puma energy tanzania limited vs diamond trust bank tanzania limited 2023 tzca 17607 8 september 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 92/16 OF 2022 f CO RAM: MUGASHA. J.A., KITUSI. J.A And MDEMU. J.A.^t PUMA ENERGY TANZANIA LIMITED................................................. APPLICANT VERSUS DIAMOND TRUST BANK TANZANIA LIMITED...... ....................... RESPONDENT (Application from the Ruling and Drawn Order of the High Court of Tanzania Commercial Division, at Dar es Salaam) (Magoiga, 3.) dated the 17th day of May, 2021 in Commercial Reference No. 6 of 2020 RULING OF THE COURT 30th August & 8th September, 2023 MDEMU. J.A.: In Miscellaneous Commercial Application No. 74 of 2021, the High Court of Tanzania, Commercial Division (the Commercial Division) refused to grant leave to the applicant to appeal to the Court of Appeal. The applicant thus moved this Court in terms of section 5 (1) (c) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019 and rule 45(b) of the Tanzania Court of Appeal Rules, 2009. Facts leading to this application are that: in Commercial Reference No. 6 of 2020, the respondent requested the Commercial Division to interfere with the decision of the taxing officer which taxed off TZS 73, 443, 304.00 as instruction fees in Commercial Case No.39 of 2014. The latter was dismissed for want of prosecution. The said reference application was in the respondent's favour. Aggrieved, the applicant lodged the notice of appeal for appeal purposes and further unsuccessfully made an application to the High Court for leave to appeal hence, this application as a second bite persuading the Court to grant leave for the applicant to challenge the decision of the Commercial Division. The grounds in the notice of motion are as follows: 1. Ruling in Commercial Reference No. 6 o f2020 contains a serious point o f iaw worth consideration by the honorable Court in the sense that in reaching its decision to award the respondent the sum o f TZS 73, 443, 304.00 plus Value Added Tax (VAT) as instruction fees, the High Court did not take into account the fact that Commercial Case No.39 of 2014 from which the reference emanated, was dismissed for want of prosecution. 2. The High Court made erroneous findings in assessing the instruction fees payable to the respondent and ordering the applicant to pay Value Added Tax (VAT) on the instruction fees on the ground that Commercial Case 2 No. 39 of 2014 was at its highest stage at the time when it was dismissed for want of prosecution. 3. Through its decision made on l$ h December, 2021 in Misceiianeous Commercial Application No. 74 of 2021, the High Court refused the applicant leave to appeal to the honorable Court. At the hearing on 30th August, 2023 appeared Mr. Sinare Zaharan assisted by Mr. Obeid Mwandambo, both learned counsels for the applicant whereas Mr. Laurent Leonard, learned advocate, represented the respondent. In support of the application, the applicant's counsel began by adopting the supporting affidavit and thereafter briefly submitted that, the application is unopposed on factual issues because the respondent herein did not file an affidavit in reply. In view of that observation, the learned counsel invited us to allow the application. In reply, Mr. Laurent conceded for not having filed an affidavit in reply fronting to have had no knowledge on the existence of the application in which, previously, the late Kesaria Advocate represented the respondent. He submitted further that, following Kesaria's demise and since the application was already in place, knowledge regarding existence of that 3 application would not salvage the situation because by that time they were already time barred to file an affidavit in reply. That notwithstanding, the teamed counsel objected the grant of leave to appeal because what is deposed in paragraph 12 of the affidavit focuses on dismissal of Commercial Case No. 39 of 2014 for want of prosecution. In his view, the depositions in that paragraph should have gone further to state the law deployed in the assessment of instructions fees and by so doing, the affidavit would have incorporated the point of law. He therefore attached no merit to the application and thus implored us to decline leave. Mr. Sinare rejoined briefly that, as the respondent's counsel conceded to have not filed an affidavit in reply, challenging the contents of paragraph 12 of the affidavit from the bar is as good as responding or replying to the applicant's affidavit which is irregular. In his view, the respondent's counsel is precluded to do so, save for matters of law. He thereafter reiterated what he submitted in chief by urging us to hold meritorious the application for leave to appeal. We have considered grounds for leave contained in the notice of motion, the supporting affidavit, oral submission by learned counsels for both parties and the record before us. As parties did, we will also determine all the grounds for leave fronted in the notice of motion as one. The starting point is; what should be considered by courts having jurisdiction to determine an application for leave to appeal? In National Bank of Commerce v. Maisha Mussa Uledi (Life Business Centre) [2020] TLR 524, the Court held: In an application for ieave to appeal, what is required of the court hearing such an application is to determine whether or not the decision sought to be appealed against raises legal