MOTO MATIKO MABANGA VS OPHIR ENERGY MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM. MISC. COMMERCIAL APPLICATION NO. 29 OF 2018 (Arising from Commercial Case No 185/2013) BETWEEN MOTO MATIKO MABANGA................................................ APPLICANT VERSUS OPHIR ENERGY PLC......................................................................... 1stRESPONDEN OPHIR SERVICES PTY LTD............................................................. 2ndRESPONDEN B.G. TANZANIA LIMITED................................................................ 3rdRESPONDEN RULING B.K. PHILLIP, J. The applicant herein has lodged an application for leave to appeal to the court of Appeal under the provisions of section 5(l)(c) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002. (henceforth "Cap 141").The application is supported by an affidavit sworn by the applicant, Moto Matiko Mabanga. The applicant intends to appeal against the ruling of this court dated the 12th February, 2018 in Commercial Case No. 185/2013 in which the court dismissed the case under the provisions of rule 29 (3) of the High Court (Commercial Division) Procedure Rules 2012 (henceforth 'the Rule') for failure to comply with the court's directions. The applicant's affidavit contains the issues intended to be brought before the Court of Appeal for determination to wit; a) Whether the decision by the honourable trial judge to refuse to extend the life span of the suit was proper and sound in law. i b) Whether the finding of the trial judge that the applicant was solely responsible for delay of the matter was proper in law, regard being that the applicant was not heard on the said finding. c) Whether the honourable trial judge properly applied the provisions of rule 29(3) of the Commercial Court Rules in the circumstance. d) Whether refusal by the trial judge to extend the life span of the suit on ground that it was for interest of justice was sound in law. e) Whether the applicant flouted any direction of the court in terms on rule 29. f) Whether the learned trial judge correctly refused to decide on the law applicable with regard to extension of life span of the suits in the Commercial Court. A counter affidavit sworn by the learned Advocate Wilbert Basilius Kapinga in opposition to the application was filed in court for the 1st and 2nd respondents while the learned Advocate, Gerald Shita Nangi swore a counter affidavit in opposition to the application for the 3rd respondent. Both learned Advocates, basically disputed the issues mentioned by the applicant's Advocate as not worth the attention of the Court of Appeal and stated that the intended appeal to the Court of Appeal is not viable. On the 3rd of August, 2018 the advocate for the 3rd respondent filed a notice on a point of preliminary objection that the application is bad in law because the intended appeal is misconceived. 2 It is worth noting that, this preliminary objection was filed after Songoro, J as he then was, had dismissed the preliminary objection that was raised by the Advocate for the 1st and 2nd respondents. All parties filed their skeleton arguments pursuant to Rule 64 of the Rules. For the sake of serving time the hearing of the above mentioned point of preliminary objection was done together with hearing on the merits of the application. Parties started by submitting on the point of preliminary objection first and later on the merits of the application. I will start considering the submissions on the point of the preliminary objection first. Submitting on the point of preliminary objection, the Advocate for the 3rd respondent started by adopting the contents of his skeleton argument filed in court, in which he had submitted that, the intended appeal is misconceived, since the applicant has not exhausted the remedy available under the provision of rule 29(4) of the Rules which provides that a party aggrieved by an order made under rule 29(3) of the Rules may apply to set it aside. The learned Advocate contended that, since the ruling intended to be appealed against was made under rule 29(3) of the Rules, the remedy available to the applicant is to apply before this court under rule 29 (4) of the Rules to set it aside not to appeal. He referred this court to the case of Chiriko Haruni David vrs. Kangi Alphaxerd Lugora and 2 others, Civil Appeal No. 36 of 2012 (unreported) in which the full bench of the Court of Appeal made a finding that the use of the words "shall" and "may" is not always the determinant factor. Regard must always be given to the context, subject matter and object of statutory provision in question in determining whether the same 3 is mandatory or discretionary. He prayed this application to be dismissed with costs. In rebuttal, the applicant's advocate invited this court to reject the preliminary objection raised by the advocate for the 3rd respondent because it has been raised belatedly unjustificiably as it is not concern with this court's jurisdiction. The learned advocate was of the view that, the advocate for the 3rd respondent was supposed to raise his point of preliminary objection at the time the advocate for the 1st and 2nd respondents raised