MOHAMED ABDILLAH NUR 3 OTHERS VS HAMADI MASAUNI 2 OTHERS MISC COMM APPL NO

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 29 OF 2023 MOHAMED ABDILLAH NUR................................. 1st APPLICANT UMMUL KHERI MOHAMED................................. 2nd APPLICANT WINGS FLIGHT SERVICES LTD........... ^[APPUqNT AFRICA FLIGHT SERVICES.................. 4th kf^LICANT VERSUS HAMADI MASAUNI ii^ respondent 'm ARTHUR MOSHA, 2[)P’ RESPONDENT JUMA MABAKILA 3rd RESPONDENT 08/05/2023 &04/07/2023 / RULING1' ’h NANGELA, J. This ruling ps in respect of an application preferred by the <f^h]ruflump*’ Applicants against the Respondents herein. The application was III brought to the attention of this court by way of a chamber summons under section 5(l)(c) of the Appellate Jurisdiction Act, Cap.141 R.E 2019, Rule 45(a) of the Court of Appeal Rules, and any other enabling provisions of the law. Page 1 of 15 The Applicant seeks for the following orders of the Court, namely: 1. That, the Honourable Court may be pleased to grant leave to the Applicants to appeal to the Court of Appeal of Tanzania against the < ruling and order of the High Cdjurt of Tanzania, Commercial Division ,|!h» II in Misc. CommerciaLCause No..33'’ of 2021. .allh 2. Costs. 3. Any cjther reliefs!’this may / llh / aulh> ’tllhn.ri'i1 . deqrn proper’to grant. on the application for orders on the 8jb!’ofi|[May*»2p23, the Applicant enjoyed the services of Ms. Abr'jet Kivea and Lewis Lyimo, learned Advocates. Ms. Kivea did also hold brief of Mr. Alex Mgongolwa, learned Advocate appearing for the Respondents. On the material date, this Court ordered the hearing to proceed by way of filing written submissions, and the filling Page 2 of 15 schedule was issued. The learned counsels for the parties have dutifully complied with the schedule of filing. I will summarize their respective submissions before I render my verdict thereto. Submitting in support of the application, Mr. Melchizedek Lutema, the Applicants learned advocate who filed the <mht -I submissions in support of the application, urged this Court to grant the leave sought by the Applicants -^ilhy^osts. In his h submission, Mr. Lutema drew the attention of’jthis court to the fact that, before filing this application there was an application ."'Illi! for the extension of tinpe’hto (file|htl3is application (i.e., Misc. J1’ Commercial Application. No. 201pt>f 2022), as time to file it had lapsed. 'uh. (f<<...'!|i ,|i"" Conc^ipgu^j'reasons why this court should grant this !]lil'utema contended, that, the decision intended app jtation’JI Mr.jLutema contended, that, the decision intended to b'eShapp^led against was made by this court as a court of first instance exercising original jurisdiction and there are in it serious questions of law requiring the attention of the Court of Appeal. He contended that, since it is a decisions made by the High Court while in exercising of its original jurisdiction, it is fair Page 3 of 15 and proper that Court of Appeal should be given a chance to validate or invalidate, the decision of the trial court, given that, the right to appeal is a constitutional right. Mr. Lutema submitted further that, there are serious questions of law that beg for a hearing and determination of by if b h the Court of Appeal of Tanzania. He pointed out tliat, one of such issues is whether it was proper for the triaWoui/to enter a final decision based on the affidavits pleadings alone without requiring the parties to testify.«»Thehpther point is whether the Petition was in law a deri{yatiye(actipp,.Onder the Companies Act / ^lllh / and whether it shpuljc have ^’een preceded by a statutory <«,fi ii] hiiipin notice. According tolhMr. Lutema, all these questions of law ,.... Il I V need the jriten/£if$$^df the Court of Appeal. nii||| * 'h[ /in a^ditiQri’’ it was Mr. Lutema's submission that, the decision is’ also tainted with illegalities which need to be corrected by the Court of Appeal. One among them is that the court entertained a matter which was already time barred. He also contended that, the court granted reliefs not founded on Page 4 of 15 the pleadings and condoned a breach of specific provisions of the Companies Act. Mr. Lutema submitted further that, there were injustices on the part of the Applicants from the trial court. He argued, for instance, that, the Applicants were denied chance to test /(d|L 1 the credibility of witness through cross examinationW witness. ’Ilh II T He contended as well that, the Applicants’ teiemdehied the ,«> Li1’’ ‘ J1’’ .jlL II opportunity to contest the admissibility ofhthe dpcuments relied upon- ......... I|h p ' Mr. Lutema contended, p- • further , < |)r,that, r the Applicants were ll '‘‘'ilh ‘ deprived of the chances to challenge authenticity of documents (du llhh ’l h ihiinn' in flagrant violation 'of specific provisions of the Evidence Act, ,(>’ |l r the Civil .