20061117 TZCA Dar es Salaam

. IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATON No. 187 OF 2005 MAKINYUMBI ESTATE LTD AND ANOTHER ............ APPLICANT VERSUS VIDYADHAR GIRDHARLAL CHAVDA .............. 1 st RESPONDENT THE NATIONAL BANK OF COMMERCE ........... 2 nd RESPONDENT (Application for leave to appeal the Court of Appeal from the decision of the High Court of Tanzania at Dar es Salaam.) (Ihema J.) Dated the 28 th day of November, 2.oos· in Civil Case No. 74 of 1996 RULING 10 th & 17 th Nov. 2006 RUTAKANGWA, J. A. In this application by notice of motion under section 15 (1) (c) of the Appellate jurisdiction Act 1979(the Act hereinafter) and rules 43 (b) and 46 (3) of the Tanzania Court of Appeal Rules (the Rules hereinafter), the Applicant is seeking to be granted leave to appeal against the "decision/Rulings/Judgment dated May 13, 2002 and November 28 th 2005 of Mr. Justice Ihema, in High Court Civil Case No. 74 of 1996 (in which the High Court refused leave to appeal to t the Court of Appeal)". The application is supported by one affidavit affirmed by Mr. Majithia, learned advocate, who is representing the applicant. The application has been resisted by the 2nd respondent, the National Bank of Commerce. However, the 1st respondent, Vidyadhar Girdharlad Chavda never entered appearance on the day when the matter was called on the hearing either personally or through his advocate, Mr. Gamba, who was duly served with a copy of the notice of motion. When the mater was called on for hearing Mr. Adamjee learned advocate appeared for the applicant with instructions from Mr. Majithia to argue the application on his behalf. Mr. Adamjee, in his brief submission, urged me to grant the leave sought on the basis of the grounds stated in Mr .. Majithia's affidavit. These reasons are contained in paragraphs 2, 3, and 4 of the affidavit. One cannot satisfactorily capture the gist of these reasons short of reproducing them in full. They are as follows:- 2. That the 1st Applicant is aggrieved by the decision of the High court delivered on 1:fh Ma½ 2002, In Civil Case No. 74 of 1996, and wants to appeal to the Court of Appeal and I have already lodged a Notice of Appeal and I have also already applied for the necessary 2 documents to enable me to prepare a Record of Appeal. Copies of the said documents are annexed hereto and collectively marked Exhibit •~ '~ 3. That the High Court has refused to grant leave to appeal to the Court of Appeal of Tanzania on November, 28, 2005. My application was not granted on the ground that my affidavit attached to the Chamber Summons contained legal arguments. With all due respect to the said judge, I beg to differ. The Affidavit contained no legal arguments. Legal arguments are between two parties. There was nothing of the sort here, I was trying to justify my application for leave. The Affidavit merely stated the grounds upon which I will rely on Appeal at the hearing before the Court of Appeal. Alternatively the Affidavit attached to my Chamber Summons does not become incurably defective with no legs to stand on as alleged by the Hon. Judge. Even without paragraphs 3 and 4, the application stands. 4. That the points raised in the Notice of motion are crucial points of law, of general importance to the public and the development 3 of the law in the country and which a superior court of the land is called upon to make a pronouncement on the same. That under the foregoing circumstances and in the interests of Justice, the applicant prays that the orders sought for in the Notice of Motion be granted accordingly. Furthermore, Mr. Adamjee, in response to a Court question candidly admitted that the notice of motion is not accompanied by a copy of either the High Court ruling or the order extracted there from refusing leave to appeal as is required under rule 46 (3) of the Rules. Mr. Kilindu, learned advocate, on behalf of the 2nd respondent vigorously resisted this application. It was Mr. Kilindu's submission that the leave sought should not be granted because the entire application -is misconceived in law. Mr. Kilindu predicated this submission on the undisputed fact that the High Court did not dismiss the applicant' s application for leave thereby refusing it leave to appeal, but it simply struck out the application for being incompetent after it had found that it had been moved by a Chamber summons which was supported by an incurably defective affidavit. According to him the only option or remedy open to the applicant was to file a fresh application for leave and not to come to this Court under rule 44 of the Rules. He also challenged the 4 competence of this application whose notice of motion is not accompanied by a copy of the High Court order refusing leave to appeal. He accordingly urged me to dismiss this application with costs. After dispassionately considering the submissions of both counsel, I have found myself in full agreement with Mr. Kilindu. His arguments are irresistibly formidable as they are in accord with the now too familiar provisions of section 5 (1) (c) of the Act and Rules 44 and 46 (3) of the Court Rules, which latter rules are couched in mandatory terms. I am holding so for the following principal reason. There is no dispute that the applicant having been aggrieved by the ruling and not the judgment of Ihema J. (as he then was), duly lodged a notice of appeal on 24th May 2002. Thereafter being alive to the fact that this Court has concurrent jurisdiction with the High Court in matters pertaining to granting of leave to appeal to this Court under section 5 (1) (c) of the Act and that an application for such leave must first be made to the High Court under rule 44 of the Rules, it formally properly applied for such leave. From the material before me, it is clear that the said application was never determined on merits. The impugned ruling speaks for itself. The learned judge lucidly stated as follows:- 5 Having carefully perused the chamber summons/ the accompanying affidavit the counter affidavit as well as the rival submissions I desire to limit my ruling on the technical but necessary point relating to the supporting affidavit of Priyavadan Madhavji Majithia .... {emphasis is mine). After directing his mind on the legal definition of an affidavit, the learned judge upheld Mr. Gomba, counsel for the 1st respondent, on his objection to the effect that Mr. Majithia's affidavit was incurably defective. He accordingly held that the chamber summons supported by such an affidavit had "no legs to stand on". He then proceeded to strike out the chamber summons with costs. Indeed, in all fairness to Mr. Adamjee, I wish to point out that in his submission he admitted that the "decision was based on technical grounds". In view of this the applicant cannot be heard to complain that the High Court refused it leave to appeal against the .ruling of Ihema, J. of 28 th November, 2005. The complaint is, in my settled mind, baseless as the application for leave to appeal was never determined on merit but struck out for being incompetent. It goes without saying, therefore, that the High Court has never at any point in time refused the applicant leave to appeal to this Court. 6 . • In view of the above finding I hold that this application is totally misconceived. As rightly pointed out by Mr. Kilindu, if the applicant is still minded to appeal against the impugned High Court decision, it must go back to the same Court and seek the necessary leave, as the law requires subject, of course, to the provisions of the relevant laws of limitation on the mater. This application is accordingly struck out with costs to the 2nd respondent. It is so ordered. DATED in DAR ES SALAAM this lih day of November, 2006 E. M. K. RUTAKANGWA JUSTICE OF APPEAL I certify that this is a true copy of the original. N. P. Z. ~CHA /9: DEPUTY REGISTRAR 7