Jitesh Jayantilal Ladwa and Another vs Dhirajlal Walji Ladwa and Others (Civil Appeal No. 435 of 2020; Civil Application For Revision No. 154 of 2020; Commercial Case No. 2 of 2020) [2022] TZCA 3097 (31 August 2022)

JITESH JAYANTILAL LADWA VERSUS AND ANOTHER VERSUS DHIRAJLAL WALJI LADWA AND OTHERS COURT OF APPEAL OF TANZANIA (CORAM: KOROSSO. J.A.. KITUSI. J.A. And MASHAKA. J.A) CIVIL APPEAL NO. 435 OF 2020 (Appeal from the judgment and decree of the High Court of Tanzania, Commercial Division, at Dar es Salaam dated the 28th day of August 2020 in Commercial Case No. 2 of 2020) Companies law – Petition under Companies Act – Recusal application – Ruling refusing recusal; Civil procedure – Interlocutory orders – "nature of the order" test; Appellate Jurisdiction Act, s.5(2)(d) and s.5(1)(c) – requirement for leave; Overriding objective cannot oust mandatory jurisdictional requirements. The appellants raised four preliminary objections challenging a petition before the High Court (Commercial Division). The trial court overruled the three argued preliminary objections with costs and directed that the petition proceed to hearing on the merits. Dissatisfied with that ruling, the appellants filed an application for revision before the Court of Appeal under Rules 65(1), (2), (3), and (4) of the Tanzania Court of Appeal Rules, 2009. Despite the pending revision application, the High Court proceeded with the hearing of the petition on the merits. Subsequently, on 14 May 2020, the 1st appellant wrote a letter requesting the presiding Judge to recuse himself from hearing and determining Commercial Cause No. 2 of 2020 and Miscellaneous Commercial Applications Nos. 56 and 62 of 2020. The request was based on allegations that the Judge had held secret meetings with some of the respondents and advocates and was involved in corrupt dealings.

After considering the complaints and allegations, the Judge declined to recuse himself and directed that the hearing proceed. Aggrieved by that decision, the appellant lodged a memorandum of appeal in this Court, advancing six grounds of appeal. Held : (i) The Court stated that interlocutory orders are those which do not completely dispose of all issues of law and fact presented before the court, and the proceedings from which they emanate remain interlocutory in nature. (ii) No appeal or application for revision lies against any preliminary or interlocutory decision or order of the High Court unless such decision or order has the effect of finally determining the suit. (iii) An interlocutory ruling or order is therefore not appealable, except where it has the effect of finally determining the charge, suit, or petition. (iv) Although certain technicalities may be disregarded where doing so would not cause injustice to the parties, the Court remains mindful of the principle of the overriding objective as embodied under section 3 of the Appellate Jurisdiction Act (AJA) and Rule 2 of the Court of Appeal of Tanzania Rules. (v) However, the overriding objective principle is not intended to justify the wholesale disregard of mandatory procedural rules; rather, it exists to ensure that such rules are applied and interpreted in a just manner. Appeal was struck out. Statutory Provisions referred to: (i) Section 233(1) and (3) of the Companies Act, Cap 212 R.E 2002 (ii) Rule 65(1)(2)(3) and (4) of the Tanzania Court of Appeal Rules 2009. (iii) Section 5(2)(d) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019

Case laws referred to: (i) Vodacom Tanzania Ltd Public Company Vs Planetel Communications Ltd.,Civil Application No. 43 of 2018 (unreported). (ii) University of Dar es Salaam Vs Silvester Cyprian and 210 Others [1998] T.L.R. 176. (iii) Ernest Ndesangio Vs Republic [1980] T.L.R. 333. (iv) Arcado Ntagazwa Vs Bayogeza Bunyambo [1997] T.L.R. 242. (v) Palumbo Reef Ltd Vs Jambo Rafiki Bungalow, Civil Appeal No. 226 of 2020; Reginald M. Morenje Vs Warda Mohamed, Civil Appeal No. 141 of 2019. (vi) Boniface Anyisile Mwabukusi Vs Atupele Fredy Mwakibete and Two Others, Civil Appeal No. 46 of 2021. (vii) Rutagatina C. L. Vs The Advocates Committee and Another, Civil Application No. 96 of 2010 (unreported). (viii) Commissioner General Tanzania Revenue Authority Vs JSC Atomredmetzoloto (ARMZ), Consolidated Civil Appeal No. 78 of 2018, and No. 79 of 2018 (unreported). (ix) Njake Enterprises Limited Vs Blue Rock Limited & Another, Civil Appeal No. 69 of 2017 (unreported). (x) Juma Busiya Vs Zonal Manager, South Tanzania Postal Corporation, Civil Appeal No. 273 of 2020 (unreported). (xi) Microsoft Corporation Vs Mitsum Computer Garage Ltd (2001) 2 EAR 467. (xii) Augustino Masonda Vs Windmel Mushi, Civil Application No. 383/13 of 2018. (xiii) Junaco (T) Limited and Justin Lambert Vs Harel Mallac Tanzania Limited, Civil Application No. 473/16 of 2016. (xiv) Jitesh Jayantilal Ladwa and Another Vs Dhirajlal Walji Ladwa and 2 Others, Civil Application For Revision No. 154 of 2020.