points which are worth consideration by the Court of Appeal. The question which we endeavor to resolve is whether the ruling in Commercial Reference No.06 of 2020 which awarded TZS 73, 443, 304.00 to the respondent as instruction fees in Commercial Case No.39 of 2014, which was dismissed for want of prosecution, raises a legal point worth determination by the Court. We understand that, this application is before us as a second bite. The grounds on which the initial application was sought, can safely be discerned in paragraph 12 of the affidavit. However, in the ruling refusing to allow the application for leave, at page 7, the learned Judge almost raised more or less similar issues in the following phraseology: 5 ...one, whether the order o f this court is appeaiable in the circumstances o f this application and two, whether the applicant has demonstrated arguable legal issues for grant of the leave to go to the Court of Appeal. Having raised these legal issues, the learned Judge went on at page 8 through 9 of the ruling and observed that: This takes me to the second issue that, if the applicant apart from complying with other procedural issue for grant of leave, has demonstrated any arguable issue for consideration by the Court of Appeal. I will start with the affidavit o f the applicant. As rightly pointed by the learned advocate for the respondent, and rightly so in my own view, any arguable issue are as contained in paragraph 6 o f the affidavit is in twofold: one that, the High Court did not take into account the fact that Commercial Case No. 39 of 2014 was dismissed for want of prosecution in assessing the instruction fees payable to the respondent and two, that the order for the applicant to pay VAT on instruction fees on the ground that Commercial Case No. 39 of 2014 was at the highest stage. In our view, the leaned Judge should have ended here. We are saying so because in the course of his ruling he proceeded to determine merits of an appeal which was not before him. To demonstrate this, the following was observed by the learned Judge at page 9 of his ruling: 6 ...I find this point not worth for consideration by the Court of Appeal. Yes, the suit was dismissed for want of prosecution at the stage of the hearing which means the issue charging the instruction fees to an advocate, was not an issue any more. At Commercial Court Division, means hearing has started because parties have already filed witness statements which amounts to testimony in chief and actually what remained was adoption of the witness statements, tendering of exhibits, cross examination and re -examination. Having reproduced the foregoing passage of the learned Judge, it is obvious that, this was beyond the determination of the issues as to whether or not Commercial Reference No. 6 of 2020 sought to be appealed against raises legal points which are worth for consideration by the Court of Appeal. In fact, looking at it, there is a determination on reasons as to why instruction fees were assessed which, in his view, as witnesses' statements have been filed, then the hearing of the case at the Commercial Court Division had commenced in terms of the Commercial Court Rules. In that, in our respective view, the learned Judge decided on how the contested assessment of instruction fees based on a case being dismissed for want of prosecution. This, we think, was beyond what was required of him at leave stage. As it is, and being guided by the principles in National Bank of Commerce v. Maisha Mussa Uledi (Life Business Centre) (supra), ground one in the notice of motion queries assessment of fees benchmarked on the case dismissed for want of prosecution. Whether or not the assessment was properly arrived at, we observe this to be an arguable question worth determination by the Court as cemented in the depositions under paragraph 12 of the affidavit which is reproduced as hereunder: 12. That, the intended appeal involves serious points of law for consideration by the Court of Appeal in that in its ruling\ the honorable court did not take into account the fact that Commercial Case No. 39 of 2014 was dismissed for want of prosecution in assessing the instruction fees payable to the respondent and the order for the applicant to pay VAT on the instruction fees on the ground that Commercial Case No. 39 of 2014 was at its highest stage. On the foregoing analysis, we are of the considered view that, what is contested in the quoted paragraph 12 of the affidavit is a legal point worth of consideration by the Court of appeal. In other words, the applicant has demonstrated an arguable case given an appeal to the Court. 8 We are therefore not in agreement with Mr. Laurent who viewed the contents of paragraph 12 of the affidavit to have not raised any points of law worth consideration by the Court. In view of what we have discussed in the foregoing, we find the application meritorious and accordingly the applicant is granted leave to appeal to the Court of Appeal against Commercial Reference No. 6 of 2020. Costs to follow the event. DATED at DAR ES SALAAM this 7th day of September, 2023. S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 8th September, 2023 in the presence of Mr. Yusuph Mussa Issa, learned Counsel for the Applicant and Mr. Laurent Leonard, learned Counsel for the Respondent is hereby certified as true copy of original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL