frolian chogo simon another v finca microfinance 2 others 2023 tzhclandd 17201 16 november 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 353 OF 2023 (Originating from Misc. Appiication No. 425of2022 before Hon. A. R. Kirumbi, Chairman in the District Land and Housing Tribunai ofliaia District at Kivukoni) FLORIAN CHOGO SIMON 1®^ APPELLANT MARY VICTOR MAHUNDI 2"° APPELLANT

VERSUS

FINCA MICROFINANCE BANK TANZANIA LTD 1®^ RESPONDENT J &3 RECOVERIES 2"° RESPONDENT HELLEN EFFORD SANGIA S''" RESPONDENT

RULING Date oflast order: 13/11/2023 Date ofRuling: 16/11/2023 MWAIPOPO,3: This is a ruling in respect of a preliminary objection raised by the counsel for the Respondent to challenge the competency of the Appeal. The Appellant herein filed this appeal against the respondent to challenge the decision of the DLHT in Misc. Application no. 425 of 2022, decided by Hon. A.R Kirumbi, Chairman. In his Memorandum of Appeal the Appellant raised one ground of appeal to the effect that; 1. That the learned Trial Chairman erred in law and fact for dismissing the application without any justification. He thus prayed for the following orders before the court; 1 a) The appeal be allowed b) The decision of the Tribunal dated 9'^ August 2023 be quashed and set aside c) The status quo be maintained on the suit land located at Tabata Kinyerezi Kichangani Street, Ilala District Dar es salaam region pending determination of the main suit (Application no. 268 of 2022) d) Cost be paid by the Respondents. e) Any other orders this court may deem fit to grant. Before the matter was set for hearing, the counsel for the Respondent intimated that they would file a preliminary objection to challenge the competency of the Appeal. They thus filed their preliminary objection on 03'" November 2023. The preliminary objection is to the effect that; The appeal preferred by the appellant before this honourable

court Is incompetent. Arguing in support of the preliminary objection, the counsel for the respondent submitted that the Appeal emanates from an interlocutory ruling in Misc. Application No. 425 of 2022 between the parties herein, i.e. the appellants who were the applicants and the respondents herein at the DLHT for Ilala at Kivukonl. He submitted that since the matter is an interlocutory and the decision so given does not have an effect of determining the suit to its finality, it is therefore in conflict with the Provisions of section 74(2) of the CPC Cap. 33, which states that; "Subject to the provisions of subsection 1 and 3, no appeaishaiiHe or be made in respect ofany preiiminary or interiocutory decisions or order ofthe District Court, Resident Magistrates Court or any other Tribunal unless, such a decision or order has an effect offinaliy determining the suit". As it can be gleaned from the Ruling on Misc. Application No. 425 of 2022, the decision only decided the matter as to whether or not to grant an Application for injunction. It should be also be noted that the main case, which this appeal emanates i.e. Application No. 268 of 2022, is based on the validity of the Auction procedure. Nowhere does it specifically say in the ruling of Application No. 425 of 2022, that the auction was illegal. Had that been the case, it would have an impact in determining the suit to its

finality. The Counsel contended that the order does not provide for any ruling or decision on the propriety of the auction process. Therefore, he argued that the ruling under Misc. Land Application no. 425 of 2022 has not determined the matter to its finality. Therefore, the provisions under section 74(2) of the CPC Cap. 33 R. E. apply. This position was also applied in the case of Vodacom TZ Ltd Company vs Planetel Communications Ltd CAT DSM Civii Appeai No. 43 of 2018 by Mugasha, Wambaii and Kerefu, JA. In determining the issue as to whether the order is interlocutory or not, the CAT, used the test of whether the order finally determines the rights of the parties or not. It stated that; if it does not, then it is an interlocutory order and vice versa. The court then proceeded to uphold the preliminary objection by the respondent, see pg. 13 and 15. He thus prayed for the appeai to be dismissed for being incompetent before this Honourable Court. Submitting in rebuttal, the counsel for the appellant began his submissions by dismissing the preliminary objection for being misconceived and lacking merit. Based on the following reasons he prayed for the same objection to be overruled with costs; One, he argued that Order XL of the CPC Cap. 33 R. E. 2022 provides for orders that may be appealed against. Order XL rule l(r) of the CPC mentioned above, permits appeals from orders of

