20170224 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA MISC. CIVIL APPLICATION NO.170 OF 2016 (C/F H/C (DC) Civil Appeal No.22 of 2015, originating from District Court of Ngorongoro Civil Case No.03/2014) OLOLOSOKWANI VILLAGE COUNCIL ...................... 1ST APPLICANT NGORONGORO DISTRICT COUNCIL .................. 2ND APPLICANT VERSUS GODFREY M. MUHAGACHI t/a Paint and Generals Supplies ...................................... RESPONDENT RULING Date of last Order: 7/2/2017 Date of Ruling: 24/2/2017 BEFORE: S.C. MOSHI, JUDGE. The Applicants filed a Chamber Summons before this court made under Section 5(1) (c) of the Appellate Jurisdiction Act Cap.141 R.E. 2002, and Rule 45(a) of the Tanzania Court of Appeal Rules, 2009, applying for the following orders; 1. That, this Honourable Court may be pleased to grant leave to the Applicants to appeal to the Court of Appeal of Tanzania against the whole decision Uudgment and decree) of the High Court (Hon. Mwaimu, Judge) in (DC) Civil Appeal Number 22 of 2015 delivered on 1ith day of August, 2016. 2. That, the costs to this application abide by the result of application. 1 3. Any other relief as the Honourable Court may deem fit to grant. This application is supported by the Affidavit of the Applicant's counsel Gwakisa Sambo. In this application the applicants are represented by Mr. Gwakisa Sambo and the respondent appeared in person unrepresented but he is receiving legal aid from Legal and Human Rights Centre. The application was disposed of by way of written submission. Arguing the application, Mr. Sambo submitted that, the enabling provisions of Section 5(1) (c) of the Appellate Jurisdiction Act and rule 45 (a) of the Court of Appeals Rules do not provide for conditions to be considered by the Court in granting the application rather essential conditions are laid down by the case law, in Civil Application No.138 of 2004, British Broadcasting Cooperation Vs Eric Sikujua Ng'maryo, the Court of Appeal of Tanzania at page 6 of its ruling held that: 11 .it is within the discretion of the Court to grant or refuse •••••••••• leave. The discretion must, however Judiciously exercised and on materials before the court. As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or novel point of law or where the grounds show prima facie or arguable appeal.. .... however, where the grounds of appeal are frivolous, vexatious or useless or hypothetical no leave will be granted ( emphasis supplied). He further argued that applicants seek leave to the Court of Appeal on two grounds contained in the draft memorandum of Appeal, the two grounds for consideration to the Court of Appeal would be: 1. Whether the High Court erred in law and fact in holding that the inspection of the dam subject of the contract between the appellants and the respondent by the Dam construction committee and its recommendations thereof were final for payment of the due balance of the sum of Tshs. 24,400,333/- to the respondent?. 2 2. Whether the High Court erred in law and in fact in holding that the Z'd appellant's Engineer wrongly refused to issue certificate to enable the respondent to be paid the due sum 24,400,333/ ? It was his submission further that, in the view of the proposed ground and the decision of British Broadcasting Cooperation Vs Eric Sikujua Ng'maryo (supra) the application to be granted. Opposing the application the respondent argued that the two proposed ground of appeal are not meritorious for consideration to the Court of Appeal, he prayed for the application to be refused. I have considered the submissions of the Applicants and gone through their counsel's Affidavit. It is common ground that an application for leave to appeal to the Court of Appeal, will only be granted if there are some 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 luma, Civil Application No.45 of 1999, (CAT-unreported), that; "Unfortunately, it is not provided what factors are to be taken in account when considering whether or not to grant leave to appeal to this court However, it is obvious that leave will only be granted if the intended appeal had some merits whether factual or legal'~ Further, it was stated by the Court of Appeal in the case of Gaudensia Mzungu Vs The I.D.M. Mzumbe, Civil Application No.94 of 1999 that; ".......................... .leave is not granted because there is an arguable appeal, there is always an arguable appeal. What is crucially important is whether there is prima facie ground meriting an appeal to this court'~ 3 Having referred to the cases above, it is evident that the issue for consideration before this court is whether the intended appeal has some merits to be considered by the Court of Appeal. Having gone through the Applicant's counsel's affidavit the main issues for consideration before the Court of Appeal are; 1. Whether the High Court erred in law and fact in holding that the inspection of the dam subject of the contract between the appellants and the respondent by the Dam construction committee and its recommendations thereof were final for payment of the due balance of the sum of Tshs. 24,400,333/= to the respondent. 2. Whether the High Court erred in law and in fact in holding that the 2nd appellant's Engineer wrongly refused to issue certificate to enable the respondent to be paid the due sum; 24,400,333/= The points enumerated by the applicant are factual points. It is my view that the points deserve the attention of the Court of Appeal. I therefore find that the applicants have managed to show prima facie grounds meriting an appeal to the Court of Appeal and I hereby allow this application. Each party to bear its own costs. Order accordingly. s.c.~ JUDGE 24/2/2017 4