IN THE HIGH COURT OF TANZANIA(COMMERCIAL DIVISION)
AT DAR ES SALAAM
WESONS TANZANIA LTD RESPONDENT/PLAINTIFF
RULING
Date of Last Order: 17/2/2009
Date of Ruling: 23/2/2009
The respondent in these proceedings, through a
chamber summons, had prayed for temporary restraint
orders against the applicant paraphrased here mainly as
follows:-
(a) that the applicant(who was is the
Respondent/defendant in the main suit), its
servants, employees, agents and workmen be
temporary restrained from interfering or
performing the contract works earlier contracted
to the respondent/plaintiff (applicant of the
orders) pending determination of the main suit;
(b) the defendant/applicant here, be temporarily
restrained to release funds allocated for the two
projects until the main suit is determined;
The presiding Judge, (Hon. K.K. Oriyo, J), after
discussing and analysing of the arguments of Counsel for the
parties and reviewing of judicial precedents, came to a
conclusion that temporary injunctions may issue against
local or public authorities. Nevertheless, the Court withheld
issue of temporary injunction on the reason stated in the
ruling as existence of another order for the maintenance of
status quo issued on 26th September, 2008.
Of significant importance, the Court gave the
respondent, the applicant here, an alternative option in lieu
of temporary injunction. The respondent was ordered to
deposit within 21 days a sum of shs.1,029,854,981/= in
Court or a banker's guarantee or some other form of
security acceptable in law. This ruling was read on 13th
January 2009. At the time of the reading, Mr. Musa Mwita
Musa, State Attorney the applicant's solicitor was in
attendance.
Meatu District Council, the applicant here, was
aggrieved with the decision ordering it to deposit a sum of
shs.1,029,854,981/= in Court or a banker's guarantee or
some other form of security acceptable in law as an
alternative to the temporary injunction. In the applicant's
view, the order has the effect of attaching or execution or a
process of that nature which is contrary to the provisions of
the Local Government (District Authorities) Act, [CAP 287
R.E. 2002].
The applicant is interested to have the decision of this
Court given in interlocutory proceedings be considered by
the Court of Appeal of Tanzania, the highest judicial body
under the Constitution of United Republic of Tanzania, 1977.
They had therefore, through a chamber summons supported
by an Affidavit sworn by Mr. Andrew Francis ]uma, a District
Executive Director of Meatu District Council in Shinyanga
region, made the application moving the Court for an order
that: -
"the applicant be granted leave to appeal on the ground
that:-
1. at the time when the order was given, the applicant
herein was not in the position to understand the
consequence of the impugned order;
2. the order is totally unsustainable in law;
3. the order given is not capable of execution;
4. the order given by the High Court has the effect of
finally determining the suit;
5. the intended appeal involves an important point of
law; and
6. for an order that the costs of and incidental to this
application abide by the result of the application. "
The application was brought under a certificate of urgency.
Indeed, the application must be determined expeditiously.
On receipt of the application for leave, Counsel for the
respondent/plaintiff filed a Counter - Affidavit with a notice
of preliminary objection on three grounds as follows:-
(a) that the applicant's application is time barred and
that no leave had been sought;
(b) that the application is bad in law for being brought
under wrong provisions of the law;
(c) that the application is frivolous for being brought
against an unappellable order of the Court.
On the basis of these grounds a prayer is made to have the
application dismissed with costs.
Before me Counsel for applicant/defendant was Mr.
Luanda, State Attorney in the Prime Minister's Office who
was assisted by Mr. Lukanga and Mr. Mwita, learned State
Attorneys from the Ministry of Local Government and
Regional Administration. The respondent/plaintiff was
represented by Mr. Deogratias Mwarabu, learned Advocate.
