Gomba Estate (GEL) Limited vs Standard Chartered Bank Limited (Civil Application No. 95/02 of 2021) [2023] TZCA 17726 (5 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MWARIJA. J.A.. MAKUNGU. J.A.. And MDEMU. J.A.^ CIVIL APPLICATION NO. 95/02 OF 2021 GOMBA ESTATES (GEL) LIMITED................................ ............. APPLICANT VERSUS STANDARD CHARTERED BANK LIMITED ....... ............... RESPONDENT (Application for leave to appeal against the decision of the High Court of Tanzania, Commercial Division at Arusha) (Mggpiga, J.) dated the 8th day of July, 2020 in Misc Commercial Application No. 11 of 2019 RULING OF THE COURT 2"d& 5th October, 2023 MAKUNGU, J.A.: The instant application is prompted by the refusal of the High Court Judge (Magoiga, J.) to grant the applicant leave to appeal in order to challenge the High Court decision (Ruling and Order) in Misc. Commercial Application No. 11 of 2019, arising from Commercial Case No. 4 of 2019, pending before the High Court. Before the Court, the applicant is moving the Court for leave to appeal against the impugned order of the High Court dated 8th July, 2020 on the ground:

a. That, the said decision (Ruling and Order) consists of disturbing features that in the circumstance will curtail and impair the applicant's case as it will effectively prevent the applicant from obtaining basic and necessary information concerning the existing evidence required to present its case in Commercial Case No. 4 of 2019. To appreciate the essence of the issue, a brief background will be necessary. It runs as follows: Before the High Court Commercial Division sitting at Arusha, the respondent instituted a suit against the applicant namely; Commercial No. 4 of 2019. Following that institution, the applicant preferred Misc. Commercial Application No. 11 of 2019 in which it sought the following orders; (a) That, the honorable court be pleased to depart from its scheduling conference order made in Commercial Case No. 4 of 2019. (b) Corollary to prayer I above, before making an order as to filing of witness statements; one, the honorable court be pleased to grant leave to deliver interrogatories in writing for the examination of the respondent; two the honorable court be pleased to issue an order directing the respondent to make 2

discoveries on oath of documents relating to the matter in issue in the suit which are in possession and/or powers of the respondent concerning the applicant. After hearing and determination of the said application, the High Court dismissed the application on 8th July, 2019. Aggrieved, the applicant filed a notice of appeal and memorandum of appeal while awaiting to be granted leave to appeal. The first application for leave to appeal was refused by the High Court in Misc. Commercial Application No. 7 of 2020 thus, this application is a second bite. It is supported by an affidavit sworn by Mr. Mpaya Kamara the applicant's counsel. On the other hand, it is acknowledged that, the respondent did not lodge an affidavit in reply required in terms of rule 56 (1) of the Rules, despite being served with the application pursuant to rule 55 (1) of the Rules. At the hearing of the application, the applicant was represented by Mr. Mpaya Kamara, learned counsel, whereas the respondent had the services of Mr. Gasper Nyika also learned counsel.

During the hearing of the application, counsel for the parties submitted briefly to emphasize their respective positions contained in the written submissions lodged earlier on in Court. From the foregoing, we wish to preface our deliberation by stating that, it is settled that where the respondent does not lodge an affidavit in reply despite being served, it is taken that he does not dispute the contents of the applicant's affidavit, [see Yakobeti SimonSanga v. Yohana Sanga, Civil Application No. 1 of 2011 (unreported). Therefore, the respondent who appears at the hearing without having lodged an affidavit in reply is precluded from challenging matters offact, but he can challenge the application on matters of law. Addressing the Court, Mr. Kamara readily conceded that, the impugned order was indeed an interlocutory one which did not finally and conclusively dispose of the suit before the High Court. That notwithstanding, he forcefully contended that, the impugned order though ex-facie interlocutory, it is only so in the name; not in its spirit, content and or effect. He went on to submit that, the effect of the order was to stifle the applicant's venue to present its case meaningfully and efficiently. He submitted further that, the impugned order has the effect of reducing the applicant's role in the proceedings of the main suit as a

mere spectator. Such could not and still cannot be the intention of the law that bars appeals on interlocutory orders; such law is not absolute under the circumstance where, as is in the present case, the court of justice can read injustices that may be occasioned as a result of applying the law regardless. He referred us to the decisions of the Court in Commissioner General Tanzania Revenue Authority and Another v. Milambo Limited, Civil Appeal No. 62 of 2022; MIC Tanzania Limited v. Mayunga Saduka, Civil Appeal No. 145 of 2020; and British Broadcasting Corporation v. Erick Sikujua Ng'imaryo, Civil Application No. 138 of 2004 (all unreported), which discussed factors to be considered in granting leave to appeal. He urged us to grant the application. Mr. Nyika, learned advocate for the respondent, submitted only on a point of law that, the intended appeal was incompetent because section 5 (2) (d) of the Appellate Jurisdiction Act, Cap 141 (the A]A) bars appeals against preliminary or interlocutory decision or order which do not have the effect of finally determining the suit. He added that the decision of the High Court did not finally determine the suit since no rights of the parties under the suit were determined. He contended that granting this kind of application is violation of law. The learned advocate

