PETROSOL T LTD VS DIAMOND TRUST BANK T LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC COMMERCIAL APPLICATION NO. 402 OF 2017 (Arising from Commercial Case No 33 of 2017) BETWEEN PETROSOL (T) LTD-------------------------- I-------------------------- 1st APPLICANT ABDUL LATIF K SULEIMAN------------------------------------------------2nd APPLICANT TUCKMAN MINES AND MINERALS LTD------------------------------- 3rd APPLICANT VERSUS DIAMOND TRUST BANK TANZANIA LTD-------------------------------- RESPONDENT RULING SONGORO, J This is a Ruling on a preliminary objection on point of law raised by Mr. Kesaria Learned Advocate of the Diamond Trust Bank Tanzania, the Respondent, opposing the application for leave to appeal to the Court of Appeal filed by Petrosol (T) Ltd, Abdul Latif K. Suleiman, Tuckman Mines and Mineral Ltd the 1st 2nd and 3rd applicants respectively. The applicant's application for leave to appeal to the Court of Appeal is made under Section 47 (1) of the Land Disputes Court Act No 2 of 2002 and is supported by an affidavit sworn by Mr. Eliufoo Loomu Ojare, the applicant' counsel. In the light of the application, Mr. Kesaria, the Respondent Counsel raised a preliminary objection on point of law that, the application is incompetent for having been made under the wrong provisions of the law. In view of the above stated preliminary objection on point of law, the court invited both parties to pursue the objection raised. Page 1 of 6 So Mr. Qjare Learned Advocate appeared for the applicant while Mr. Kesaria, Learned Advocate appeared for the Respondent. In pursuing the preliminary objection on point of law, Mr Kesaria straight pointed out that, matters relating to appeal to the Court of Appeal on decision arising from the High Court Commercial Division are mainly governed by the provision of Appellate Jurisdiction Act Cap 141 [R.E 2002] and the Court of Appeal Rules, He then clarified to the court that, always application for leave to appeal to the Court of Appeal on decision of Commercial Court the relevant and enabling provision which support the application is Section 5(1) (C) of the Appellate Jurisdiction Act Cap 141 [R.E 2002] Rule 45 (a) of the Court of Appeal Rules, The Counsel then maintained in his submission that, since applicant's application is made under Section 47(1) of the Land Disputes Court Act No 2 of 2002 that, is not relevant and enabling provision of the law which may enable the court to entertain and determine the application for leave to appeal to the Court of Appeal on a decision originating from Commercial Court. It was interpretation and opinion of Mr. Kesaria that, Section 47(1) of the Land Disputes Court Act it only enable a person who is aggrieved by a decision of the High Court Land Division to apply for leave to appeal to the Court of Appeal. But if a party will require leave to appeal must resort to the Appellate Juridiction Act, Cap 141 [R.E 2002]. So the Respondent's counsel finally 1 prayed to the court to dismiss the application for wrongly citing irrelevant provisions of the law. On his part, Mr Ojaare Learned Advocate of the applicant took a direction and stated that, when appeal is preferred from a decision of court exercising original or Page 2 of 6 appellate jurisdiction, an appeal is a matter of right and automatic. He then explained to the court that, by looking the nature of dispute surrounding the Commercial Case No 35 of 2017 which applicant wants to appeal against, certainly it involves issues of mortgage of right of occupancy and land rights and issues. The counsel then clarified that, the bank loan and mortgage which are subject matter of Commercial Case No 35 of 2017 may not be separated at all. The applicant counsel then indicated to court that, the original suit was a summary suit made under the provisions of Order XXXV of the Civil Procedure Code Cap 33 [R.E 2002] He then added that, Section 140 of the Land Act Cap 113 [R, E 2002] requires issues land disputes and enforcement of mortgage be referred to the High Court Land Division. Mr. Ojare then submitted that, he agree that, the matter was referred in Commercial Court but there is also land disputes involved, and the Land Division of the High Court was abolished by Act No 2 of 2010 thereby any High Court is Land Court may hear the application based on the cited provision of the law . The applicant maintained his stand that, Commercial Case which an application is made is land matter and court may proceed to entertain and determine the application. So he prayed to the court to find and decide that, the objection lack for merit and be overruled. The court has subjected arguments presented by both counsel in the objection raised and find the key issue for determination is whether or not Section 47 (1) of the Land Disputes Courts Act No 2 of 2002 is relevant