Alawi Rajab Kassim v. MS Upami group co Ltd and 4 others Civ no 38 of 2007

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO.38 OF 2007

ALAWI RAJAB KASSIM……………….………………….APPLICANT

AND

M/S UPAMI GROUP CO. LTD

AND FOUR OTHERS……………………………….…..RESPONDENT

(Appeal from the Ruling/Decision of the Court of Appeal of Tanzania at Dar es Salaam)

(Mjasiri, J.)

Dated the 30^th day of January, 2007

In

Commercial Case No. 38 of 2006

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

RULING:

20 April 24 May, 2007:

MUNUO, J.A.:

The applicant, Alawi Rajabu Kassim, through the services of Mr. Nyangarika, learned advocate, filed the present application under a certificate of urgency seeking an order for striking out the notice of Appeal instituted against an interlocutory order in Commercial Case No. 38 of 2006 in the Commercial Division of the High Court at Dar es Salaam.  The respondents, Upami Group Co. Ltd. and 4 others, were represented by Mr. Luguwa, learned advocate.

The main suit which is still pending in the Commercial Court at Dar es Salaam, arose from a dishonored cheque issued by the respondents to repay a loan they had raised from the applicant.  The cheque bounced after which the respondents failed to settle the debt giving rise to the summary suit.  The respondents allegedly declined to accept summons causing the learned judge, Dr. Bwana, to enter ex-parte judgment and decree on the 4^th September, 2006.  Subsequently, the respondents applied for stay of execution, an order for setting aside the ex-parte judgment and decree, and leave to appear and defend the suit.  Mjasiri, J. allowed the application on the 30^th January, 2007 in the following terms:

(i)                        The judgment and decree dated September 4, 2006 is hereby set aside.

(ii)                      Leave is given to the defendants to appear to the summons and to defend the suit.

(iii)                     The defendants deposit in court the sum of Sh. 33,700,000/= two weeks from the date of this order.

(iv)                    Costs to be costs in the cause.

The respondents were dissatisfied with the cash deposit order so they filed a Notice of Appeal to challenge the same.  Meanwhile, the applicant filed this application seeking an order to strike out the Notice of Appeal on the grounds that:

(a)                   the notice of appeal contravenes the mandatory provisions of section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 as amended by the Written Laws (Miscellaneous Amendments) Act, 2002 (Act No. 25 of 2002) in that the cash deposit order is not appeallable; and

(b)                   no leave has been sought and obtained to appeal against the said order.

The application is supported by an affidavit, deponed to by Mr. Alawi Rajabu Kassim, the applicant, stating that he instituted a suit to recover Sh. 33,700,000/= he had lent to the respondents, plus interest and costs of the suit on the 16^th January, 2006 in the Commercial Court.  Judgment was entered upon the respondents’ default to enter appearance which judgment was later on set aside by the learned judge.  The applicant contended at paragraph 8 of his affidavit, that the cash deposit order requiring the respondents to pay in court the sum of Sh. 33,700,000/= within two weeks commencing the 30^th January, 2007, is an interlocutory order which is not appeallable as of right.

Adopting the affidavit in support of the application, counsel for the applicant maintained that the cash deposit interlocutory order is not appeallable, no leave to appeal was sought and obtained before instituting the notice of Appeal so the intended appeal is incompetent and ought, therefore, to be struck out with costs.  Counsel for the applicant cited the cases of Blueline Enterprises Ltd. versus East African Development Bank, Civil Application No. 103 of 2003 (CA) (unreported); Freeman Aikael Mbowe and The Hon. Attorney General versus Alex O. Lema, Civil Appeal No. 84 of 2001 (CA) (unreported) and the case of Dar es Salaam Bulky Transport Ltd. versus Hollywood Group (T) Ltd, Civil Application No. 39 of 2000 (CA) (unreported).  In these cases, counsel for applicant submitted, the court struck out cases because mandatory leave had not been obtained thereby rendering the appeal incompetent.  He further noted that in the Blueline Enterprises Ltd. case, the cases of Shinyanga Region Cooperative Union (1984) Ltd. versus Pan African Corporation Ltd. Civil Appeal No. 70 of 1999 (CA) (unreported); Asmin Rashid versus Boko Omari (1997) TLR 146; Willow Investment versus Mbombo Ntumba and 2 others (1997) TLR 93; and Ludovick K. Mboma versus National Bank of Commerce (1997) TLR 26; were cited as decisions in which the Court struck out cases for want of mandatory leave to appeal.  On these authorities, Mr. Nyangarika urged, the Court should strike out the Notice of Appeal because the intended appeal is incompetent.

Mr. Luguwa, learned counsel for the respondents opposed the application.  He contended that leave is not mandatory in the present case so the authorities cited by learned counsel for the applicant are distinguishable and thence not applicable to this case.  Furthermore, counsel for the respondents contended, the cash deposit order was issued in exercise if the original jurisdiction of the High Court so it is appeallable as of right.  The case of Freeman Aikael Mbowe, counsel for the respondents observed, was an election matter governed by Election Rules it so is distinguishable and also not relevant to the present case.