his, so that both could be determined together at once. The learned Advocate insisted that this kind of preliminary objection that does not touch the jurisdiction of this court, had to be raised at earliest possible time not any time a party wishes. He referred this court to the case of Kigome & another vrs. Ubungo Farm Implements Ltd. (2011) 1 EA 236. In the alternative, as regards the merits of the preliminary objection the advocate for the applicant submitted that the issue of applicability of the rule 29(3) of the Rules is also one of the grounds of complaints to be decided by the Court of Appeal, since failure to follow the court's directives was not part of the arguments in the case. In addition to the above, the learned advocate was of the view that under rule 29 (4) of the Rules, it is not mandatory for a party to apply to set aside the court order made under rule 29(3) the Rules. A party has two options either to apply to set aside the order or appeal against it to the Court of Appeal. He insisted that the order of this court under Rule 29(3) of 4 the rules is appelable by the leave of this court as per section 5 (1) (c) of the Appellate Jurisdiction Act, Cap 141 and since the applicant opted to appeal against the order, it is proper for him to apply for leave to appeal. It is the contention of the applicant's advocate that, the question of exhausting the remedy is not applicable in the instant application, so long the right to appeal is available. He prayed for the preliminary objection to be dismissed. In his rejoinder the advocate for the 3rd respondent reiterated his submission in chief and submitted further that this preliminary objection is a pure point of law, hence has to be determined first. The learned advocate was of the view that the issues complained of by the applicant's Advocate can be raised in the application to set aside the order under rule 29(4) of the Rules. Having analysed the submissions made by the learned advocate and perused the court's file, I wish to state at the outset that, the concerned raised by the applicant's advocate on the timing of filing the point of preliminary objection is valid. It is a well established principle of the law and practice that preliminary objections have to be raised at the earliest possible time before the hearing, with exception of the preliminary objection on jurisdiction which can be raised any time, even at appellate stage. I entirely agreed with applicant's advocate that this point of preliminary objection was supposed to be raised at the time when the advocate for the 1st and 2nd respondents raised his point of preliminary objection. It is quite 5 disturbing to note that the advocate for the 3rd respondent has been in attendance in court throughout, but opted not to raise his preliminary objection until when the preliminary point of objection raise by Advocate for the 1st and 2nd respondents was dismissed and the case fixed for hearing. In addition to the above, I have noted that, the arguments raised in support this point of preliminary objection by the advocate for the 3rd respondent, in essence are the same to the arguments raised by the advocate for the 1st and 2nd respondents in support of his preliminary objection which was dismissed by my brother Songoro, J as he then was. For easy of understanding what I am explaining here, let me reproduce paragraphs three and four at page five of the ruling of this court. Capt. Kameja then emphasized that, the court may not add a ruling in the provisions of section 5(1) (c) as matter which is appealable for reason appealable matters are stated by a statute. The counsel then submitted that, in entertaining matters which are appealable the court may not go beyond matters listed in Section 75 of the Civil Procedure Code Cap 33 [R.E.2002]. It was the views and submission of Capt. Kameja that, indeed Rule 29(4) of the High Court Commercial Division Procedure Rules provide remedy to a party who is aggrieved by order dismissing a suit that, has a remedy to apply to set aside the dismissal order. So the applicant was at liberty to do so. The respondent's counsel reiterated his earlier objection and prayed for dismissal of the applicant". (emphasis is mine) 6 From the foregoing it is my settled view that the point of preliminary objection has not been raised timely, hence defeats the legal purposes of a point of preliminary objection, instead it impedes the fair hearing of the application and the ends of justice. On top of the above, this court is functus officio. I have indicated herein above the arguments raised in this preliminary objection were raised before my brother Songoro, J as he then was and court ruling for the same was delivered on 6th July 2018 in the presence of all advocates appearing in this application. Having said the above, I hereby dismiss the preliminary objection. Now, let me turn to the submissions on the merits of the application. The applicant's advocate adopted the affidavit in support of the application and his skeleton arguments filed in court, in which he reiterated the intended issues to be determined by the Court of Appeal as enumerated in his affidavit in support of the application and elaborated each issue. Basically, the applicant's advocate submitted that he is challenging this court's decision to invoke the provision rule 29(3) of the Rules to dismiss the case while the issue in the case was extension of life span. He submitted further that, an order for leave to appeal to the Court of Appeal is a discretional order, as it is granted at the court's discretion, and the court has to exercise its discretion judiciously. The learned advocate argued that in granting the leave to appeal the court has to determine whether or not there are prima facie grounds for the appeal. He was of the view that the court is ought to grant a leave to appeal if the judgment intended to be appealed against is problematic. 