At dar es salaam coram: mroso, J. A, Nsekela, J. A., And kaji, J. A



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IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM
(CORAM: MROSO, J.A, NSEKELA, J.A., And KAJI, J.A.)
CIVIL REFERENCE NO. 3 OF 2005
BETWEEN
21ST CENTURY FOOD AND PACKAGING LTD. ……………….. APPLICANT

VERSUS

1. THE HON. ATTORNEY GENERAL……………………… 1ST RESPONDENT

2. THE MINISTER FOR AGRICULTURE…………………..2ND RESPONDENT

3. SUGAR BOARD……………………………………………. 3RD RESPONDENT
(REFERENCE from the decision of a single Judge

of the Court of Appeal of Tanzania

at Dar es Salaam)
(Munuo, J.A.)
dated the 25th day of January, 2005

in

Civil Application No. 48 of 2004

------------

R U L I N G

KAJI, J.A.:
The respondent, the ATTORNEY GENERAL AND TWO OTHERS, by notice of motion under Rule 9 (2) (b) of the Court Rules, 1979, applied before a single judge of this Court (Munuo, J.A.) for stay of execution of the decision of the High Court (Ihema, J.) of 22nd March, 2004 in Miscellaneous Civil Application No. 114 of 2002, pending determination of an intended appeal.
The learned single judge granted the application. The applicant 21st CENTURY FOOD AND PACKAGING LIMITED was dissatisfied with a portion of the decision and made this reference to this Court under Rule 57 (1) (b) of the Court Rules, 1979 for rectifying the so called offending part.
Briefly, the facts giving rise to this matter as contained in the record can be stated as follows: On or around 15th November, 2002 in Miscellaneous Civil Application No. 114 of 2002, Bubeshi, J., delivered a ruling in respect of an application which had been filed by the current applicant, 21st Century Food and Packaging Ltd. Later the applicant applied before the court to issue a notice to the Permanent Secretary, Ministry of Agriculture and Food Security, the Principal Secretary Ministry of Finance and the Managing Director Sugar Development Corporation to show cause why they should not be committed to civil prison for six months for obstructing the execution of the order of the court. That application was heard by Ihema, J.
During the hearing, the Court found itself faced with a difficult task of interpreting Bubeshi, J.’s decision. While Dr. Lamwai, learned counsel for the applicant, interpreted that decision to mean that the applicant was allowed to import white industrial sugar without any restriction, the respondent contended that the applicant was allowed to import white industrial sugar not exceeding 36,000 tons, and seasonal in accordance with the sugar laws. Ihema, J. accepted Dr. Lamwai’s interpretation and held that the applicant’s licence for importation of white sugar as industrial sugar was not seasonal but rather in terms of the needs of the applicant’s factory.

The respondents were aggrieved and lodged a notice of appeal to this Court. While pending determination of the intended appeal they applied before a single judge of this Court (Munuo, J.A.) for stay of execution of the decision of Ihema, J. That application was granted as we have already stated above.
In granting the order applied for, the learned single judge had this to say:-
I grant stay of execution for the importation of white sugar by the first respondent (i.e. the applicant in this case) in excess of the 36,000 tons of white sugar conceded by the applicants (i.e. the respondents in this case)

if such importation purports to contravene the current rules, regulations or laws for sugar importation. The first respondent, like other traders, is at liberty to import white sugar in accordance with the sugar laws in force.” (underline supplied)
It is against the underlined part that the applicant has lodged this reference. Dr. Lamwai, for the applicant, submitted that that portion of the single judge’s ruling went to the extent of reversing Bubeshi, J.’s decision who had held that the sugar laws were not retrospective and the applicant was not bound by them, and that the applicant could import white sugar unconditionally.
On the other hand Ms Sehel, learned State Attorney who appeared for the respondents, submitted that, importation of white sugar is seasonal, and that the licence ordered by Bubeshi, J. was for the 2002/2003 season for 36,000 tons only.
As observed earlier on, the applicant is not complaining against the whole stay order, but only the underlined part for the above reason as elaborated by Dr. Lamwai. We ask ourselves: is that ground sufficient to fault the decision of the learned single judge?

Basically, what Dr. Lamwai is submitting to us, is that, the underlined portion should be expunged from the single judge’s decision, because, in his view, it is against the correct interpretation of Bubeshi, J.’s decision, and that it is not based on Ihema, J.’s interpretation which is the correct one. But Ms Sehel’s submission is that, it should not be expunged, because it is the correct interpretation of Bubeshi, J.’s decision, and that, Ihema, J.’s interpretation is incorrect. But as correctly observed by the single judge, the question of which is the correct interpretation of Bubeshi, J.’s decision will be dealt with in the main appeal. It is not our duty to decide it at this stage. The applicant has failed to show reasonable grounds to fault the decision of the learned single judge.
In the end result, and for the reasons stated, we dismiss the application with costs.
DATED at DAR ES SALAAM this 12th day of May, 2005.
J.A. MROSO

JUSTICE OF APPEAL

H.R. NSEKELA

JUSTICE OF APPEAL

S.N. KAJI

JUSTICE OF APPEAL
I certify that this is a true copy of the original.
( S.M. RUMANYIKA )

DEPUTY REGISTRAR


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