monex bureau de change vs stanbic bank t ltd 2011 tzhccomd 2035 21 march 2011

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO 87 OF 2007 MONEX BUREAU DE CHANGE................................APPLICANT STANBIC BANK (T) LTD........................................ ESPONDENT Date of Final Submission: 8th December, 2010. Date of Ruling: 21st March, 2011. RULING BUKUKU, J This is ruling on application for leave to appeal to the Court of Appeal of Tanzania against the ruling of Makaramba, J dated 6th September, 2010. In that ruling, Makaramba, J struck out the written statement of defense of the applicant on the ground that the affidavit filed by applicant in answer to interrogatories was defective because the Commissioner for Oaths had failed to date the said affidavit in the jurat. i The application has been made under Section 5(1)(C) of the Appellate jurisdiction Act, 1979 Cap 141 R.E. 2002, Rule 45(a) and 47 of the Tanzania Court of Appeal Rules 2009, Section 95 of the Civil Procedure Code 1966 and is supported by the affidavit of Fatma Amani Karume, the applicant. Briefly, the background to the application is that, in the main suit, which is Commercial Case No. 87 2007, the plaintiff, Monex Bureau De Change Limited, is claiming from the defendant, Stanbic bank limited, T.shs. 26.0 Million and USD. 4,000 the monies which were in the plaintiff's bank account and which were withdrawn and misappropriated by the defendant. In the course of determining the issue, Counsel for respondent raised a preliminary objection orally praying the court to strike out the defective affidavit which is in reply to the respondent's interrogatories, and that the suit be allowed to proceed ex-parte against the applicant. Prayer for oral application made by Counsel for respondent was granted. The application was heard on 06/07/2010 and ruling was delivered on 06/09/2010 by my learned brother Makaramba, J who concluded by ruling that the affidavit is incurably defective and for that reason, he struck it out with costs and the applicant was placed in the same position as if it had not defended the suit with the result that the suit was to proceed ex- parte against applicant. 2 Aggrieved by that ruling, the applicant sought leave to appeal to the Court of Appeal on the ground that given the erroneous nature of the said decision, it is essential that, the Court of Appeal be called upon to give clear directions on the law, in particular the interpretation of Order XI rules 1, 2, 4, 9 & 18 of the Civil Procedure Code. On the 8th of October, 2010, the respondent filed a notice of preliminary objection against the application for leave to appeal to the Court of Appeal, which is now the basis of this ruling. The preliminary objection is based on three grounds as follows: (i) The application for leave to appeal is misconceived and is untenable in law and against the provisions of Section 5(2)(d) of the Appellate jurisdiction Act (Cap 14 R.E. 2002), which provides that no appeal shall lie against any preliminary or interlocutory decision or order of the Commercial Division of the High Court unless such decision or order has the effect of finally determining the suit; (ii) The Chamber application is defective and untenable in law as it does not state the grounds on which the application is based contrary to the provision of Rule 48(1) of the Tanzania Court of Appeal Rules, 2009; and 3 (iii) The application is defective and untenable in law as it does not conform to the provisions of Rule 48(2) of the Tanzania Court of Appeal Rules, 2009. It will suffice to state that, the parties were allowed to file written submissions in arguing the preliminary objection, which Counsels for both parties have done. Ms. Fatma Karume learned Counsel from IMMMA Advocates appeared for the applicant and Ms. Hamida Sheikh from Sheikhs' Chambers of Advocates appeared for the respondent respectively. I need say here that, both Counsels have exhaustively covered the salient matters in their submissions. I commend both of them for a duty well done. I will start with the first preliminary objection. In support of her first point of preliminary objection Counsel for respondent argued that, the ruling of Hon. Makaramba, J in Commercial Case No. 87 of 2007 is an interlocutory decision and therefore, the application for leave to appeal is misconceived and untenable in law as it is against the provisions of section 5(2)(d) of the Appellate jurisdiction Act which provides that, no appeal shall lie 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 suit. She maintained that, the applicant should have waited for the suit to be entertained first, and then the ex-parte judgment to be the entered by the Court and only then, if applicant was aggrieved by the judgment and 4 final decision of the suit, would applicant have the cause to take the appropriate steps to appeal. She further averred that, since Commercial Case No. 87 of 2007 is still pending in court, and that the ex-parte proceedings are yet to be entertained by the Court, this application has been made too precipitately and is barred by law. Finally Counsel for respondent maintained