prestine properties limited vs seyani brothers co ltd 2022 tzhccomd 87 6 april 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL CAUSE NO. 201 OF 2021 (Arising from Commercial Cause No.02 of 2021) PRESTINE PROPERTIES LIMITED............. APPLICANT VERSUS <n\ SEYANI BROTHERS & CO. LTD....... S^ESPONdENT Last order: 29th March, 2022 ' \ X. \\ RULING: 06th April, 2022 \> RULING NANGELA, J. This rullngzis'invespect of)an application filed in this Court by vyay-oTa cna'mber summons made under section 5 (1) ot-the Appellate?J.urisdiction Act, Cap 141 R.E 2019, and Ru!e\45 (a) and (b) of the Court of Appeal Rules, 2009 (as amended)r>The Applicant's chamber summons was supported by an affidavit of Shalom Samwel Msakyi, and the Applicant is seeking for the following orders: 1. That, this Court be pleased to grant the Applicant leave to appeal to the Court of Appeal Page 1 of 5 against the whole of the ruling and drawn orders of Misc. Commercial Cause No.02 of 2021 delivered on 15th November 2021 on grounds set forth in the accompanying affidavit. 2. Costs of this application b& provided for. \ 3. Any other relief(s)^ \^hjs Honourable Couft^wnll^dge^^Ho grant. XX On the 16th February 2022, ihe>Respondent's counsel, one Beatus Malimaxflleds-hj£_counter affidavit to contest the 3ranr^^X - application for itSchearingson the 29 March 2022. On the material date, (( \\\> theyparties appeared whereby the Applicant enjoyed the services of"Mr Ashiru Lugwisa, learned advocate, and Mr Malima, learned advocate, appeared for the Respondent. When the Applicant's counsel addressed this Court, he requested this Court to consider and adopt his submissions which he made in another sister application which was Page 2 of 5 earlier heard before me on the same day since the grounds for the application are essentially the same. This was Misc. Commercial Cause No.198 of 2021 between Prestine Properties Ltd and Seyani Brothers & Co. Ltd. For his part, Mr Malima also asked this Court to adopt his submissions offered in Misc. Commercial A Cause. No.198 of 2021 between Prestine Properties^Ltd'and skeleton arguments. \ Essentially, it is trde-that th&.sanie>grounds which form (( Av the basis of the a^Hcatai^Neave to appeal to the Court of Appeal formxthe\basis^of"this second application. As I stated in the^MiscrCommercial Cause No.198 of 2021, theremustbeIsspes of general importance or novel points of law'pr-grgu’nds showing a prima-facie or arguable appeal if leave is to be granted. Looking at the two grounds, I will also hold as I similarly held in the previous sister application, that, the two grounds do not possess such qualifications. As regards, the first ground, for instance, the law is very clear as to how the Page 3 of 5 new Arbitration Act should be applied to matters which were filed under the old regime. Section 96 (4) of the Arbitration Act, Cap.15 R.E 2020 is very alive to that. As I stated in the Misc. Commercial Cause No.198 of 2021, it follows, therefore, that, such a ground which seeks to challenge the applicability of that section cannot be made an issue worth of bringing to the^atenti^n^of/the Court of Appeal "in the manner t^exApplicarit'wants to have it brought to the/attentiorfcpf\the Court of obvious and—K see\no chances of success in such an endeavor5\\Z^ ^AsT^ted^in the Misc. Commercial Cause No.198 of 2021j-therefore, I tend to agree with Mr Malima that, if the Applicant is unhappy with what section 96 (4) of the Arbitration Act, Cap. 15 R.E 2020 provides, s/he cannot challenged it by way of an appeal in the manner s/he wants it to be done through this application. Page 4 of 5 Secondly, even under the second limb, I also agree that, what this Court did was simply to apply what section 80 (1) (a) of the Act provides. As I stated in Misc. Commercial Cause No.198 of 2021, the law must be applied as it is and not as a party would wish it to be. Under the schedule to the Arbitration Act, Cap. 15 R.E 2020, section 80 is a mandatory provision. In view of all that, this Court settled for the following orders: 1. That, leave to appeal to the Court of Appeal is denied and, for that matter, this instant application must be and is hereby dismissed. 2. That, taking into account the underlying circumstances in this application, I grant no orders as to costs. It is so ordered DATED AT DAR-ES-SALAAM THIS 06™ APRIL, 2022 DEO JOHN NANGELA JUDGE Page 5 of 5