Mkono & Company Advocates (A Firm) vs J.W. Ladwa (1977) Limited (Commercial Case No. 3 of 2000) [2000] TZHC 318 (21 July 2000)

V (I IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DA R ES SALAAM COMMERCIAL CASE NO. 3 OF 2000 MKONO & COMPANY ADVOCATE (A FIRM)..... APPLICANT VERSUS J.W. LADWA (1977) LIMITED ........................ RESPONDENT R U L I N G The applicant herein, Mkono & Company, Advocates, is a firm of advocates " cartying on business as legal practitioners. The respondents J.W. Ladwa (1977) Limited carry on business as Civil Engineers and Building Contractors. On the 2.2.2000 the ap1icant filed Civil Case No.3 of 2000 against the respondent for breach of an agreement the details of which are not necessary for our purposes. On the 23.2.2000 the respondent filed the written statement of defence. Paragraph 1 of the said written statement of defence provides as follows: - " 1. Notice of Preliminary Objections on Points of Law The following preliminary objection shall be argued at the first opportunity and are without prejudice to and in the alternative of one another. That the plaint does not disclose a cause of action against the defendants in so far as the claim therein is found on an agreement that is based on an aggravated form of maintenance, to wit, champerty. That the plaint does not disclose a cause of actionagainst the defendants in so far as it is found on an agreement the consideration and/or object of which is manifestly illegal for being against statutes governing contractual relations and those providing for the offices of practising legal professionals. In consequence thereofthe defendants say and submit that the above-mentioned suit is bad, unenforceable by courts of law thus not maintenable and should be dismissed with costs." (emphasis supplied). On the 25.2.99 my brother (Kalegeya, J) ordered written submissions on the preliminary objections according to a prescribed time-frame and the Ruling on the c

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• preliminary objection was delivered on the 3.4.2000. The concluding sentence of the Ruling read as follows - "For reasons discussed the preliminary objections are upheld and the suit is dismissed accordingly." Aggrieved by this Ruling, the applicant on the 4.4.2000 lodged a Notice of Appeal expressing an intention to appeal to the Court of Appeal. This was followed by the filing of a chamber summons on the 14.4.2000 under section 5(1) (c) of the Appellate Jurisdiction Act, 1979 (the Act), Rules 43 and 44 of the Tanzania Court of Appeal Rules 1979, Order XLIII rule 2 and Section 95 of the Civil Procedure Code, 1966. The chamber summons is supported by an affidavit sworn to by Dr. Wilbert Basilius Liyoya Kapinga. Paragraph 2 of the affidavit in part provides as under -

2. That the applicant 's intended appeal involves issues of law which are of great importance and which have far reaching consequences in the manner in which advocates received instructions and remuneration and the general publics access to advocates;" Then follows a list of twelve matters which purportedly "havefar reaching consequences" on inter alia, the remuneration of advocates. The respondent likewise filed a counter affidavit sworn to by Dr. Ringo Willy Tenga who "vehemently disputed" paragraph 2 of Dr. Kapinga' s supporting affidavit. At the hearing of the application Dr. Mwaikusa assisted by Mr. Mponda, learned advocates, represented the applicant and Mr. Mbwambo, learned advocate, represented the respondent. Mr. Mponda submitted that the application was brought under section 5 (1) (c) of the Act since it was not covered either by section 5 (1) (a) or (b) of the Act and I thus this necessitated that leave of the Court be sought and obtained in terms of rules 43 and 44 of the Court of Appeal Rules, 1979. The learned advocate adopted the contents of supporting affidavit and concluded by stating that there were twelve legal issues that require to be resolved by the highest Court of the land. On his part Mr. Mbwambo submitted briefly to the effect that there were no substantive issues needing the attention of the Court of Appeal and that in any case they were comprehensively dealt with. It will be recalled that it was Mr. Mponda's contention that the Ruling of the court was an "order" and therefore in terms of section 5 (1) (c) of the Act, leave had to be sought and obtained before appealing to the Court of Appeal. I must admit that this application has

• 3 caused me considerable anxiety bearing in mind the recent amendment to the Act brought by the Written Laws (Miscellaneous Amendments) Act No.10 of 1999. There is a new section 5 (2) (d) which provides as under - "5 (2) Notwithstanding the provisions of subsection (1) (d) no appeal shall lie, against any preliminary or interlocutory decisions or order of the Commercial Division of the High Court unless such decision or order has the effect of finally determining the suit (emphasis added). Unfortunately, the learned advocates seemed to have been taken by surprise by this amendment when I drew their attention of its existence from the Bench and consequently I did not have the advantage of hearing their arguments on it. The first question to be resolved is whether or not the decision of this Court was a preliminary or interlocutory one or not. In paragraph 1 of the written statement of defence, the nature of the preliminary objections was to the effect the plaint did not disclose a cause of action. What then is a preliminary objection? In the case of Mukisa Biscuit Manufacturin. Co.Ltd v West End distributors Ltd (1969) EA 696 at page 700, Law, J.A. had this to say- "So far as Jam aware, apreliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit." And at page 701, Sir Charles Newbold, P stated - "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct "(Se also: E.A. Nan yaro v P. Ole Saitabau [1987] TLR 44 at page 54) It will be recalled that the suit was dismissed because the preliminary objections were upheld, and the legal issue that was involved was that the plaint did not disclose a cause of action. Order VII rule 11(a) of the Civil Procedure Code provides as follows - "11. The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action;" In the instant suit, the court did not reject the plaint but dismissed it possibly under Order XIV rule 2 of the CPC. Different consequences flow from a rejection of a plaint and the dismissal on a point of law. In the case of a rejection, Order VII rule 13

could be invoked by the applicant by presenting a fresh plaint in respect of the same cause of action. What happened however was a dismissal of the plaint on a preliminary point of law. This decision finally determined the suit. The decision was not preliminary or interlocutory. According to Black's Law Dictionary (6th edition) the word "interlocutory" means - "provisional; interim; temporary; not final. Something intervening between the commencement and the end of the suit which decides some point or matter, but is not a final decisioi of the whole controversy. An interlocutory order or decree is one which does not finally determine a cause of action but only decides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the cause on the merits." Hopefully, I have sufficiently explained that the effect of the decision was to finally determine the suit. There were no further steps remaining to be taken in order to enable the court to adjudicate the suit on the merits. In the result, an appeal lies against the decision of this court dated 3.4.2000. The second question is, on the facts, is leave necessary under section 5 (1) (c) of the Act. Having decided that the decision had the effect of finally determining the suit, the question of seeking leave to appeal does not arise (See: White v Brunton [1984] 2A1 1ER 606). Section 3 of the CPC defines what are decrees and orders in the following terms - "decree" means the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final ...." "Order" means the formal expression of any decision of a civil court which is not a decree." In the result, as stated above, the decision of the Court was a final one which put an end to the proceedings. This means that the applicant has an unfettered right to appeal to the Court of Appeal without seeking leave of this Court. The application falls under section 5 (1) (a) and not section 5 (1) (c) of the Act. It is accordingly ordered. Costs to be in the cause. 12 OP H.R.Nsekela, I CertjfV that this is a tTUv an orrect of the or* ua' e,.d€"fn $ a.. CosnmerC*! Court Dar Cs si1aau 2i ate1 o I q I