7 He referred this court to the following cases to cement his arguments; Gaudensia Mzungu vrs The IDM Mzumbe Civil Application No. 94 of 1999 (CA) (unreported), Court consult (T) & 2 others vrs plus Kuhangaeke & others, Civil Revision NO. 8 of 2004 (unreported), Wambele Mtumwa Chamite vrs Asha Jume, Civil Application No. 45 of 1999,(unreported) Harban Haji Mosi and Shauri Haji Mosi vs. Oman Hilal Seif Omari (CAT) Civil reference No. 19/97 (unreported). The applicant's advocate also contended that, right of appeal is a constitutional right, unless there are strong reasons a person cannot be denied the right to appeal. He prayed the application to be allowed with costs. Advocate Audax Kameja who appeared for the 1st and 2nd respondents adopted the contents of his skeleton arguments, in which he submitted that, in this case no leave can be granted to appeal against the order of this court dated 12/2/2018 because it is not appelable and the Commercial Court rules provides a remedy to the applicant if he is dissatisfied with that order. He referred this court to the case of CRDB Bank Limited vs George Kilindu and the Honourable Attorney General (Civil Appeal No. 137 of 2008) (unreported) and argued that, the Court of Appeal considered the orders of the High Court that are appelable to the Court of Appeal and made a finding that only s.75 of the Civil procedure code, Cap 33 and section 5(l)(b) of the Appellate Jurisdiction Act, CAP 141 are to be looked at for appellate authority to the Court of Appeal against orders. It is the contention of the learned Advocate Audax Kameja that the order of this court intended to be appealed against is neither among the 8 order appealable to the Court of Appeal listed in 5(l)(b) of the Appellate Jurisdiction Act, Cap 141 nor is it appellable under section 75 of the CPC, hence under the circumstances, this court has no power to grant leave to appeal under section 5(1) (c) of the Appellate Jurisdiction Act, Cap 141 against unappelable order. In addition to the above, the learned advocate submitted that S.5(l)(c) of the Appellate Jurisdiction Act, Cap 141 under which this application is made, states categorically that a party can appeal to the Court of Appeal with leave of the High Court against every other decree, order, judgment, decision or findings of the High Court. He contended that the list does not include "ruling", as such this court has no power to enlarge the ambit of section 5 (l)(c) by adding "ruling" as one of the matters on which leave to appeal to the Court of Appeal can be granted. In rebuttal, the advocate for the 3rd respondent, learned Advocate Brian Mambosho, adopted the contents of the counter affidavit and skeleton arguments filed in court. He submitted that section 5(1) of the Appellate Jurisdiction Act, Cap. 141 provides that in civil proceedings, except where any other written law for the time being in force provides otherwise, an appeal shall lie to the Court of Appeal under 5(l)(c) of the same Act, with the leave of the High Court or Court of Appeal, against every decree, order, judgment, decision or findings of the High Court. The learned Advocate contended that, then, the exemption is where any other written law for the time being in force provides otherwise, and in the circumstances of this case, the other law providing otherwise is rule 29(4) of the Rules which provides a remedy in the case the court dismisses a suit 9 or makes any order under rule 29(3) of the Rules. The applicant has opportunity to raise all grounds of complaints in the application to set aside the dismissal order instead of applying for leave to appeal to the Court of Appeal prematurely. In his rejoinder the applicant's advocate told this court that, the right to appeal is a constitutional right enshrined in our constitution under Article 13. It is a fundamental right in the administration of justice. Any technicality trying to impede it has to be ignored. He referred this court to Article 107A of the Constitution of the United Republic of Tanzania, 1977. I have subjected the rival submissions of all counsels appearing in this application to a critical analysis. It is my considered view that, in this application the advocate for the respondents have not challenged the points of law mentioned by the applicant's Advocate worth to be considered by the Court of Appeal if leave to appeal is granted. The major points raised by all advocates