20050801 TZCA Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM {CORAM: LUBUVA, J.A., MUNUO, J.A. AND KAJI, J.A.} CIVIL REFERENCE NO. 2 OF 2004 MAHENDRA KUMAR COVINDJI MONANI t/a ANCHOR ENTERPRISES ... . ..... ... ...... .. . . .. .. . ... .. . . .... .. APPLICANT VERSUS 1. TATA HOLDING {T) LTD] 2. OFFICIAL RECEIVER - ] ,; ...........•.. ~ ... ~ .. -; ...... RESPONDENTS {Reference from the decision of a single Judge under Rule 57 of the Court of Appeal of Tanzania · at Dar es Salaam) {Mroso. J.A.} dated the 19th March, 2004 in Civil Application No. 50 of 2002 RULING OF THE COURT LUBUVA. J.A.: This reference arises from the ruling of a single Judge of this Court (Mroso, J.A.) dismissing the application for leave to appeal to this Court. After unsuccessful application in the High Court for leave to appeal from the decision of the High Court in Misc. Civil Cause No. 126 of 1999, the.applicant, Mahendra Kumar Govindji Monani, further applied for leave to appeal to the Court which application was also dismissed . . . 2 The background giving rise to the matter may be stated briefly as follows. In the High Court the applicant, was declared bankrupt under sections 20, 103 and rules 16 and 151 of the Bankruptcy • Ordinance Cap. 25 of the Laws of Tanzania. As a result, the 1st respondent, Tata Holding (T) Ltd. sought to have the ex-parte order rescinded. In the course of hearing the application to rescind the order, the applicant raised a preliminary objection which Msumi, J.K. (as he then was) dismissed. Aggrieved, the applicant filed notice of intention to appeal to this Court and then applied for leave to appeal. The High Court also dismissed the application following which the application to the Court was heard and determined by the single Judge. As already indicated, the application was dismissed on 19.3.2004 and hence this reference. At the commencement of hearing the application for leave before the learned single Judge, a preliminary objection was raised that the application was incompetent. The objection was based upon the ground that the appeal against the order dismissing the preliminary objection was barred by the law under section 5(2)( d) of 3 the Appellate Jurisdiction Act, 1979 as amended by Act No. 25 of 2002 which provides that: 5(2)( d) no appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision-- or order of the High Court unless such decision or order has the effect of finally determining the criminal charge or suit. It was contended on behalf of the respondent in support of the preliminary objection that as the order dismissing the preliminary objection did not finally determine the application the matter before Msumi, J.K. not being appealable, it would therefore be a futile exercise to grant leave to appeal. The learned single Judge took the view that as the order which was appealed against did not have the effect of finally determining the application which was before the High Court the appeal was prohibited by law as provided under section 5(2)(d) of Act No. 25 of 2002. The learned single Judge also held that the applicant did not have an accrued right of appeal because leave to appeal had not as yet been obtained. 4 Consequently, the preliminary objection was sustained, resulting in the dismissal of the application, subject of this matter. In this reference, Mr. Chandoo learned counsel, appeared for the applicant. He ardently sought to fault the learned single Judge in sustaining the preliminary objection upon the ground that the High Court order was prohibited by law under section 5(2)( d) of the Appellate Jurisdiction Act, 1979 as amended by Act No. 25 of 2002. He submitted that the learned single Judge erred in holding that the applicant's right of appeal had not accrued because leave to appeal had not been granted. This, Mr. Chandoo said was an error on the part of the learned single Judge based on wrong conception of the law and the sequence of events leading to the application. Importantly, Mr. Chandoo urged the correct position of the law is that the right of appeal accrued from the time the notice of appeal was lodged in terms of rule 76. In his view, compliance with rule 76 is the pre-requisite for the accrual of the right of appeal and not the granting of leave to appeal as held by the learned single Judge. Leave to appeal, he said was only a process in instituting the appeal. In this case he stressed, the notice of appeal having been filed on ,I 5 20.3.2000, the pre-requisite condition under rule 76 had been fulfilled. Therefore, he contended that the applicant's right of appeal had accrued as from 20.3.2000. In support of the proposition that notice of appeal is the pre-requisite for the accrual of the right of appeal and not leave to appeal, Mr. Chandoo referred to the decision of the Court in Engen Petroleum (T) Ltd. v Commissioner General Tanzania Revenue Authority, Civil Application No. 137 of 2004 (unreported). From this decision, he drew a parallel between the provisions of rule 9(2)(b) relating to stay of execution and rule 76 regarding notice of appeal. In this light, Mr. Chandoo summarized his submission as follows: The notice of appeal having been lodged on 20.3.2000, the application before the single judge was filed on 21.5.2002 and the application in the High Court (Msumi, J.K.) subject of the intended appeal, was also lodged well before Act No. 25 of 2002 came into force, the accrued and vested right of appeal of the applicant could not be affected by the provisions of Act No. 25 of 2002 which came into force on 20.12.2002. Once it is accepted that the Act came into force at a time when the applicant's right of appeal had accrued and 6 vested and as the learned single Judge had conceded that the Act had no retrospective effect, it was an error on the part of the learned single Judge to dismiss the application on the ground that it was barred by law. Instead, the application should have been heard on merit, Mr. Chandoo urged. Mr. Jadeja, learned counsel, who had also appeared before the learned single Judge responded to the submission by Mr. Chandoo. First, he conceded that at the time the application before the single Judge was dealt with, the Court had not decided the case of Engen Petroleum (T) Limited v Commissioner Tanzania Revenue Authority, (supra). In that case a single Judge of this Court had cited with approval the decision of the full court in Sadiq Abdallah Alawi v Zulekha Suleman Alawi And National Bank of Commerce, Civil Reference No. 29 of 1997 (not yet reported). In Sadiq Abdallah Alawi, Mr. Jadeja said it was settled by the full court that only the notice of appeal is a pre-requisite for granting stay of execution under rule 9(2)(b) and not leave to appeal. 