LUDOVICK K MBONA v NATIONAL BANK OF COMMERCE 1997 TLR 26 (CA) A

LUDOVICK K MBONA v NATIONAL BANK OF COMMERCE 1997 TLR 26 (CA) A

Court Court of Appeal of Tanzania - Mwanza

Judge Lubuva JA

B CIVIL APPLICATION NO 1 OF 1996

6 December 1996

Flynote

Civil Practice and Procedure - Appeals - Rule 52(1) - Mandatory to serve respondent

as a necessary party - Failure to comply with Rule. C

Civil Practice and Procedure - Appeals - Rules 43 and 44 - Rules envisaging valid and

competent applications only.

-Headnote

D The applicant sought leave to appeal against an order of the High Court which

had struck out the applicants' application.for leave to appeal against an order

disallowing an award of damages. The respondent objected that the application was

incompetent, firstly, as it did not comply with the requirements of Rule 52 of the

Court's Rules and secondly that application for leave had first to be made to the High

Court.

Held: E

(1) Under Rule 52 (1) it is mandatory to serve the respondent as a

necessary party with the notice of motion two clear days before the hearing: this had

not been done and the application was therefore incompetent; F

(2) That Rules 43 and 44 of the Court Rules envisaged valid and competent

applications only: applications which were invalid or incompetent, as was the case in

the instant matter, were not proper.

Case Information

Application dismissed.

Cases referred to: G

1. Harram Singh Bhogal t/a Harram Singh & Co v Jadva Karsan [1953] 20

EACA 17

2. Leonsi Silawyo Ngalai v Justine Alfred Salakana and The Attorney

General Civil Appeal No 38 of 1996 (unreported) H

Kwikima, for the applicant.

Mtaki, for the respondent.

[zJDz]Judgment

Lubuva JA:

This is an application, by notice of motion in which the applicant, Ludovick Mbona,

is seeking leave to appeal to this Court against I

1997 TLR p27

LUBUVA JA

the order of the High Court (Mackanja, J) of 1 September 1996. A

In this application the applicant was represented by Mr Kwikima, learned counsel.

For the national Bank of Commerce, the respondent, Mr Mtaki, learned counsel

appeared. Both the learned counsel had also appeared before the High Court at

Tabora.

The matter arises from Urambo District Court Civil Case No 9 of 1994 in which the

B applicant was awarded Shs 10,000,000/= damages against the respondent. On

appeal to the High Court (Tabora D/C Civil Appeal No 16 of 1995) the award was

disallowed on 28 August 1995. From that decision, the applicant sought leave from

the High Court to appeal to this Court. In Misc Civil Application No 12 of 1995 the

C applicant's application for leave was on 1 September 1996 struck out on the ground

that it was incompetent. Hence the applicant has come to this Court seeking leave to

appeal. The application is supported by an affidavit which was deposed to by Mr

Kwikima. In sum total in that affidavit the complaint is against the D High Court

decision on the appeal and there is hardly any mention of the ruling pertaining to the

application for leave to appeal which was struck out.

Before me, when the application was called on for hearing, Mr Mtaki, learned E

counsel, took a preliminary objection that the application was incompetent because it

did not comply with the requirement of Rule 52 of the Court's rules. Mr Mtaki

further submitted that though in terms of Rule 44 of the Court's rules the High Court

has concurrent jurisdiction with this Court, it is a mandatory requirement under this

rule that application for leave must first be made to the High F Court. In the instant

matter, Mr Mtaki maintained, as the applicant's application was struck out on 28

August 1995 on account of its incompetence, there was thereafter no valid application

before the High Court. As a result, Mr Mtaki contended, there is no legal basis upon

which this application is brought to the Court of Appeal. It should be dismissed. G

Mr Kwikima, learned counsel for the applicant forcefully responded to these

submissions. In essence Mr Kwikima conceded that the respondent had not been

served with the notice of motion. However, he was quick to qualify that when the H

notice of motion was filed, service on the respondent was effected through the offices

of Mr Mtaki, learned counsel for the respondent. But such service was not accepted,

Mr Kwikima added. And yet Mr Kwikima did not have proof on this by way of an

affidavit. In spite of this, it was Mr Kwikima's contention that the application did not