for the respondents in resisting this application are; that the order of this court intended to be appealed against is not appelable, on the ground that it is not in the list of appelable orders per the provisions of section 75 of the CPC, Section 5(l)(a)(b) (c) of the Appellate Jurisdiction Act and the applicant has not exhausted the available remedy provided under rule 29(4) of the Rules. In the light of what I have pointed out herein above, it is my considered view that, this court has to determine two issues, first, whether this court can grant leave to appeal against the order of this court dated 12th February 2018, secondly, if the first question is answered in the io affirmative, then whether there are sound and arguable grounds/points worth the consideration of the Court of Appeal in the intended appeal as presented by the applicant. Starting with the first issue, let me start by looking at the provisions under which this application is made, that is section 5(l)(c) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002. The advocate for the 3rd respondent invited this court to hold that since rule 29(4) of the Rules provides that a party can apply to set aside a dismissal order made under rule 29(3) of the Rules, then that can be termed as any "any other law" that provides otherwise referred under section 5(1) of the Appellate Jurisdiction Act, Cap, 141 hence, no appeal can be preferred against the order of this court made under rule 29(3)of the Rules. With due respect to the learned advocate, I think his interpretation of the provisions of section 5(1) of Cap 141 is not correct, since the import of the provisions of section 5(1) of Cap 141 to my understanding is to stipulate the orders, decree, judgment of the High court that can be appealed against and the procedure on how the appeal should be made that is Why section 5(l)(a)(b) of Cap 141 provides for orders that can be appealed against without the leave of the High Court and section 5(l)(c) of Cap 141 provides that any other orders, judgment or decree can only be appealed against with the leave of the High Court or of the Court of Appeal Neither rule 29(4) nor 29(3) of the Rules bars appeals to the Court of Appeal against the order made under the Rules. Likewise the Rules do not provide any list of appelable orders. ii In the case of George M. Kilindu (supra) the Court of Appeal made a finding that the term "written law" referred to in section 5(1) of the Appellate Jurisdiction Act, Cap 141 must mean among others the Civil Procedure Code, Cap 33. R.E. 2002 and the relevant provisions in the CPC is sections 74 and 75. Consequently the court held that since the order appealed against in that case was not among the appelable orders listed in section 5(l)(b) of cap 141 and section 75 of the CPC then the order was not appelable. In my considered view the case of George Kilindu (supra) is distinguishable from the instant application since the order ruling in question in the instant application was made under the High Court (Commercial Division) Procedure Rules, 2012 not the CPC. The decision in the case of George Kilindu (supra) was made in 2009, by then the High Court (Commercial Division) Procedure Rules 2012 were not into existence, that is why I think the Court of Appeal in its decision said that only section 75 of CPC and section 5(l)(b) of Cap 141 are to be looked at for appellate authority for the court to consider appeal against orders. As regards the arguments that section 5(l)(c) of Cap 141 allows appeals against every other decree, order, judgment, decision or finding of the High Court but not "Ruling", my considered is view that, since the provision mentions "orders" and "decision" or "any finding", correct interpretation /or proper construing of this provision includes "ruling" because a ruling is a decision of the court. The term decision is very wide, it includes each and every order, or determination of the court. From, rulings we extract orders therefore, with due respect to the learned advocates for the respondents I 12 think they have opted to give unnecessarily narrow interpretation of section 5(l)(c) of Cap. 141. As regards the 2nd issue it is my settled view that, the applicant has raised serious points of law which deserve to be determined by the Court of Appeal, for example the issues on whether the Honourable trial Judge properly invoked the provisions of rule 29(3) of the Rules and whether the applicant flouted any direction of the court in terms of the rule 29 of the Rules. Also, I would like to point out here albeit briefly that, the second issue herein above, takes care of the concerns raised by the respondents' advocates that the applicant has not exhausted the remedy under rule 29(3) of the Rule, since it is evident that the applicant is challenging the trial judge's decision to invoke rule 29(3)of the Rules as such, it is not expected that the applicant can resort to the remedy under that Rule. In the upshot, I hereby allow the application. The applicant is granted the leave to appeal to the Court of Appeal. No order as to costs. Dated this at Dar es Salaam this 30th day of November, 2018 B.K. PHILLIP JUDGE 13