| dc.description | KIBO CORRIDOR LIMITED vs. RAVJI INVESTMENTS COMPANY LIMITED
COURT OF APPEAL OF TANZANIA AT MOSHI (Juma, CJ, Ndika and Kitusi, JJ. A)
CIVIL APPLICATION NO. 322/05 OF 2022.
(Application from Judgment and Decree of the High Court of Tanzania, at Moshi, Sumari, J., dated 5th day of November, 2018 in Land Case No. 09 of 2017.)
Court of Appeal Rules – Notice of Motion – Application for leave to amend Memorandum of Appeal in terms of rules 4(1) (2) and 111 of the Rules - Grounds – Whether the issue of jurisdiction of trial court is sufficient ground.
This is an application to grant the applicant leave to amend the Memorandum of Appeal in Civil Appeal No. 307 of 2019 in terms of Rules 4(1) (2) and 111 of the Court of Appeal Rules, 2009 (the Rules). Applicant in his affidavit highlighted the fact that the intended new grounds raise issue with the jurisdiction of the High Court from which Civil Appeal No. 307 of 2019 originates. Respondent filed an affidavit in reply, resisted the application. However, during prompting the learned advocate for the respondent conceded that jurisdiction of the court may be raised at any time and further that an application of this nature could have been made informally.
Held: (i) Given the tone of the contemporary Rules of the Court, particularly rule 113 (1), an application to argue additional grounds of appeal rarely provokes resistance. More so, in the court view, when the grounds, without deciding, raise issue with the jurisdiction of the trial court. In the circumstances, we grant the application and order the applicant to amend the memorandum of appeal in Civil Appeal No. 307 of 2019 by adding the two grounds.
Application granted.
Statutory provisions referred to:
• The Court of Appeal Rules, 2009 under rules 4(1), (2), 111, 113(1).
Mr. Gwakisa Sambo, for the Applicant.
Mr. Alex Mgongolwa, for the Respondent.
RULING OF THE COURT
23rd day of September, 2022.
KITUSI, J.A.:
Mr. Gwakisa Sambo, learned advocate representing Kibo Corridor Limited the applicant, has moved the Court to grant the applicant leave to amend the Memorandum of Appeal in Civil Appeal No. 307 of 2019 so as to add two grounds, in terms of rules 4(1) (2) and 111 of the Court of Appeal Rule, 2009 (the Rules). The notice of motion moving the Court is supported by an affidavit taken by Mr. Sambo himself highlighting the fact that the intended new grounds raise issue with the jurisdiction of the High Court from which Civil Appeal No. 307 of 2019 originates.
Mr. Alex Mgongolwa, learned advocate who appeared for the respondent along with Mr. Moses Kimaro, also learned advocate resisted the application. The respondent filed an affidavit in reply taken by one Mehul Narendra Sampat, the Principal Officer. In that affidavit in reply, it is mainly stated that the High Court had the requisite jurisdiction over the matter and it was properly constituted. Further that no objection was ever raised by the applicant.
Apart from echoing the contents of the affidavit in reply, Mr. Mgongolwa raised concern with the protracted proceedings which he feared may be delayed all the more if the applicant will have his way as prayed by her. At our prompting, Mr. Mgongolwa conceded that jurisdiction of the court may be raised at any time and further that an application of this nature could have been made informally.
We have considered the notice of motion, affidavits and counsel's brief addresses and we wish to begin by observing that given the tone of the contemporary Rules of the Court, particularly rule 113(1), an application to argue additional grounds of appeal rarely provokes resistance. More so, in our view, when the grounds, without deciding, raise issue with the jurisdiction of the trial court.
In the circumstances, we grant the application and order the applicant to amend the memorandum of appeal in Civil Appeal No. 307 of 2019 by adding the two grounds to wit: -
" 9. That the trial court erred in law and in fact in proceeding hearing Land Case No. 09 o f 2017 in contravention o f the mandatory requirement o f Rule 5F o f the High Court Registries (Amendment) Rules of 2001, GN Number 63 o f 2001 making the Court to be without jurisdiction and the whole proceedings, judgment and decree to be null and void ab initio.
10. That the trial court erred in law and in fact in proceeding with the hearing o f Land Case No. 09 o f 2017 while it was not well constituted and without the aid of assessors."
We order the amended Memorandum of Appeal to be lodged and served within 14 days of the delivery of this ruling. We also order that at the time of filing the amended Memorandum of Appeal, the appellant should file supplementary written submissions to address the new grounds and immediately serve a copy thereof on the respondent. Likewise, the respondent should, within 14 days of such service, file a reply to the supplementary written submissions.
Costs to abide the outcome of the appeal.
Before we take leave, we recommend to the Honourable Chief Justice that he be pleased to constitute a full bench of the Court to deliberate on some pertinent issues in Civil Appeal No. 307 of 2019.
DATED at MOSHI this 23rd day of September, 2022.
H. JUMA
CHIEF JUSTICE
G. A. M. NDIKA
JUSTICE OF APPEAL
P. KITUSI
JUSTICE OF APPEAL
This Ruling delivered this 26th day of September, 2022 in the presence of Mr. Patrick Paul holding brief for Mr. Gwakisa Sambo, learned counsel for the Applicant and Mr. Mehul Sempat, Manager of the Respondent, is hereby certified as a true copy of the original. | en_US |
