Virian Tanzania Ltd v. Bariadi District Council Civ no 108 of 2005 (Recovery of loss)

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM:    LUBUVA, J.A., MROSO, J.A., and RUTAKANGWA, J.A.)

CIVIL APPEAL NO. 108 OF 2005

VIRIAN TANZANIA LTD. …………………………………….. APPELLANT

VERSUS

BARIADI DISTRICT COUNCIL ………………………….. RESPONDENT

(Appeal from the Ruling and Order of the High Court

of Tanzania at Mwanza)

(Nchalla, J.)

dated the 19^th day of July, 2001

in

Miscellaneous Civil application No. 224 of 2000

--------------

RULING OF THE COURT

14 March & 12 June 2007

MROSO, J.A.:

         In a summary suit in the High Court at Mwanza, Civil Case No. 42 of 2000, the respondent, Bariadi District Council, sued the appellant Virian Tanzania Limited, for recovery of Tshs. 15,165,000/= alleged to be unpaid produce cess.  The appellant made application No. 224 of 2000 to the High Court for leave to defend the suit.  The High Court, Nchalla, J., dismissed the application with costs on 19^th July, 2001.  The Applicant believed that the High Court had erred in refusing the leave to defend the suit and, therefore, duly filed a notice of intention to appeal to this Court against that ruling of the High Court.

        Subsequent to the filing of the notice of appeal, the appellant filed in the High Court Miscellaneous Civil Application No. 169 of 2001 seeking under section 5 (1)  (c) of the Appellate Jurisdiction Act, 1979 leave to appeal against the High Court ruling.  That application was lodged on 31^st August, 2001.  Leave to appeal to this Court was granted on 16/05/2002, though not with a view to challenging the decision of the High Court in refusing leave to defend the suit but to consider if the Government Notice which imposed a duty to pay produce cess could lawfully have retrospective effect.

        Following from the decision to grant the appellant leave to appeal, the present Civil Appeal No. 108 of 2005 was lodged.  But before the appeal could be heard the respondent filed in this Court a notice of preliminary objection under Rule 100 of the Court of Apppeal Rules, 1979 (The Rules), containing two grounds.  At the commencement of the hearing of the preliminary objection the first ground of objection was abandoned and Mr. Butambala, learned counsel for the respondent, chose to proceed to argue the second ground which reads:-

“2.  That the proceedings and Ruling in High Court Misc. Civil Application No. 169/2001 which gave leave to appeal to Court were an abuse of the Court process and hence the present appeal is incompetent”

It was then prayed that the appeal be struck out with costs.  Mr. Butambala was of the view that in order to effectively argue that ground of objection, he needed to file a supplementary record.  So, he sought from the Court and was granted leave to file such supplementary record within a stipulated period.

        The supplementary record was duly filed and the hearing of the preliminary objection proceeded after an adjournment of three weeks; Mr. Silvan Galati Mwantembe, learned advocate, appearing for the appellant.

        It would appear that before the High Court granted to the appellant leave to appeal in Misc. Civil Application No. 169/2001, there had been an application No. 222 of 2001 which was made under section 14 (1) of the Law of Limitation Act, 1971 for extension of the time within which the application for leave to appeal to this Court could be made.  That application is shown to have been lodged on 13^th November, 2001.  The application was on 4/7/2002 fixed by the District Registrar, in the presence of Mr. Galati Mwantembe, to be heard on 11/02/2003.  On the hearing date Mr. Galati was shown as absent and the High Court, Masanche, J., dismissed it for want of appearance by Mr. Galati.  It is now Mr. Butambala’s contention that since no extension of time had been granted to the appellant to apply for leave to appeal, there was no legal basis for the High Court to grant leave to appeal as it did in Miscellaneous Civil Application No. 169 of 2001.  Civil Appeal No. 108 of 2005 which resulted from the order in Civil Application No. 169 of 2001 would, therefore, be incompetent.

        In replying to the submission by Mr. Butambala, Mr. Mwantembe retorted that this Court has no jurisdiction to decide on the preliminary objection.  According to him, Mr. Butambala should have raised the objection when Civil Application No. 169 of 2001 was being heard by the High Court.  Furthermore, according to Mr. Mwantembe, Mr. Butambala had tacitly conceded to leave to appeal being granted and should not, therefore, be heard now to impugn the High Court decision to grant the appellant leave to appeal to this Court.  The respondent could also have either appealed against the decision in Civil Application No. 169 of 2001 or applied for review of that decision if he thought it was improperly obtained.  So, since there was no decision of the High Court on whether or not Civil Application No. 169 of 2001 was or was not properly decided, the respondent could not challenge it by way of a preliminary objection to the appellant’s appeal.  He prayed that the preliminary objection be dismissed with costs and cited the decision of this Court in Sebastian Rukiza Kinyondo vs. Dr. Medard Mutalemwa Mutungi, Civil Appeal No. 83 of 1998 (not yet reported) in support of his submissions.