According to Mr. Mwarabu, learned Advocate for the
respondent in these proceedings, the application for leave to
appeal to the Court of Appeal, which has first to be made to
this Court, is defeated by lapse of time. According to him,
this is because no leave was sought before filing of this
application. I must admit that I find the argument very
difficult to follow. I understand it that this is an application
for leave to appeal to the Court of Appeal. In law no other
application is required to be filed or sought for leave. I am
not certain if Mr. Mwarabu meant an application for
extension of time to give a Notice of Appeal. Notice of
Appeal is paramount. I will revert to this point later.
Mr. Mwarabu, learned Advocate is arguing that the
order complained against was issued on 13th January, 2009
and this application for leave was filed on 30th January 2009
contrary to the provisions of Rule 43 of the Court of Appeal
Rules [CAP 141 R.E. 2002]. These Rules are made under s.
12 of the Principal Act. Rule 43 of the Rules governs
applications for leave to appeal in Civil matters. It reads:-
43. In Civil matters -
(a) where an appeal lies with the leave of the
High Court, application for leave may be
made informally, when the decision against
which it is desired to appeal is given, or by
chambers summons according to the practice
of the High Court, within fourteen days of the
decision; (underlined provided).
According to Mr. Mwarabu learned Advocate, the applicant
filed this application 17 days after the decision. This was a
lapse of three days. He argues that applicant did not file an
application praying for extension of time within which to
make an application for leave to appeal to the Court of
Appeal in compliance with Rule 43 above. I think this is
what Mr. Mwarabu meant in his initial argument. As no
application for extension of time has been made, the
applicant cannot apply for leave before such an extension is
granted. Counsel prays that the application for leave be
dismissed with costs.
The second argument is on the provIsions of the law
under which this application is brought. Counsel argues that
s. 11 of the Appellate Jurisdiction Act, [CAP 141 R.E. 2002]
does not apply in matters of application for leave, but rather
in application for extension of time of giving notice of
intention to appeal or for making an application for leave to
appeal, notwithstanding that the time for giving the notice
or making the application has already expired. Counsel
submitted that the application by the applicant as stated in
the Chamber Application does not arise from s. 11 cited in
the chamber summons. He therefore pleaded that the
application be dismissed on that ground on the basis of CITI
BANK (T) LTD VS TANZANIA TELECOMMUNICATIONCO LTD,
Civil App. No. 64/2003 (unreported).
The third limb of objection is that the order arising from
the decision dated 13th January 2009 is not appellable. He
cited s. 5 (2) (d) of the Appellate Jurisdiction Act as
authority for his position. That subsection reads as follows:-
"(2) Notwithstanding the provisions of sub-section (1)-
(a) -
(b) -
(c)
(d) No appeal shall lie against any preliminary or
interlocutory decision or order of the
Commercial Division of the High Court unless
such decision or order has the effect of finally
determining the suit."
Counsel submitted and argued that the order arising
out of the decision dated 13th January 2009 did not
determine the suit or the rights of the parties in the suit.
Therefore, the applicant is precluded to appeal against it.
This Court was referred to the decision of the Court of
Appeal in Attorney General v Wilfred Onyango Muganyi,
Criminal Appeal No. 276/2006 (unreported), Mroso, JA which
is an authority that "Appeals or revision in applications both
in Criminal and Civil, which are interlocutory or preliminary
in nature are barred by paragraph (d) of section 4 (2) of the
Appellate Jurisdiction Act, unless such decisions have the
effect of finally determining the criminal charge or suit".
This is the ratio decidendi of that case. Mr. Mwarabu,
learned Advocate prays that the application be dismissed on
this ground and rested his case.
Mr. Luanda, the learned State Attorney started his
submissions on the point of lapse of time by stating that
they were aware all of along that time to file an application
for leave to appeal had lapsed. That is the reason why the
application was made under s. 11 of the Appellate
Jurisdiction Act. When the Court reminded the learned State
Attorney that no specific provision of s. 11 is referred in the
chamber summons as enabling his application, he replied
that it is implied that the relevant subsection is subsection
(1) of section 11 which is applicable on civil matters under
which the application falls. He therefore prayed that the
Court deem s. 11 (1) of the Appellate Jurisdiction Act as the
enabling provision for the Application.
