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