IN
THE COURT OF APPEAL OF TANZANIA
CIVIL
APPLICATION NO. 189 OF 2005
MY COMPUTER
LIMITED……………………………….……..APPLICANT
(Application
from the decision of the High Court of Tanzania at Dar es Salaam for leave to
appeal to the Court of Appeal of Tanzania at Dar es Salaam)
(Msumi,
J.K.)
MUNUO, J,A.:
The
applicant, My Computer Limited, through the services of Mr. Nyange learned
advocate, is seeking leave to appeal to this Court against the decision of the
High Court in Civil Case No. 200 of 1992 which Msumi, J.K. as he then was,
delivered on the 22nd day of February, 2001.
Mr.
Kisusi, learned advocate for the respondent, the Board of External Trade
Zade-Marine Ltd., filed a notice of preliminary objection under the provisions
of Section 3(2) of the Tanzania Court of Appeal Rules, Cap. 141 R.E.2002 Vol
III, Subsidiary Legislation, contending that the notice of motion:
(i)……….is
incurably defective in that the same does not purport to bear the name of the
person who prepared them endorsed thereon, contrary to the mandatory provisions
of Section 44(2) of the Advocates Act, Cap 341, R.E. 2002. The Registry……ought not to have accepted or
recognized the said documents.
(ii) In the alternative, that this application is
incompetent in that it ought to have been made before the High Court.
At
the hearing of the preliminary objection, counsel for the respondent contended
that the notice of motion is incurably defective because the name of the drawer
is not endorsed thereon. Furthermore,
counsel for the respondent argued, the affidavit in support of the application
also lacks the name of the drawer thereof so it too, is incurably
defective. Those irregularities, counsel
for the respondent submitted, are fatal. On the said defects, the Court should strike
out the Notice of Motion with costs, counsel maintained.
Counsel
for the respondent cited several cases in which the Court struck out
applications on the ground that the drawers thereof had not endorsed their
names as is required under the provisions of Section 44(2) of the Advocates
Act, Cap. 341 R.E.2002. In Albert
Brangaza and another versus Mrs. Flora Lourdin Brangaza (1992) TLR 307, at Pg.
309 counsel for the respondent observed, the Court held that the provisions of
Section 44 of the Advocates Act, Cap. 341 R.E.2002 must be strictly complied
with. In this case, he contended, the
names of the drawer of the notice of motion and the affidavit in support of the
application are missing so the said documents are incurably defective and hence
the application ought to be struck out with costs because it is not properly
before the Court.
Counsel
for the respondent further cited the case of Abdukadri versus The Director,
Tilapia Hotel – Mwanza, Civil Application No. 2 of 2005, Court of Appeal of
Tanzania at Mwanza (unreported) in which Court, pursuant to the provisions of
Section 44(2) of the Advocates Act, Cap. 341 R.E.2002, rejected a document for
non-compliance with the said provision just as in this case where the notice of
motion and the affidavit in support of the application, lack an endorsement of
the names of the drawer and hence contravene the mandatory provisions of
Section 44(2) of the Advocates Act, Cap. 341.
For these reasons and omissions, counsel for the respondent prayed that
the application be struck out with costs.
In
the alternative, counsel for the respondent contended, the application for
leave ought to have been instituted in the High Court because as stated at
paragraph 3 of the affidavit in support of the application, to wit.
3.
The applicant has come by way of a second
bite after its application was dismissed by the High Court (Mushi, J.) on 5th
December, 2005 on the grounds that the application was not accompanied by a
copy of the ruling in respect of which leave to appeal is sought.
On
the alternative ground, counsel for the respondent referred to the case of Ital
African Transporters Ltd. versus Glafar Mohamed Bedder Civil Reference No. 8 of
1998, Court of Appeal of Tanzania (unreported) in which the Court affirmed its
decision in the case of Ngoni – Matengo Cooperative Marketing Union Ltd. versus
Mohamed Osman (1959) E.A. 57 wherein the Court held that –
(iii)
where
an appeal is not properly constituted the
Court ought strictly to strike it out rather than dismiss it.
In
this case, counsel for the respondent contended, the High Court should have
struck out the application for leave for lack of the ruling sought to be
appealed against and not dismiss it.
Because the High Court did not determine the application for leave, the
applicant ought to have reinstituted the present application in the High Court
and only after the same is determined on merit and rejected, would the same be
instituted in this Court.
Mr.
Nyange, learned advocate for the applicant conceded that the notice of motion
is not endorsed with the name of the drawer.
The omission, he stated, arose from the form under the 1st
Schedule to the Court Rules, Cap. 141 R.E.2002 Subsidiary Legislation, the
format he used for drawing the application.
The form, he explained to the Court, has no space for the name of the
drawer. It has a space for the signature
of the drawer so he duly signed at the said space. The omission to endorse the name of the
drawer on the notice of motion was caused by the form provided in the 1st
Schedule to the Court Rules so it is not a fundamental but a curable omission.
On
the alternative ground, counsel for the applicant argued that the High Court
dismissed the application for leave so the present application was rightly
instituted in this Court.
I
will determine the application on the alternative ground. The High Court dismissed the application for
leave because it was not accompanied by a copy of the Ruling sought to be
appealed against. The application for
leave was therefore not adjudicated upon and, or, determined by the High Court. For that reason it should have been not
dismissed, but struck out so that the applicant would, subject to the law of
limitation, reinstitute the same after obtaining the missing copy of the Ruling
to be appealed against. Under the
circumstances, the application is incompetent in that it does not qualify to be
determined by this Court under Rule 46(3) of the Court Rules. The decisions in the cases of Ital African
Transporters Ltd. and Mohamed Bedder; and Ngoni Matengo Cooperative Marketing
Union Ltd. versus Mohamed Osman, cited Supra,
reinforce my decision.
In
view of the above, the preliminary objection is sustained on the alternative
ground. I accordingly strike out the
application with costs.
As
the case has been dragging in the Courts since 1992, in exercise of the Court’s
discretion under Rule 3(1) of the Court of Appeal Rules, Cap. 141 R.E. 2002
Subsidiary Legislation, I grant the applicant leave to reinstitute its
application for leave to appeal in the High Court within a period of fourteen
days from today, if it deems it necessary.
E. N. MUNUO
I
certify that this is a copy of the original.
S. M. RUMANYIKA
IN THE COURT OF APPEAL OF
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