20091231 TZCA Dar es Salaam

'./ " IN THE COURT OF A,PEAL OF TANZA IA

AT DAR ES SALAAM (CORAM: MSOFFE, l.A., KIMARO,J.A., ~nd MASSATI, l.A) \ CIVIL APPLICATIO,IN NO. 53 OF 200~ . I . THE SILENT INN HOTELS LTD .......................................................... APPLICANT

VERSUS I ~~1J=::1~~EE~~~~~-~-~-~-~~~-~-~- -~~~--.. J. . . . . . . . . . . . . . . . . .RES PON DENTS (An application for striking oJt a notice of applal from the ruling of the High Court of Tanzania at Dare~ Salaam) I (Mlay, J.) dated 19th oeJember, 2008 • I m Civil Case No.1464 of 1999 ...... •ur.I......

RULING OF THE COURT 23 November & 31 December, 2009 KIMARO, J.A.: Before us is an application by way of a notice o motion under Rules 82, 45(1) and (2) of the Court of ApJal Rules, 1979 seeking for an order for striking out a notice of appeal filJd against a ruli g of the 'High Court (Mlay, J.) delivered on 19th DecembeJ, 2009 in Civil Case No.464 of 1999. th The appellant lodged the notice of awpeal on 29 D1cember, 2009. The sole ground for filing the application) that the inten ed appeal is against i (4 I~ ' ~ 2 an interlocutory decision of the High Court of Tanz. nia which is not I appealable. According to the supportinb affidavit ofTh1~ddeus Makoi, the I Managing Director of the Applicant, t~e parties had l Iease agreement between them. A misunderstanding oclurred, leading . i : Jo the filing of Civil 'I,I Case No. 53 of 2009 at the High Court of Tanzania at Dar es Salaam l . Registry. Among the terms of theltenancy agree ent was for the 1 respondent to carry out renovations , , n the suit premises. Following a • 1 1 I chamber application filed by the apblicant complaining about alleged

I I J demolitions :on the suit premises, the t~ial court, on 14t · March 2005 made the following order: "By consent it is hereby agreed and orde~ed/ that the status quo be maintai+d, it (sic) struature to remain as it is pending ·Che I hearing of )he suit including the counter c!ai. ,i •••• " th On 30 June 2008, the applicant filed.an application ulnder section 68 (c) I . and (e); Order XXXVII rule 2(2) and s4ction 95 of the fivil Procedure Code [CAP 33 R.E. 2002]; section 124 of thf Penal Code', seeking for orders of I I attachment of the properties, inclusiv~ of the busineJses at the disputed . premises i . of FRED iWiiLLIAM an di=,or t he arrest an dd etent1on I RWEGASIRA, :1 3 the Principal Officer of the Defendant /~espondent for d~liberate breach of lawful orders of the court. The applicai~t also sought f6r orders requiring : I FRED WILLIAM RWEGASIRA to show cause why He should not be . committed to Civil Prison for breach of the lawful order /of the Court. After hearing the application the trial court made an order commanding FRED ·1 I WILLIAM RWEGASIRA to pay a fine ?f T shs 1,000,o/00/- (one million) within 14 days of the order and in default to go to jail f~r I I a period of three I (3) months. I I ,I I The respondent was aggrieved by the decision o, the trial court and issued a notice of appeal, to appeal against the said order. It is the notice . I of appeal which forms the subject of the application. Before us Mr. Herbert

I I I I Nyange learned advocate appeared tq represent the 9ppellant, while Mr. Richard Rweyongeza learned advocate ~ppeared for thJ respondent. I .I I Citing Act No 25 of 2002, Mr. ~yange, learned !advocate argued in support of the application that the ~ourt should stri~e out the notice of appeal because the decision appealed against is intfrlocutory in nature and is not appealable. When the Court asked him ~o comment on the