pointed out that the application ought to be dismissed due to the applicant's failure to satisfy the Court that there exist arguable grounds meriting the attention of the Court for its determination on appeal. Reinforcing his stand point, he cited few of the Court's unreported decisions in Finn Von Wurden Petersen and Another v. Arusha District Council, Civil Application No. 562/17 of 2017; Hashim Juma Mapepo v. Bakari Ahmadi Ng'itu (Administrator of the Estate of the late Galus Poiipili) and Another, Civil Application No. 07/07 of 2022, and Augustino Masonda v. Widmel Mushi, Civil Application No. 383/13 of 2018 (all unreported). Elaborating, the learned advocate contended that as found by the High Court in the impugned ruling, the question intended to be raised in the so-called interrogatories and discoveries can as well be answered through cross-examination and the sought truth will be known. Mr. Nyika argued, there is nothing in the affidavit justifying the grant of leave based on the principles guiding courts in determining applications for leave. He argued further that, the disturbing features raised by the applicant are not exceptions to section 5 (2) (d) of the AJA. He invited us to dismiss the application. In rejoinder, the applicant's counsel had 6

nothing useful but solicited our sympathy towards favourable consideration of the application. In this application, we are dealing with a narrow but significant issue, that is to say; whether a litigant has a room to prefer an appeal or revision from a non-conclusive interlocutory decision of the High Court notwithstanding the prohibition from doing so under section 5 (2) (d) of the AJA. It is not in dispute that the ruling or order of the High Court the subject of the application was, but interlocutory which, as conceded by Mr. Kamara had no effect of finally and conclusively disposing of Commercial Case No. 4 of 2019. That means, as matters stand today, that suit is still pending before the High Court awaiting the determination of this application. We have keenly considered the argument by Mr. Kamara forceful as it were but with respect, we do not see any merit in it. We say so having regard to the mandatory provisions of section 5 (2) (d) of the A3A which stipulate: "No appeal or application for revision shall He against or be made in respect o f any preliminary or interlocutory decision or order o f the High Court unless such decision or order has the effect o f finally determining the charge or suit"

Contrary to the submission by the learned advocate, we are unable to read anything from the cited section exempting non conclusive interlocutory orders from the prohibition merely because they involve the jurisdiction of the High Court. We have no doubt that Mr. Kamara is fully aware that section 5 (2) (d) of the AJA has been a subject of the Court's consideration in various cases including; Murtaza Ally Mangungu v. The Returning Officer for Kilwa North Constituency & 2 others, Civil Application No. 80 of 2016; JUNACO (T) Ltd & Another v. Harel Mallac Tanzania Limited, Civil Application No. 473/16 of 2016 and Vodacom Tanzania Public Limited Company v. Planetel Communications Limited, Civil Appeal No. 43 of 2018 (all unreported). In Murtaza Ally Mangungu (supra) the Court underscored two tests in determining whether an application for revision is caught under section 5 (2) (a) of the AJA that is to say; the order sought to be revised is interlocutory and whether that order has the effect of finally and conclusively disposing of the matter before the High Court. Apparently, Mr. Kamara conceded on both tests. In Vodacom Tanzania Limited Public Company (supra), the Court referred to various decided cases on the issue including; Britania Biscuits Limited v. National Bank 8

of Commerce Limited and Doshi Hardware (T) Limited, Civil Application No. 195 of 2012 (unreported) in which the Court was confronted with a similar issue. As can be seen at page 15 of the typed ruling in Vodacom Tanzania Limited Public Company (supra), the Court sustained a preliminary objection in an application for revision predicated under section 5 (2) (d) of the AJA and stated: " . . . We are o f the opinion that the Ruling and Order o f the High Court sought to be revised is an interiocutory order .... because in that order nowhere it has been indicated that the suit has been finally determined...." The position in the instant application is no better. All in all, since the learned advocate has conceded that the impugned order was neither final nor conclusive and in the light of the settled legal position in the application of section 5 (2) (d) of the AJA and there being no contrary authority supporting the line of argument by Mr. Kamara, we are unable to accede to his argument that the application is exempted from the prohibition under the section. In the light of the foregoing, we have no hesitation in holding as we do, that the application before us is incompetent having been preferred in violation of section 5 (2) (d) of the AJA. Being incompetent,

we strike it out and order that the matter before the High Court proceeds from the stage it had reached before the filing of this application. Since the respondent neither filed any affidavit in reply nor written submission, we make no order as to costs. It is so ordered. DATED at ARUSHA this 5th day of October, 2023. A. G. MWARIJA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The ruling delivered this 5th day of October, 2023 in the presence of Mr. Henry Simon Katunzi, holdings brief for Mr. Mpaya Kamara, also holdings for Mr. Gasper Nyika, learned advocates for the applicant and r e s p t ............... ' ' ' r “ " 'ginal. COURT OF APPEAL 10