that, since the matter was ordered to proceed ex-parte, respondent will still have to prove the case in the normal way and only then will the Court be in a position to make an ex-parte judgment to finally determine the rights of the parties. In response, Ms. Karume, Counsel for Applicant argued that, the decision against which Stanbic is appealing is not an interlocutory decision and that it is not one which falls within the categories set out in sections 5(l)(a) and 5(l)(b) of the Appellate jurisdiction Act, but it is one which falls under Section 5(l)(c) of the Appellate jurisdiction Act whereby, a party seeking to appeal this category of decision of the High Court, requires leave of the High Court before lodging an appeal. In her well researched submission on opposition to the preliminary objection, Ms. Karume submitted that, when determining an application for leave to appeal, the High Court should not look into the merits of the appeal itself but should limit its investigation into determining whether 5 there are grounds of appeal which merit serious consideration by the Court of Appeal. She further maintained that, the Court has a duty to satisfy itself where the applicant has demonstrated that there are questions of law which are fit for consideration by the Court of Appeal before granting such leave. She made reference to Sango Bay Estates Ltd. V. Dresdner Bank (1971) E.A 17 pg. 20 and Simao Kabaka Daniel V. Mwita Marwa Nyang'anyiand 11 others (1989) TRL 64. Responding to the issue as to whether the application is barred by law, Counsel for respondent submitted that, under section 5(l)(c) of the Appellate Jurisdiction Act, the High Court is limited in determining whether leave to appeal should be granted to an applicant, and that the High Court does not have jurisdiction to determine the viability of an appeal because it cannot and does not have appellate jurisdiction over its own rulings or decisions. According to Counsel for applicant, what section 5(2)(d) of the Appellate Jurisdiction Act does is to bar appeals because a Court cannot determine whether an appeal is barred by law or not unless the appeal itself is before the Court. In conclusion, Counsel for the applicant submitted that it is the Respondent's first preliminary point of objection which is premature and has been brought erroneously when it should have been taken to the Court of Appeal as an application to strike out the notice of appeal. After a close consideration of the material and rival arguments raised by Counsels on this first point of preliminary objection, I have come to the 6 conclusion that the whole argument is centered on whether the ruling by Makaramba, J. Dated 06/07/2010 was interlocutory or not. Blacks Law Dictionary (tf1 Edition) has this to say on interlocutory order: "An order that relates to some intermediate matter in the case; any order than a final order." From this definition one can sav that an interlocutory order is one which is given in an intermediate stage between the commencement and termination of a cause of action. It is used to provide a temporary or provisional decision on an issue. In the case of Tanzania Motors Services Ltd and another Vs. Mahar Singh t/a Thaker Singh, Civil Appeal No. 143 of 2005 (unreported), the Court of Appeal adopted the test in Bozon Vs. Artricham Urban District Court (1903) 1 KB 548 at page 548 per Land Alverton, as to what is and what is not an interlocutor/ order or decision, which ran thus: "It seems to me that the real test for determining this question ought to be this: Does the Judgment or order as made, finally dispose of the urgent of the parties? If it is, ought it to be treated as an interlocutory order." Also, in the case of Karibu Textile Mills Ltd vs. New Mbeya Textile Mills Ltd and 3 others, Civil Application No. 27 of 2006 (unreported) the Court of Appeal in construing Section 5(2) (d) of the 7 Appellate Jurisdiction Act, 1979 dealing with interlocutory decisions or orders, succinctly observed that its purpose was to present unnecessary and notorious delays in civil matters as interlocutory orders do not finally and conclusively determine the rights of the parties. The apex Court went on to add that should a party be aggrieved, that can form a ground of appeal or revision if that party is dissatisfied with the final decision of the Court. In my opinion, the amendment by Act No. 10 of 1999 appears to have taken into account the need for speedy disposal of cases of significant commercial nature without undue delay. There is no death of authorities on this approach to speedy disposal of cases. In the case of Benoy Krishn V. Satisla Chandra Gari (55) IA 131, the Court while dismissing the application, stated inter alia: "the delay occasioned by taking an appeal against an interlocutory ruling adds to the procrastination which is the bane of litigations..." Guidance on interlocutory orders can also be taken in the case of Citibank Tanzania Limited and another Vs. Peter C. Bakilana Civil Application No. 53 of 2006 where the Court of Appeal held that finalization of a matter means the pronouncement of a decision on all issues including