20151020 TZHC Arusha

I l I IN THE HIGH COURT OF TANZANIA I ' AT ARUSHA I MISC. CIVIL APPLICATION NO. 53 OF 2015 l I (Originating from C/F Civil Case No. 25/2011) I I 1. M/S. HOTELS ASSOCIATION ! OF TANZANIA LIMITED I 2. M/S SOPA MANAGEMENT LIMITED 3. M/S ELEWANA AFRICA (T} LIMITED I 4. M/S TOURISM PROMOTION SERVICES {TANZANIA} LIMITED . I I S. M/S ASILIA LODGES AND CAMPS LIMITED 6. M/S ARCHER'S TANZANIA LIMITED I 7. M/S NOMAD SAFARIS LIMITED I 8. M/S ABERCROMBIE AND KENT {TANZANIA} LIMITED I I 9. M/S JONGOMERO CAMP LIMITED APPLICANTS 10. M/S MDONYA RIVER CAMP LIMITED 11. M/S CONSOLIDATED TOURISTI AND HOTEL INVESTMENT LIMITED 12. M/S FOXTREKS LIMITED 13. M/S CORDURA LIMITED i 14. M/S RUAHA SAFARI CAMP LIMITED 15. M/S ORIGINAL SAADANI EXPERIENCE I LIMITED I 16. M/S MOUNT KILIMANJARO S!\FARI CLUB LIMITED I I I 1Versus I THE TRUSTEES OF TANZANIA NATIONAL PARKS ......................... RESPONDENT I Date of last Order: 02/06/2015 Date of Ruling: 13/07/2015 1 RULING The Applicants named above filed a Chamber Summons before this court made under the provisions of section 5 (1) (.c) of the Appellate Jurisdiction Act, Cap. 141 R.E 2002 read together with rule 45 (a) of the Court of Appeal Rules, 2009; applying, for the following orders; (i) That the applicants be granted leave to appeal to the Court of Appeal against the High Court decision and orders in High Court Civil Case No. 25/2011. (ii) Costs of this application be borne by the respondents. (iii) Any other order (s) as this Honourable Court may deem fit and just to grant. This application is supported by the affidavit of the Applicants' Advocate Mr. Elvaison Erasmo Maro. Parties agreed to argue this application by way of written submissions and this court granted the prayer. The Applicants were ordered to file submission in chief by 15/6/2015, reply submission to be filed by 29/6/2015 and rejoinder if any to be filed by 6/7/2015. Only the Applicants' counsel filed the submissions in compliance with the scheduled drder but the respondent's counsel failed to file reply submissions hence this ruling is based on the Applicants' submissions only. Arguing the application, the Applicants' counsel submitted that the intended appeal being the first appeal seeks to challenge the decision of this court in Civil Case No. 25/2011. He stated that the dispute in Civil Case No. 25/2011 was about concession fees, a fee paid by hotel and lodge owners built and operated within National Parks in consideration for a 2 ·• ' I license granted by the respondent trustkes, such license permits the tourist hotel, lodge or camp owners to constru~t and establish such facilities within I National Parks which are controlled, /managed and administered by the respondent. It was further stated thdt the Applicants were compelled to I seek court protection against the respondent attempt to impose a fixed rate of concession fees against the aclreed percentage rate. Basing on the I ruling intended to be appealed again$t, he contended that the High Court I resolved only two issues revolving around the validity of the disputed fixed I I rates of concession fees and did not decide on the rest of issues which J were not related to the fixed rates of concessions fees such as the validity . I of the Standardized License Agreement, the extent of the respondent I I powers to impose concession fees /rates etc. It was further stated that I since there were issues left unanswered and no decision was rendered on I them, then it was wrong to dismis5 the Applicants' suit and also it was wrong to dispose of the suit withdut determining the rest of the issues I which were not directly and or dependent on the findings as to validity of the new rates of concession fees. I The Applicants' counsel further stated that the findings of this court were not supported by any piece Jf evidence, mere conjuncture and they j should be expunged from the court record. He stated what has been indicated above are some of the skrious points of contention to be argued I . in the Court of Appeal if leave is gr~nted and the intended appeal being the I first