| dc.description | JITESH JAYANTILAL LADWA AND ANOTHER VERSUS DHIRAJLAL WALJI LADWA AND OTHERS
COURT OF APPEAL OF TANZANIA
(CORAM: KOROSSO. J.A.. KITUSI. J.A. And MASHAKA. J J U
CIVIL APPEAL NO. 435 OF 2020
(Appeal from the judgment and decree of the High Court of Tanzania, Commercial Division, at Dar es Salaam dated the 28th day of August 2020 in Commercial Case No. 2 of 2020)
The appellants filed four points of preliminary objection to challenge a petition before the High Court Commercial Division. The trial court overruled all three of the argued preliminary points of objection with costs and ordered the hearing to proceed on merit. Dissatisfied, the appellants filed an application for revision to the Court under Rule 65(1)(2)(3) and (4) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Notwithstanding the filed application for revision, the trial court proceeded with the hearing of the petition on merit. Moreover, on 14/5/2020, the 1st appellant by way of a letter urged the presiding Judge to recuse himself from hearing and determining Commercial Cause No. 2 of 2020 and Misc. Commercial Applications Numbers 56 and 62 of 2020 while pending in the High Court advancing various allegations that included that the trial judge held secret meetings at his chamber with other respondents and some advocates and apprehended that he engaged in corrupt transactions. As alluded to earlier, the High Court Judge having deliberated on the said complaints and allegations refused to recuse himself from the conduct of the case, which is the subject of the present appeal and ordered that the hearing proceed accordingly. Aggrieved, the appellant lodged a memorandum of appeal premised on six grounds lodged in this Court.
Held;
i. Interlocutory orders are one that do not completely dispose of all issues o f law and fact that were presented to the court and the proceedings from which they emanate interlocutory proceedings.
ii. No appeal or application for revision shall lie against or be made in respect o f any preliminary or interlocutory decision or order o f the High Court unless such decision or order has the effect of finally determining the suit.
iii. It is clear that an interlocutory ruling or order is not appealable save where it had the effect o f finally determining the charge, suit or petition.
iv. there are some technicalities that can be ignored without causing injustice to the parties. We are alive to the principle of the overriding objective, which is incorporated under section 3 of the AJA and incorporated in the amended Rule 2 of the Court of Appeal of Tanzania Rules Noteworthy that, that this principle is not supposed to blindly disregard the rules of procedure couched in mandatory terms but is there to also ensure that they are applied and determined justly.
Appeal struck out
Laws referred to;
i. Section 233(1) and (3) of the Companies Act, Cap 212 R.E 2002
ii. Rule 65(1)(2)(3) and (4) of the Tanzania Court of Appeal Rules 2009.
iii. section 5(2)(d) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019
Case laws cited
i. Vodacom Tanzania Ltd Public Company Vs Planetel Communications Ltd.,Civil Application No. 43 of 2018 (unreported),
ii. University of Dar es Salaam Vs Silvester Cyprian and 210 Others [1998] T.L.R. 176
iii. Ernest Ndesangio Vs Republic [1980] T.L.R. 333.
iv. Arcado Ntagazwa Vs Bayogeza Bunyambo [1997] T.L.R. 242
v. Palumbo Reef Ltd Vs Jambo Rafiki Bungalow, Civil Appeal No. 226 of 2020; Reginald M. Morenje Vs Warda Mohamed, Civil Appeal No. 141 of 2019
vi. Boniface Anyisile Mwabukusi Vs Atupele Fredy Mwakibete and Two Others, Civil Appeal No. 46 of 2021.
vii. Rutagatina C. L. Vs The Advocates Committee and Another, Civil Application No. 96 of 2010 (unreported)
viii. Commissioner General Tanzania Revenue Authority Vs JSC Atomredmetzoloto (ARMZ), Consolidated Civil Appeal No. 78 of 2018, and No. 79 of 2018 (unreported).
ix. Njake Enterprises Limited Vs Blue Rock Limited & Another, Civil Appeal No. 69 of 2017 (unreported).
x. Juma Busiya Vs Zonal Manager, South
xi. Tanzania Postal Corporation, Civil Appeal No. 273 of 2020 (unreported)
xii. Microsoft Corporation Vs Mitsum Computer Garage Ltd
xiii. (2001) 2 EAR 467.
xiv. Augustino Masonda Vs Windmel Mushi, Civil Application No. 383/13 of 2018
xv. JUNACO (T) Limited and Justin Lambert Vs
xvi. Harel Mallac Tanzania Limited, Civil Application No. 473/16 of 2016,
xvii. Jitesh Jayantilal Ladwa and Another Vs Dhirajlal Walji Ladwa and 2 Others, Civil Application For Revision No. 154 of 2020 | en_US |