imposition of penalties or sanctions. Now if an interlocutory order decides not the cause, but only settles some intervening matters relating to it, then let us look what was the "cause" before Makaramba, J. Was it whether the affidavit in answer to the 8 interrogatories was incurably defective and for that matter it should be struck out with costs? Or was the cause before him whether or not the defendant acted negligently or inappropriately in cashing the cheques amounting to T.shs. 26.0 million and USD 4,000.00 respectively? I am not a shade in doubt that the negligence or inappropriateness of the defendant in cashing the cheques was the cause before him, and that the preliminary point was raised just when he was about to try that cause. What, if that is the position, one will wonder, did the order of Hon. Makaramba, J which leave to appeal is being sought, finally decide the cause and thus determine the rights of the parties? Having concluded that the affidavit to the interrogatories was incurably defective, Hon. Makaramba, J conclusively ordered as follows: " The affidavit is hereby struck out with costs and the defendant is placed in the same position as if it had not defended the suit with the result that, the suit is to proceed ex-parte against the defendant." I am mindful of the decision in the case of Citibank Tanzania Ltd. Vs. Peter. C. Bakilana (Supra) that finalization of a matter means the putting an end to the litigation between the parties on all issues, or at all events, disposes so substantially the matter in issue between parties. It is not in dispute that what Hon. Makaramba, J ordered is to strike out the affidavit and the case to proceed ex-parte (emphasis mine). 9 In my respectful view, it is plain clear that Hon. Makaramba's ruling did not have the effect of finally determining the cause. My opinion is, that ruling was a specie of interlocutory order. It determined matters of a subsidiary/ secondary nature. Commercial Case No. 87 of 2007 pending in this Court has not been finally determined and therefore, the main issue is yet to be determined by way of trial. The order was to the effect that the case was to be determined ex-parte, after which the court was to decide whether or not the defendant acted negligently or inappropriately in cashing the cheque amounting to T.shs. 26.0 million and USD 4,000.00. I fully agree with Counsel for respondent that, in hearing the case ex-parte, the applicant will still will still have to prove the case in the normal way and only then will the Court be in position to make an ex parte judgment hence finally determine the rights of the parties. With due regard to Counsel for applicant, it is on record that, Commercial Case No. 87 of 2007 is still pending in this Court. In fact, the record shows that the matter was to be heard ex-parte on 12/10/2010. Though I am at one with Counsel for Applicant that the right of appeal is fundamental and ought not to be denied unless there are very good reason for such a denial, I am also aware that, it is the province of the law that the right to an appeal is an absolute one. There can be no legal cut- de- sac in this principle unless a given law provides otherwise. In this case at hand, among other authorities, we are also guided by Miscellaneous Amendment Act No. 10 of 1999 in which the Appellate Jurisdiction Act, 1979, was amended by introducing section 5(2)(d) which stated inter alia: io "No appeal shall He against any preliminary or interlocutory decision/ order of the Commercial Division of the High Court unless such a decision or order has the effect of finally determining the suit." It is my considered view that, appeals on matters of interlocutory in nature should be allowed to be preferred to an Appellate Court only when the decision practically puts an end to the litigation and finally decides the rights and or the liabilities of the parties. In the absence of that, then such intended appeal should wait the final judgment. I may add here that, the granting of leave to appeal to the Court of Appeal is not a mere mechanical process. It is a procedural bar to prevent vexatious and frivoulous matters not only intended to obfuscate but also causing prejudice and delay to those who would otherwise benefit by the decision sought to be canvassed in appeal. For reasons discussed above, there ought to be no quarrel that the ruling of this Court dated 06th September, 2010 is an interlocutory order and one that did not finally dispose or determine the parties' rights. Therefore, the order is not appealable. In the circumstances, I find the first ground of preliminary objection to be with substance and I accordingly uphold it. Having upheld the 1st ground of preliminary objection I see no reason to dwell on a discussion of the other grounds as a determination of this first ground of preliminary objection has disposed of the matter. ii I accordingly strike out the Application with costs. Ordered accordingly. JUDGE 21/03/2011 COURT: Ruling delivered this 21st day of March, 2011 before Mr. Sipemba, Counsel for the respondent and in the absence of the applicant. JUDGE 21/03/2011 Word Count: 2,642. 12