I

1997 TLR p28

LUBUVA JA

A lapse as the right to appeal was a constitutional one. Furthermore, Mr Kwikima

submitted that because the High Court and the Court of Appeal have concurrent

jurisdiction in relation to applications for leave to appeal, it was his view that he

could have brought this application directly to this Court without application first

having to be made to the High Court. And so, he stressed, the fact that the B

application was struck out on grounds of incompetence should not prejudice or in any

way bar the applicant's right of appeal to the court. Finally, it was Mr Kwikima's

contention that this court being the final Court of Appeal, it should not rule out

applications such as this on grounds of technicalities as the High Court did in this

matter. C

Upon close and anxious consideration of these submissions, it is apparent that the

central issue of this application is the competence of this application having regard to

the fact that the respondent was not served with the notice of motion. As already

indicated, Mr Kwikima firmly maintains that despite the fact that the respondent D

was not served, the application did not lapse, it still stood valid. At the outset, it is

pertinent to state that it is common knowledge that this court is a creature of statute

and the applicable rules. For its functional operations the applicable E legislations

are the Constitution, the Appellate Jurisdiction Act, 1979 and the Court's Rules of

1979. In handling its work, the Court is guided by the provisions stipulated in these

legislations and the rules. In the instant case as correctly pointed out by Mr Mtaki, the

applicable rule is Rule 52(1). Under that rule it is F mandatory to serve the

respondent as a necessary party with the notice of motion two clear days before the

hearing. This was not done and so, as submitted by Mr Mtaki the application is not

competent, it does not comply with the requirement of G the rules. It is my view

that there is merit in Mr Mtaki's submission. This is so because it is clearly provided

under rule 52(1) of the court's rules that the notice of motion among other relevant

documents shall be served on all necessary parties which in this case includes the

respondent. It is a mandatory requirement which H even Mr Kwikima does not

dispute. Mr Kwikima's argument that even though service was not affected on the

respondent, the application still remained valid and competent because the right to

appeal is a constitutional one and that the court has concurrent jurisdiction with the

High Court is, with respect, attractive but untenable. In a somewhat similar situation,

our predecessor the I

1997 TLR p29

LUBUVA JA

Court of Appeal for Eastern Africa in the case of Harnam Singh Bhogal t/a Harnam A

Singh & Co v Jadva Karsan (1) stated:

`It is well settled law that a right to appeal can only be founded on a statute

and that any party who seeks to avail himself of the right must strictly comply with

the conditions prescribed by the statute.' B

For similar reasons, it is my view that the instant case is such that it should strictly

comply with the requirements of the Appellate Jurisdiction Act, 1979 and the Court's

rules. Unlike the situation in the case of Leonsi Silawyo Ngalai v Justine Alfred

Salakana and The Attorney-General, (2) in which we held that in election C

petition cases appeals lie to this court as a matter of right, in the present case as s 5 of

the Appellate Jurisdiction Act, 1979 applies, leave to appeal is a necessary legal

requirement. A further requirement is that application for leave should first be made

to the High Court. With respect, Mr Kwikima's submission that he could D come up

with this application to this Court without first applying to the High Court is

misconceived. Consequently, in the circumstances of the case, I am increasingly

convinced that the mandatory provisions of Rule 52(1) not having been complied

with, the application was incompetent which in effect amounts to no application at

all. E

This ground alone is sufficient to dispose of this matter. But there is yet another

equally pertinent aspect which was raised by Mr Mtaki. I intend to deal with it

briefly. As already intimated, on 1 April 1996, in Misc Civil Application No 122 of

1995, Mackanja, J struck out the application for leave to appeal to this Court. The F

ground for that course of action was that the learned judge held the application was

incompetent on account of the fact that the affidavit in support of the application was

fatally defective. With the application for leave to appeal struck out what then is the

legal basis for this application before me. Mr Mtaki, learned G counsel was of the

view that with the application for leave to appeal struck out, there was no valid

application before the High Court and so, consequentially, the applicant cannot be

said to have complied with Rule 44. On the other hand, Mr Kwikima, learned counsel

was of a different view. In his view, Rule 44 does not H necessarily envisage only

valid applications. If I understood him correctly, it was his view that so long as he had

first filed before the High Court an application irrespective of its competence or

otherwise, it was sufficient compliance with the rule. I am settled in my view that

Rules 43 and 44 of the court's rules envisage valid and competent applica- I

1997 TLR p30

A tions only. Applications which are invalid or incompetent as was the case in the

instant case would not do.

Consequently, the application before me originating as it did from an invalid and

incompetent application before the High Court is not proper. I would venture to

think that the proper course for the applicant to take would be to file another proper

application in terms of the rules and proceed with it accordingly. B

In the event, the application is dismissed with costs.

1997 TLR p30