20071019 TZHC Dar es Salaam

I I I IN THE HIGH COURT OF TAN~llA

AT DAR ES SALAAM ------------~----------- 1 CML CASE Nol,. 239 OF 1995.I

I I I , I PROF. GABRIEL RUHUMBIKA ..... APPLICANT VERSUS ' I ' I I P::;:::;1~:;;~TD . . L. . . . . . . .;. isPONDENT. I I Date of last Order: /10/2007 -:'. Date of Ruling: 19/10/2007 _· ;; 1:1 RULI1NG Mlay, J. ,, ,,' This ruling is on an applicltion for lea\(e Court of Appeal of Tanzania, aghlnst the ruli~1 of Luanda, J. L appeal to the dated 13/03/2003. In that rulihg, Luanda,· J\ struck out an application by the present applicants to set a~ide a Consent - . , ., II. • Settlement Order alleged to have, been securrd through fraud, on grounds that the applicationi having been , :filed I four years I after the consent order was:' entered or recorded, the ,,1 ' application was time barred. The application for leave to appeal against the ruling has been made under section 5 (1) of ,, I the Appellate J~risdiction Act, 19.79 and Rul,e ]3 of the Court 1 ! , I '.;1

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I I I I, I of Appeal Rules and it is supported by the affidavit of WILLIAM ALI KIW ANGO the 2 nd Applicant and the M~Jging Director of the 1st Applicant.

I I I In the supporting affidavit, the 2 nd Applicalnt has deponed • I I in paragraphs 10,11,12,13,14 and 15, as foUbws: ' I . I 10. That immediately after the. notice of appe al in which we , I 1 were intending to appeal f;igainst the ]mcinner in which the decree was made executable against uk leading to the making of the settlement deed k,el lodged the application in this court to set a~id

I I I the deed of settlement onthe ground that i th~ same was . . . , I fraudulently procured. Further that thif ipplication was lodged on the 8 th July 2003: 1 \ 11. That in determining this , application I t~e Honourable Court dismissed the same solely on thJ g~ound that the , I I ) same was time barred. Further that throughout the 1 hearing of the said applicatipn the questjio1 as to whether the application was within time or not tlid not arise and . t h e resu1t parties t h at as . w,. ·h·ere not g1v . In an \ . opportunity 7 of being heard on the same. i I 12. That as a consequence of what is stated iin paragraph 11 . . I . above we were condemned unhea d because the 1 application was not determined on its ire it to which all 1 I 2 I i I I parties addressed their submission~ and legal arguments. I 13. That we have been aggrieved by the said rbling and order made on the 14 th March 2003 and we intebd to appeal to the Court of Appeal of Tanzania. \ 14. That I have been advised by my advLates, SABAS KIWANGO & CO. ADVOCATES which ldvice I verily . I believe to be true, that an appeal to the qourt of Appeal in respect of the ruling and order of thi1 nature is not automatic and that an intended Appellartt must obtain I leave to appeal on the grounds that there\ exist points of law and, or of mixed law and fact itjvolved in the intended appeal, hence this application. \ 15. That

in the intended appeal. there are invdlved questions of law and those of mixed law and facts, nabely; a) Whether it was proper for the cou+ to determine the . issue limitatio: with~ut firjt giving t~e parties an opportunity of being heard on the srud I issue. I b) Whether a party to proceedings d:an substitute I parties, charge the record, or a!fter I a decree without the leave of the court. \ c) Whether in the circumstances of\ the case the I deed of settlement was fraudulentlY1 procured.

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I I I The Respondents advocate Mr. MOSES I MAIRA filed a counter affidavit and the Applicant also filed I a reply to the Respondents counter affidavit, the contents1 ofi which it is not I necessary to go into, for' the purposes of determining their application. I I I It will suffice to state that the parties werJ allowed to file written submissions on the application, whic!h counsels for I both parties, have done. 1 I I Before going into the merits of the applicaJtion itself, it is I I necessary for this court to be satisfied tha~, it has been . , I properly moved. In accordance with the Chamber I I Summons, this application which is for leave to appeal tp the Court of 1 Appeal of Tanzania, has been made under se~ti~n 15 ( 1) of the Appellate jurisdiction Act, 1979 which contai~s paragraphs (a), (b) and (c). In the Chamber Summons I taken by the Applicants Advocate Mr. Sabas Kiwango, it is' ndt stated which paragraph of subsection (1) of Section 5 has 'be~n relied upon for this application. Clearly, the whole subsedtioh (1) of section I 5 does not provide for leave to appeal to the clurt of Appeal. There has therefore been a failure to cite the: p~oper provision of the section which has been relied upon to move this Court ; I on the application for leave to appeal to the Court of Appeal of I I Tanzania. i I 4 l l I' I The second provision cited in the Chamber Summons, is i Rule

