ms consolidated holding corporation another vs ms consolidated investment t ltd 2011 tzca 213 28 september 2011

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO 9 OF 2010 1. M/S CONSOLIDATED HOLDING CORPORATION 2. M/S CENTRAL MAINTENANCE f ..................APPLICANTS SERVICES CENTRE LTD , VERSUS M/S CONSOLIDATED INVESTMENT (T) LTD...........RESPONDENT (Application from the Decision of the High Court of Tanzania at Arusha) (Bwana. J.1 dated the 15th day of November, 2007 in Misc. Civil Application No. 38 of 2007 RULING 28th September, 2011 MSOFFE, J.A.: This application which is by way of a notice of motion is supported by the affidavit of Elvaison Erasmo Maro. It is apparent from its contents and demands that M/S Maro and M/S Law Associates have been instructed by the respective applicants to appeal against the ruling and orders made by the High Court at Arusha in Miscellaneous Civil Application No. 38 of 2007. A.I- In compliance with the instructions learned counsel filed the appeal on 12 July, 2010. Thereafter on 24th August, 2010 learned counsel realized that there was inadvertence in preparing the memorandum of appeal in that they omitted to make a provision for signing by the Registrar. After realizing the omission, this application was promptly filed on 30th August, 2010. In essence therefore, the applicants are praying for leave to file an amended memorandum of appeal incorporating the Registrar's signature. On 15th October, 2010 the respondent filed a "counter affidavit''' deponed to by Michael Njumba. It will be observed at once that the affidavit was wrongly titled "counter affidavit" because there is nothing like a "counter affidavit" in the Court Rules. Under Rule 56(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) any person served with a notice of motion may file an "affidavit in reply" Anyhow, in the so called "counter affidavit"the respondent blames the applicants' omission as sheer inadvertence. On 26th September, 2011 however, Ms. Hamida Sheikh, learned advocate for the respondent, filed a notice of non­ contender because in her respectful view, in the light of this Court's decision in 21st Century Food and Packaging Limited v. TSPC and 2 2 Others (2005) TLR 1 it will be futile and expensive to contest the application. At today's date of hearing Mr. Elvaison Erasmo Maro, learned advocate, appeared for the first applicant and also held the briefs of Mr. Rosan Mbwambo and Ms. Hamida Sheikh learned advocates for the 2nd applicant and the respondent, respectively. In brief, he was of the view that following the notice of non-contender the application should be granted. I have carefully gone through the focused, well researched and thought out written submissions filed by Mr. Maro. In the end, I am satisfied that the application has merit. I accordingly grant the application. In terms of Rule 20(1) of the Rules, the applicants should file the amended version of the amended memorandum of appeal within a period of 14 (fourteen) days from today. 3 DATED at ARUSHA this 28thday of September, 2011. J.H. MSOFFE JUSTICE OF APPEAL I certify that is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 4