20130725 TZHC Dar es Salaam

' i.•, IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 18 OF 2009 . (Originating in the Resident Magistrates' Court of Dar es Salaam at Kisutu, Civil Case no. 344 of2007) MBEYA CEMENT COMPANY LIMITED .......... APPLICANT VERSUS ELLY P. MW AKABANJE ............................... DEFENDANT RULING r MURUKE,J. Mbeya Cement Company Limited, the applicant, has moved this Court under section 5(l)(c) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2002 and rule 45(a) of the Tanzania Court of Appeal Rules, 2009, requesting for the following orders: 1. This Honorable Court may be pleased to grant the application for leave to appeal to the Court of Appeal against the judgment and decree of this honorable court dated 22/6/2011. 2. Costs of this application be provided for. 3. Any other and further orders as this honorable court shall deem appropriate. The application is supported by the affidavit of Cecilia Assey, the ""' ' applicant's advocate. It is deposed in the affidavit that the applicant is dissatisfied with the whole of this Courts decision (Rugazia, J) in Civil Appeal no. 18 of 2009. Therefore he filed notice of appeal to the Court of Appeal against the decision. The grounds for bringing this application are fetched from paragraph 4 of the affidavit which reads as follows: That there are points of law that need to be determined by the Court of Appeal for the interests of the appellant, namely: i) Whether his lordship was correct in holding that specific damages were proved? 1 ii) Whether his lordship was correct in failing to consider that the said documents he relied upon were tendered before the trial magistrate and they were not part of the pleadings. In his counter affidavit, Elly P. Mwakabanje, the respondent, disputed reasons advanced by the applicant in support of the application. To the respondent, there is no point of law involved to warrant the applicant leave to appeal to the Court of Appeal. It was thus the respondent's view that the applicant isn't entitled to any relief. In the course of determining this application, the applicant was represented by Mr. Ndanu advocate of Law Associates (Advocates). The respondent had services of Mr. Malima advocate. The application was heard by way of written submissions. Both counsels filed their submissions timely. Quoting the court's decision in Bamprass Star Service Station Ltd v. Mrs. Fatuma Mwale [2000) TLR 416, Mr. Ndanu submitted that it is trite law now that special damages must not only be claimed specially, but must also be strictly proved. The learned counsel contended that according to the respondent, he tendered all exhibits proving his claim and the exhibits were self explanatory. In real sense only receipts were tendered and the respondent left for the court to elucidate the respondent's claim contrary to the procedure. Mr. Ndanu insisted that procedure required the respondent to move the court and not for the respondent's counsel to wait for court's directives to prove the case. Mr. Ndanu submitted further that order XXXIX rule 27(1) of the Civil Procedure Code, Cap. 33 R.E. 2002 prohibits parties from adducing additional evidence in appeals. The counsel maintained that if at all the court allows additional evidence to be produced in appeal; reasons for doing so must be recorded as required under rule 27(2) of order XXXIX of the Code. It was Mr. Ndanu's argument that, in an appeal before this court, the respondent submitted on documents which were not tendered during the trial and which didn't form part of the pleadings. However those facts 2 were relied upon by the first appellate judge in his judgment without recording any reasons for doing so. The counsel concluded that in the circumstances; there are sufficient reasons involving points of law attracting an appeal to the Court of Appeal. Mr. Malima submitted in reply that the respondents claim for specific damages in the trial court was pleaded and strictly proved. The counsel was emphatic that relevant receipts were produced to support the allegations in the plaint. The respondent proved his case to the required standards. In relation to the additional evidence in appeal, Mr. Malima submitted that civil jurisprudence allows courts acting on appeals to ask for and rely on additional evidence for the sake of dispensing justice. Mr. Malima stressed that this court was right and correct to rely on additional evidence tendered by the respondent. The only question to be dealt with here, is whether the application raises a contentious matter of law fit for consideration by the Court of Appeal. When dealing with an application for leave to appeal to the Court of Appeal after a prior refusal by the High Court Zanzibar to grant such a similar application, Court of Appeal (Lubuva, J.A.) observed in Nurbhai N. Rattansi v. Ministry of Water, Construction, Energy, Land and Enviroment and Hussein Rajabali Hirji [2005] TLR 220 at page 222 - 223: "In my considered opinion, the narrow issue for consideration in this application is whether there was a legal point worth consideration of the Court of Appeal ... In the circumstances of the case, I am, with respect, in agreement with the view expressed by Msumi, J. (as he then was) in Saidi Ramadhani Mnyanga v. Abdallah Salehe (1996 TLR 74), in which he restated the correct position of the law in this regard. He stated inter alia: The matter raises contentious issues of law and is a fit case for further consideration by the Court of Appeal." What do we have in this application? The applicant contends that the respondent's claim for specific damages wasn't pleaded and specifically 3 .,' proved thus, this court erroneously awarded the same. It is contended further that this court erroneously acted and relied on additional evidence produced in the respondent's submission contrary to order XXXIX rule 27(1) of the Code and without giving any reasons in terms of order XXXIX rule 27(2) of the Code. As already indicated suppra, the respondent contested the assertion that he didn't prove the claimed specific damages. It was, however, conceded by the respondent that this court relied on additional · evidence and it was quickly argued that civil jurisprudence allows courts to act on additional evidence produced in appeal and this court was correct in doing just that. In my considered opinion, the arguable questions whether the specific damages were pleaded and proved to the required standards or whether the court legally acted and relied on additional evidence produced in appeal, raise contentious matters of law. In the result, I find that this is a fit case for further consideration by the Court of Appeal. I hesitate to accept Mr. Malima's contention that there is no point of law involved for consideration by the Court of Appeal. Finally, leave is granted for the applicant to lodge its appeal to the Court of Appeal. Parties shall bear own costs. It is accordingly ordered. ~ Z. G. MURUKE JUDGE 25/7/2013 Ruling delivered in the presence of the respondent in person and in the absence of the applicant. ~ Z. G. MURUKE JUDGE 6ltjo1( ~t~ 4