injunctions issued under Order 37 rule 1,2,4 and 9 of the CPC. He submitted that the Application for injunction in the case at hand was made under Order 37 rule 1,2, and section 68 of the CPC, however the same was dismissed by the District Tribunal. He thus submitted that; they are appealing under the strength of the said order. Two, he contended that the decision of the Land Tribunal finally determined Application No. 425 of 2022 whereby the rights of the Appellants in this particular Application, were unreasonably rejected. The Applicants had the right to be granted with an order for injunction pending determination of the main suit. Therefore, it is proper for the appellants to come before this court to seek redress against the decision which dismissed their case, since application number 425/2022 was determined on merit and completely dismissed. Therefore, there is nothing left pending since it was completely dismissed to its finality. He submitted that he does not call it an interlocutory order since there is nothing pending regarding the said application. It is therefore not proper to call it an interlocutory order because it was a stand alone case with independent prayers which were due for determination by the Land Tribunal. So, the decision at the DLHT had the effect of determining what was before it. It was a separate case with its own number of registration and its

own prayers quite different from the main Application. On a different angle, he submitted that the Application emanated from the main Application, and on its own it had to seek the rights of the parties. With reference to the case of Vodacpm cited (supra), he submitted that the said case was distinguishable to the facts of the case before the court as the said case was discussing issues under the Appellate jurisdiction Act, applicable in the Court of Appeal. He asserted that the matter before the court is discussion under order 37 rule 1 and 2 of which the CPC itself permit an appeal on a decision made under that particular order. So, the said case is inapplicable in the situation at hand. The counsel further cited the case of Tanzania Union of Industrial and Commercial workers vs. Tanzania Italian Petroleum Company Ltd, Civil Application No. 110 of 1999. In this case, the Court of Appeal made a decision that an injunction is appealable. Another case is Civil Appeal No. 115 of 2005, Tanzania Motor Service Ltd vs. Mayor Payo Trading as Takasai. In this case, the court of Appeal defined the word suit and what amounts to having a suit finally determined at page.

8. The term suit is very comprehensive, one and is said to apply to any proceeding in a Court of Justice by which an individual pursues a remedy which the law affords him. The counsel concluded his arguments by stating that for purposes of appeal, the application for temporary injunction is a suit and it was determined to its finality. He implored the court to dismiss the application with costs. In rejoinder, the Counsel for the and 3^" Respondents reiterated his submissions in chief and submitted that the Appeal emanates from a Misc. Application no 425/2022 whose decision was an interlocutory order and fails under the restrictions stated on section 74(2) of the Civil Procedure Code Cap 33 R.E.

2019. He contended that, the provisions cited by the Counsel for the Appellant under Order XL Rule l(r) para 1 of the CPC and orders made under rule 1, 2, 4 and 9 of Order 37 are appealable. However, an exception is made under the provisions of section 74(2) of the Civil Procedure Code. In this regard he cited the prayers (interpartes) contained in Misc. Application no 425/2022 under the Chamber summons, which read; (1) That this Honourable Tribunal be pleased to grant Temporary to restrain and prevent all respondents and their agents, from evicting the Applicants from the house located at Tabata Kinyerezi, Kichangani Street, Ilala District Dar es Salaam Region, property of the Applicant, pending determination of the main suit. From the quotation above, he argued that it is clear that, the matter is not a standalone case to be determined for the parties. The matter, i.e. Miscellaneous Application No. 425 of 2022 emanates from Application No. 268 of 2022 between the Appellants and Respondents herein, in the District Court of Ilala at Ilala. The said Application No. 268 of 2022 is still pending in the Tribunal. With regard, to the Applicability of Vodacom Case (supra), the Counsel stated further that; the provisions discussed under Section 5(2) of the Appellate Jurisdiction Act, are similar to section 74(2) of the Civil Procedure Code. The cases cited guide Courts on the

