19991110 TZCA Dar es Salaam

-,. - · :· Qt";:·:: . ... _______ . -.,,,...., •,·•'!':-~---. . -· - . .. . . . :. ....; .. ·- . ~ -- ..:. ·.... ·.-:. ·.- ... .; ..;._:: --· - ·-. l . ~ ' . . . ]_ ! ~ N THE. cor.iR:r OF APPEAL OF •TANZANIA . -· ' AT DAR ES SALAAM r'--n ~.: CIVIL APPLICATION NO .. 1 OF 1999 o:J't. \ '<.Yv· C/F NO. 12 OF 1999 {e·{ · In the Matter of Intended AppeaL BETWEEN. TANGANYIKA Ll\ND AGENCY LTD. & 8 OTHERS- APPLICANTS AND MANOHARLAL AGGARWAL RESPONDENT (Applicati6n for leave to: appeal from and for.stay of execution of the decision of the high Court of Ta.nz'aI?ia at Dar es Salaam) (-Chipeta, J. ) dated ihe 12th. day of March, 1998 ·in _,,,.. ;-.._ Misc. Civil Case No. 32 of 1997 ( \._ .. ; RULING· RAMADHANI. J. A.: The applicants have been aggrieved by the decision of CHIPETA, .J . ,_.:i:vl souqht l. ·~ave to appeal f t·orn the High Court but. wa.s ::el:us0.d by l<J\Li.::GE:Yt\, ,.J. They have ,l'.JW come be=fore this ·=curt •✓Jith the same application in Civ. ·Appl. No. 1/99 while in Civ. ,'\!_)pl. No. 12/99. they are seeking a stay of execution of that decision. I thought it proper to consolidate the two applications and the learned counsel for both parties agreed t:o that. Mr. Ndyanabo, learned ·advocate, appeared for all the nine applicants while Mr. Ng'maryo, learned counsel, inf.armed the Court that he was- holding briefs of Dr. Mvungi and Dr. Mwakyembe; learned advocates, for the respondent, with instructions to proceed with the application. Mr. Ndyanabo questioned the locus s tandi of Mr. Ng' maryo 'but then withdrew .it . Tile respondent had a preliminary obJection challenging the affidavits swor11 by Dev Nath Kapoor. One of the grounds raised in that respect was that one of the affidavits is ,,rgumentative instead of raising matters of facts. which is what an affidavit ·should do. Mr. Ndyanabo pointed out that it i I I . , 2 is only paragraph 3 of .the affidavit in support of Civil Applicat.ion No. 12/9·9 wh{ch, . is· arg_urnentative .. Mr. Ng' rnaryo conceded that and said that that paragraph could be struck out. So, that pa 1:agr~ph is hereby struck out .. ,. . The objection raise·d :fn _respect of. paragraph. T of the. affidavit in support of Civil 'Application No ... l/99 was. that it contained matters based on the belief of the deponent but that fact was not disclosed by the deponent in hiS' affirmation .. Mr. Ng' rnaryo said that· that was wrong. Mr. Ndyanabo conceded that error. )Wever, he cited Transport_Eguipment Ltd. & Another v. Devram r. Valarnbhi21, Civil Application No. 19/1993 (CA) (Unreported) as .:hority for the Court to order amendment of the affidavit. Mr. Ng'maryo resisted that saying that the Court has to be moved to do so and t!1at i.t cannot act suo motu. Tl: is my opinioh that th~ Court: has been informally moved t:) ·I J. _! <Y,·J .'l: I p l: 0 V i. '.] 8 !; .c1pplic;1t:..i.011 ir1 :·.lte course ot hearing. In fact Mr. Ng'rna1~yo was and cold. [t was ~ecause of his infon11c:1 l. dfJplicdt.i.011 that pat·agrapll 3 of the affidavit in support of Civil /\pplic.-1tio11 No. 12/99 was struck out. Eventually, however-, Mc Ng'111,u·yo co11ced,~d that paragraph 7 could be deleted. He also ..)llceded tlt;it the remaining. paragraphs 1 to 6 of the affidavit .':.-J d,.... adequately support the application in Civil Application No. 1, ;19 .. As the .Last ground of objection, it was- pointed out that there • 1s only tlir~ affidavit of Dev Nath Kapoor out of the nine .:-ipplicants. Mr. Ng' maryo argued that the application is not supported 1.iy affidavits of the, other eight applicants. Mr. Ng'ma1-yo arqued that the a.ffidavit of Kapoor cannot be taken to be 011 l.,ellal r of the others unless there wa~ a rower of attorney ( rom tile other eight or unless they had subscribed to the affidavits of Kapoor. Mr. Ndyanabo submitted that there is no n1le of lavJ prol1ibiting one applicant from filing an affidavit ,.'>11 b 2lt..:1.l f 1 or tll•:> other applicants. 