20110506 TZCA Dar es Salaam

1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 110 OF 2009 ( CORAM: NSEKELA, J.A., MBAROUK, J.A., And LUANDA, l.A.} ; EAST AFRICAN DEVELOPMENT BANK................................. APPELLANT VERSUS i BLUELINE ENTERPRISES LIMITED ...............................,... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam} (Shangwa, J} dated 12th day of May, 2009 in Misc. Civil Cause No. 135 of 2005 RULING OF THE COURT 8 September, 2010 & 6 May 2011 LUANDA, J. A: In Miscellaneous Civil Cause No. 135 of 2005, which was filed in I the High Court on 23/11/2006, the appellant sought to lift the garnishee order issued by the High Court· on 15/11/2006. The application was turned down. Aggrieved by that decision, the appellant has filed this appeal Civil Appeal No. 110 of 2009 to challenge the same. 2 However, before the appeal was called on for ~hearing, Prof. I Mgongo Fimbo learned counsel for the respondent filed a notice of I Preliminary objection under Rule 107(1) of the Court o~ Appeal Rules, '2009 which was duly served upon the appellant. The notice reads:- " PLEASE TAKE NOITCE that at the firstdat of hearing of this appeal the Respondent shall I raise a preliminary objection on a point of law I that the appeal is incompetent and should be I I struck out/dismissed on the ground that the High Court had no jurisdiction to entertain /he application in Misc. Civil Application No. 135 of 2005 on account of the existence of a valid i notice of appeal filed by the Appellant " 1 I Elaborating Prof. Fimbo submitted that since 7/12/2009 a new I development of law had occured which had a direct impact in this appeal in that once a notice of appeal has been lodged, the appeal process ought to be given a chance to take its normal course. He referred us to (i) East African Development Baok V. Blueline Enterpreses Ltd. Civil. Appeal No. 101 of 2009 (unreported); (ii) ! Arcado Ntagazwa v Buyogera Julius Bunyago [1997] TLR 242 I I (iii) Aero Helicopter Ltd v. F.N.Jansen [1990] TLR1142. 3 He then explained how the saga haa started by Ienumerating a number of separate civil proceeding~ filed in the Hi~h Court, inter i I alia, Misc. Civil Cause No. 134 of 2006 where he said there is already a notice of appeal filed to challenge t~e decision of M!ndia, J. (as he ·, I then was). However, he did not say whether the decibion of Mandia, ~, I J. was substantially the same with that of Shangwa, J. the subject 1 matter of this appeal. Be that as it may, it is his sub~ission that so I I '! i long as there is a notice of appeal in respect of Misc. Civil Cause, No. 'i I i 134 of 2006 then the High Court had no jurisdiction to entertain Misc. 'I :1 Civil Cause No. 135 of 2005. 'I :I :1 :I 1 ·I I In response, Mr. Dilip Kesaria} learned counsel assisted by ·1 I I I Messrs Lugano Mwandambo and Peter Kabatsi, said there is no new :1 ! I ' development of the law as contended by Prof. Fimbo! The principle ': I was formulated some ten years bac{ _ As regards tb separate civil ,I 'I I proceedings, Mr. Kesaria said there was an attempt to set aside the ·I award but it was refused by Mandia, iiJ. in Misc. Civil ~pplication No. ·1 i I 134 of 2006. -He prayed that the pre!1iminary objecti~n be dismissed 1 with costs. / I I I I 4 Generally it is the law of this land that once a notice of appeal I had been lodged in this Court to challenge the final decision of the High Court, the High Court ceases to have jurisdiction to entertain I other matters incidental to the case, save few incidents connected ; with the intended appeal like leave to appeal, etc. We are saying so because, as of now by virtue of section 5(2)(d) of the Appellate Jurisdiction Act, 1979 as amended, one cannot ; challenge the interlocutory decision /order of the High Court. So basically there is not much change to the above principle. So there is nothing new development of the law as contended by Prof. Fimbo. , Turning to the merits or otherwise of the prelim'inary objection, we wish to say the following. Prof. Fimbo merely explained to us the detailed chronological historical background ot the case and ' mentioned two applications, namely Misc. Civil Application No. 134 of 2006 and Misc. Civil Application No. 135/2005. He then said the ' notice of appeal had already been llodged in respect of Misc. Civil Application NO. 134 of 2006 to set aside the arbitration award and so Misc. Civil Application No. 135 of 2005 ought not to have been I lodged. I 5 I , I We have carefully gone through the submissiops. We were I wondering whether what Prof. Fimbo had said falls within the ambit 1 ,, I I • I of the preliminary objection. A preliminary objection I should . only ., I consist of point of law (see Mukisa Biscuits Manufacturing Co. I I Ltd v. West End Distributors Ltd. [1969] EA 69,6). From the I , I foregoing it is clear that Prof~ Fimbo had raised facts Which are to be I I ascertained. For instance he did not tell us and show in the record as I I I to when the alleged notice of appeal in respect I of Misc. Civil I I Application No. 134/2006 was lodged. That was an important I factor I I I ' to enable us determine whether or not the High Court I was ceased I i ·, with jurisdiction to entertain subsequent Misc. Civil /\pplication No. 135 of 2005 the subject matter of this: appeal. I ' I I I I I All in all, we dismiss the preliminary objection with costs. , I ' I 6 I DATED at DAR ES SALAAM this 2nd day of May, 201;1. H.R. NSEKELA JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL B.M. LUANDA JUSTICE OF APPEAL I certify that this is a true copy of the original. ' ~r•: J. S. MGETTA I/ ; DEPUTY REGISTRAR