monica alex vs serengeti district council 2020 tzhc 4426 15 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MUSOMA AT MUSOMA MISC. CIVIL APPLICATION NO. 44 OF 2020 {Arising from the Consolidated Civil Appeals No. 4 and 5 of2020) MONICA ALEX................................................................... APPLICANT VERSUS SERENGETI DISTRICT COUNCIL...................................... RESPONDENT RULING 15th and 15th December, 2020 KISANYA, J.: Sometimes in 2012, the applicant won a tender for collection of levy from guest houses located in rural areas within Serengeti District. She signed, a one year contract on 3rd July, 2012. It was agreed that, the applicant would collect the levy, remit Tshs.400,000 every month and retain any balance from the levy collected. In the course of executing the contract, Monica paid a total of Tshs. 5,600,000, out of which, Tshs. 800,000 was security for the performance of the agreement. The remaining amount of Tshs. 4, 800,000 was monthly remittance for the duration of the contract. However, the hotel levy could not be collected. It was revealed that that said levy had been repealed by Tourism Act, 2008. In that regard, the applicant instituted a suit claiming for specific damages (Tshs. 5,600,000), general damages (Tshs. 50,000,000), punitive damages (Tshs. 10,000,000), interest of 15% on the specific damages per annum from June 2013 to the date of judgment, interest of i 15% on decretal sum from the date of decree to the date the decree is honored in full and costs of the case; and costs of the suit. The trial court ordered the Council to pay the applicant special damage (Tshs. 5,600,000) together with interest of 12% per year from 2013; general damages (Tshs. 10,000,000); and punitive damages (Tshs. 5,000,000); interest of 12% on the decretal sum from the date of the decree to the date the decree is honored in full. Both parties were aggrieved by the said decision and preferred a separate appeal before this Court. On 24th August, 2020, this Court dismissed the appeal filed by the applicant. On the other part, the respondent's appeal was partly allowed and the respondent was ordered to return Tshs 5, 600,000 paid by the respondent in execution of the agency contract. Determined to challenge the said decision, the application has preferred the present application for leave to appeal to the Court of Appeal. This application has been made under section 5(1) (c) of the Appellate Jurisdiction Act, Cap. 141, R.E. 2019 and rule 45(a) of the Court of Appeal Rules, 2009 and supported by the applicant's affidavit. The grounds to be considered by the Court of Appeal are reflected in paragraph 4 of the applicant's affidavit as follows:- 1. The appellant having misled by the Respondent to enter into a contract on the dead law, is entitled to compensation on specific damages she incurred during the whole transactions to meet the needs of the said contract. 2. The Appellant is entitled to general damage. At the hearing of this application, the applicant was represented by Mr. Leonard Magwayega, learned advocate while Ms. Veronica Lukanda, learned State Attorney appeared for the respondent. 2 When Mr. Magwayega was called upon to submit in support of the application, he prayed to adopt the applicant's affidavit and urged the Court to grant the leave to appeal to the Court of Appeal. Responding, Ms. Veronica has no objection to the application and the relief sought by the applicant. In the light of the above, the issue is whether or not this application is meritorious. The law is settled that leave to appeal is not automatic. It is granted upon being satisfied that the proposed ground raises issue of general importance and that there is an arguable appeal. See for instance, British Broadcasting Cooperation vs Erick Sikujua Nginarya, Civil Application No. 138 of 2004, CAT at DSM (unreported) where the Court of Appeal held that: "Need/ess to say, leave to appeal is not automatic. It is within the discretion of the court to grant or refuse leave. The discretion should however be judiciously exercised on the materials before the court. As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or novel point of law or where the grounds show a prima facie or arguable appeal... However, where the grounds of appeal are frivolous, vexatious, useless or hypothetical, no leave will be granted." Has the applicant proved an arguable appeal? It is on record that the judgment subject to this application was premised on the reason the contract between the applicant and the respondent was illegal and hence void ab initio. That was after noting that, the applicant was engaged to collect levy under the Hotels Act, Cap. 108 R.E. 2002 which had been repealed and hence, the objects of the said contract held to be unlawful. The Court went on to hold that there was no misrepresentation and that the suit for damages or compensation arising from 3 the said contract could not stand as none of the exceptions specified under section 23(2) of the Law of Contract Act, Cap. 345, R.E. 2019 was proved. Looking at the above proposed grounds, the applicant maintains the position that she is entitled to general damages and compensation on specific damages. This argument is based on the ground that the applicant was misled by the respondent to enter the said contract. The fact that the applicant was misled by the respondent was also held by the trial court. As stated earlier, this Court was of the view that there was no misrepresentation in the circumstances of the case. I am of the considered view that there is an arguable appeal. The issue whether the respondent was misled by the respondent and entitled to specific and general damages is worthy of consideration by the Court of Appeal. In view thereof, the Court finds merit in this application. The leave to appeal to the Court of Appeal is hereby granted. Costs to follow the event. Dated at MUSOMA this 15th day of December, 2020. E. S. Kisanya JUDGE Court: Ruling delivered this 15th December, 2020 in the presence of Mr. Leonard Magwayega, learned advocate for the applicant and Ms. Veronica Lukanda, leraned State Attorney for the respondent. B/C Mariam- RMA present. E. S. Kisanya JUDGE 15/12/2020 4