tanzania telecommunication company ltd vs boniface mjenjwa others 2017 tzhc 6 13 december 2017

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO 95 OF 2016 (Arising from Misc. Civil Appeal No. 2 o f 2010) TANZANIA TELECOMMUNICATION COMPANY LTD....... APPLICANT VERSUS BONIFACE MJENJWA & 13 OTHERS....................... RESPONDENT Date o f last order 30/6/2017 RULING KIHIO. 3. On 28/12/2016 the applicant, Tanzania Telecommunication Corhpany filed this application applying for extension of time to file an application for leave to appeal against the decision in Misc. Civill Appeal No. 2 of 2010. The applicant is further applying that costs of this application be costs in the course and incidental orders as the court will deem necessary and equitable be granted. The respondents in this application are Boniface Mjenjwa and 13 others. The affidavit supporting the application is sworn by Mr. Richard Karumuna Rweyongeza an advocate from R. K. Rweyongeza and Company, Advocates. According to paragraph 2 of his affidavit, their firm of which he is a managing partner was instructed to represent the applicant for leave to appeal to the court of Appeal against the decision in Misc. Civil Appeal No. 2 of 2010 as per the copy of letter of instruction and the application for leave (collectively annexture TTCL1) to the affidavit. According to paragraph 3 of his| affidavit together with the application for leave the applicant also filed a Notice of Appeal to appeal to the Court of Appeal whiich is still pending before the court of Appeal (annexture TTCL2 to the affidavit). In paragraph 6 of the affidavit Mr. Rweyongeza deponed that after the disposal of the preliminary objection the matter was pending till on 5/12/2016 when the matter was called before Kih|io, J. for hearing and on that date the court made an observation on the competence of the application as the prayer in the said application was for leave to appeal against the Ruling and not against the judgment. In paragraph 7 of the affidavit he deponed that further to paragraph 6 above, the parties conceded to the issue raised by the court and the court marked the same as withdrawn as per the copy of the court order (Annexture TTCL 5 to the affidavit). In paragraph 8 of the affidavit he sworn that witjh the said order the efforts of the applicant to challenge judgment of the court dated 15/2/2011 have been frustrated because of wrong prayers in Chamber Summons. According to paragraph 9 of the affidavit, the applicant has been prosecuting the application with due diligence so that leave to appeal can be granted. The respondents strongly opposed the application. The application is argued by way of written submissions. The applicant is represented by Miss Jaquiline Rweyongeza, learned advocate from R.K. Rwenyongeza & Co. Advocates while thel respondents are represented by Mr. Msemwa, learned advocate. In support of the application, Miss Jaquiline Rweyongeza submitted that before this application the applicant had filed an application for leave to appeal to the Court of Appeal of Tanzania on 30th December 2011. She further submitted that the above application for leave against the ruling of Hon. Dr. Juma, J. (as he thdn was) instead of judgment of three Judges Hon. Dr. Juma, Utqmwa and Mutungi, JJJ was drawn and filed by Adept chambers (Advocates) and in the course of hearing of the said application the respondent filed Notice of Preliminary objection which was disposed by way of written submission and the court overruled the objection with costs. She went on submitting that upbn being engaged by the applicant to represent her, they noticed that the application which was filed by other advocate was defective and on 5th day of December 2016 when the application was called before Hon. Kihio, J. they prayed to withdrew the application and brought the present application for extension of time to file application for leave to appeal to the Court of Appeal of Tanzania out of time. She argued that immediately after the decision of Hon. Juma, J. was delivered on 15th December 2011 and on 30th December 2011, the applicant filed an application for leave through Adept Chambers (Advocates) who was acting for the applicantby way of Chamber summons supported by affidavit for leave to appeal to the court of Appeal against the ruling of Hon. Dr. Juma, J. (as he then was) instead of judgment of three judges Hon. Dr. Juma, Utamwa and Mutungi, JJJ which resulted to the withdrawal of the application on 5th December, 2016. She further argued that indeed the applicant has all along been diligent in taking various steps including applying for leave to appeal which was later withdrawn due to some defects and lodging Notice of Appeal in the appeal process and ever since 2011 after the judgment of three judges Hoh. Dr. Juma, Utumwa and Mutungi, JJJ. up to now she is taking various steps to appeal to the court of Appeal of Tanzania and sh£ cited the case of Zanzibar Shipping Corporation versus MkUnazini General Traders, C.A.T. Civil application No. 3 of 2011 (unreported) in support of her argument. She went on arguing thalt the application which is before this Honourable court is the result of the withdrawal of the application which was filed in this court by the advocates who acted for the applicant by then in the service of Adept chambers (Advocates) who drew incompetent chamber application and he was negligent by filing an application which did not contain prayer and so the applicant cannot be blamed for her advocates fault and she cited the case of Arunaben C.C. Ministry versus Mr. Naushad Hussein and 3 others, C.A.T. civil application No. 138 of 2012 (unreported) in support of her! argument. She contended that in the light of their submission indeed the applicant has all along been diligent in taking various steps in the matter only that the advocate was negligent in citing the said decision as ruling instead of Judgement and in the circumstance the court should grant extension of time and she cited the case of Yusufu Same and another Versus Hadija Yusufu, C.A.T. civil Application No. 1 of 20Q2 (unreported). In resisting the application Mr. Msemwa submitted that they haye observed some legal shortfalls which should be considered and he cited the case of Kinondoni Municipal council versus Dejniol Joseph