered or by way of a chamber summons within 30 days of the decision. It was submitted that; the reckoning of time must be made in accordance with the Court of Appeal Rules as per Rule 8(d) of the said Rules. Mr. Nyika and Ms. Salah submitted that; one cannot invoke a general law where there is a specific law governing a specific act. For that matter, they contended that, reliance on section 60(1) of Cap.1 was inappropriate since Rule 8 (d) of the Court of Appeal Rule has already specified the manner regarding how time should be computed. Besides and, in an alternative, it was rejoined that, the application for leave was filed online on the 17 th June 2022 at 15:53.56 and assigned Ref. No.19088004. Relying on the case of Theresia Nemes Lasway vs.Grace Joseph Swai, Civil Revision No.02 of 2021, HC (unreported), the learned counsels for the Applicant rejoined that, advocates and court users are Page 9 of 15 reminded on the new and modern system of filing cases, i.e., the electronic filing system where in a party in a proceeding is deemed to have his document filed when it is admitted electronically. Reliance was also placed on the case of Alex Enock vs. Sariake Company Ltd (Paul Kidingi), PC Civil AppealNo.42 of 2021 where the Court held that: “Since electronic filing is legally recognized as one of the means of filing documents in courts, then submitting the application on the 21st December 2020 via online system followed by the payment of fees on the 22nd December 2020 can undisputedly be considered as filing the application within time” In a further rejoinder, the learned counsel for the Applicant rejoined that, this application having been filed electronically on the 17th June 2022 (Friday) and the documents got stamped on the Monday 20th June 2022, this Court, under Page 10 of 15 sections 3A and 3B of the Civil Procedure Act, Cap.33 R.E 2019, is empowered to handle all matters presented before it with a view to attain the main objective of ensuring, among other things, just determination of proceedings. I have carefully examined the rival submissions. I do not think I need to dwell much on what Mr. Msando has raised as a preliminary objection. I do agree with him, indeed, that, a preliminary objection being a point of law can be raised at any time and, more so when it is about time limitation. The cited cases of Parseko Vincent Konev (supra) and that ofJohn Barnabas vs. Hadija Shomari(supra), are all relevant to that end. However, they are inapplicable in this case since the matter was not filed out of time as argued. Moreover, I do share the view of Mr Nyika and Ms Salah that, even if it were to be argued that the Applicant was late, still, reliance could not have been placed on the general law, i.e., section 60(1) (a) of the Interpretation of Laws Act, Cap.1 while there is a specific law prescribing what to do and how computation of time should be done. Page 11 of 15 Having said that, and looking at the submission and the grounds advanced by the Applicant, I am of a view that, there is a reason why I should grant the application. I find it to be so, because, the Applicant has been able to demonstrate that, she has an arguable case before the Court of Appeal. The need to demonstrate that the Applicant has an arguable case before grating leave to appeal to the Court of Appeal was emphasized by the Court of Appeal itself in the case of British Broadcasting Corporation (BBC) vs. Eric Sikujua Ng’imaryo, Civil Appl. No.133 of 2004 (unreported). In the above cited BBC’s case (supra) the Court of Appeal was of the view that: “As a matter of general principle, leave to appeal will be granted where grounds of appeal raise issues of general importance or novel point of law or where the grounds show a prima-facie or arguable appeal. (See Buckle vs. Holmes (1926) All ER 90 at page 91).” Page 12 of 15 The same point was restated with emphasis in the case of Rutagatina vs. Advocate Committee, Civil Appl. No.89 of 2010, (unreported). In that case, the Court of Appeal was of the views that: “An application for leave is usually granted if there is good reason, normally a point of law or point of public importance that calls for this Court's intervention. Indeed, on the aspect of leave to appeal, the underlying principle was well stated by this Court in Harban Haji Mosi and Another v Omar Hilal Seif and Another, Civil Ref.No.19 of 1997 (unreported) thus: 'Leave is grantable where the proposed appeal stands reasonable chances of success or where, but not necessarily, the proceedings as a whole, reveal such disturbing features as to require the guidance of the Court Page 13 of 15 of Appeal. The purpose of the provision is, therefore, to spare the Court the spectre of unmeriting matters and to enable it to give adequate attention to cases of true public importance." With that in mind, I am satisfied that, the current application has exhibited the features pointed out in the BBC’s case (supra) or Rutagatina’s case (supra).In view of that, this Court settled for the following orders: 1. That, leave to appeal to the Court of Appeal is hereby granted. 2. That, taking into account the underlying circumstances in this application, I grant no orders as to costs. It is so ordered DATED AT DAR-ES-SALAAM THIS 27THSEPTEMBER, 2022. Page 14 of 15 ......................................... DEO JOHN NANGELA JUDGE Page 15 of 15