appeal, will do justice to the factual issues and or grounds of appeal. I He added that the Applicants are /seeking to exercise their right of appeal j against a decision by the High Court exercising its original jurisdiction 3 I ' I I ; I accordingly the Applicants right of appeal is guaranteed by the Constitution l of the United Republic of Tanzania ;under Article 13 (6) (a) of the I Constitution. He therefore prayed this application be granted with costs. I have considered the submissibns of the Applicants' counsel and ' gone through the Affidavit. It is comr!lon ground that an application for leave to appeal to the Court of Appeal,! will only be granted if there is some I merits in the intended appeal. This is the position of the law stated by the ' Court of Appeal in the case of Wambele Mtumwa Chamte vs. Asha Juma, Civil Application No. 45 of ~999, (CAT-unreported), that; ' "Unfortunate!½ it is not pro·vfded what factors are to be I taken in account when consid,ering whether or not to grant I leave to appeal to this cour~. However, it is obvious that I leave will only be granted if the intended appeal has some I merits whether factual or legal. 11 I Further it was stated by the Court iof Appeal in the case of Gaudensia I Mzungu vs. The I.D.M Mzumbe; Civil Application No. 94 of 1999 I I that; I I "............ .leave is not granted because there is an arguable I appeal. There is always .~n arguable appeal. What is j . I crucially important is whether there is prima facie grounds ' meriting an appeal to this court'~ I Having referred to the case~I above, it is evident that the issue for I consideration before this court is :whether the intended appeal has some I merits to be considered by the Cqurt of Appeal. Having gone through the I Affidavit the main issues for consideration before the Court of Appeal are I I I I 4 I i I I I I I ' I I I j indicated in paragraph 3 of the Affidavit; and annexture HAT - 5 which indicates the proposed grounds of appeal that; I 1. That the High Court having reso_ived issues number 9 and 11 as ' framed in favour of the appellants erred in fact and law in ' ' dismissing the suit by the appella'nts. ' J 2. That the High Court erred in assuming that by deciding issues ' I number 9 and 11 then the whole suit was disposed of. ' ' 3. That the High Court erred in fa,'ct and law in not resolving and or ' deciding issues number 1, 2 and 7. ' ' 4. That the High Court erred in arriving at findings and observations I ' pre-judicial to the appellants' c~se which findings and observations I were based on conjecture nor were they supported by the evidence on record. 5. That the High Court erred in purporting to grant reliefs which were ' not sought by the parti~s and without affording parties opportunity to address the co'urt on such reliefs. As indicated in paragraph 3 of. the Affidavit and having considered ' the proposed grounds of appeal to qe considered by the Court of Appeal, ' the Applicants' counsel allege that the trial Judge resolved only two issues I which revolve around the validity of the disputed Fixed Rates of Concession ' I Fees and left other issues which we're not even related to the Fixed Rates I of Concessions Fees such as the; validity of the Standardized License i J Agreement and the extent of the respondent's I powers. I Considering the above situation, I find there is a contentious issue I ' which needs an attention of the Court of Appeal. Th·e Court of Appeal has I I I i I 5 I I I I I to determine on whether the High Court was justified to dismiss the suit basing on two issues which were framed and leaving other issues unresolved. As such, I find that the Applicants have managed to show a prima facie ground meriting an appeal to the Court of Appeal and I hereby allow this application. Order accordingly. (~ F.H.MASSENG[ llXiE l3/CJJ/'2Dl5 Ruling delivered in Court this 13th July, 2015 in the presence of Mr. Maro learned counsel for the Applicants and in absence of the respondent. (~ F.H.MA2iENGI llXiE 13/07/"lDJ5 I hereby certify this to be a true copy of the original. AR.USHA Words 1,322 L?O/ID/%1r 6