20060410 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 49 OF 2005 SUGAR BOARD OF TANZANIA ........................................ APPLICANT VERSUS 1. 21 ST CENTURY FOOD & PACKAGING } 2. PERMANENT SECRETARY, MINISTRY OF AGRICULTURE ................. RESPONDENTS 3. THE ATTORNEY GENERAL (Application for leave to appeal to the Court of Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Ihema. J.) dated the 30 th day of March, 2005 in Misc. Civil Cause No. 114 of 2002 14 March & 18 April 2006 RULING NSEKELA, J.A.: This is an application by the Sugar Board of Tanzania (the applicant) for leave to appeal to this Court. The High Court, (Ihema, J.) in Misc. Civil Cause No. 114 of 2004, refused leave to appeal to this Court on the 30.3.2005, hence this fresh application. The notice of motion was supported by an affidavit sworn by Henry Semwanza, which reads in part as follows - 2 "3. That on the 22 nd March, 2004 the High Court ordered committal proceedings to be issued against the applicant, 2nd and 3rd respondents if within 14 days they will fail to issue the applicant with the licence to import white sugar------ 4. That the applicant was not satisfied with the said ruling file a Notice of Appeal to the Court of Appeal of Tanzania ------ 5. That the applicant applied to the High Court for leave to appeal to the Court of Appeal of Tanzania but the High Court on 30th March, 2005 refused and dismissed the application on the following grounds:- (grounds omitted) At the hearing of the application Dr. Lamwai, learned advocate for the 1st respondent raised a preliminary objection challenging the competency of the application on three grounds - ... 3 "1. That the Drawn Order of the Court dated 22 nd day of March, 2004 against which leave to appeal is sought has not been annexed to the affidavit. In the premise the Honourable Court cannot know the nature of the decision which was made therein. 2. That the intended appeal is in respect of an Order made on the 30th day of March, 2005, while there is no notice of appeal against such Order, and there had been no proceedings for leave to appeal against it rejected by the High Court. 3. The application is hopelessly time barred." The grounds stated in the preliminary objection have caused me considerable anxiety. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but on stated legal, procedural or technical grounds. Such an objection must be argued without reference to evidence. The fundamental requirement is that any alleged irregularity, defect or default must be apparent on the face of the notice of motion so that the objector 4 does not condescend to affidavits or other documents accompanying the motion to support the objection. As regards the first complaint, Dr. Lamwai has alleged that the Drawn Order dated the 22.3.2004 has not been annexed to the notice of motion. The answer to this complaint depends on whether or not Rule 46 (3) of the Court of Appeal Rules has been complied with. Paragraph 3 of the affidavit in support of the notice of motion refers to annexure "DAN 1" which is a Ruling dated the 22.3.2004. At this juncture, I cannot go into the contents of the Ruling. The matter cannot be disposed of as a pure point of law. The issue should be raised in the normal manner in the course of arguing on the substantive application. Similarly, the second ground of complaint cannot be disposed of as a preliminary objection on a point of law. It is alleged that there is no notice of appeal against the Order of the High Court dated the 30.3.2005 seeking leave to appeal. That may well be so, but the issue cannot be resolved as a preliminary objection on point of law. 5 Whether or not a notice of appeal is a pre-requisite for an application for leave to appeal is an interesting arguable point which will be resolved at the hearing of the main application. Equally, which Ruling or Order is relevant will be resolved then. It cannot be stated with certainty that this objection raises a point of law which is based on ascertained facts. In the case of Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. (1969) EA 696 at page 701, Sir Charles Newbold, P. said - "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." In the result, I am not satisfied that the first two grounds of complaint raised by Dr. Lamwai qualify as preliminary objections as understood under law. • 6 The third ground of complaint is undoubtedly a pure point of law. Was the application for leave to appeal to this Court filed in time? Rule 43 (b) of the Court Rules provides - "43. In civil matters - (a) ---- (b) where an appeal lies with the leave of the Court, application for leave shall be made in the manner prescribed in Rules 46 and 47 within fourteen days of the decision against which it is desired to appeal or where application for leave to appeal has been made to the High Court and refused, within fourteen days of that refusal." ( emphasis added) In terms of paragraph 5 of the affidavit in support sworn by Henry Semwanza, the application was first made to and refused by the High Court on the 30.3.2005. Under Rule 43 (b) above, a further application to this Court shall be made within fourteen days of such refusal by the High Court. The Notice of Motion was filed on the 14.4.2005, but the fourteen days expired on the 13.4.2005. It was • 7 therefore filed out of time and there is no court order for its enlargement. Dr. Lamwai submitted from the Bar that there was a decision on the 30.3.2004. I have taken the date that appears in the affidavit in support of the application. In the result, I sustain the preliminary objection on the third ground. The application is accordingly struck out with costs. DATED at DAR ES SALAAM this 10th day of April, 2006. H.R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original.