43 of the Court of Appeal Rules. Rule 43 1of the court of Appeal Rules, contains two paragraphs, (a) arid I (b). In the Chamber Summons, it has not been stated which of the two I paragraphs has been relied upon. For this rea~on, the proper provision has not been cited to move this Cot!irt to consider I the application for leave. I I I In the Zanzibar Civil Application No. 3 of: 2003,; NAIBU KATIBU MKUU (CCM) AND MOHAMED IBRAHIM VERS 1 & I SONS (unreported) the Court of Appeal (Nsekela JA) stated: 1 I I "................. it is important that I the Court must be properly move'(l to hear and determine the applica~ion. I The applicant has not cited I the i provision from which the court de11,ves power to enlarge time to appeal to Ithis I Court out of time. This is a b(J.sic requirement, it is a Pre- requisit~ in an application". I In that application the Court of Appeal we~t on to decide I that: I "In this application, the applicant! has not cited which provision of the laif is 5 I ,

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I I I relied upon to niove the court to enlarge . time. ! I As t h e court h as not been properly I I · twn moved , the app zica · · und ouI btedl y is incompetent. It is accordingly struc~ out with costs". (emphasis mine). 1 I I In the application befbre this court, the ~pblicant has not cited which provisions ~f section 5 (1) bf \the Appellate jurisdiction Act and of Ru;Ie 43 of the Court of Appeal Rules which is being relied upon:to move this cour1r t9 grant leave to appeal. Accordingly, this application is inco~pefent and liable to be struck out. This decision is sufficient to dispose of this application. I I i I However, in paragraph 15 of the af6:datit of the 2 nd Applicant which has been full reproduced earlier on in this I . . ruling, th.e "question~ of 1~w and these o~ I mred law and facf' which the apphcantt intends to be considered by the Court of Appeal in the proppsed appeal, include:\ "a) ...........................'.... I i b) Whether a party to proceedings din substitute I I parties, change the record or alter a qlecree without , I leave of the court.; \ c) Whether in the circumstances of the case the deed of settlement was fraudulently procured". I

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I I I , I I I I ! I I First, in the ruling of Luanda, J which! islthe subject of the proposed appeal, the issues i:h paragraph 1 · (b) and (c) of the supporting affidavit quoted above, were ~ot! considered or decided upon by Luanda, J. Secondly, th~ 4uestion being raised in paragraph 15 (c) of tHe said affidav~t, relates to a "decree or order made by consent of the\ plrties", which i falls under subsection (2) (a) (i) of section s: o:f the Appellate I Jurisdiction Act. If it is contended that thel clurt of Appeal should consider also "whether in the circumJtances of the deed of settlement was pnideJtly obtaine~"las deponed in paragraph 15 (c) of the supporti!iJ.g affidavit, lthb provisions of subsection 2 (a) (i) of section 5 :of the AppeHaie Jurisdiction Act, should also have been cited in the Chamter Summons. The non citation of the relevant p'r. ovision to JioJe this court to . + : I 1 grant leave to appeal to the Co-urt of Appe~ on the deed of. settlement, for the reason given 'earlier on, f renders this application incompetent. In the final analysis and for tlie reasons given ! above, this application is incom;petent and I it is accordingly struck out, with costs. ~ : \ I J.r. .: Y:J I

JUDGE 7 -: -I ! I :I I - Delivered in the presence 6,f Ms Msuyaj a vocate for the Respondent and in the absence i of the RespoJdent this 19 th day of October 2007. l I ' I I J~~

JUDGE .a I I i 19/10/2007. ·. I I I. Words: 1,313 I l :I 1· .. i 8