ENOCK M CHACHA v MANAGER, NBC TARIME 1995 TLR 270 (CA)

 

ENOCK M CHACHA v MANAGER, NBC TARIME 1995 TLR 270 (CA)

Court Court of Appeal - Mwanza

Judge Omar JJA, Mnzavas JJA and Mfalila JJA

B Civil Appeal No 20 of 1995

November 6, 1995

(From judgment of the High Court of Tanzania at Mwanza, Masanche, J)

Flynote

C Civil Practice and Procedure - Appeals - Appeals to Court of Appeal of Tanzania -

Where appeal must be with leave of the High Court and no such leave is sought and

obtained - Appeal incompetent - Appellate Jurisdiction Act, 1979, s 5(1)(c).

-Headnote

D The appellant got an ex-parte judgment against the respondent in a District

Court. When he moved to execute the judgment the respondent filed two

applications one for stay of execution and the other for setting aside the ex-parte

judgment. The court allowed the former and refused the latter application. The E

respondent bank successfully appealed to the High Court. Aggrieved by the decision

of the High Court the appellant appealed to the Court of Appeal of Tanzania without

first seeking and obtaining leave of the High Court.

Held:

F Since the appellant neither sought nor obtained leave to appeal to this Court the

appeal is incompetent for non-compliance with s 5(1)(c) of the Appellate Jurisdiction

Act, 1979.

Case Infomation

Appeal dismissed.

No case referred to.

[zJDz]Judgment

G Mfalila, JA delivered the order of the court:

There is absolutely no merit in this appeal. It all started at Tarime District Court

where the appellant sued the respondent bank to recover damages amounting to Shs

3.5m for unlawfully dishonouring his cheque for Shs 20,000/= which he had H

intended to pay for the balance of the cost of a motor vehicle. The respondent bank

failed to file the written statement of defence within the stipulated time. The

appellant was therefore allowed to prove his claim ex-parte. This was done and the

Court entered judgment is his favour as prayed. It was when the appellant moved to

execute the judgment I

1995 TLR p271

MFALILA JA

that the respondent bank realised of the existence of the judgment against it. It filed

A two applications, one for stay of execution and the other for setting aside the exparte

judgment. The application for stay of execution was granted while that for

setting aside the ex-parte judgment was dismissed. The respondent bank successfully

appealed to the High Court against this refusal. The High Court B (Masanche, J)

allowed the appeal on the basis that the appellant did not prove his claim as a whole

and the special damages claimed. In the circumstances the learned judge was of the

view that it was necessary to have the case tried. Against this decision the appellant

lodged this appeal. C

His claim and only complaint in this appeal is that the application to set aside the exparte

judgment in the district court was out of time and therefore time-barred and

that therefore the district court correctly and rightly dismissed the application to set

aside the ex-parte judgment. D

There are two reasons why this appeal must fail. Firstly, the question of limitation is

being raised for the first time in this Court. The points should have been raised in the

courts below who would then have made a ruling on this issue. This Court cannot

give decisions as a court of first instance. Secondly, under s 5(1)(c) of the E Appellate

Jurisdiction Act, appeals like the present must come to this Court only with the leave

of the High Court. The appellant neither sought nor obtained leave to appeal to this

Court. The appeal is therefore incompetent for non-compliance with s 5(1)(c)

aforesaid. F

In the result as we have indicated earlier this appeal has no merit and we reject it

summarily. The order of the High Court should now be complied with. G

1995 TLR p272

A