Belatedly, the learned State Attorney submitted that
the delay to make a necessary application was not
intentional but that it was due to the time taken to make
consultations with the parent ministry responsible for Local
Government and Regional Administration. But, from the
chamber summons, the reason given is that at the time the
order was issued, the applicant was not in the position to
understand the consequences of the order complained
against.
Mr. Luanda learned State Attorney, then made
submission on the respondent's attack on the ground that
the application is brought under a wrong provisions of the
law. He argued that the intended appeal will be brought
under s. 5 (2) (d) of the Appellate Jurisdiction Act and
therefore, leave to appeal is not required. He was firm that
the application before the Court were for extension of time
to file Notice of appeal and that if this is granted, the
applicant is within allowable time for appeal. According to
the learned State Attorney what is required of them is to
prove that the order of the Court dated 13th January 2009
intends to finally determine the suit that is still pending in
the Court. According to the learned State Attorney the order
has the effect of finally determining the suit on two
grounds:-
(a) First, that the order required the applicant to
deposit a sum of shs.1,029,844,909 which is equal
to the amount the respondent/plaintiff claim. It is
therefore a bond to the plaintiff's claim if he
succeeds; it determines the rights of parties;
(b) The order contravenes s. 194 A of the Local
Government (District Authority) Act in that the
order has the effect of a garnishee order if the
plaintiff succeeds.
Further, it is argued that the order for a deposit was not
prayed for by the respondent/applicant and that even if it
was prayed for, its issuance contravenes s. 194 A of the
Local Government (District Authority) Act. These are the
substantive positions of the parties.
In matters of preliminary objections, the final outcome
of such proceedings will be based on a relevant precedent,
statute or rule together with the principles set out in
procedural law. I have therefore given high consideration on
precedents, statutory law and principles of procedural law
and I think, to be blunt and fair, the matter needs not
occupy the Court longer than is necessary.
Let me first, resolve the issue about the status of the
application before this Court. The chamber summons and
the supporting affidavit were drawn and filed by the
Directorate of Legal Services of Prime Minster's Office,
Regional Administration and Local Government (PMO - RA
LG). This Directorate is manned by State Attorneys who, by
virtue of s. 3 of the Advocates Ordinance, CAP 341 R.E.
2002] as amended by s. 30 of the Office of Attorney General
(Discharge of Duties) Act, 2005, are Advocates. They are
qualified advocates and cannot be held at lower standards
than other members of the Bar. The qualified Attorneys
filed a chamber summons. They clearly indicated the
purpose of the chamber summon to be:-
"Move the Court/or a Judge for an order that the
applicant be granted leave to appeal..."
At paragraph 12 of the supporting affidavit, the deponent
relying on information of Mr. Mwita M. Mwita, a solicitor of
the applicant, prays that the Court be pleased to grant leave
to appeal. Now, from the record it is as clear as crystal or
snow, that the prayer is one and that is for leave to appeal
to the Court of Appeal of Tanzania. The statement from the
Bar by Mr. Luanda, learned State Attorney is not supported
by the applicants' chamber summons. It cannot, therefore,
pre - occupy us.
Every member of the Bar, including those in Public
Service who practice law by virtue of their offices under s. 3
of the Advocates Ordinance or under the office of Attorney
General (Discharge of Duties) Act, are presumed to be
familiar with procedural law when it comes to access to
justice of the Court of Appeal. The process cannot be
ignored for whatever reason, and where it may, it must be
done consciously and for sufficient cause. I will assume my
teaching role to explain.
