gabriel ruhumbika vs pendieton security international t ltd 2007 tzhc 61 19 october 2007

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 239 OF 1995. PROF. GABRIEL RUHUMBIKA.... APPLICANT VERSUS PENDIETON SECURITY INTERNATIONAL (T) LTD .......................RESPONDENT. Date of last Order: /1 0/2007 Date o f Ruling: 19/10/2007 RULING Mlay, J. This ruling is on an application for leave to appeal to the Court of Appeal of Tanzania, against the ruling of Luanda, J. dated 13/03/2003. In that ruling, Luanda, J struck out an application by the present applicants to set aside a Consent Settlement Order alleged to have been secured through fraud, on grounds that the application having been filed four years after the consent order was entered or recorded, the application was time barred. The application for leave to appeal against the ruling has been made under section 5 (1) of the Appellate Jurisdiction Act, 1979 and Rule 43 of the Court of Appeal Rules and it is supported by the affidavit of WILLIAM ALI KIWANGO the 2nd Applicant and the Managing Director of the 1st Applicant. In the supporting affidavit, the 2nd Applicant has deponed in paragraphs 10,11,12,13,14 and 15, as follows: 10. That immediately after the notice of appeal in which we were intending to appeal against the manner in which the decree was made executable against us leading to the making of the settlement deed we lodged the application in this court to set aside the deed of settlement on the ground that the same was fraudulently procured. Further that this application was lodged on the 8th July 2003. 11. That in determining this application the Honourable Court dismissed the same solely on the ground that the same was time barred. Further that throughout the hearing of the said application the question as to whether the application was within time or not did not arise and that as the result parties where not given an opportunity of being heard on the same. 12. That as a consequence of what is stated in paragraph 11 above we were condemned unheard because the application was not determined on its merit to which all 2 parties addressed their submissions and legal arguments. 13. That we have been aggrieved by the said ruling and order made on the 14th March 2003 and we intend to appeal to the Court of Appeal of Tanzania. 14. That I have been advised by my advocates, SABAS KIWANGO & CO. ADVOCATES which advice I verily believe to be true, that an appeal to the Court of Appeal in respect of the ruling and order of this nature is not automatic and that an intended Appellant must obtain leave to appeal on the grounds that there exist points of law and, or of mixed law and fact involved in the intended appeal, hence this application. 15. That in the intended appeal there are involved questions of law and those of mixed law and facts, namely; a) Whether it was proper for the court to determine the issue limitation without first giving the parties an opportunity of being heard on the said issue. b) Whether a party to proceedings can substitute parties, charge the record, or after a decree without the leave of the court. c) Whether in the circumstances of the case the deed of settlement was fraudulently procured. 3 The Respondents advocate Mr. MOSES MAIRA filed a counter affidavit and the Applicant also filed a reply to the Respondents counter affidavit, the contents of which it is not necessary to go into, for the purposes of determining their application. It will suffice to state that the parties were allowed to file written submissions on the application, which counsels for both parties, have done. Before going into the merits of the application itself, it is necessary for this court to be satisfied that, it has been properly moved. In accordance with the Chamber Summons, this application which is for leave to appeal to the Court of Appeal of Tanzania, has been made under section 15 (1) of the Appellate jurisdiction Act, 1979 which contains paragraphs (a), (b) and (c). In the Chamber Summons taken by the Applicants Advocate Mr. Sabas Kiwango, it is not stated which paragraph of subsection (1) of Section 5 has been relied upon for this application. Clearly, the whole subsection (1) of section 5 does not provide for leave to appeal to the Court of Appeal. There has therefore been a failure to cite the proper provision of the section which has been relied upon to move this Court on the application for leave to appeal to the Court of Appeal of Tanzania. 4 The second provision cited in the Chamber Summons, is Rule 43 of the Court of Appeal Rules. Rule 43 of the court of Appeal Rules, contains two paragraphs, (a) and (b). In the Chamber Summons, it has not been stated which of the two paragraphs has been relied upon. For this reason, the proper provision has not been cited to move this Court to consider the application for leave. In the Zanzibar Civil Application No. 3 of 2003,; NAIBU KATIBU MKUU (CCM) AND MOHAMED IBRAHIM VERS 1 & SONS (unreported) the Court of Appeal (Nsekela JA) stated: *................. it is important that the Court must be properly moved to hear and determine the application. The applicant has not cited the provision from which the court derives power to enlarge time to appeal to this Court out o f time. This is a basic requirement, it is a Pre- requisite in an application”. In that application the Court of Appeal went on to decide that: “In this application, the applicant has not cited which provision o f the law is 5 relied upon to move the court to enlarge time. As the court has not been properly moved, the application is undoubtedly incompetent. It is accordingly struck out with costs”, (emphasis mine). In the application before this court, the applicant has not cited which provisions of section 5 (1) of the Appellate jurisdiction Act and of Rule 43 of the Court of Appeal Rules which is being relied upon to move this court to grant leave to appeal. Accordingly, this application is incompetent and liable to be struck out. This decision is sufficient to dispose of this application. However, in paragraph 15 of the affidavit of the 2nd Applicant which has been full reproduced earlier on in this ruling, the questions of law and these of mixed law and f a c t which the applicant intends to be considered by the Court of Appeal in the proposed appeal, include: “a) ................................ b) Whether a party to proceedings can substitute parties, change the record or alter a decree without leave of the court. c) Whether in the circumstances of the case the deed of settlement was fraudulently procured”. 6 First, in the ruling of Luanda, J which is the subject of the proposed appeal, the issues in paragraph 15 (b) and (c) of the supporting affidavit quoted above, were not considered or decided upon by Luanda, J. Secondly, the question being raised in paragraph 15 (c) of the said affidavit, relates to a “decree or order made by consent of the parties” which falls under subsection (2) (a) (i) of section 5 of the Appellate Jurisdiction Act. If it is contended that the Court of Appeal should consider also “ whether in the circumstances of the deed of settlement was prudently obtained” as deponed in paragraph 15 (c) of the supporting affidavit, the provisions of subsection 2 (a) (i) of section 5 of the Appellate Jurisdiction Act, should also have been cited in the Chamber Summons. The non citation of the relevant provision to move this court to grant leave to appeal to the Court of Appeal on the deed of settlement, for the reason given earlier on, also renders this application incompetent. In the final analysis and for the reasons given above, this application is incompetent and it is accordingly struck out, with costs. JUDGE 7 Delivered in the presence of Ms Msuya advocate for the Respondent and in the absence of the Respondent this 19th day of October 2007. 19/10/2007. Words: 1,313