procedure towards determining whether the matter is an interlocutory order or not depending on the nature of order test, i.e. whether it has an effect of finally determining the matter or not. He amplified further that both cases cited by the learned advocate for the Appellant have been affected by the development of the law specifically on the appealability of interlocutory orders, provided they don't determine the suit to its finality. He thus added further that, as per the law and practice, if a Miscellaneous Application has been determined without affecting the rights of parties in the main case, then it will be interlocutory. The counsel landed his submissions by praying to the court to dismiss the application with costs. Having analyzed submissions from both parties, I now turn to determine the issue as to whether the Appeal is incompetent for emanating from a ruling and an order of the Tribunal in an interlocutory application for temporary injunction. In determining this issue, I will be guided by the case of Vodacom Tanzania Public Limited Company vs Planetel Communications Ltd, Misc. Commercial Cause No. 295/2017, CAT, DSM, cited by the Counsel for the Respondent. In this case the Court defined Temporary injunction as follows; ^Temporary injuctions are among others are regulated by section 68(e) of the CM!Procedure Code CAP 33 RE 2002 which categoricallystate

asfollows; In order to prevent the ends of justice from being defeated^ the Court may, subject to any rules in that behalf; (e)make such other Interlocutory orders as may appear to the court to bejustand convenient''. Further the Court used the Black Law Dictionary, 8^^ Edition, at page 800 to show circumstances when the said remedy can be issued, it stated; "A temporary Injuctlon Is issued before or during trial to prevent an Irreparable injury from accruing before the Courthas a chance to decide a case. The Court went on to state that; ^'Therefore^ the purpose ofan injunction in law issaid to be Interlocutory when granted in an Interlocutory application and continues until a defined period. It aims at preserving the status quo until final determination of the application or suit.(See the case of Chama cha Waaiimu Vs Attorney General). In the present matter, it Is not in dispute that after the appellants had filed the Land Application no. 268/2022 at the DLHT, they unsuccessful applied for an order of temporary injuction vide Miscellaneous Application no. 425/2022 pending determination of the said Land Application no. 268/2022. The question to be asked is whether or not the Ruling and order of the Tribunal delivered by Hon. KIrumbI, which dismissed the application for injunction are appealable. Now reverting to the instant case, the counsel for the Respondent has submitted

that this appeal originates from Misc. Application no. 425/2022, which was an application for temporary injunction between the parties herein, which was decided at the DLHT for liala at Kivukoni. However, the matter was an interlocutory proceeding and the decision so given did not have an impact to determine the suit to its finality. He thus submitted that the appeal is in conflict with the provisions of section 74(2) of the CPC Cap 33 RE 2019. In turn the counsel for the Appellant stated that the appeal is in line with order XL Rule 1 (r) of the CPC which allows appeals arising from interlocutory proceedings as itemized under various orders therein. In rejoinder, the counsel for the applicant stated that the CPC provides an exception depending on the nature of the order given. He submitted that looking at the prayer contained in the Application for temporary injunction, one will note that the said Application was an interlocutory one, it was not a stand alone matter as contended by the Counsel for the Applicant as it emanates from Application No. 268/2022 which was a substantive or main application which is meant to decide finally on the rights of the parties. In determining whether this appeal is based on an interlocutory order, I had to first look at the nature of the Application that was filed before the District Land and Housing Tribunal in order to satisfy myself as to

whether the same was an interlocutory application or not. u Upon careful perusal of the documents I first noted that the Appellants filed their main application titled Miscellaneous Land Application no. 268/2022 before the DLHT claiming the following reliefs; a) Declaration that the auction of the suit property was null and void abnitio for non compliance of legal requirements b) Declaration that the suit premises is owned by the applicant c) Costs to this application to follow event d) Any other relief this honourable court may deem fit and equitable to grant. Further, I satisfied my self that the Applicants also filed Miscellaneous Land Application no. 425/2022 arising from the main application no. 268/2022 and made under Order XXXVII Rule 1 (a),(b) section 68(c)(e) and 95 of the Civil Procedure Code Cap 33 RE, 2022(sic), which was a temporary Injuction application containing the following interpates prayer; a)That this honourable tribunal be pleased to grant temporary injuction to restrain and prevent all the respondents and their agents from evicting the applicants from the house located at Tabata kinyerezi, kichangani street, Ilala District Dar es Salaam Region property of the Applicants pending determination of the suit- It is also important to note that I also visited paragraphs 16 and 17 of the said application for temporary injunction and noted that there are following paragraphs which make reference to the main application no. 268/2022. They read and I quote; 16. That the overwhelming chances of success in the main case fails upon the applicants as the whole auction process was done unlawfully without following proper procedure and the disposition of the land by way of sale was done illegally.