3 This is rather an intricate point. In this ease· there is only one notice of appeal-for all the nine intending appellants. Should they all have filed notice~ of appeal? I thought allowed before Mr. Ng' maryo but he was mum. Then Rule 20 (2) . provides as follows: Where any document. is required to be- se:;:ved on the appellant or on the respondent, or on cwo or more appellants, or respondents as the case may be, represented by one advocate, it shall be sufficient if one copy of that document is served on that advocate. Of course, I am aware that this sub-rule deals with ~ervice of documents and not: filing of affidavits which are evidence. ct. 1 l{OW(~ver, by anc::11.ogy, cllld as all the nine applicants a1:e rep1·ese11ted by une advocate, can't one applicant swear an affidavit on behalf of the others? I think that can be done. This 1s particuL=n-.ly so, whe11 the matters deponed lo are none controversial. as is the case here. The affidavit say that then~ \ ·,,as a case i11 the HiCJh Couit.:., L11at the decision o[ the High Cour·t i ! igh Cqurt \v, ts r, '. luse<l a11d he 11ce this application [or leave t.: o appeal. Apart from what r have said above, Kapoor has said in his affidavit: I respectfully submit this affidavit in support of the motion I iled by myself and on behalf of the Applicants herein ... It is my considered opinion that this suffices without there being a power of attorney or having the other applicants subscribe to the affidavit. So, I refuse that ground in support of the objection. There w<1s a.l.i,o an objection that there was no appeal pending before this Couct and, therefore, there could not be an ~pplication . Eor a stay of execution. However, that objection was , ,1bandoned by Mr. Ng'maryo. So, the net result is that I dismiss the preliminary objection in its entirety. As regarding the main applications, Mr. Ndyanabo prayed for leave ·, ../I ~ • _,·j· ,. 4 to appeal because, he submitted, CHI PETA, J. erred in making ~ertain orders in his ruli~g. Mr. Ndyanabo argued that i t was wrong for the learned judge to order that meetings of the companies to be presided by a pe·rson contrary to what is provided in sect.io~ 112 (3) of Companies Ordiq.ance, Cap. 212. Also, he said that ~he learned judge·erred in ordering applicants 5, 6, 7 and 9, wh6 are neithei directors nor managers, to pay costs and fines without ascertaining whether or not they had any knowledge of the defaults. -,.,r. Ng'maryo in reply said that Mr. Ndyanabo. has not faulted the •ling of KALEGEYA, J. in refusing leave to appeal. 1\ccording t.o Mr. Ng' rnaryo the learned advocate for the applicants has to sho\<1 how the lea2:11ed judge went \vrong in refusing leave. Then Mr. N9'111aryo submitted that CH[PETA, J. merely ordered th-2 applicant·.s t·o perf:orm a .•,ta.l"utory duLy of conducting meetings oE directo,·s v/UU i pe :. pet: ua l.: ·:-: 1J 1.· e ,-➔ ch es O ,_F Thet·efo1·e, !1,: coi1tended, there is no need to grant leave Io -1pp-::~.;:!l r·oi:· 1·_1!,~ i1i1:e11decJ appeal. is bou11d to Elop. In my opinio11 there is no need .111 application like tllis to go to how how the learned judge of the High Court erred in refusing to grant leave. Admittedly, Rule 46(3) require5that the order _f- the High Court refusing leave should accompany an application for leave in this Court. However, nowhere is it required that tile learned High Court judge should be faulted. This is one of the very rare occasions in which the law gives an applicant a second bite, as it were, in applying afresh in this Court for leave after the same has been refused by the High Court. I find that the application is proper as it is. Tlie applicants, ,\S I have understood them, are not seeking to fault CI-IIPETl\, J. in ordering the- performance of a statutory dut:y of c:onductin9 annual general meetings. They seek leave to fault so1ne otlter on.lers by the learned judge which, according to them, co11t.ravenes t Ile Companies Ordinance. ......... ..,..;;.,._ . .. . • • .. • • _ ••• - • : --"4 - - .,..,. -.... :_:_;: :_-: . ~ :-.~-::~=:·:~ ~-.. : ": ·.~: .·. . : . ~:-~: ::··· I have to warn mysel:~',. as: I am doing:, that at this stage I am not. (__. t·equirc:-!d to go into -~he merits or otherwise of · the· intended' . .. appeal. Suffice· it is: t:o ·say· that the· learned judge· has., made· a number of or.ders: which.,. in my opinion., should come to this.· finaI Cou1:t of the· land for authoritative dec-~sions. This· is: -.'• •• • ... • .• • • I ~ar:ticularly so,, wi.,t~\ . ' the: current liberalisation of trade and· the . resurgence of company law and. litigation based on what heretofore'. has been a dormant raw·. · t am. inclined t_o grant leave_ to _appeal to this Court. Moreover,. the recently established Commercial Coui:t Di vision of the High Court, will need clear-cut precedents. 011cc I have done that, then I am of the decided opinion that I should also grant a stay of execution because if I do not do so, then execution would render the in.tended appeal nugatory, should it. succeed, as correctly submitted by Mr. Ndyanabo. i Sn, uotll l~av,:: to appeal and stay of execution are granted. Cost:s ,ir I.lie: 1.:\•;o ;,1; 1 pli.catio11s to Eollm-; the· event. DATED at DAR ES SALAAM' this 10th. day of November, 1999·. )/·1 ' I 'JUSTICE A. S. L. RAMADHANI OF --- Q c;-.A C. I ~,. APPEAL. · C, _..,,...,......, .·