Counsel for the respondents opined that the cash deposit order in dispute is a preliminary decree and in view of the fact that the High Court made the Order in exercise of its original jurisdiction, the same is appeallable under the provisions of Section 5 (1) (b) of the Appellate Jurisdiction Act, 1979 so the intended appeal is competent and should, therefore, not be struck out.

The issue is whether the cash deposit order in dispute is an interlocutory order.

Counsel for the applicant contended that the cash deposit order in question is an interlocutory order and thence not appeallable under section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 which bars appeals from interlocutory orders by stating –

5 (2) (d) no appeal shall lie against any preliminary or interlocutory decision or order of the Commercial Division of the High Court unless such decision has the effect of finally determining the suit.

The learned judge did not give reasons for issuing the cash deposit order.  The said order was made suo motu.  The cash was to be deposited in Court within a period of fourteen days i.e. two weeks.  Since the Order was made at the instance of the trial court without any adjudication on the validity or need for the same, the Order is, in my considered view, final in itself although it does not finally determine the suit.  The Order is final because it requires the respondent to deposit Sh. 33,700,000/= which is equivalent to the principal sum reflected at paragraph 8 of the plaint, in court within a fortnight, impliedly for safe custody, which money would, in the event of the suit succeeding conveniently pay the principal sum.  Because the Order was made suo motu without recording reasons for the Order, its propriety is questionable.  Hence the Notice of Appeal to challenge the particular Order.

Counsel for the respondent insisted that the Order is appeallable as of right because it was issued by the High Court in exercise of its original jurisdiction.  Mr. Luguwa asserted that the Order is appeallable under section 5 (2) (c) of the Appellate Jurisdiction Act, 1979 which provide, inter-alia:

5 (2) (c) no appeal shall lie against any decision or order of the High Court in any proceedings under Head (c) of Part III of the Magistrates Courts Act, 1984 unless the High Court certifies that a point of law is involved in the decision or order.

        The present case did not commence in the subordinate court so an appeal against the order in dispute would not fall under section 5 (2) (c) of the Appellate Jurisdiction Act, 1979.

        The cash deposit Order would also not be a preliminary decree as argued by counsel for the respondents.  Section 2 of the Civil Procedure Act, Cap 33, defines the word decree as:

“decree” means the formal expression of an application which, so far as regards the court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.  It shall be deemed to include the rejection of a plaint and the determination of any question within section 38 or section 89, but shall not include -

(a)        an adjudication from which an appeal lies as an appeal from an order; or

(b)      any order of dismissal for default.

Explanation:       A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of.  It is final when such adjudication completely disposes of the suit.  It may be partly preliminary and partly final.

The Civil Procedure Code also defines the word –

“decree holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.

        The cash deposit Order made by the trial court would not be a preliminary decree. Counsel for the applicant rightly rejected this notion by pointing out that the cash deposit order was not made in favour of the plaintiff so it was not a preliminary decree.  Neither was it capable of being executed in favour of the applicant plaintiff because it simply required the respondents to deposit Sh. 33,700,000/= in court within two weeks.  I am of the settled view that the cash deposit order was not a preliminary decree because the suit was then at the stage of pleadings and the rights of the parties had not yet been determined by the trial court.  Moreover, the cash deposit order was not granted to the applicant plaintiff.  Had the material order been granted in favour of the applicant, it would have qualified as a preliminary decree.

        Having ruled that the cash deposit order was not an interlocutory order in that it was a final order of depositing Sh 33,700,000/= in court within two weeks which order was made by the learned judge in exercise of the original jurisdiction of the High Court, the next question is whether such Order is appeallable with, or without leave.

        The intended appeal, in my considered opinion, falls under the provisions of Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979 which allows appeals 

(5) (1) (c)  with leave of the High Court or of the Court of Appeal, against every other decree, order, judgment, decision or finding of the High Court.

        The effect of not obtaining mandatory leave to appeal under the provisions of Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979 was observed by Samatta, C.J. in the Dar es Salaam Bulky Transport Ltd. case cited supra wherein the Court stated:

………… In my opinion, there can be no rational controversy over the fact that, according to Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979, in this case the respondent cannot come to this Court without first obtaining leave to appeal.  It has not sought that leave and the prescribed period within which to do so has expired, and no application for extension of time has been filed.  That being so, the respondent’s notice of appeal hangs on nothing; you cannot put something on nothing and expect it to stay there, it will inevitably fall down.  That is what must happen to the respondent’s notice.

        Likewise, in this case, the respondents not having applied for, and, or obtained leave to appeal against the cash deposit order in question, the Notice of Appeal is rendered incompetent.

        In the result ground 1 of the application fails.  The application is accordingly allowed on ground 2 resulting in the notice of appeal and intended appeal being struck out with costs for want of leave to appeal pursuant to the provisions of Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979.

        DATED at DAR ES SALAAM this 24^th day of May, 2007.

E. N. MUNUO

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR

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