Msemwa, HC. Civil appeal No. 125 of 2006 (uiireported) in support of his submission. He further submitted thdt the irregularities available are: (a) The present application is filed before the High Court of Tanzania, a court which according to GN No. 96 of 2005 as amended by GN No. 206 of 2014 does not exist. (b) The name of the applicant in this application is Tanzania Telecommunication Company Ltd who is not a party in the judgment and decree in Misc. Civil appeal No. 2 of 2010 which is intended to be appealed as the parties to the judgement and decree are Tanzania Telecomms Co. Ltd Versus Boniface Mjenjwa and 13 others. He went on submitting that surprisingly again, the applicant is not a party to the Notice of Appeal as the parties to the Notice of Appeal are Tanzania Telecommunications Co. Ltd Vs Boniface Mjenjwa and 13 others. He concluded by submitting that in view of the demonstrated irregularities the application is improper and illegal and cited the case of Amir S. Mwamba Vs NIC Bank (T) Limited, Misc. Commercial Case No. 195 of 2013 (unreported) in support of his submission. He argued that as the application is improper and illegal it should be dismissed with costs. He further argued that there is no sufficient ground shown to warrant this Honourable court to grant a discretional order for extension of time within which to file an application for leave to appeal to the Court of Appeal. He went on arguing that according to the applicant's advocate, Mr. Richard Karumuna Rweyongeza learned counsel the instruction to them (RK Rweyongeza & Advocates) was made on the 8th February 2012 and probably the instructions were withdrawn from the former learned counsel, P. M. Matumula Esq. for lack of diligence. He contended that the withdrawal of the defective application for leave to appeal was made on the 5th December 2016 after four (4) years and under the circumstances, with due respect, no diligence was taken or has been made in handling this case at ail and he cited the case of Mwanachi engineering and Contracting Corporation Vs Manna Investments (PTY) Limited and Holtan Investments Company Limited, C.A.T. Civil Application No. 5 of 2006 (unreported) to support his contention. He further submitted that failure by the applicant to Properly draw the Chamber application and put proper prayer is not! an act which is beyond power to control. He went on contending that the circumstances of this case are different to that in Yusufu Same and others case (supra). I have given a careful consideration to the arguments for anciJ against the application advanced by the learned counsel for the parties. The first issue I have to determine here is whether the application is competent. It is quite plain that the applicant company's name in this application is Tanzania Telecommunication Company Ltd. According to the Notice of Appeal to the Court of Appeal (Annexture TTCL2 to Mr. Rweyongeza's affidavit in support of the application) the applicant company's name is Tanzania Telecommunications Co. Ltd. As correctly submitted by Mr. Msemwa the parties to the judgment and decree in Misc. Civil Appeal No. 2 of 2010 are Tanzania Telecomms Co. Ltd Vs Boniface Mjenjwa and 13 others. No doubt, the applicant company's name in this application is different from the name in the said Notice of appeal and in the copy of Judgment and decree in Misc. Civil Appeal No. 2 of 2010. In the case of Amir S. Mwamba Vs NIC Bank (T) Limited, the Hicjh Court of Tanzania (commercial Division), Misc. commercial ca3e No. 195 of 2013 (unreported) the court deait with a situation which is similar to the situation in the present case where by thdre was an interchangeable use of respondent company's name "NIC Bank Tanzania Limited" and "NIC Bank (T) Ltd "in the application and main suit, respectively. The High court (commercial division) quoting the case of Chrisina Mremi Vs Coca Cola Kwanza Bottles Limited, C.A.T. Civil appeal No. 112 of 2008 (urireported) stated that "Companies like Human beings have to haye names and are differentiated by their registered names. Therefore, the registered name of a company is fundamental as thdre could be either different companies or simply confusion in the use of companies' names. The court further stated that: "given the inter changeable use of those companies names, the applicant has a duty to clearly identify the correct names of the intended respondent in filing the application to enable this court to be certain in considering the orders sought in the Chamber Summons". In the said case it was held that the application was incompetent for failure to identify the appropriate party. 3/01/2018 Co^am: Hon Moyo DR por Applicant Ms. jackline Rweyongeza Forj Defendant D. Msemwa CCj Rehema Order: - Ruling delivered today in presence of MS. Jackline Rweyongeza for the applicant, Mr. D. Msemwa for the respondent, together with respondents in person and MS. Rehema Makakala C/C. M.A. i DEPUTY REGISTRAR 3/01/2018 It is indicated above that the applicant company's name in this application is different from the name in the Notice of Appeal to the Court of Appeal and the name in the copy of judgment and decree in Misc. Civil appeal No. 2 of 2010. As the applicant company's name is different from the name in the Notice of Appeal and the name in the copy of judgment and decree in Misc. civil appeal No. 2 of 2010, the application is improper and hence in competent. I, therefore, concur with Mr. Msemwa's submission that the1application is improper. Having found that the application is in competent I find that it not necessary to discuss the remaining issues. Mr. Msemwa prayed that the application be dismissed with costs. I do not think that the appropriate remedy is to dismiss the application. In my view, the appropriate remedy is to struck out thq application and not to dismiss it. In the final analysis and for the foregoing reasons, I struck out} the application for being incompetent with costs. S.S. JUDGE 13/12/2017 10 3/01/2018 Corjam: Hon Moyo DR For! Applicant Ms. Jackline Rweyongeza For Defendant D. Msemwa CCj Rehema Order: - Ruling delivered today in presence of MS. Jackline Rweyongeza for the applicant, Mr. D. Msemwa for the respondent, together with respondents in person and MS. Rehema Makakala C/C. m.a . m> DEPUTY REGISTRAR 3/01/2018