(iP^ceduij^yCode, and the High Court (Commercial Divisron)il^roceclb're Rules. f | ‘ IhLastlyj Mr. Lutema submitted that, the Applicants were denied their right to natural justice in form of audi alteram partem because the trial court granted the relief not founded on the pleadings without affording the parties an opportunity to be heard on those prayers. Page 5 of 15 To support his submission, reliance was placed on the case of Catherine Losioki Telele vs Ngorongoro Pastoral Council and two others, Civil Application No. 87 of 2020. In that case. The court was of the view that, to grant leave to the Court of Appeal, the Applicant must demonstrate that there is a <‘(uh point of law of significant importance or an arguable appeal Ilii worth of being brought to the attention of tn^’Cb;uiitpof Appeal. In his view, the issues raised in this app'l,i|:atioi|i(<as grounds for the intended appeal, present an 'arguable case before the Court of Appeal. 'hlii / Through their learned co’uhsel Mr. Alex Mgongolwa, the Respondents contested this application by filling counter ...... Il 'll... affidavits^'Mij. I$g$^glwa adopted the counter affidavit filed by the /Respoipdepts as forming part of his submission and sub ^ed(((that, the Applicants have failed to show or disclose sufficient reasons to convince this court to grant then leave to appeal to the Court of Appeal. Mr. Mgongolwa submitted that, the grant of an application for leave to appeal is not an automatic right. He Page 6 of 15 contended that, granting such an application is subject to the discretion of the court. He added, however, that, the exercise of such discretion of the court is to be in conformity with the guiding principles pointed out by the Court of Appeal of Tanzania in different authorities. h He further submitted that, in determining ’whether an application for leave to appeal to the Court of Ap^aljjShould be f»i|> ill’’1' granted, the Applicant must disclose ‘prih^a /ac/earguable point of law or matters of general importance or novel points of law or must show that th^Hproceeqmgs' as whole reveal such disturbing features as tp requirejthe guidance of the court. To support the,, above view, he placed reliance on the /'""III 'III'"’ cases of.^ijrQl^iypN. Rattansi vs. Ministry of Water, Construction,Ji* Energy & Environment and Hussein Ra]ci^ali!(fHijri [2005] TLR 220; Harban Haji Mosi vs. Omary Hilal Seif and another [2001] TLR 409 and Godwin Lyaki & another vs. Ardhi University, Civil Application No. 491/01 of 2021 (unreported). Page 7 of 15 Mr. Mgongolwa submitted that, from the above authorities, it can be concluded that the Applicants have failed to adduce cogent grounds to warrant the granting of their application for leave and that, their submission is shorn of merit and should be rejected. He submitted that, the proposed groundsHipf appeal ’V" which is to the effect that the Applicants] Wf^hdenied the Ip’’’' 1 opportunity to confront witnesses of'*trtehrespondents through cross examination and that the'* trial court arrived at its final 4|h ruling based on affidavitajia'ssertiota are incorrect allegations. i ‘“’llih He submitted that, the ground was not correct because as f ’ Il per the record of 'the trial court, after the pleadings were /... Ih >" concludedpthe,parties were asked for cross examination of any aiftHlihi. hh»’* party but’p)th^parties denied the opportunity to conduct oral exa^atiph and they opted to dispose the matter by way of written submissions and categorically stated they have no one to cross examine. In view of that, Mr. Mgongolwa submitted that, the Applicants were now estopped from claiming that they were denied such opportunity. Page 8 of 15 On the issue of granting some reliefs not prayed for, it was Mr. Mgongolwa's submission that, the same was also a baseless ground and falls short of being a ground warranting a grant of an application for leave. He contended that, the Applicants have not laid out in their affidavit with any specificity the impugned relief. According to Mr. Mgongolwa, the trial Gourtf|is,vested with the powers to grant consequential' orders las it deems fit pursuant to section 234 (3) qf ’the'iiCompanies Act, No. 12 of 2002. He argued that (Ithe petitioner (Respondent herein) prayed for any other re iefs as tjn'e court thinks fit to grant, and, ?f^lh hence, the contention, of the Applicant concerning the prayers granted is«fepl;acgtdr^? /Besides, lylr. Mgongolwa submitted that; the impugned decsjp^o^the trial court was not fraught with illegalities to warrant the consideration of the Court of Appeal unlike what the Applicants seem to be alleging. As for him, the issue of there being illegalities were well explained when the Applicant applied for an extension of time to apply for leave through Misc. Page 9 of 15 Commercial Application No. 201 of 2022 and the court found that there was no illegality in the decision as it was alleged. He contended, therefore, that, the Applicants are estopped from raising it again since the court has already dealt with it in the previous application. In addition, he submitted that none of the illegalities ^ited hhi„ by the Applicants were apparent on the face’OTi?f^co^d(and well demonstrated. Reliance was placed On !tfje cas,e of Lyamuya Constructive Limited vs BdardhOf Trustees of Young Women's Christian ^Association' of Tanzania, Civil Application No. 2 of 2010 (unreported) and Charles Richard ?