As an initial step, a person aggrieved by a decision of
the High Court, as in this case, must give notice of his
intention to appeal. This is a first step. It is apparent on
the record that no notice of intention to appeal was given
subsequent to the order. If a notice of intention to appeal is
not given, a person aggrieved by a decision may still apply
for extension of time to give such notice. Such an
application must first be made to the High Court. No
application of extension of time to give notice has ever been
made or given. I find the argument made by Mr. Luanda,
learned State Attorney, that the application before me is one
for extension of time to file Notice of Appeal devoid of legal
meaning and sense. If Mr. Luanda wanted to deal with the
issue of extension of time, the option would have been for
him to request for the amendment of the chamber summons
before the objections were raised. This was not done.
This takes me to another point. The application for
extension of time to issue Notice of intention to appeal,
assuming that this is such an application, can be made
under s. 11 (1) of the Appellate Jurisdiction Act, and under
s. 14 (1) of the Law of Limitation Act, [CAP 89 R.E. 2002];
and Rule 44 of the Court of Appeal Rules. I do therefore find
that the ex tempore submissions by Mr. Luanda, State
Attorney are not centred on a specific part of s. 11 and is
devoid of merits and I reject it on that ground weird as the
argument is.
I agree with Mr. Mwarabu, learned Advocate, that the
application before this Court is for leave to appeal to the
Court of Appeal. Procedurally, leave to appeal to the Court
of Appeal must be obtained either at the time when an
order, the subject of appeal, is made. That means that it
must be made to the Court which issued it. But if a party
fails to seek leave informally, he/she must seek leave to
appeal by way of chamber summons within 14 days of the
decision. This is legally provided for under Rule 43 (a) of
the Court of Appeals Rules.
It is apparent, and conspicuously so, that the District
Council of Meatu and its team of solicitors never applied for
leave between the 13th January 2009 and 27th January 2009.
Any application must be sufficiently explained. The reasons
explaining this dilatory lapse are not showing any sufficient
causes. The grounds are that there were consultations
between the officers in Oar es Salaam and Meatu; and that
the Council did not understand the implications of the order.
This process involved lawyers who are allowed to practice
law and who are reasonably presumed to be familiar with
time limits of legal actions on appeal.
The drafters of the law knew that there could be lapses.
They therefore provided for a person who is challenged by
lapse to seek extension of time within which to make his/her
application still, this was not done. I have to answer a
pertinent legal question. Assuming, as I have done, that
this is an application for leave, is it properly made? The
answer comes fast. It is not. Section 11 has two
subsections. In the application the applicant did not indicate
under which part of section 11 was the application being
made. This omission is fatal. Failure to cite a specific
subsection under s. 4 of the Appellate Jurisdiction Act, [CAP
141 R.E. 2002] was held to be fatal to the application which
was struck out in CITIBANK TANZANIA LIMITED cited above.
Similarly, such was the effect of failure to cite specific sub-
rules of Rule 45 and 47 in the Notice of motion before the
Court of Appeal in JOSEPH NTOGWISANGO & ANOTHER V
PRINCIPAL SECRETARY, MINISTRY OF FINANCE & OTHERS
(Civil Application No. 109/2002, Munuo, JA) (unreported)
which I had the opportunity to consider in NORCONSULT AS
VS TANZANIA NATIONAL ROADS AGENCY, Misc. Comm.
Application No. 10/2008 (Commercial Court, unreported).
This application, which does not cite a specific sub-
section of the enabling law is bad in law as I have
demonstrated above. Mr. Luanda, learned State Attorney
asked the Court to determine the application without being
bound by legal technicalities. In essence, what the Court is
asked to do is to use its discretion to determine the
application. Judges have power to use discretion. But, I
must state that, where there is a specific provision requiring
a certain action, the discretion is ousted. On this, the elders
in law, such as Lord Mansfield in paVEY V paVEY [1971U
W.L.R 381 at page 387 provides gUidance to us when he
stated: -
"discretion, when applied to a court of justice means
sound discretion gUided by law. It must be governed
by rule, not humour. It must not be arbitrary and
fanciful, but legal and regular. "
Here at home, Lord Mansfield's statement was echoed by His
Lordship, Samatta JA (as he then was) in TANZANIA
ELECTRIC SUPPLY CO. LTD V PERMANENT SECRETARY,
MINISTRY OF ENERGY & MINERALS (Consolidated Civil
Application No. 19 & 27 of 1999) (unreported). The Court
must be sufficiently moved to exercise the discretion. It is
difficult to do so when there are underlining principles of law
and policy to the contrary.
