Court name
Court of Appeal of Tanzania

Ludovick K Mbona vs National Bank of Commerce () [1996] TZCA 6 (06 December 1996);

Law report citations
1997 TLR 26 (TZCA)
Media neutral citation
[1996] TZCA 6
Lubuva, J.A.

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

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   Capplicant'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

  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

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'ssubmission 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

  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