20170221 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MBAROUK, J.A., MWARIJA, J.A. And LILA, J.A.) CIVIL APPEAL NO. 7 OF 2011 EPHATA JOSHUA KITALLY .................................... ~ ....................APPELLANT VERSUS NATIONAL BANK OF COMMERCE LTD ..................................... RESPONDENT {Appeal from the Ruling of the High Court of Tanzania {Commercial Division) at Dar es Salaam (Mruma. J.) dated the 23 th day of September, 2010 in Civil Case No. 190 of 2002 RULING OF THE COURT th th 14 February & 9 March, 2017 LILA, J.A.: Ephata Joshua Kitally, the appellant, was the defendant in Commercial Case No. 190 of 2002 before the High Court (Commercial Division), while the National Bank of Commence, the respondent, was the plaintiff. It was a summary suit. The High Court (Nsekela, J as he then was) having been satisfied that the defendant was duly served and had failed to seek leave to appear and defend, on 12th September, 2002, entered judgment in favour of the appellant. The respondent filed an application seeking for, among others, orders that the Court be pleased to extend time to file an application to set aside the judgment passed on 12/9/2002 and to grant extension of 1 I time to file defence. That application landed in the hands of Mruma, J. who dismissed it with costs on 23/9/2010. Dissatisfied, the appellant has filed this appeal. When the appeal was called on for hearing Ms. Genoveva Kato, learned advocate, appeared for the applicant and Ms. Samah Salah, learned advocate, appeared for the respondent. At the very outset, Ms. Salah sought leave of the Court to raise, verbally, a preliminary point of law. We granted her leave to do so. She contended that the appeal that was before the Court is incompetent for want of leave to appeal. She insisted that the appeal was against the High Court (Mruma, J.) order dated 23/9/2010 refusing to extend time within which to file an application to set aside an exparte judgment passed on 12/9/2002 and extension of time to file defence. She argued that the matter determined by the High Court and subject of appeal was an application which resulted is a drawn order and not a decree. She accordingly contended that, under section 5(1) (c) of the Appellate Jurisdiction Act, Cap 141 and R.E. 2002 (the Act) leave is required before instituting an appeal. She said there is no leave to appeal in the record of appeal which renders the appeal incompetent. She further argued that the High Court order subject of this 2 t appeal is not covered under section 5(1) (a) of the Act which allows an appeal to the Court without leave in respect of decrees only. Ms. Salah urged the appeal be dismissed with costs. Ms. Kato, who was very brief, conceded that there was no leave to appeal sought and granted. She however argued that she believed that the appeal falls under Rule 5(1) (a) of the Act. She prayed that the objection be dismissed and hearing of the appeal to proceed. This matter need not detain us. Appeals to this Court in civil cases is governed by section 5 of the Act. The Court, in Eustace Kubalyenda Versus Venancia Daud, Civil Appeal No. 70 of 2011 (Mwanza) (unreported), elaborated on the application of section 5 of the Act where it stated: " As we have tried to demonstrated above/ the legislature·in its abiding wisdom found it prudent to grant an intending appellant aggrieved by the decision of the High Court in the exercise of its original Jurisdiction/ an automatic right of appeal that being a first appeal [see S. 5 (1) (a) and (b)]. in respect of other decisions of the High Court a circumscribed right of appeal was granted [Section 5(1)(c)]. One has to come to this Court after 3 obtaining leave of the High Court or if such leave to appeal is refused by the High Court the aggrieved party is allowed a second bite in this Court ,✓ Section 5(1) (a) of the Act, referred to above, provides: ''5-(1) In Civil Proceeding~ except where any written law for the time being in force provides otherwise/ an appeal shall lie to the Court ofAppeal.·- a) Against every decree/ including an exparte or preliminary decree made by the High Court in a suit under the Civil Procedure Code/ in the exercise of its originalJurisdiction. ,✓ The wording of section 5(1) (a) of the Act, above quoted, dictates that appeals which can be lodged in the Court from the High Court without leave must be against decree. In the present appeal, the record of appeal is titled: ''Appeal from the Ruling of the High Court of Tanzania {Commercial DivisionJ by the Hon. Judge Mruma/ dated 2.Yd September, 2010 in Civil Case No. 190 of 2002'~ It is apparent that the present appeal is against a ruling. Out of a ruling a drawn order is extracted not a decree. 4 I Given the above fact, it is therefore I clear that the present appeal, as rightly argued by Ms. Salah, does not fafl in the list of cases for which an I appeal lie to the Court without leave under Section 5(1) (a) of the Act. Ms. Salah also intimated that the present appeal requires leave before appealing under section 5(1) (c) of the Act. We are inclined to agree with I her on the ground that such provision covers appeals against every other I I decree, order, judgment, decision or finding of the High Court. Section 5(1) I (c) of the Act puts it clear that there must be leave of the High Court or this I Court before the appeal is lodged. Secti9n 5(1) (c) of the Act, provides: I "(c) With leave of the High Court or the Court of Appeal against every other decree/ orde~ Judgment I decision or finding of the High Court. ✓, I ' I Given the above position of the law) this appeal ought not to have been lodged without first having obtained leaye of the High Court or this Court. ' Rule 96(1) (i) of the Court of Appeal Rules 2009, mandatorily requires the I order giving leave to appeal be contained in the record of appeal. It being I a requisite document, its absence renders the record of appeal defective. ! The absence of leave to appeal in the, present appeal renders the appeal ! 1 I 5 I I incompetent. We are, therefore, in total agreement with Ms. Salah that the appeal before us is incompetent for want of leave. For the foregoing reasons, we uphold the objection raised and we hereby strike out the appeal with costs. DATED at DAR ES SALAAM this 21 st day of February, 2017 M.S.MBAROUK JUSTICE OF APPEA A.G. MWARIJA JUSTICE OF APPEAL S.A. LILA JUSTICE OF APPEAL I certify that this is a true copy of the original. 6