JOSE X FERREIRA v MBARAKA SALUM 1994 TLR 214 (CA)

 

JOSE X FERREIRA v MBARAKA SALUM 1994 TLR 214 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CIVIL APPEAL NO. 22 OF 1994

F 10 November, 1994

(Appeal from the Judgment and order of the High Court of Tanzania at Dar es Salaam,

Kyando, J)

Flynote

G Civil Practice and Procedure - Appeals - Appeals to the Court of Appeal - Appeal

made without leave of the High Court where leave is required - Appeal incompetent.

-Headnote

At the hearing of this appeal counsel for the applicant raised a preliminary objection

asserting that the appeal was incompetent because no leave to appeal to the Court of

Appeal had been granted while counsel for the respondent contended H that the

matter was appealable as of right.

Held:

This is a matter which is appealable only with leave of the High Court; as no leave to

appeal had been obtained or sought the appeal was incompetent.

Case Information

Objection upheld.

No cases referred to. I

1994 TLR p215

Lamwai, for the applicant. A

Mbuya, for the respondent.

[zJDz]Judgment

Kisanga, JA, delivered the following ruling of the Court:

At the hearing of this appeal Dr Lamwai, learned counsel for the applicant, raised a

preliminary objection to the appeal, he having given due notice of that objection in

terms of Rule 100 of the Court of Appeal Rules. The objection is based on a B

number of grounds.

Firstly, the appeal is incompetent because no leave to appeal to this Court was granted

or sought. Elaborating on that ground Dr Lamwai submitted that the C decision of

the High Court being appealed against ie the Order dated 25 June 1993 is not

appealable as of right. That order is appealable only with leave in terms of s 5(1)(c) of

the Appellate Jurisdiction Act, but no such leave has been granted or sought.

In reply thereto Mr Mbuya, learned counsel for the respondent, contended that the

D said order fell within the ambit of s 5(1)(b)(viii) of the Appellate Jurisdiction Act

and therefore it was appealable as of right. The relevant provisions of s 5 of the

Appellate Jurisdiction Act say that:

`5(1) In civil proceedings, except where any other written law for the time

being in force E provides otherwise, an appeal shall lie to the Court of Appeal -

(b) against the following orders of the High Court made under its original

jurisdiction, that is to say - F

(viii)‚ an order under any of the provisions of the Civil Procedure

Code, 1966 imposing a fine or directing the arrest or detention, in the civil prison, of

any person except where the arrest or detention is in execution of a decree;'

The record shows that on 23 June 1993 counsel for the applicant applied under G

Order 36 rules 1(b)(3)(1) and 5 of the Civil Procedure Code for the following orders:

`(1) That the respondent should show cause why he should not furnish

security in the sum of Shs 10m/= for the due performance of the decree that may be

passed against him. H

(2) If he fails to show cause he should be required to deposit Shs 10m/=

into court.

(3) Upon his failure to deposit, he be committed to civil prison.'

After hearing arguments for both sides the learned judge on 25 June 1993 made the

following order: I

1994 TLR p216

KISANGA JA

A `ORDER

After examining the papers in relation to this case, especially the affidavits in

the application, and after hearing counsel for both sides, I am satisfied that this is a fit

case for ordering security for appearance under Order 32 r 1(b) and s 5 of the Civil

Procedure Code. This is the case especially because the respondent/2nd defendant was

in the process, when he was B arrested under a warrant of arrest issued by this court,

of leaving the country for India. Also, he (the respondent) is a non-citizen. It cannot

be said at all under those circumstances, that the applicant's apprehensions that he

(respondent) may be leaving permanently are altogether unfounded. Accordingly, I

grant the application and make the following orders: C

I The respondent is to furnish security for his appearance by executing a

bond of Shs 5,000,000/= with two sureties with each in the likesome. The sureties

should be holders of Tanzania passports and should be having immovable property in

this country and they are to deposit the title deeds of properties in court. D

II If he fails to execute the bond he should deposit Shs 7,000,000/= in

court as a security.

III Failing the above ie (I) & (II), he is not to leave the jurisdiction of this

court and for this purpose the passport which the Registrar ordered to be surrendered

to the Police is to remain in Police hands. E

IVApplicant awarded the costs of this application.'

We can find nothing either in the application dated 23 June 1993 or in the

corresponding order of 25 June 1993 to show or suggest that the court imposed a fine

on or directed the arrest or detention, in the civil prison, of the respondent. The F

case, therefore did not come within the ambit of s 5(1)(b)(viii) as asserted by Mr

Mbuya. As Dr Lamwai rightly submitted this was a matter which fell under s 5(1)(c)

of that Act in which leave to appeal was required. As no leave has been obtained or

sought the appeal is clearly incompetent and must be struck out. G

That then was sufficient to dispose of this matter, but Dr Lamwai further charged that

the appeal was incompetent for lack of the extracted order in appeal and that it was

also time barred. Upon our examination of the record, and having heard counsel

arguments for both sides, we are satisfied that objection on those H grounds was also

well taken.

In the event, Dr Lamwai's preliminary objection succeeds, and accordingly the appeal

is struck out with costs. I

1994 TLR p217

A