7 In similar vein, it was implicit from his submission that with regard to the accrual of the right of appeal, the decision of the full court on this point settles the legal position currently. Consequently, he could not see how the single Judge could depart from the decision of the Full Court in this regard. Otherwise, it was the view of Mr. Jadeja, which, with respect, we think is correct that the rationale behind the provisions of section 5(2)( d) of the Appellate Jurisdiction Act , 1979 as amended by Act No. 25 of 2002 was to avoid the back log of cases caused by appeals from the Commercial Division of the High Court based on preliminary or interlocutory decisions. We shall briefly start with the issue whether section 5(2)(d) of the Appellate Jurisdiction Act as amended by Act No. 2 of 2002 was applicable to the instant case. It is common ground that Act No. 25 of 2002 which effected the amendment to the Appellate Jurisdiction Act, 1979 came into force on 20.12.2002. It is also common ground that counsel for both the applicant and the respondent, Mr. Chandoo and Mr. Jadeja, learned counsel, respectively were agreed that the Act did not have a retrospective effect it was not intended by the legislature. The principle pertaining to this aspect was ably 8 articulated by the learned single Judge in the ruling. Maxwell on Interpretation of Statutes, 10th Edition at page 213 supports the learned single Judge's view on retrospective operation of statutes with which we are respectfully in· agreement. We hardly need say more on it. The next vexing issue on which the learned single Judge based his decision in the matter is whether the accrual of the right of appeal of the applicant was contingent upon the grant of leave of appeal. As said before, the learned single Judge was of the settled view that the applicant did not have an accrued right of appeal on the ground that leave to appeal had not been granted. This is the issue in which the applicant through the services of Mr. Chandoo learned counsel, seriously sought to fault the learned single Judge. As already indicated, Mr. Chandoo firmly contended that it was erroneous on the part of the learned single Judge to read into rule 76 of the Court rules, 1979 that leave to appeal is a pre-requisite for the accrual of the right of appeal. On this, Mr. Jadeja, learned counsel for the respondent was apparently at one with Mr. Chandoo, having regard to the decision of the Full Court in Sadiq Abdallah Alawi v 9 Zulekha Suleman Alawi And National Bank of Commerce, Civil Reference No. 29 of 1997 which was cited with approval in Engen Petroleum (T) Ltd. v Commissioner General, Tanzania Revenue Authority, Civil Application No. 137 of 2004. In Sadiq Abdallah Alawi v Zulekha Suleman Alawi (supra) the application for stay of execution was sought in terms of the provisions of rule 9(2)(b) of the Court Rules, 1979. It was contended in that case that leave to appeal was a pre-requisite for granting a stay of execution. The court expressly stated inter alia: Under the rule 9(2)(b ), only the notice of appeal is made a pre-requisite for granting a stay of execution. We think that if it was intended that leave to appeal also be made a pre-requisite that it was only too easy for the framers of the rule to say so but they did not. This position was adopted and followed by a single Judge of this Court in Engen (supra) in a similar application involving rule 9(2)(b). In similar vein and by parity of reasoning, we are respectfully in agreement with Mr. Chandoo, learned counsel for the applicant, that with regard to the right of appeal it is only the notice of appeal duly filed in terms of the provisions of rule 76 which is a pre-requisite for the accrual of a right of appeal. As stated in Sadiq Abdallah Alawi, if the legislature had intended to make leave to appeal a pre- requisite, it would have been stated expressly so under rule 76. To read into the rule such a requirement amounts to a strenuous and wide interpretation beyond the intention of the legislature. In this view as expressed by the Full Court in Sadiq Abdallah Alawi, Mr. Jadeja, learned counsel for the respondent, conceded as well. In the circumstances, we are, with respect, of the view that had the learned single Judge considered the decision on the Full Court in Sadiq Abadllah Alawi (supra), we think he would have come to the decision that the applicant's right of appeal accrued from 20.3.2000, when the notice of appeal was duly lodged. Having found that the applicant's right of appeal accrued from 20.3.2000, when the notice of appeal was lodged, the other issue - ·.J;."" . 11 falling for consideration at this stage is whether the appeal was barred by law under the provisions of Act No. 25 of 2002. The · accrued right of appeal could only be affected by the Act which came into force on 20.12.2002 after the accrual of the right of appeal if it was expressly stated so in the Act. It follows therefore that the Act did not affect the applicant's accrued right of appeal. That is, section 5(2)(d) of the Appellate Jurisdiction Act, 1979 as amended, is not applicable· in the instant case. Consequently, the applicant had a right of appealing against the order of the High Court of 14.3.2000 sustaining the preliminary objection raised. For the foregoing reasons, we are increasingly of the view that had the learned single Judge considered the application from this perspective, he would have found that the applicant had an accrued and vested right of appeal. In the event, he would have also found that the application was competent, it was not barred by law. In the circumstances, the reference is allowed with costs. • 12 As the application was not considered on merit, the same is to be placed before the Honourable Chief Justice to assign a single Judge to hear the application on its merit. DATED at DAR ES SALAAM this 1st day of August, 2005. D. Z. LUBUVA · JUSTICE OF APPEAL E.N.MUNUO JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. M' NYIKA) REGISTRAR