17. That the Applicants seek the intervention of the honourable Tribunal to restrict the respondents from evicting the applicants in their house in order to give the Applicants a chance to prove that they are not in default. I have aiso gone through a copy of the Ruling delivered by Hon. Kirumbi at the DLHT, in respect of the Application for temporary injunction and noted that the first paragraph aiso makes reference to the main appiication. The said paragraph reads and I quote; Waleta maombi Fiorian Chongo Simon na Mary Victor Mahundi waliieta maombi ya zuio la kuwazuia wajibu maombi na wakaia wake kuwatoa waleta maombi katika nyumba iliyopo Tabata kinyerezi, mtaa wa kichangani, Ilala Dar es salaam chini ya amri ya XXXVII Kanuni ya l(a)(b) na kifungu cha 68,(c)(e) na 95 sura ya 33 RE 2002, hadi hapo maombi va msinoi yatakapoamriwa. Based on those findings I have satisfied myseif that, indeed, Land Appeal no. 353/2023 filed before the High Court emanates from a ruling arising from an interlocutory application no. 425/2022 filed before the DLHT and decided by Hon. Kirumbi on the 9^^ August 2023. The next question is whether such a decision determined the rights of the appellants in their finality to warrant the appellants to come to this court by way of an appeal or whether there are still pending issues to be determined before the Tribunal for it to fali within the purview of

the provisions of Section 74(2) of the Civil Procedure Code Cap 33 RE 2019 as contended by the Counsel for the appellants. 10 I 0 With regard to whether the said ruling determined the rights of the Appellants in their finality, I state that, the issue is answered in the negative based on the following reasons; One, the Chamber Application no. 268/2022 was filed under the main application no. 425/2022 filed between parties which sets out reliefs which the Appellants are seeking from the tribunal with regard to the suit property located atTabata Kinyerezi, i.e. nullification of the auction of the suit property and declaration of the ownership of the said house. This Application is expected to conclusively determine the finality of the rights of the Appellants. Two, the nature of the Chamber Application no. 268/2022 filed between parties before the Tribunal indicates that it was an application for temporary injunction based on the prayers contained therein and facts stated in the various paragraphs indicates that the same was filed pending the determination of the rights of the parties In the main land application no 425/2022. Three, the main Land application no 268//2022 is till pending before the tribunal for its final determination and has been fixed for hearing on the 24^^ of January 2024. Four, the application for temporary injunction was only meant to restrain

the respondents from evicting the Appellants in the said house pending determination of the main application and finality of the rights of the parties relating to the suit orooertv and the validitv of the auction done bv the Respondents. These are the central themes to be determined by the Tribunal as far as the rights of the appellant are concerned. Following the delivery of the said decision in respect of the application for temporary injunction, the next task for the Tribunal is to determine the rights of the Appellants in the main application and finally conclude the said matter. And if the Appellants 11 will be aggrieved by the said decision, they can always enforce their right to appeai. Therefore, as of now the ruiing of the Tribunal (Hon. Kirumbi) is merely an interlocutory one, as it has not decided the rights of the parties in so far as the issue of ownership of the house is concerned or the validity of the sale/auction of the house. In this regard, I concur with the submissions by the counsei for the respondent herein that section 74(2) prohibits appeals to lie against or be made In respect of any preliminary or interlocutory decision or order of the Court or any other tribunal, unless such decision has an effect of finally determining the suit. Therefore, much as order XL provides for situations where an appeal can lie from the enumerated orders, and in particular