(m|||, . Kombe vs. Kinoirqo.ni Municipal Council, Civil Reference ’hp.r* <* He attended, therefore, that, since the court had already decayed though Misc. Commercial Application No. 201 of 2022 that the impugned decision had no illegalities, there is no legal point which would warrant the attention of the Court of Appeal. As regards the issue of jurisdiction, Mr. Mgongolwa referred this court to Mulla's Code of Civil Procedure as Page 10 of 15 quoted in the case of Charles Richard Kombe vs Kinondoni Municipal Council (supra) where it said that: "It is settled law that where a court has Jurisdiction to determine a question, it determines that question, it cannot be said that it has acted illegally or with material irregularity merely because it has/ come to an erroneous decision on a'^ question of fact or(»everi{pf law. In view of the abp\/e!bquotat!ipn, Mr. Mgongolwa was of if' the view that the (court had jurisdiction under section 234 of the Companies^ Act, fe. determine the matter. Finally, he urged (|l*j ! this court ta dismiss^the application since the Applicant failed to Remonstrate a sufficient reason and/or prima facie points of lawHltyqntH bring to the attention of the Court of Appeal for consideration. I have carefully considered the rival submissions of the parties and the issue which I am called upon to determine is whether in this application the Applicants have demonstrated Page 11 of 15 grounds which qualify to be brought to the attention of the Court of Appeal. Essentially, an application for leave to appeal, as correctly asserted by Mr. Mgongolwa, is not an automatic right. It will be determined based on the materials placed before the J |i Court and is granted at the discretion of the court^pquallyy as ..... ’’V correctly stated by Mr. Lutema, the right to a,pp^hjps.the Court 'l|/ of Appeal is a constitutional right. *' ’ p- However, that right, when contemplated in the context .... .... ..... of the application and thpnrpattersh^ldced before this court, is beset with limitations imposed by the law which limitation is to .................... the effect that, thellprospective Appellant will enjoy it after securing ,lda|yerJqfHOtpiis court. In Harban Haji Moshi and Another Omari Hilal Seif and Another, [2001] TLR 409, h I ' the ’|^rt.sof 'Appeal did explain why leave is necessary and made it clear that: "The purpose ... is to spare the Court the spectre of unmeriting matters and to enable it to give adequate attention to cases of true public importance." Page 12 of 15 For leave to appeal to the Court of Appeal to be granted, therefore, the granting can only be made if the Applicant meets the requisite criteria already set out by the Court of Appeal in its various decisions. This include whether the proposed appeal . .. . . , . c T L. raises contentious issues and stands chances of success. In’the ■'ll].,/ lllhj.. 'I1 case of BBC vs. Eric Sikujua Ng'imaryo, CiviBApoLNo.138 of 2004 (unreported), the Court of App'ea'I^yvas |a>. further of the view that: / ‘‘ H|h (|l'’ "leave wilLibe granted ,vVhere the grounds of appea.l) raise issues of i’ ■ । (l’ general imppjta’nce or a novel point ^’’^lof law orjIVvhere the grounds show a p/wW facie or arguable appeal..." । Othern decisions that have equally addressed the issue include’imtne cases of Said Ramadhani Mnyanga vs. Abdallah Salehe [1996] TLR 74; Hamis Mdida and Siad Mbogo vs. Registered Trustees of Islamic Foundation, Civil Appeal No.232 of 2018 (CAT) (at Tabora) (unreported) and all these are relevant and do serve the purpose. Page 13 of 15 In the present application, the Applicants have enlisted several grounds which, as I look at them, raise issues of law which, in my humble view, can sufficiently engage the mind of the Court of Appeal since they do present an arguable case before the Court. Whether they are rightly made or correctly in p**Ih . all aspects or not, are not the kind of consideratidnsl’which .yam supposed to address in this application. In view of that, going beyond making a^finding that the kind of issue which the Court js' invited to address in appellate stage should I grant the.Ap.plicanfhlpa^e, will be attempting to I f usurp the powers of the Court'pf Appeal which I do not have. Whether the grounds have merits or not will remain the If ' jI .p province ofIthe^Cpuijtfdf Appeal to decide. It ishmy;finding, therefore, that, the Applicants have an arguable case, and this court should exercise its discretion and grant the prayers sought. In the upshot of all that, this Court settles for the following orders: 1. That, the Applicant is hereby granted leave to appeal to the Court of Appeal. Page 14 of 15 2, That, the granting of this Application is with costs as prayed. It is so ordered. DATED AT DAR-ES-SALAAM ON THIS 04™ DAY OF JULY Page 15 of 15