While it is true that Article 107 of the Constitution of
United Republic provides that procedural rules should not be
used to defeat justice, those provisions are not meant to
abrogate a principle of public policy that the law must be
known and that it must be complied with by all and sundry.
I think the statement that these provisions can only aid the
vigilant litigant and not a dilatory actor, like the applicant
here, in LAURIAN RWEBEMBERAVS NENDIWE INVESTMENT
LTD (Commercial Case No. 39/2002) Commercial Division
Registry (unreported) is relevant. The applicant's solace to
the constitution is, unfortunately unavailable to him.
The preliminary issues are sufficient to dismiss the
application and have it struck out. However, I am conscious
that other points raised and argued are better resolved here.
This takes me to the last point. The order was on
interlocutory order and did not determine the issue or issues
that were before the Court. Neither did the order finally
determine the rights of parties. Mr. Mwarabu, learned
Advocate relies on S. 5 (2) (d) of the Appellate Jurisdiction
Act, [CAP 141 R.E. 2002]. The issue is whether or not, this
was an interlocutory order which did not determine the suit
or rights of the Parties. If the answer is in the affirmative,
then Mr. Mwarabu, learned Advocate have his day. If not,
then he will fail.
The applicant strong point is that this was an
interlocutory order which determined the rights of the
parties. The applicant's ground is based on the fact that the
quantum of the deposit is the same amount claimed by the
respondent/plaintiff. With this point of equality or
congruence, it is argued that the deposit is bound to the
plaintiff's claim if he succeeds. With due respect to
applicant's Counsel the use of qualified words such as "if he
succeeds" show that rights of parties were not finally
determined. This is because if the respondent/plaintiff will
not prove his claim, the deposit will be returned to the
applicant/defendant.
There is another argument alternative to the foregoing.
It is that the order, offends s. 194 A of the Local
Government (District Authorities) Act, [CAP 287 R.E. 2002]
as amended by Act No. 13/2006. The provision is for
purpose of protecting the assets and properties of Council.
It reads as follows:-
"194 A. Where any decree or order is granted or
obtained against the District Council, no
execution or attachment or process of that
nature shall be issued against the Council,
except, that the District Executive Director
shall cause to be paid out of the revenue of
the Council such amount as may by
judgment, or order be awarded to the person
entitled to it. "
It is common knowledge that the Court did not adjudge the
matter before it to the extent that the respondent/plaintiff
was entitled to the amount of the deposit. Section 194 A,
does not appear to disallow what was done. The amount is
used as security against liability of the applicant/defendant
District Council. It is not an attachment and it does not, by
any stretch of reasonable imagination, represent the process
of execution. Neither does it have the effect of execution or
attachment because no award has ever been made to the
respondent/plaintiff. The learned State Attorneys should,-
have explained the extent of the order of the judgment to
his employer rather than reading and interpreting the
provisions in a lopsided fashion,
It is true that the amount of the deposit was one of the
alternatives that the Court gave but how about other forms
of security? It does not appear to me that the
applicant/defendant is interested in the expeditious disposal
of the case on merits. I am satisfied that justice of this case
requires that the order of the Court be complied with by
either:-
(a) depositing a sum of shs.l,029,854,981/= in
Court; or
(b) produce a banker's guarantee of the same
amount; or
(c) produce some other form of security acceptable in
law.
Since the period ordered by the Court has expired, the same
is extended to 21 days from the date of this ruling.
This application is dismissed with costs. The Court
process to continue before the presiding Judge. Mention
before the presiding Judge on 18 March 2009 to follow up
compliance with the order.
F.M. Werema
JUDGE
23/2/2009