20100224 TZCA Arusha

1

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA CIVIL APPLICATION NO. 2 OF 2009 PETER NOEL KINGAMKONO ............................................... APPLICANT

VERSUS TROPICAL PESTCIDES RESEARCH ................................. RESPONDENT (Application to struck out notice of appeal of the High Court of Tanzania at Arusha) (Mussa, J.) dated the 11th day of August, 2006 in Civil case No. 7 of 2005

RULING 18th & 25th February,2010. NSEKELA, l.A. This is an application to strike out a Notice of Appeal filed by an intending Applicant filed on the 14/8/2006. The application is brought by a notice of motion made under section 5 (2)( d) of the Appellate Jurisdiction Act, 1979, Cap 141 RE 2002 as amended by Act No.25 of 2002 and Rule 82 of the then Court of Appeal Rules, 1979. It is supported by the affidavit of Dr. Angelo Mapunda, learned advocate for applicant. 2 On the 15/2/2010, Messrs Herbert F.S Makange Chambers Advocates, learned advocates for the respondent, Peter Noel Kingamkono, filed a Notice of Preliminary Objection, which on reflection, was withdrawn by the learned advocate on the 18/2/2010. Hence, with the preliminary objection out of the way, I proceeded on to hear the Notice of Motion. Mr. Herbert Eliakunda Samwel Makange, learned advocate, filed an affidavit in reply. At the hearing of the application, Dr. Mapunda abandoned grounds 2 to 5 of the Notice of Motion leaving the first ground. Dr. Mapunda's affidavit in support provides in part as follows:- ''2. That on the 11 th of August, 2006 the High Court at Arusha presided over the Honourable Mussa,J. delivered a ruling and passed an order striking out the suit in civil Case No. 7 of 2005 the subject of this appeal...

3. That in dismissing the suit the Hon. Justice Mussa made a finding that the matter before him related to a 3 trade dispute and that the ordinary Division of the High Court has no Jurisdiction over trade disputes. This is true from the content of the ruling of the High Court, Hon. Mussa, 1. dated 11/8/2006.

4. That on 1efh August, 2006 the respondents lodged a Notice of Intention to appeal against the ruling and finding of the High Court.

9. That I verily believe that the High Court ruling and finding in this matter were correct. My belief is based on the decisions of the Court of Appeal on the subject.

10. That I verily believe that the decision of the High Court in this matter was merely preliminary and the intending appellant has still a remedy to file the matter in a court seized with Jurisdiction over the subject matter" The anchor of Dr. Mapunda's submission was section 5 (2)(d) of the Appellate Jurisdiction Act, 1979, Cap. 141 R.E.2002 as 4 amended by the Written Laws (Misc.) Amendment Act No. 25 of 2002. It provides a follows:- " ( d) no appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision or order of the High Court unless such decision or order has the effect of finally determining the criminal charge or suit" Dr. A Mapunda, learned advocate for the applicant submitted that the decision of Mussa J. In Civil Appeal No. 7 of 2005 did not conclusively determine the matter before it. The matter was struck out and not dismissed. On his part Mr. Makange, learned advocate for the respondent, contended that since the High Court held that it had no jurisdiction to entertain the matter, the decision was final. The matter had to be looked at from the nature of the proceedings and not the final order. 5 When this matter came before Mussa, J. the court held that it had no jurisdiction over the matter, it being a trade dispute, and therefore on the authority of a decision of this Court in Tambueni Abdallah 289

Others v National Social Security Fund, Civil Appeal No. 33 of 2000 (unreported), the High Court has no original jurisdiction to entertain trade disputes. Civil Case No. 7 of 2005 was accordingly struck out as incompetent. The question then is, is the decision final or interlocutory? The starting point is clear enough. It is section 5 (2)(d) of the Appellate Jurisdiction Act as amended. Despite its apparent clarity, it conceals what is and is not an interlocutory or final decision. In the case of Bozson v Altrincham Urban District Council [1903] 1KB. 947 at page 948 Lord Alverstone C.J. stated as follows:- "It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, 6 then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order" A judgment or order is final only when it finally disposes of the rights of the parties, that is it makes an order which would not bring back the matter further back to itself. The High Court ordered that the matter before it be struck out because it had no jurisdiction to determine the issue before it. If a Court is incompetent to deal with a matter before it, are the rights of the parties still subsisting? In the case of Akinsanya v United Bank for Africa Ltd [1987]

LRC (Comm) 22 at page 37, the Supreme Court of Nigeria had this to say:- " ... if the court of first instance orders that a matter before it be terminated (struck out) because it has no jurisdiction to determine the issue before it, that is the end of all the issues arising in the cause or matter and there is no longer any issue between the parties in that 7 cause or matter that remains for determination in that court. But it would be interlocutory if its order is that it has Jurisdiction, for there will be reference of the remaining issues in the case to itself. " With respect, I would also adopt the "nature of the order" test. The Ruling of the High Court that it had no jurisdiction in a trade dispute, that is Civil Case No. 7 of 2005 was a final decision in that court and not an interlocutory decision. In the result, I dismiss the application with costs. DATED at ARUSHA this 24th day of February, 2010. H. R. NSEKELA

JUSTICE OF APPEAL I certify that this is a true copy of th

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COURT OF