an order made under rule , 1, 2, 4, or 9 of Order XXXVII as contended by the counsei for the Appellants in the instant case, it is my firm opinion that, the exercise of the right to appeal is dependent upon the conditions set under section 74(2) of the CPC Cap 33 of the RE 2019 .i.e. Whether the impugned decision finally determines the matter or not. In the instant case, the ruling did not finally determine the matter, as I have analyzed herein above. In the case of Vodacom Tanzania Public Limited Company vs Planetei Communications Ltd, Misc. Commercial Cause No. 295/2017, CAT, DSM,it was stated that; "It seems to me that the reaf test for determining this question ought to be this; does thejudgement or order^ as made^ finaiiy dispose ofthe rights ofthe parties?ifit does^ then I think it ought to be treated as finai order; but if it does not,itis then^ in my opinion, an interlocutory order". Further, the Court while citing the case of Britania Limited vs National Bank of Commerce and Doshi hardware (T) Ltd, stated that; "We are ofthe opinion thatthe ruiing and order ofthe High Court sought to be revised is an interlocutory order.,,. 12 V \ d\J because in that order no where it has been indicated that the suit has been finaiiy determined". Finally, the court held that; "We uphoid the 2P^ preiiminary objection raised for the respondent as we find this appiication incompetent

having arisen from an interiocutory order which is prohibited by section 5(2)(d) of the Appeiiate Jurisdiction Act^ 1979^ as amended". In light of the settled position of the law and the Vodacom case cited above, It Is clear that an Interlocutory ruling or order Is not appealable, save where it has the effect of finally determining the suit, or petition. The ruling and the Drawn order apart from being Interlocutory in nature did not at any rate have the effect of finally determining the pending Land Application no. 268/2022, hence the present appeal offends the provisions of section 74(2) of the CPC Cap 33 RE 2022, which read as follows; (2) Notwithstanding the provisions of subsection (1) and subject to subsection (3), no appeal shall Me against or be made in respect of any preliminary or interlocutory decision or order of the District Courts Resident magistrate's Court or any other tribunal, unless such decision or order has effect of finally determining the suit. Based on the position In the case of Vodacom, the cases cited by the counsel for the Appellant are also hereby distinguished in this regard. Further, it is my firm position that, temporary injunction is an Interlocutory order which is granted at the discretion of the Court for granting temporary relief to the applicant pending the determination of the application. In such a situation like the one in the Instant case

it does not conclusively determines the rights of the parties to the extent of granting an aggrieved person the 13 right to appeal. To treat an interlocutory order arising from it as appealable is to expose this court to floodgate of unnecessary appeals to be filed by litigants, which may have an adverse impact in the timely dispensation of justice. While giving reasons for not allowing this practice, the Court in the Vodacom case (supra) affirmed that; ^^One of the pertinent reasons for regulating appeals arising from interlocutory orders is to stop the irresponsible practice by which a party couid stall the progress ofa case by engaging in endless appeals against interlocutory decisions or orders. The court further stated that; the objective for regulating this was to give effect to the provisions of Article 107A(2)(b) of the Constitution of the URT, 1977, which prohibit delay in dispensation of justice when delivering decisions in matters ofcriminaland civil nature". In view of the foregoing, I proceed to sustain the preliminary objection raised by the by the Counsel for the Respondent and I am satisfied that the present appeal is not competent because it is barred by the provisions of section 74(2) of the Civil Procedure Code Cap 33 RE 2019. In the upshot, i proceed to strike out the incompetent appeal with costs. DATED at DAR ES SALAAM this 16**^ day of November 2023. • - W/i/•': V ' ^-\ r in k JUDGE y 16/11/2023 14 The Ruling delivered this day of 16^^ November, 2023 in the presence of Ms. Akwila Wilbard holding brief for Mr. Ludovick Nickson learned Counsel for the Appellant and also representing the and 3'^'^ Respondents is hereby certified as a true copy of the original. tfg>cuJpJ|pC) S. D. MWAIPOPO GH COJ) JUDGE o 16/11/2023 * m 5^ r" "7 % <0 'i /SlON 15