weruweru river lodge co ltd and another vs tib development bank 2021 tzhc 6869 13 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI MISC. CIVIL APPLICATION NO. 34 OF 2021 (Originating from Civil Reference No. 2 of 2020, High Court of Moshi at Moshi) WERUWERU RIVER LODGE CO. L T D ......................1st APPLICANT AHSANTE TOURS AND SAFARIS CO. L T D .............2 nd APPLICANT

VERSUS T. I. B DEVELOPMENT BANK LIM ITED .................... RESPONDENT

RULING MUTUNGI .J. The applicants are seeking for leave to appeal to the Court of Appeal of Tanzania against the decision of this Court (Mwenempazi .J.) dated 30th July, 2021 in Civil Reference No. 2 of 2020, any other and further orders this Honourable Court may deem just and equitable to grant and costs. The application is made under section 5(1) (c) of the Appellate Jurisdiction Act, Cap 141, R.E. 2019 and Rule 45 (a) of Tanzania Court of Appeal Rules, 2019 G.N No. 344 of 2019. The application is supported by a sworn affidavit deponed by Mr. Patrick Paul, who is the applicants’ advocate. On the other hand the respondent filed a counter affidavit in opposition thereof. Brief facts of the application as gathered from the court records and parties' affidavits is to the effect that, on 22nd October, 2019, this Court delivered a judgment in Civil Case No. 8 of 2016 which decided in favour of the Respondent with cost. The respondent filed Execution No. 1 of 2020 and in determination of the same, the Deputy Registrar set conditions to be complied by the judgment debtor including payment of the decretal sum within six months without any agreement from the parties. Aggrieved by the above decision, the respondent filed Civil Reference No. 2 of 2020 claiming the Deputy Registrar acted ultra vires which act amounted to watering down the gist of the judgment. This court granted the

application and decided in favour of the respondent that, the Deputy Registrar did not execute the decree of the court in accordance with the powers conferred on him in line with the law governing execution of judgments and decrees of the court. The applicants were dissatisfied by the courts ruling hence are now seeking leave to appeal against such decision to the Court of Appeal hence the instant application. During hearing, the applicants were jointly represented by Mr. Patrick Paul learned advocate while the respondent enjoyed the legal services of Ms. Jacqueline Kinyasi learned State Attorney. In support thereof Mr. Paul submitted, among the issues to be considered in the intended appeal is whether this Court was correct to order execution to proceed while the decreed amount is unascertained. More so, whether this Court was correct after holding that the Deputy Registrar acted ultra vires not to order the matter be tried de-novo. He expounded, these are triable issues in line with the holding in the case of Buckle Vs. Holmes (1926) ALLER 90 at page 91 and in the case of Alliance Insurance Co. Ltd Vs. Ansha Art Ltd, Civil Appeal No. 297/2017 where the Court of Appeal maintained, the decreed amount has to be ascertained first before execution. In that regard he prayed leave be granted. In reply thereto the learned Attorney submitted, the Civil Reference subject of this

application was filed by the Respondent after she was aggrieved by an order issued by the Deputy Registrar who set conditions before the decree was executed. She argued, in that case the issue before the Honourable Judge was whether it was proper for the Deputy Registrar to set conditions while executing the Decree. However she further averred, while submitting the applicants raised an issue that there was an error in the original judgment as the same did not have an actual amount. In the Attorney’s settled opinion, the applicants remedy was to challenge the actual amount through an appeal and not otherwise. Worse still the applicants before this court seem to be aggrieved with the original judgment and not the Civil Reference. The same is evident from their prayer made that, leave be granted so that an order is made for the original civil case to start a fresh. Ms. Kinyasi further contended, the applicants sat on their rights and took no action to appeal. They cannot now come through the back door to challenge the judgment through an execution order with new arguments. She acknowledged the applicants’ cited cases but argued, the same do not fall within the reference application. She added, this Court has not erred in ruling out that the Deputy Registrar acted ultra vires when executing the decree and consequently set aside the conditions and ordered the matter to proceed with

execution. She prayed the application be dismissed with costs. In his brief rejoinder, Mr. Patrick reiterated his earlier submission and maintained, there are arguable grounds worth the Court of Appeal’s intervention. He expounded, the application for execution among other issues stated an amount not indicated in Civil Case No. 8 of 2016. Once the amount had not been ascertained, the applicants were to apply to the High Court to ascertain the same. This is the reason they are challenging Civil Reference No. 1/2020 for this court’s failure in execution of her duties. It follows, when the respondent was challenging conditions set by the Deputy Registrar could not escape the fact, they were at the same time challenging the decretal amount. In the end he prayed the application be granted. Having considered the parties’ affidavits and their rival submissions, the main issue for determination is whether the applicants have demonstrated arguable issues to be granted leave to appeal to the Court of Appeal. It is trite law, for leave to appeal to the Court of Appeal is usually granted if there is good reason, normally on a point of law or on point of public importance as held in British Broadcasting Corporation Vs. Eric Sikuiua Nq’marvo, Civil Application No. 133 of 2004 fUnreported) that: - “Needless to say, leave to appeal is not automatic. It is within the discretion of the Court to

