njombe outo growers services company ltd nosco vs njombe filling station company ltd 2023 tzhccomd 179 19 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO.5 OF 2023 (Arising from Misc. Commercial Case N0 74 of 2022) NJOMBE OUTO-GROWERS SERVICES COMPANY LTD (NOSCO)………..….……………………..APPLICANT VERSUS NJOMBE FILLING STATION COMPANY LTD …………………………………………….RESPONDENT Date of Last Orders: 08/05/2023 Ruling Date…….……….19/06/2023 RULING NANGELA, J.: This application was filed by way of a chamber summons preferred by the Applicant under section 5 (1) (c) of the Appellate Jurisdiction Act, Cap.141 R.E 2019. The chamber summons is supported by an affidavit of Mr. Daniel Bernard Welwel. The Applicant herein seeks for the following orders of this Court: 1. That honourable Court be pleased to grant leave to the Applicant to appeal to the Court of Appeal of Tanzania against a Page 1 of 9 ruling and order of this Court (Hon. Agatho, J) in Commercial Case No.74 of 2022, dated 14th of December 2022. 2. Costs be provided for; and 3. Any other orders as the Honourable Court may deem just and fair to grant. The Respondent, through the legal services of Mr. Boniface Mwabukusi, learned counsel, filed a counter affidavit. The same was replied to by way of a reply to counter affidavit. On the 8th of May 2023 the parties appeared before me through their advocates, Mr. Welwel, who appeared for the Applicant and Mr. Mwabukusi, who appeared for the Respondent. On the material date, this Court directed the parties to dispose of the matter by way of written submissions. A schedule of filing was issued, and the parties have duly complied with it. Before I make conclusions regarding whether to grant the prayers sought or not, let me set out a brief background to this application. Contextually, the current application premised on Commercial Case No.74 0f 2022, a suit which was withdrawn from the Court at the instance of the Plaintiff on the 14th day of December 2022 with leave to refile it. The Applicant did not object to the prayers to have the suit withdrawn from the Court but contested the second limb of it, i.e., the leave to refile it. Page 2 of 9 According to Mr. Welwel’s submissions, the rationale for the Applicants contestation was that the Respondent had not met the requirements of Order XXIII Rule 1(2)(a) of the Civil Procedure Code, Cap.33 R.E 2019. Despite such contestation, this Court granted the Respondent leave to refile the suit and, it is on that context the Applicant is aggrieved and has filed this application intending to challenge the ruling before the Court of Appeal. Submitting in support of the application Mr. Welwel adopted the content of the affidavits filed in support of this application and contended that, for a Court to grant leave to refile upon an application to have a suit withdrawn from the Court, the Court must be satisfied by what Order XXIII Rule 1(2) (a) and (b) of the Civil Procedure Code, Cap.33 R.E 2019 provides. He relied on the case of Amaly Kibondei vs. Tanzania National Road Agency and Attorney General, Land Case No. 358 of 2017 [2021] TZHCDLandD 757 to support his submission. He also relied on the Court of Appeal decision in the case of Stephen Masato Wassira vs. Joseph Sinde Warioba & Attorney General [1999] TLR 332 in which the Court of Appeal reiterated the principle that, like life, litigation must come to an end. He insisted that, as per Mulla, The Code of Civil Procedure, 18th edn.Vol.3, the powers of the Court under Order XXXIII of the CPC should be exercised subject to the conditions prescribed therein, this being a judicial function Page 3 of 9 which must be exercised judiciously. He contended that, this Court did not adhere to the requirements of the law. On that account, Mr. Welwel submitted that, the grounds upon which the appeal is premised are that: 1. The decision of the High Court permitting the Respondent to withdraw her suit with leave to refile is erroneous for it does not meet the requirements of the law. 2. The Court failed to subject the Respondent’s application for withdrawal of suit, with leave to refile, to judicial scrutiny. 3. In permitting the Respondent to withdraw her suit with leave to refile, the Respondent was abusing the Court process and the High Court both condoned and aided the abuse of its processes. 4. Since the Applicant contested the Respondent’s prayer for withdrawal of the suit with leave to refile, the High Court was required to give a reasoned decision. 