IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
(DAR-ES-SALAAM DISTRICT REGISTRY)
AT PAR ES SALAAM
MISC. CIVIL. APPLICATION NO. 301 OF 2021
BETWEEN
M/S VEHICLE & EQUIPMENT LEASING (T) LTD APPLICANT
VERSUS
SERENGETI BREWERIES LTD RESPONDENT
SWAIBA-DRAFT-RULING
S. M. MAGHIMBI, J,
The applicant has moved this Court to grant leave to appeal to the Court of Appeal of Tanzania against the ruling and the orders of the High Court vide Misc. Civil. Application No. 337 of 2021. Delivered on 21st May 2021 by the hon. Mlyambina J, The Applicant is also seeking for the cost to follow the event and any other relief(s) that this court may deem just and fit to grant. The application was lodged under the provisions of Section 5(1)(c) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 and Rules 10, 45(b), 49(3) of the Court of Appeal Rules, 2009.
The application is supported by an affidavit of Mr. Rossan Mbwambo, learned advocate representing the applicant, deponed on the 20th day of June 2021.
In this Court, Mr. John James, learned advocate, represented the applicant while Mr. Wilson Kamugisha Mkebezi, learned Advocate, represented the respondent. The application was disposed of by written submissions.
The background of the current application as gathered from the records can be briefly narrated as follows; the Applicant herein was also an applicant in Misc. Civil. Application No. 560 of 2019, a judgment of which was delivered on the 21st day of October 2021. After delivery of Judgment in Misc. Civil. Application No. 560 of 2019, the applicant herein filed an application for an extension of time within which he can file an application to challenge the Arbitral Final Award dated 20th July 2019. The application was heard and finally, the trial judge dismissed the application for want of sufficient reasons. Henceforth the present application.
It is trite law that, there was a legal requirement of obtaining leave before going to the Court of Appeal hence the applicant filed an application for leave. The Applicant’s affidavit deponed that after payment of fees, the Applicant received an Arbitrator Order for Directives (AOD) dated 26th June 2019, apparently, the AOD did not indicate the case number and the Court Registry. The Applicant further deponed that the effort to secure the case number did not succeed until when the notice to appear in this Court for mention was received on 19th September 2019 for mention scheduled on 11th September 2019 six days within which to file the application to challenge the final award expired on 9th September 2019, two days before the date of mention.
The Applicant further deponed that his lawyer drafted the application to challenge the Final Award for filing by 9th September 2019, unfortunately when he informed the Applicant that the papers are read for signing it was transpired that the Applicant’s company principal officer able to sign the papers was outside the country for official duties and could not make it for signing before them. The Applicant deponed that for those reasons stated the delay in filing the challenge was caused by apparently unforeseeable by him while preparing the application and which was beyond the control of the Applicant and therefore it was not the negligence or inaction on the part of both the Applicant and or its lawyers. The Applicant in his submission alleged that the honorable trial judge failed to appreciate the point of illegality which was clearly demonstrated in the affidavit as is shown under paragraphs 26 and 27 of the said affidavits.
In the reply, the Respondent submitted that the illegality or irregularities should be in the ruling of this Court issued on 21st May 2021, and the illegalities pointed out in paragraphs 26 and 27 are not in respect of hon. Mlyambina J, ruling rather they are in respect of the Final Arbitral Award which is inapplicable in the request before this Court. The Respondent further submitted that the Applicant failed to show sufficient ground to warrant this Court to grant the order for leave to appeal to the Court of Appeal.
In short rejoinder, the Applicant submitted that paragraph 28 of the affidavit shows the reasons that the trial Court did not act judiciously after failure to consider the reasons advanced by the Applicant in seeking an order for an extension of time and this illegality warrants this Court to grant him the leave to appeal to the Court of Appeal.
Having considered the submissions of the parties, I find that the main issue for determination is whether this application has merit. I should not be detained much by this application. Since it is undisputed fact that the applicant’s reason for the delay was not caused by his negligence or inaction and this Court has a duty to act judiciously on both parties and for those reasons stated by the Applicant it shows there are sufficient reasons to grant leave to appeal to the Court of Appeal.
For that reason, this application is allowed. Leave is hereby granted for the Applicant to appeal to the Court of Appeal against the decision of this Court in Misc. Civil. Application No. 337 of 2021. Cost shall follow the cause.
Dated at Dar es Salaam this 27th day of March 2023.
S. M. MAGHIMBI
JUDGE.
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