exim bank tanzania limited vs national furnishers ltd 2023 tzca 17890 24 november 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARI3A. J.A.. KENTE. J.A. And MURUKE, J.A.^1 CIVIL APPLICATION NO. 53/17 OF 2022 EXIM BANK TANZANIA LIMITED.............................................. APPLICANT VERSUS NATIONAL FURNISHERS LTD ................. .............................. RESPONDENT (Application to strike out the Notice of Appeal arising from the decision of the High Court of Tanzania, Land Division at Dar es Salaam) (Kagomba, 3.) dated the 29th day of June, 2021 in Misc. Land Application No. 53/17 of 2022 RULING OF THE COURT 29th August & 24th November, 2023 MWARIJA. J.A,: The Respondent, National Furnishers Ltd. was the applicant in the High Court of Tanzania, Land Division in Misc. Land Application No. 693 of 2020. It filed that application against the applicant in this matter, Exim Bank (T) Ltd under inter alia, Order XXI rule 90(1) and section 38(1) of the Civil Procedure Code, Chapter 33 of the Revised Laws (the CPC) moving the High Court to grant the following reliefs: "(i) This court be pleased to issue an order confirming that the sale by auction o f the applicants landed property on Plot No. 1352, i Certificate of Titie No. 41285, Msasani Peninsular, Kinondoni Municipality, Dar es Salaam held on 3(fh September 2017 in execution o f the decree in Land Case No 210 o f 2015, is absolute. (ii) This Court be pleased to issue orders compelling the respondent to deposit in court a total sum o f US Dollars 923,882.00 being the balance o f the purchase price and/or the proceeds of the public auction held on 3(fh September 2017 in execution o f the decree in Land Case No. 210 of 2015" The respondent prayed also for the costs of the application and any other reliefs which the court would deem fit to grant. On its part, the applicant raised a preliminary objection against the said application contending that the same was time barred. Having heard the learned counsel for the parties on the preliminary objection, the High Court (Kagomba, J.) agreed with the applicant that, the application was filed out of the period of 60 days prescribed under section 5 of the Law of Limitation Act, Chapter 89 of the Revised Laws (the LLA). According to the learned Judge, by virtue of the provisions of section 38(1) of the CPC, the period of 60 days within which the application was to be filed, commenced on 13/7/2018 but the application was filed on 3/12/2020 after the lapse of 2 the prescribed time. Having so found, he dismissed the application under section 3 of the LLA. The respondent was aggrieved by the decision of the High Court and thus on 29/7/2021, lodged a notice of appeal which is now the subject matter of this application. By this application, the applicant sought an order striking out the notice of appeal in terms of rule 89(2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) on account that, the respondent has failed to take essential steps to institute the intended appeal. The application, which is supported by an affidavit sworn by Edmund Aaron Mwasaga, was opposed by the respondent through an affidavit in reply sworn by Bijal N. Ramji, the respondent's Principal Officer. At the hearing, the applicant was represented by Mr. Elisa Msuya assisted by Ms. Regina Kiumba, learned advocates while the respondent had the services of Mr. Tazan Mwaiteleke, also learned advocate. Submitting in support of the application, Mr. Msuya argued that, after the lodgment of the notice of appeal, the respondent failed to take the essential step of applying for leave to appeal and therefore, the notice deserves to be struck out. According to the learned counsel, the order which the respondent intended to challenge is appealable with leave under section 5(1) (c) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws (the AJA). He added that, although the applicant wrote a letter applying for certified copies of the proceedings and the order of the High Court, it did not file an application for leave within the prescribed time. In response, Mr. Mwaiteleke agreed that the order giving rise to the notice of appeal filed by the respondent originated from execution proceedings. He agreed also that, the same was made by the High Court in its original jurisdiction. He however argued that, the applicable provision in respect of an appeal therefrom, is section 47(1) of the Land Disputes Courts Act, Chapter 216 of the Revised Laws (Cap. 216) and not section 47 (2) which requires that, leave be sought and obtained before an appeal is filed. The reason by the learned counsel is that, the order did not originate from an appeal or revision. He prayed that the application be dismissed. Having considered the submissions of the learned counsel for the parties, we are of the settled mind that, indeed, from the nature of the order intended to be appealed against, leave to appeal is mandatory under section 5 (1) (c) of the AJA. Since the order arose from a land dispute, the applicable provision is section 47 (1) of the Cap. 216. That section states as follows: "47- (1) A person who is aggrieved by the decision o f the High Court in the exercise o f its originai jurisdiction may appeal to the Court o f 4 Appeal in accordance with the provisions of the Appellate Jurisdiction Act." [Emphasis added] The governing provision of the AJA on appealable decisions and orders in civil proceedings is section 5. Subsection (1) of that provision states that, an appeal shall lie to the Court; "(a) against every decree, including ex parte or preliminary decree made by the High Court in a suit under the Civil Procedure Code, in the exercise of its originaljurisdiction." Section 5 (1) (b) specifies the appellable orders arising from the decisions of the High Court made in its original jurisdiction. They are listed under items (i) - (ix) of that section. An order arising from execution proceedings is not one of them. As correctly submitted by Mr. Msuya therefore, the order which is intended to be appealed against falls under section 5(1) (c) of the AJA which provides that, an appeal shall lie to the court; n(c) with leave of the High Court or o f the Court o f Appeal' against every other decree, order, judgment, decision or finding o f the High Court." Now therefore, since the order sought to be appealed against by the respondent is appealable with leave which, under rule 45 (a) of the Rules, should have been applied for within the period of 30 days from the date of the decision, it is obvious that the respondent has failed to take that essential step. We thus agree with Mr. Msuya that, the notice of appeal deserves to be struck out under rule 89 (2) of the Rules. The same is accordingly struck out with costs. DATED at DAR ES SALAAM this 22nd day of November, 2023. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 24th day of November, 2023 in the presence of Ms. Irene Mchau, learned counsel for the applicant and hold brief for Mr. Tazan Keneth Mwaiteleke, learned counsel for the respondent, is hereby certified as a true copy of the original.