HAJI EMILY PDF

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MWANZA AT MWANZA CIVIL REVISION NO. 22250 OF 2024 (Arising from the order of the Resident Magistrate’s Court of Mwanza in Miscellaneous Civil Application No. 000018377 of 2024, before Hon. E. Marley, dated 30/31.07.2024) HAJI EMILY HASSAN & HASSAN MUSSA …………….…….....……… APPLICANTS VERSUS JOSEPH KASHEKU MSUKUMA ……….….……….…………..……….. RESPONDENT RULING 13.03.2025 & 28.03.2025 ROBERT, J. Before this Court is a ruling in respect of a preliminary objection raised by the respondent against the applicants' application for revision. The applicants approached this Court, aggrieved by the order of the Resident Magistrate’s Court which vacated a garnishee order nisi that had previously been issued against the respondent’s bank account. The preliminary objection is premised on two legal limbs as follows: 1. That the application contravenes the provisions of section 79(2) of the Civil Procedure Code, Cap. 33 R.E. 2019 (hereinafter referred to as “the CPC”), rendering it incompetent. 1 2. That the application is fatally defective for non-joinder of necessary and proper parties specifically, the judgment debtors who were condemned to pay the decretal sum. On the First Limb of the Preliminary Objection, Mr. Julius Mushobozi, learned counsel for the respondent, submitted that the impugned order of the trial court, which vacated the garnishee order nisi, was an interlocutory order, given pending an inter partes hearing. He argued that the applicants prematurely invoked the revisional jurisdiction of this Court before the trial court had substantively resolved the matter. He submitted that section 79(2) of the CPC expressly bars the invocation of revisional jurisdiction against interlocutory decisions unless such decisions finally determine the rights of the parties. To reinforce his point, counsel cited the decision in Total Tanzania Limited v. Mexon Sanga, Civil Application No. 488/16/2019 (CAT), wherein the Court of Appeal emphasized that only decisions which finally dispose of the rights of the parties may be considered final for purposes of revision; all others are interlocutory and fall outside the ambit of section 79(1) of the CPC. 2 He further argued that the applicants still retained avenues to execute the decree through alternative legal means, including attaching the judgment debtors’ property, and that the lifting of the garnishee order did not preclude them from pursuing such lawful execution. On the Second Limb of the Preliminary Objection, Counsel for the respondent contended that the judgment debtors namely Chacha Mwita Chaguche and Emmanuel Constantine Nyalali who were parties to the decree, were not joined in these revision proceedings. Instead, the applicants brought the application solely against the respondent, who was not a party to the original proceedings and had no legal relationship with the judgment debtors. He maintained that such omission amounts to a fatal defect, as the judgment debtors are necessary and proper parties to any proceeding challenging the execution of the decree. He concluded that this constitutes a misjoinder or non-joinder which goes to the root of the matter, rendering the application incompetent. In response, Mr. Beatus Linda, learned counsel for the applicants, submitted that the revisional jurisdiction of this Court was properly invoked 3 under section 79(1), (2), and (3) of the CPC. He argued that the order of the trial court, which vacated the garnishee order nisi ex parte and without hearing the applicants, had the effect of conclusively determining their rights, as it released the respondent’s bank account, thereby frustrating the execution of the decree. He contended that although the matter before the trial court arose during execution proceedings, the effect of the ex parte order was final in nature, and therefore amenable to revision. He also submitted that section 79(2) does not apply to proceedings that do not constitute a “suit” in the strict sense. On the second limb, counsel argued that the preliminary objection was misconceived as it delved into matters requiring factual determination, contrary to the principle established in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, which holds that preliminary objections must be based purely on points of law. He stated that the respondent, through counsel, had previously entered into a payment agreement with the applicants as part of a post-judgment settlement, and had made partial payments before defaulting, thus becoming a party of interest. As such, the question of whether the respondent was a proper party 4 was factual and could not be determined at the preliminary stage without evidence. In rejoinder, Mr. Mushobozi maintained that section 79(2) of the CPC is not confined to suits alone but applies to all court proceedings, including execution. He emphasized that the order being challenged did not finally determine the rights of the parties as the applicants could still pursue alternative modes of execution. He insisted that the order was interlocutory and, therefore, revision was untenable. Regarding the second limb, he reiterated that the judgment debtors were not joined in these proceedings and that the respondent was not shown to have assumed any obligation under the decree, whether originally or by adjustment. He argued that the issues of misjoinder and non-joinder are points of law and thus suitable for determination at the preliminary stage. Having carefully considered the rival submissions and the applicable legal framework, the Court is now called upon to determine whether the preliminary objection is meritorious. On the First Limb: Whether the Application Offends Section 79(2) of the CPC, the cited section provides: 5 “Notwithstanding the provisions of subsection (1), no application for revision shall lie or be made in respect of any preliminary or interlocutory decision or order of the court unless such decision or order has the effect of finally determining the suit.” The central issue here is whether the order vacating the garnishee order nisi was interlocutory or final in nature. According to Black’s Law Dictionary (9th Edition), the term interlocutory refers to an order that is “interim or temporary; not constituting a final resolution of the whole controversy.” Therefore, an interlocutory order is one that addresses a preliminary issue without conclusively resolving the rights of the parties. In the present case, the record reveals that the trial court vacated the garnishee order nisi ex parte, with the explicit indication that the matter would subsequently proceed inter partes. This is clearly indicative of an interim step taken to allow parties to be heard on the merits before a final order could be made. It is thus plain that the impugned order was interlocutory in nature. The applicants’ submission that the order was final, merely because it vacated the garnishee order, is misguided. As long as the underlying 6 execution proceedings remained ongoing and the parties were to be heard inter partes, the decision could not be construed as finally determining the matter. Thus, by virtue of section 79(2) of the CPC, the application for revision does not lie. This limb of the objection is therefore meritorious and hereby upheld. On the Second Limb: Non-Joinder of Necessary Parties, it is trite law that proper parties must be joined in proceedings to enable the court to effectually and completely adjudicate upon and settle all questions involved. In the instant matter, the record reveals that the judgment debtors against whom the decree was passed were Chacha Mwita Chaguche and Emmanuel Constantine Nyalali, trading as King Msukuma. The respondent herein was not a party to the proceedings culminating in the decree, nor was there evidence presented to demonstrate that he became bound by any subsequent consent or settlement agreement. The failure to join the judgment debtors, who are not only necessary but central to the enforcement of the decree, renders the application procedurally defective. The importance of maintaining consistent party composition in proceedings was underscored by the Court of Appeal in Salim 7 Amour Diwani v. The Vice Chancellor, Nelson Mandela African Institution of Science and Technology & Another, Civil Application No. 116/01 of 2021, wherein it was observed that: “Parties in subsequent proceedings must appear as they did in prior proceedings unless there is good reason not to, and with leave of the Court.” In the absence of any explanation or application for such leave, the omission to join the judgment debtors is fatal. Misjoinder or non-joinder of necessary parties affects the jurisdiction and competence of the Court to entertain the matter. This second limb of the preliminary objection also has merit and is accordingly sustained. Having found both limbs of the preliminary objection meritorious, the Court is left with no option but to uphold the objection in its entirety. Consequently, the application for revision is hereby struck out for being incompetent. No order as to costs. It is so ordered 8 K.N. ROBERT JUDGE 28/3/2025 9