susan samson nakembetwa vs imperium insurance brokers co ltd 2022 tzhccomd 167 8 june 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT MWANZA MISC.COMMERCIAL APPL. No.01 OF 2022 (Arisingfrom Commercial Appeal Case No.l of2021, Original Case No. 16 of 2018 ofNzega District Court, at SUSAN SAMSON NAKEMBETWA VERSUS IMPERIUM INSURANCE BROKERS CO. LIMITED .. PONDENT RESOLUTION INSURANC 1ondent Last Order: 03/06/2022 Date of Ruling 08/06/2022 for leave to ourt o^^Jpeal. The same has been brought Jurisdiction, Cap. 141 was filed by way of a chamber of this Court: 1. That, this Court be pleased to grant the Applicant leave to appeal to the Court of Appeal of Tanzania against the decision in Page 1 of 4 respect of Commercial Appeal Case No.l of 2021 delivered by Hon. C.P Mkeha, J., on the 23rd day of February 2021 in the High Court of Tanzania, Commercial Division, at Mwanza on the ground that there is a points of law fit for determination by the Court of Appeal if Tanzania to wit: • That, the trial Court and the appellate court are perverse cf basing on erroneous evawmpn o. require^^^dard^^ ofpwfpability. was ^^^i^^)urt. Moreover, on the date of its hearing, the A RespondA did^not show up. The Applicant, however, was Subi submitted that, the Application is unopposed and the ground for which leave is sought to appeal to the Court of Appeal of Tanzania is one worth of bringing to the attention of the Court of Appeal as this Court and the trial Court failed to Page 2 of 4 properly evaluate the evidence laid before them, hence, leading to a failure of justice. He contended, as a matter of principle, that, where there is documentary evidence, oral evidence cannot be substituted for it. According to Mr Subi, that fact is itself enough a point of law worth bringing to the attention of the Court of<^||peal. He submitted that, in principle granting leave to^^^l to t^^ourt of Appeal is a matter which is at the^iscreti^ provided that there is a point law whicllhhe Ct|bm)f A^eal will be invited to address. Hejel:^^^^^^^^p]^pirbhai N. Rattansi vs. Ministry of Co^^ucti^^^ergy, Land and Environment ^rf^^-noth^^200^^LR 220 and the English case of Bt^de vs^^^lme^^^26] All ER. 91 and urged this Copj^to gr^p the dpphA^oiirwith costs. As correc^^sub^^^^^^FMr Subi, granting of an appli^^^^^ leave^hbappeal to the Court of Appeal is at the W W llr will be granted if the Applicant ^^^^^B^oi^^ted thaflhere is an arguable case or where there is a viable ^^nt^law or an issue of general importance. The case RutagAna C.L vs. The Advocates Committee and C^^^^Stindo Ngalapa, Civil Application No.98 of 2010 (unreported) and British Broadcasting Corporation vs. Eric Sikujua Ng’imaryo, Civil Appl.No.138 of 2004 are all relevant on that. Page 3 of 4 1 is h^by^^ntra subject to Pd down by the s and procedures In this particular application, the issue which the o filing of an appeal at Applicant has brought to the attention of this Court is about failure on the part of both the trial Court and the first appellate Court to properly evaluate the evidence before it, thus allowing oral evidence to substitute for documentary evidence. Mr Subi has submitted that, such issue is itself a sufficient g e on the part of any Court to evaluate the evidence constitute an arguable point of law for wl^fe. the ion or the In view of the abov< orders: 1. ThW leave toappeal 'i^^^Court of It is so ordered AT MWANZA ON THIS 08th DAY OF JUNE, 2022.