RULING OF RELIANCE INSURANCE COMPANY final

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA CIVIL APPEAL NO. 17881 OF 2024 CASE REFERENCE NO. 202407241000017881 (Originating from Execution No. 13675 of 2024 in the district court of Kyela) RELIANCE INSURANCE COMPANY TANZANIA LIMITED .............APPELLANT VERSUS FRANK PATSON ....................................................................... RESPONDENT RULING 12th November & 13th December 2024 NONGWA, J. This ruling comes upon preliminary objections raised by the respondent to the effect that; i. That, the Appeal is bad in Law as it miserably failed to be accompanied with an impugned Ruling to which an appealed order emanates; ii. That, the Court has no power to entertain the GANISHEE ORDER NIS, save the Executing Court by way of lifting the same; iii. That, this order is not Appealable; and iv. That, the Court has been moved by a wrong document, instead of the Memorandum of Appeal, Petition has been filed 1 Briefly the appellant is aggrieved by the garnishee order nis issued in Execution No. 13675 of 2024 by the district court of Kyela to CRDB Bank PLC, prohibiting and restraining from remitting TZS 10,000,000/= or part thereof from Account No. 0150390594800 to Reliance Insurance Company or any person or persons who is entitled to such monies. Aggrieved the appellant has filed the petition of appeal on three grounds. Upon the respondent being served with the appeal document, filed objections referred above, the subject of this ruling. As it is ordinarily the practice of this court that, once a preliminary objection is raised, the court would shelve the hearing of the substantive matter to allow the disposal of the preliminary objection first. Hence, I allowed the preliminary objections to be argued, before the hearing of the appeal on merit. On the hearing date present were Mr. Ntegwa Mpinyagwa holding brief of Mr. Timothy Mwamakimbula and Mr. Amani Angolwisye, both learned counsels for the appellant and respondent respectively. It was agreed that objection be disposed by filing written submission. Written submission of the appellant is drawn and filed by Dickson Paulo Sanga of A & D Law Attorneys. Parties complied with the scheduling order. Submitting in the first objection, Mr. Aman stated that the petition of appeal was not accompanied with the ruling and order being appealed 2 contrary to Order XXXIX rule1(1) of the Civil Procedure Code [Cap 33 R: E 2019] (the CPC). He contended that was fatal irregularity that could not be cure by invoking overriding principles. The second and third objections were argued together, counsel submitted that the appeal emanates from execution proceedings in which garnishee order nis have been issued. He submitted execution orders are not appealable but is subject to revision. He referred to order XL rule 1 of the CPC on orders which are appealable and supported with the case of Kelvin Rodney Zambo vs UAP Insurance Tanzania Ltd (Formerly Konwn as Century Insurance Ltd), Civil Revision No 27 of 2019 [2019] TZHC 243 (5 December 2019; TanzLII) and General Tyre (E.A) LTD vs Amenyisa Macha and Others, Civil Appeal No. 21 of 2003 (Unreported). In fourth objection it was submitted the appeal has been preferred by were of petition of appeal instead of memorandum of appeal as mandatorily provided by Order XXXIX RULE 1(1) of the CPC. He argued the document is drawn by the advocate who is knowledgeable in law. From the above prayed the objections be sustained with costs. Replying to the first objection, the appellant conceded that the ruling or drawn order was not attached to petition of appeal but was quick to point that the respondent has not been prejudiced. He further sought 3 refuge to overriding principles in that the anomaly was curable. The court was referred to the case of Stephen Ngalambe vs Onesmo Ezekiel Chaula and Songea Municipal Council, Misc. Land Application No. 05 of 2022 (unreported) and R.S.A. Limited vs Hanspaul Automechs Limited & Another, Civil Appeal No. 179 of 2016 [2021] TZCA 96 (6 April 2021). On argument that the order was not appealable, the appellant replied that right of appeal is a constitutional right unless there is exception. That the law provide right of appeal on decision of the district court to the high court and this appeal was rightly preferred. He maintained right of appeal is a constitutional right which a party cannot be deprived. He supported the argument with the case of Issa Charles vs John Revocatus Kulwa, Land Appeal No. 18 of 2009 (Unreported). Replying to filing appeal by way of petition of appeal, the appellant submitted memorandum and petition of appeal is one and same document and use of either does not render the appeal incompetent. What the court has to look is contents of the document. He added the appellant has not been prejudiced and the court may invoke Order XXXIX rule 3(1) of the CPC by order of amendment. Finally prayed the objection be overruled. Having considered the rival submissions, I have opted to start with the second and third objections which were argued jointly. The essence 4 of the objection is that the order subject of this appeal is not appealable. The respondent’s submission is that execution orders are not listed under order XL rule 1 of the CPC as being appealable. The reply is that the appellant has constitutional right to appeal. I agree with the appellant that appeal is a constitutional right under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977, it provides; ‘13(6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: (a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned.’ From the above it is clear that a person is entitled to fair hearing and right of appeal or any other remedy, which implies, appeal is not the only way a person has to challenge the decision of the court or agency. Thus, in Harman Singh Bhogal t/a Harman Singh & Co., vs Javda Karsan (1953) 20 EACA 17 cited in Wellworth Hotells V & Another vs AH Jamal & Another, Civil Application No. 636 of 2021 [2024] TZCA 5 171 (11 March 2024; TanzLII) at the defunct Court of Appeal for Eastern Africa stated that; ‘It is well settled law that a right to appeal can only be founded on a statute and that any party who seeks to avail himself of the right must strictly comply with the conditions prescribed by the statute.’ This matter originates from the decision of the district court and particularly execution proceedings. Appeal from orders is governed by section 74(1) and order XL rule 1(1) of the CPC. Execution orders are not listed under the above provisions as among the orders which are appealable. Taking it otherwise, the appellant is aggrieved by the order of the district court which issued garnishee order nis. Garnishee order has two stages, stage one is garnishee order nis issued when the court is satisfied that there is a third party who is holding money due and accruing to the judgment debtor, the Court will call upon such a third party to show sufficient cause why the judgment debtor's money in the third party's hands should not be paid over to the judgment creditor. The second stage is garnishee order absolute issued by ordering garnishee order nis to be absolute, that is by crediting money to the court account with purpose of paying the judgment creditor. See St. John University of Tanzania v 6 Jeffery Industries Saini Ltd & 1 other, Misc. Commercial Application No. 64/2021 [2021] TZHC ComD 3239; (03 June 2021; TanzLII). In the present appeal, the court had issued garnishee order nis, I am confident this was interlocutory order which is not amenable to appeal under section 74(2) of the CPC. The execution is yet to be finalised and is steal pending in the district court. In Murtaza Ally Mangungu vs The Returning Officer of Kilwa & Two Others, Civil Application No. 80 of 2016; ‘In view of the above authorities, it is therefore apparent that in order to know whether the order is interlocutory or not, one has to apply the nature of the order test. That is, to ask oneself whether the decision or order complained of finally disposes of the rights of the parties. If the answer is in affirmative, then it must be treated as a final order. However, if it does not, it is then an interlocutory order.’ If the appellant had any issue with garnishee order nis was supposed to apply to the district court to uplift the same. See Samu Securicor International vs Martin Msengi Kingu and 2 Others, Civil Application No. 517/14 of 202) [2024] TZCA 922 (23 September 2024; TanzLII). 7 From the above discussion, I find and hold that the appellant has no right of appeal against the garnishee order nis for being interlocutory order. Owing to the above, I find no need to discuss the first and fourth objections as it will be for academic purpose and wastage of time. In the event, I sustain the second and third preliminary objection, the appeal is struck out with costs. V.M. NONGWA JUDGE 13/12/2024 Dated and Delivered at Mbeya this 13th December, 2024 in presence of Mr. Aman Angolwisye counsel for the Respondent. V.M. NONGWA JUDGE 8