I

I

I

I I I .I . I 4 I l I I 1 provisions of section 5 (1) (b) (viii) of t~e Appellate Juritdiction Act, [CAP I 141 R. E.2002], he conceded that an ,appeal lies against an order for I I 1 1 . I / payment of a fine or committal to CivH Prison. Howevfr, he was of the / I I opinion that the~e .is a problem with. the rterpretation of the Act in relation I I I to orders made in interlocutory applications. I I

I

I I

I I I Mr. Rweyongeza, learned advocate in his reply sai~ the application is / : I I misconceived. In his opinion, an order of detention or /payment of fine is I I : I conclusive even if it emanates from proceedings not finally concluded. He / I said the decree is defined clearly and it determines the ~atter conclusively.;

I I I The order is respect of the application; argued the lea~ned advocate, was J conclusive and it will not form part of khe decree at t~e conclusion of thei j I I trial. Furthermore, Mr. Rweyongeza Jid, the law permits an appeal where/ an order for commitment to Civil Prison!/ is made regar~less of whether th~

I I I order was made in proceedings not fir~ally concluded. I He prayed that th1 application be dismissed with costs. I I After a careful consideration of Jhe submissions lade by the learne~ advocates, we must, at the outset iay that, the pJsition of the law ik l I I

I I I l I ) I I I I 1 ,.. 5 straight forward and the matter should! not detain us. :The Written Laws (Miscellaneous Amendments), Act, No. ':2s of 2002 amended sub section 2 I I of section 5, paragraph (d) of the AppeHate Jurisdiction/Act, [CAP 141 OF 2002]. It now reads as follows: I I I "(d) no appeal or applicatiqn for revision s~all shall lie against or be made in respect /of any preliminary or interlocutory decision ot order I of the High Court unless such decision or , I order has the , effect of 1finally I I determining the ':criminal chafige or ! I suit." 9 (Emphasis Supplied) From the wording of the amerded section of Cap 141, :1 orders made in interlocutory proceedings of the High /Court which are not : / appealable are those which do not cpnclusively deterrmine the matter. In the case at hand, we are satisfied that the order fo!r payment of fine or I I . imprisonment in default of payment of fine, although ;made in interlocutory proceedings in the High Court, fi1ally determined: the issue that was before the trial court in those pro,ceedings. We /say so because the I proceedings will not form part of the decree at the conclusion I I of the trial.

I

I

I I I 6 i Moreover, under section 5(1) (b)1 (viii) of the Apbellate Jurisdiction Act, CAP 141, an order imposing a fine :or directing the /arrest or detention in civil prison not in execution of a dedree is appealablk as of right. The I I said provision says: I "Section 5(1) (d) (viii)In cit! proceeding~ Jxcept where any other written la~ for the time b~ing in force provides otherwise, 1an appeal shal~ lie to the Court of Appeal again~ the following !orders of the High Court matfe under its 0rigina/ 1 ' Jurisdiction, that is to say -:, I an order under any provisions of the Civil I Procedure Code, imposing a fine or directing the 1 I arrest or detention, in civil prison, of any person, I I except where the arrest or detentioni is in execution of a decree. " ! I From the exposition of the law as iridicated above, !we agree with the

I I I I learned advocate for the respondent that the applicatinn is misconceived. : I The order that was made in the pending suit in the High Court, directing I ! I I the respondent to pay a fine of T.shs. 11.000,000/= or to serve 14 days in 1 -I jail in case of a default, is appealabl~ as of right and I it is not covered by

I I I i 7 I Act No.25 of 2002. The application is th . refore dismissed with costs. It is accordingly so ordered. i

I I I DATED at DAR ES SALAAM this 16ttn day of Decemb~r, 2009. I I . J. H. MSOFFE JUSTICE OF ~PPEAL .,.~:r :; p ····•····- - N. P. KIMARO JUSTICE OF !APPEAL • •1, { \ \ . S. A. MASSATI ' / JUSTICE oFl APPEAL I certify that this is a true copy of the original. ; ~ f N. cHJssr

DEPUTY REGISTRAR