grant or refuse leave. The discretion m ust however be judiciously exercised on the materials before the court. As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie or arguable appeal. However, where the grounds of appeal are frivolous, vexatious or useless or hypothetical no leave will be granted.” However, the said leave to the Court of Appeal is not automatic. It is within the court’s discretion after being furnished with genuine grounds that the proposed appeal raises contentious issues worth to be considered by the Court of Appeal. For the Court to exercise its discretion, it is crucial that the same be availed with the necessary information which is usually obtained from the applicant’s affidavit deponed in support of the application for leave. Examining the applicants’ joint sworn affidavit, I find the same wanting. In its fourteen (14) paragraphs, besides recounting what transpired from when the original suit was initially filed up to this stage, the Affidavit has not disclosed any information however slight on what is to be challenged worth to be considered by the Court of Appeal. The court is alive with the principle that, an affidavit is a substitute of oral evidence and a backbone of the application as it carries all the weight.

This was underscored in the case of Juma Busiqa Vs. Zonal Manager TPC (Mbeva), Civil Application No. 8 2004 CAT at Mbeva fUnreportecH where the Court of Appeal held that: - "As the general rule of practice and procedure, , an affidavit for use in, court being a substitute for oral evidence, should only contain statements of facts and circumstances to which the witness deposes either his own knowledge or such an affidavit should not contain extraneous matter by way of objection or prayer or legal argument or conclusion." [Emphasis added] In the application at hand, the applicants’ affidavit has not served the purpose it was meant to serve, that of stating the reason as to why leave to go to Court of Appeal should be granted. The grounds of the intended appeal have not been deponed in the affidavit but rather attached separately to the application, this is obviously unprocedural. Despite the anomaly the court as a fountain of justice and in line with the dictates of the overriding objection principle has still moved to see what they entail as hereunder: - 1. The trial court in Civil Reference No. 02 of 2020 in the High Court of the United Republic of Tanzania (Moshi District Registry) at Moshi erred in law in not ordering the decree holder to make an application to the High Court to ascertain the amount decreed.

2. The trial court in Civil Reference No. 02 of 2020 in the High Court of the United Republic of Tanzania (Moshi District Registry) at Moshi erred in law in ordering the execution to proceed as prayed while the decree amount is unascertained. 8 3. The trial court in Civil Reference No. 02 of 2020 in the High Court of the United Republic of Tanzania (Moshi District Registry) at Moshi erred in law in not ordering trial de novo of the application for execution after holding the Deputy Registrar’s decision was ultra vires. Going through these grounds which were also referred to by the applicants’ advocate in his submission in chief, I see no point of law calling upon the Court of Appeal’s scrutiny but rather matters of facts. The applicants’ major grievance is on the fact that, Hon. Mwenempazi, .J. ordered the execution to proceed by setting aside the Deputy Registrar orders, while the exact amount decreed was not certain. All that the applicants counsel has resorted to is the long submission on what he thinks was to be said by the Honourable Judge. Up to this juncture I do not see a novel point of law worth the Court of Appeal intervention and determination. Had the applicants been uncertain on the exact amount to be paid, they would have either appealed against the initial decision or filed an Application for Review praying for the court’s orders be clarified accordingly. The

Honourable Judge had a duty to only look at the order by the Deputy Registrar including conditions therein and what he found is that he acted ultra vires in doing so. These are all matters of facts and not points of law. Be as it may, the applicants have not prima facie indicated any novel point of law which was contravened that needs the Court of Appeal’s directives. In Sanqo Bay Estates Ltd & Others Vs. Dresdner Bank fl 9711 EA 17 m the defunct East African Court of Appeal held that: - “Leave to appeal from an order in civil proceedings will normally be granted where prima facie, it appears that there are grounds of appeal which merit serious judicial consideration." In the circumstances, since the applicants did not specifically expound their grounds of their intended appeal calling for serious judicial consideration, I do not see any arguable prima facie case deserving the Apex Court’s intervention, hence I proceed to decline the application. The application is thus dismissed with costs. It,is so ordered. y------------------------------------- j • B. R. MUTUNGI

JUDGE 13/10/2021 10 Ruling read this day of 13/10/2021 in presence of Mr. Patrick Paul the Applicants’ advocate and Miss Jacqueline Kinyasi (S.A) for the Respondent. ------------------ 3 ’ B. R. MUTUNGI

JUDGE 13/ 10/2021 RIGHT OF APPEAL EXPLAINED. B. R. MUTUNGI

JUDGE 13/ 10/2021 11