and enabling provision of the law which may warrant and enable the High Court Commercial Division to entertain the application for leave to appeal to the Court of Appeal filed by the applicant. Page 3 of 6 In addressing the above mentioned point, I straight perused Section 47(1) of the Land Disputes Courts Act and find its marginal notes reads as follows:- Appeal from the High Court (Land Division) Then Section 47(1) Section 47 (1) of the Land Disputes Courts Act No 2 of 2002 reads as follows;- Any person who is aggrieved by the decision ofthe High Court (Land Division) in the exercise of its original, revisional or appellate jurisdiction, may with the leavefrom the High Court (Land Division) appeal to the Court ofAppeal in accordance with the Appellate Jurisdiction Act. Thus upon perusing the words used in Section 47(1) of the Land Dispute Courts Act honestly I find it opening statement of “Any person who is aggrieved by the decision of the High Court Land Division in the exercise of its original, provisional and appellate Jurisdiction may with the leave from High Land Division may appeal to the Court of appeal. So from the wording of the cited Section certainly it cater for decision of Land Division of High Court only and not High Court Commercial Division. So upon assessment of words used in the cited section I find it is relevant and enables High Court Land Division to hear and determine application for leave to appeal to the Court of Appeal to a person who is aggrieved by a decision of the High Court (Land Division). Therefore I find in the cited Section 47( 1) of the Land Dispute Courts Act is no word which suggest that, the provision may apply to a person who is aggrieved by a decision of High Court (Commercial Division) as the case in the present application. Page 4 of 6 The court finding that, the section enables the court to determine application for leave to appeal against a decision of the High Court Land Division is reinforced by sets of words and sentences found in Section 47(1) of Act No 2 of 2002 itself which reads “ a party aggrieved by a decision of “High Court Land Division in the exercises its original, decisional or appellate jurisdiction may applyfor leave to the Court of Appear The above mentioned words and statutory instruction of Section 47(1) of the Land Dispute Courts Act are not ambiguous and are not even difficult to understand because there intent is to deal with the leave to appeal from the decisions made by the High Court Land Division. So Mr Ojaare submission that, the High Court Commercial Division may entertain and determined the applicant application because the commercial case No 35 of 2017 has land matter, honestly I find that, yardstick that, the case involved land matter was not applied or imposed in Section 47(1) of the Land Disputes Courts Act by the Legislature. The determining factor to be considered in Section 47(1) of the Land Disputes Courts Act is a whether leave is being applied on a decision of High Court Land Division and the application itself is before the High Court Land Divisions. Taking into account that, Mr Loomu Ojare Learned Advocate is applying for leave to appeal against the decision Commercial Case No 35 of 2017 even if there is an issue of Mortgage and land matters, Section 47 (1) of the Land Disputes Courts Act No 2 of 2002 is not relevant and enabling provision of the law which may enables the Commercial Division of the High Court to entertain the application. Mr Loomu Ojare submission would have been valid if the leave which is being sought was on a decision of the High Court Land Division and the application is also before the Land Division. It is in this regard I quite agree with the preliminary objection raised by Mr Kesaria that, the Applicant' Counsel by citing Section 47 (1) of the Land Disputes Page 5 of 6 Courts Act No 2 of2002 in his application for leave to appeal to the Court of Appeal against a decision of the High Court Commercial Division, has cited irrelevant and wrong provisions of the law which may not enable the Commercial Division of the High Court to entertain and determined the application because the cited law is limited and restricted to decisions of the High Court Land Division. In my view the relevant and enabling provision which may enable the court to hear and determine application for leave to appeal on decisions of the High Court Commercial Division is Section 5(1) (C) of the Appellate Jurisdiction Act Cap 141 1R.E 20021, Consequently Respondent's preliminary objections is uphold and Misc Commercial Application No 402 of 2017 filed by the applicant is hereby dismissed for citing wrong and irrelevant provision of the law. Also, I order the applicant pays the respondent costs of pursuing the application Dated and signed at Dar es Salaam on this 7th day of July 2018 Page 6 of 6