20080116 TZCA Dar es Salaam

c,v , t IN THE COURT OF APPEAL OF TANZANIA · AT DAR ES SALAAM {CORAM: LUBUVA, J.A, NSEKELA, J.A, ANO MBAROUK, J.A) CIVIL APPEAL NO. 77 OF 2001 RAJAN I INDUSTRIES LIMITED ............................... APPELLANT VERSUS TANZANIA LIQUID STORAGE LIMITED .................. RESPONDENT (Appeal from decision of the High Court of Tanzania at Dar es salaam) (Chipeta,l) dated the 12th day ,of December, 2000 in Civil Case No. 306 of 1997 ....•...........•••..........•... RULING OF THE COURT 19 Oct & 30 Jan 2008, MBA~OUK, JA: ► 1 This appeal arises from the decision of the High Court (Chipeta, J. as he then was} in civil case No.306 of 1997. The appellant was aggrieved and hence this appeal was instituted. In this appeal, Mrs. Rwebangira, learned counsel, appeared for the appellant and Mr. Cuthbert Tenga, learned counsel represented the respondent. 1 I d • i I At the commencement of hearing the appeal, Mr. Tenga, learned counsel, raised a preliminary objection notice of which had earlier been given in terms of the provision of rule 100 of the Court Rules,1979. He raised the following two· grounds of preliminary objection, namely:- 1. "That the appeal is incompetent because the decree subject of this appeal is invalid; and I 2. That the appeal is bad at law and an abuse of Court process because the matter complained of has been over taken by event for being res judicata". In support of. the grounds of preliminary objection, Mr. Tenga submitted that this appeal which· emanates from the decision of the High Court is not appellable Without leave. In the absence of leave ' ' to appeal, counsel for the respondent submitted that this appeal is 2 ,_, 4' QJ - incompetent. He further submitted that, essentially the decision of the High Court which is appealed against did not finally disposed of the suit. This is because the suit was marked withdrawn with leave to institute if afresh if so desired. He argued that, if at all the matter before High Court was finally disposed, there would be no need for instituting if afresh. Responding to these submissions, Mrs. Rwebangira, learned counsel for the applicant submitted that this appeal falls under section 5 (1) (a) of the Appellant Jurisdiction Act, Cap. 141 Revised Edition, 2002. In support of her argument she contended that no leave was required because this appeal emanates from the High Court decision in its original jurisdicti,on. She therefore prayed for the J preliminary objection to be overruled with costs. -t >~ As the issue of jurisdiction ·is basic we shall first address whether the appeal is properly before the Court. 3 • I' ' C}J - It is a common knowledge that appeals to this Court are governed by the provisions of section 5 of the Appellate Jurisdiction act, Cap. 141 Revised Edition, 2002. ,The provision set out which are appellable to this Court with or without leave to appeal. Before us is an appeal from the decision of the High Court dated 1th December, 2000. The same emanates from an interlocutory application in the form of a preliminary objection when the main suit was still yet to be determined. In order to determine whether this appeal falls .under the provision of Section 5 (1) (a) of the Appellate Jurisdiction Act, Cap. 141 Revised Edition, 2002, it is desirable to set it out fully. Section 5 (1) provides that: 5 (1) "In civil proceepings, except where ~ any other written law for the time being in force provides otherwise, an appeal shall lie to the Court of Appeal- (a) against every decree, including an ex parte or preliminary decree made by the High Court in a suit 4 . 11 1. . " I • Ji un1er the Civil Procedure Code, 19~6, in the exercise of its original I ju~isdiction;" ( emphasis added). There is no gainsaying the fac~ that in order for the provisions I I of section 5 (1) of the Appellate Ju,risdiction Act, Cap. 141 Revised I i Edition, 2002 to come into play, the jdecree, subject of appeal has to ·. emanate from the decision of the Hi~h Court in a Civi; s~it ~~der the Civil Procedure Code, 1966. Sectioi 3 of the Civil Procedure Code, I 1966 defines the term decree as folllws:- 1 11 I . i ' "The formal expression of an adjudication I I, !: which, so fa~ as regards the court expressing it, conclusiyely determines the rights ·of, I ,I the parties/ with regard to a!I or any of 1 the matte~s in controversy in the suit and may bJII either preliminary or final. It i - I shall be de~med to include the rejection of _ . I I C I plaint and the determination of any question I : I • j I I 5 I . ",. within section· 38 or section 89 ........"(emphasis added). In the case of Tanganyika Motors Limited V. 6 0- . ') - follows that section 5 (1) (a) of the Appellate Jurisdiction Act, Cap. 141, Revised Edition 2002 does not apply. 5 (1) 7 n . ;, • • r In the instant case, as alread~jl indicated, the decision of the . I High Court, subject of this appeal, Jresulted from an interlocutory order which did not conclusively dete [imine the right of the parties for I ' that reasori, the suit was marked witidrawn with leave to file a fresh suit. In the circumstances we are off: the settled View that the order falls under the provisions of sectit n 5 (1) (c) of the Appellate Jurisdiction ·.· . Act, Cap.. 141, •. . . R.E 2002. . .I As already . shown . earlier, . . _ . . . .1 I appeals to this Court relating to eve!Y other order such as this one, J! can only be entertained with leave of, the Court or the High Court. I I ! In this case, there was no leavf sought and obtained. It would therefore follow that the appeal iJ incompetent as urged by Mr. Ii ' Tenga. i In the event, we sustain' the respondent's objection. · Accordingly, the appeal b~ing incom~etent i? struck out with costs. DATED at DAR ES·SALAAM thi~ 16 day of January 2008. "' . D.Z. LUBUVA JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL M.S. MBAROUK JUSTIC OF APPEAL .~ _,. P - Pll1= rtify that this is a true copy of the original. . . F.L.K Warnbali SENIOR DEPUTY REGISTRAR COURT OF APPEAL 9