national bank of commerce ltd vs edward blandya 2023 tzhccomd 29 22 february 2023

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) ATARUSHA MISCELLANEOUS APPLICATION NO. 20 OF 2022 (Arising from Misc. Application No. 10 of 2022) NATIONAL BANK OF COMMERCE LIMITED............. . APPLICANT VERSUS EDWARD BALANDYA ...................... RESPONDENT RULING Date of last Order: 2is February, 2023 Date of Ruling: 22”* February, 2023 MKEHA, J. The applicant is moving the courtfor an order granting leave to her to appeal to the Court of Appeal of Tanzania against the decision of this court in Miscellaneous Commercial Application No. 10 of 2022 dated 27h October, 2022. The application is made under section 5 (1) (c) of the Appellate Jurisdiction Act, section 95 and Order XLIII Rule 2 of the Civil Procedure Code. The chamber summons is supported with an affidavit sworn by one Mirage Msuya, Principal Officer of the applicant. The applicatlon is resisted through a counter affidavit sworn.by Mr. Edward Balandya, the respondent. Page 11 ©uring Heatirig of theapplicatibh the applicant was represerited'by Mr. Lyaro learned advocate who was holding brief of Ms. Queen.Alleawifti'instructibns.- fo proceed. On the;Other handy Mr. Saronga learned advocate represented the respondent. Mr. Lyaro learned advocate commenced his submissions by adopting the. cpntents of tho.affipav.it i.n'sppportW as part of his submissions. He then submitted that, following dissatisfactipn;bffihe applicanf with thisi'WurVstdeSisiori dated 27th October, lOOa notice pif appeal was ‘filed.on 22/11/2022. The learned'advbcate;submittedfhat/.siocefthe-appiicanf could not access the Court of Appeal without obtaining leave pf the court, it was for that reasoftthis application was being pursued. AccordihgW the learried advocate, the follbwing are the grounds which the applicant wpuld ask the Co.urt of Appeal to consider if leave is'granted: 1. Whetherthere wasan error for theScpurt toproceed'to deliyer its ruling while there was a pendmg applicatjpn which?was; seektpg nullificatibn Paje-j’l'' of saje of the disputet propeKty i.e. Miscellaneous: Commercial Application No. 04 of:2b2|,> 2. Whether the court prd^rly ahalysed the. evidence before jt and hencdfbrth reached a legally correct decision. 3. Whether it was an error apparent on record for the court to procepd-to entertain the appiication before it without.joining the court brokeir TheJeamed advpcatefpr theapplicantsubniitted that,the threegrounds are contentions grounds fit to be considered by the Court of Appeal. Hejthus askcd thc court to grantthc application. Mr. Saronga learnM advbcate for the lespo’ndent. Gommenced his eubmissions by adop'ting the contents of the resppndent's counter affidavit as partof his submissions. The learned advocate submitted that, ettheTime of filihg,' Kearihg; and deternlInihg:T1iscellaneous Cdrnmercial ApplicationTQo» 10 df 202Jr;whdse -decision is sought to be challenged by the applicant,, tjiscellaneous Commercial Application No. 4 of 2021 was nQn.existent, haying been struck out on llth November, 2021. Page ’|’3 IThe leameci advocate went on to subrnit in respect of :the second ground that, the only evidence produced by the applicant in Mscellariebus CorrimerciM Application No. 10' of 202^ was MSGellaneous Commercial Application No. 4 bf 2021 whfch had.beep.struck out. Arid sihceThere cannot be. new evidence befbre the CoUrt of Apbebl; the second: oround was without substance, As to the third groun.d, the learned;advocafesubm.itfed thatyln Mscellaneous; Ohhierclal AppllcatlbftNb. lu of 2O22.the:applicant was.askjng;jbr deiiyery ■ fcf-pdssession under -Rule 95 of Order XXI of the Civil Procedure Code. Thatz the Certificate of Title whidiwaS beingjiasked^tovbe?surrendered was in the hands bf the .respondent ih jhe; said, applicafion fthe applicant in this application) and not the court broker. In view of the learned advocate, the court broker was not a necessary party in the said application. When Mr Lyaro learried advocateTose-;to irejbin, he fecordedia concession that, Mscellaneous Commerciai Application No; T of 2021 was nofc in existence when the'applicatiori5sbught tb?challenged;was determined. While the learried advocate had no proof that the Certificate of Title sdught to be delivered via Miscellaneous CommercialLApplfcation No. 10 of 2022 was in the Pdg 4 . cdurt^brokdf-s hands,. he remainbdjnsisterit that the court broker ought to be made a necessary party to the said application. Theenly issue for determinatioh is whether the appiicant has made a case ■ . :. ' : ■ ■. . . . .? ■ ■ ■ ." ■ - • ■ ?■'.: . ■ ■ for grant of leave to appeal to the Courfcof Appeal/The^guiding principle is, "leavetoappealls nptautomabic. It.is:within theciiscretidnrbjtbe cdbrt'to grant or refuse. The discretion miist however, be judiciousiy exercised and on the materlals before the court. ASb:iDatter^fdhheral pflnclple,. ieaveto appeatwitjbegientedwheiethe,grounds.:ofappeatraise issues ofgenerai importance or npyelpolntoflaw or wbefe. the grounds showa primafacie. or ■arguableldbpeal Howeverywhere^theigrounds Of appeal are frivolous, VeKatio^ nbteayeswillbe/grahtedt SeenSAFARI MWAZBf^E'VS APPLECATIOly-N 0^503,/06 OF2021. Iri thecase citbdWreihabove the'Cburt:tlarified ’that, mtich as the grant of ■leaye-isrthe®discretidri of the Court, the same is notautomatic in the sense that, the Court has to be satisfied that the grounds of the jntended appeal faiseerguable issue(s) for cpnsid|ratidri'hy; the Court. That, the Court has to be 'Satisfied that the grourids. raised sihduld nrierit- a eerious judicial Page | 5 Gonsidferation by the Court in order no.t to waste the precious time of the Court. In the ihstantapplication, while the learried«advocate for the applicant earlier submitted that the decision spught to be challenged was delivered during pendency pf an application seeking. nuliiflcation of sale of the disp.uted propertyr his story changed during his rejoinder when he registered a Concessioh; that/ Miscellaneous Commerciai Application No. 4 of 2021 which soughtto set aside the disputedsale wasmot existing on 27/10/2022 having been struck out on 11/11/2021. As spchylhd phly evjdence.alleged pptjave rbeen .properly analysed waeeither non existent. The affidavit supporting the papplication makes no reference to any specific applicatioh forisetting,asi.de the disputegbsale, which wasrpehdi.ng at'a:time when. the dedsion sought fb le challenged was decjded. There is hothih<g in the affidavitduppoftihg the applicati.on indicating'that, the Certificate of;Title sought to be delivered to the respondent, was jn the court broker's possessipn which would make the pptirt brokera necessaryreshondentjh MjscellanepbsCommercial Application No. 10 df 2022. These afe sufficient reasohs for.holding that, there would be nparguablegroundsrmeriting serious judipial consideratiom by the. Court of Appeal. Page | .6 for the foregoing reaspps, leave is refused. The apolication is dismissedTbr want of merit. I make no'ordef asio cpsts. It isso held. Dated at ARUSHA this 22nd day of February, 2023 Court: Ruling is delivered in the presence of the parties' advocates. OP. MKEHA JUDGE 22/02/2023 Page'|'7