5. The High Court erred in failing to appreciate the effect of the Order for costs in that the Respondent does not become Page 4 of 9 entitled to the leave to refile just because the Applicant has been awarded costs. Based on the above stated grounds, the Applicant has approached this Court seeking for leave so that she may approach the Court of Appeal and argue such grounds before the Court. It will be noted, however, that, the above listed grounds are nowhere captured in the affidavit supporting the application. Even so, Mr. Welwel has urged me to grant the application with costs. For his part, Mr. Mwabukusi vehemently contested the application on the ground that, it does not reveal any novel ground with material clarity to warrant the granting of leave to appeal to the Court of Appeal. He submitted that; the application is vitiated having been accompanied by an affidavit which contains material falsehood. Mr. Mwabukusi contended that, the cited case of Amaly Kibondei vs. TANROADS and AG, (supra) is not binding on this Court and is distinguishable and not a good law as it narrowly interpreted Order XXIII Rule 1 (1) and Rule 2 (b) of the CPC. He contended that, the application for leave is an afterthought since the Applicant conceded to the prayer for withdrawal of the suit and prayed for costs which she was awarded by the Court. In view of the above, he contended that, the affidavit of Mr. Welwel is tainted with falsehood and should not be relied upon, considering the decision of the Court of Appeal in the case of Jaliya Felix Rutaihwa vs. Kalokora Bwesha and Page 5 of 9 another, Civil Application No.392/01 of 2020 (unreported). He urged this Court to refuse granting this application and dismiss it with costs. Having gone through the rival submissions, and being mindful that this application is one for leave to appeal to the Court of Appeal, I find that, to a large extent the learned advocates for both parties did not devote much time and energy to address the core issue which is, why should this Court grant to the Applicant the prayers she has sought? What they seem to have done is akin to arguing the appeal itself a fact which, in my view, is premature. Essentially, however, in an application like the one at hand, the Applicant is required to demonstrate to the Court that there are good reasons, an arguable case or a novel issue of law which would warrant being brought to the attention of the Court of Appeal. In the case of Rutatigana C.L vs. The Advocate Committee and Another, Civil Application No.98 of 2010 (unreported), the Court of Appeal was of the views that: An application for leave is usually granted if there is good reason, normally a point of law or point of public importance, that calls for this Court's intervention. Indeed, on the aspect of leave to appeal, the underlying principle was well stated by this Court in Harban Haji Mosi and Another v Omar Page 6 of 9 Hilal Seif and Another, Civil Ref.No.19 of 1997 (unreported) thus: 'Leave is grantable where the proposed appeal stands reasonable chances of success or where, but not necessarily, the proceedings as a whole, reveal such disturbing features as to require the guidance of the Court of Appeal. The purpose of the provision is therefore to spare the Court the spectre of unmeriting matters and to enable it to give adequate attention to cases of true public importance." A similar position was stated in the case of British Broadcasting Corporation (BBC) vs. Eric Sikujua Ng’imaryo, Civil Appl. No.133 of 2004 (unreported), as well as in the case of in National Bank of Commerce vs. Maisha Musa Uledi (Life Business Centre), Civil Appl. No.410/07 of 2019, (unreported). In the National Bank of Commerce case (supra) the Court of Appeal of Tanzania held a view that: “in an application for leave to appeal, what is required of the Court hearing such an application is to determine whether or not the decision Page 7 of 9 sought to be appealed against raises legal points which are worth consideration by the Court of Appeal.” From the above requisite conditions for granting of an application like the one at hand, this Court needs to look at whether the application has raised novel issues or legal points which are worth of consideration by the Court of Appeal. As noted earlier here above, the Applicant submitted that there are arguable grounds which warrant the granting of this application. However, as I look at the affidavit supporting this application, such grounds are nowhere disclosed. Instead, they have been raised in the submission filed in Court. In my view, the affidavit in support of the Application must be laden with substantive grounds or materials sufficient for this Court to act upon and grant the leave sought by the Applicant. Submissions from the bar are meant to expound that which is in the pleadings. Failure to disclose such grounds for the intended appeal in the affidavit supporting the application but rather raising then in the submission filed in Court means that, the application does not, as required by the various authorities cited earlier here above, disclose grounds which should sufficiently warrant calling the matter to the attention of the Court of Appeal. For the above reasons, I find that the application is wanting and I hereby refuse it. In the circumstance of this Page 8 of 9 matter I will not grant costs but each part shall bear its own costs. With all that in mind, the application is, thus, hereby dismissed with no orders as to costs. It is so ordered. DATED AT DAR-ES-SALAAM ON THIS 19th DAY OF JUNE 2023 DEO JOHN NANGELA JUDGE Page 9 of 9