        Mr. Butambala explained that when Civil Application No. 169/2001 was being heard by the High Court he was not aware of the existence of High Court Civil Application No. 222 of 2001 or of the High Court (Masanche, J.) decision in that application.  No representative of the respondent was in Court when Masanche, J. dismissed the appellant’s application for extension of time to apply for leave to appeal.  Mr. Mwantembe did not inform the High Court at the time Civil Application No. 169 of 2001 was being heard that the hearing was premature because there was Civil Application No. 222/2001 which was pending hearing.  He submitted that it was not fair for Mr. Mwantembe to take advantage of the respondent’s counsel’s ignorance about the existence of the application for extension of time.  He reiterated that the appeal was not properly before the Court and should be struck out.

        It is not disputed by Mr. Mwantembe that after application No. 169 of 2001 was filed in the High Court on 02/08/2001 it was realized that the application was filed outside the period stipulated under the law.  The reasons for the delay are contained in an affidavit which was sworn by Mr. Mwantembe on 6^th November, 2001 in support of a chamber application for extension of time in Application No. 222 of 2001.   In that same affidavit Mr. Mwantembe intimated that he would withdraw “the former application as the same was filed out of time without leave of the court”.  He must have had in mind Miscellaneous Civil Application No. 169 of 2001.  Even so, that “former application” was never withdrawn as undertaken in the affidavit.  It is also not disputed that the merits or otherwise of that application were not considered by the High Court because the application was dismissed for want of appearance by the appellant and/or its advocate.  Obviously, therefore, when leave to appeal was granted to the appellant on 16/5/2002 in Civil Application No. 169 of 2001, that was done in ignorance of the existence of a pending application for extension of time to apply for leave to appeal.  Similarly, when the appeal (No. 108 of 2005) was eventually lodged on 6/7/2005 the position had remained the same, that is to say, there had been no extension of time to apply for leave to appeal.  The question now is whether the respondent can object to the hearing of the appeal for the reason that leave to appeal had been granted out of time without such time having been extended.  Mr. Mwantembe, as we understand him, is arguing that that issue cannot be raised at this forum.  It should have been raised in the High Court, which it was not, whatever may have been the reasons for the respondent’s failure to raise it there.

        The judgment in Sebastian Kinyondo which was cited by Mr. Mwantembe, discussed among other things whether the issues of jurisdiction and limitation could be made a ground of appeal to this Court where such issues had not been raised in the High Court.  It was held in that case that a ground of appeal should arise from a decision of the court from which the appeal is preferred and that a memorandum of appeal should specify the points (of law) which are alleged to have been wrongly decided by the court against whose decision it is being appealed.  Since the court against whose decision the appeal was preferred did not discuss the issues of jurisdiction and limitation because they had not been raised and decided in the High Court, they could not be made grounds of appeal to this Court.

        In the matter now before the Court, the respondent, of course, is not appealing, let alone appealing on a matter which was not the subject of a decision of the High Court.  It is saying that the appeal by the appellant is not properly before the Court.  It is not even complaining on the ground of limitation.  It is, however, in effect saying that the Court has no jurisdiction to hear an appeal which is prematurely before it.  This appeal could only be properly before this Court where leave to appeal had been obtained by applying for such leave within 14 days of the decision against which the appeal is intended, as required under Rule 43 (a) of the Rules.  The objection to the appeal is therefore based on the fact that the application for leave to appeal having not been made within fourteen days of the High Court Ruling of 19^th July, 2001 in Civil Application No. 224 of 2000, there was need for extension of time to make such application but that there has not been any such extension of time.  An appeal which is lodged in this Court in contravention of such legal requirements is, according to Mr. Butambala incompetent.

        We think Mr. Butambala is correct and justified in raising ground (2) in the Notice of Preliminary Objection.  Although there is no material in the record from which to infer that Mr. Mwantembe filed the appeal on behalf of his client with full knowledge that the procedure had not been followed, we are satisfied, however, that Mr. Butambala having known the true status of the purported appeal had a duty to raise the preliminary objection to the appeal so that it would not be heard because the appropriate procedure had not been followed by the appellant.

        With respect, we uphold the second ground in the notice of preliminary objection that the appeal is incompetent for the reasons we have given and it is struck out with costs.

GIVEN at DAR ES SALAAM this  24th day of April, 2007.

D.Z. LUBUVA

JUSTICE OF APPEAL

J.A. MROSO

JUSTICE OF APPEAL

E.M.K. RUTAKANGWA

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

( S.M. RUMANYIKA )

DEPUTY REGISTRAR

Delivered under my hand and Court Seal in open Court/Chambers at Mwanza this ………………. day of ……………………………………….

DEPUTY REGISTRAR

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