tumaini miners group tmg v mihambo seleli masunga january constantine laurent 2023 tzhc 20434 28 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TABORA DISTRICT REGISTRY) AT TABORA DC. CIVIL APPEAL NO. 01 OF 2023 (Originated from Miscellaneous Civil Case No. 15 of2022 and Civil Case No. 04 of 2017, Nzega District Court) TUMAINI MINERS GROUP (TMG)...................................... APPELLANT VERSUS MIHAMBO SELELI MASUNGA............................................. 1st RESPONDENT JANUARY CONSTANTINE LAURENT................................ 2nd RESPONDENT Date of Last Order: 18.07.2023 Date of Ruling: 28.07.2023 RULING KADILU, J. The Appellants having been dissatisfied with the decision of the District Court of Nzega in Miscellaneous Civil Case No. 15 of 2022 originating from Civil Case No. 04 of 2017, preferred an appeal to this court. The appeal contains five grounds. In reply to the petition of this appeal, the respondent issued a notice of preliminary objection to the effect that, 1. The ruling of the District Court in the exercise ofits powers to order execution under Order XXI, R.10 of the Civil Procedure Code Cap 33 R.E 2019 is not appealable so, the appeal contravenes the mandatory provisions of section 79 (1) and Order XL, R 1 of the CPC. 2. The appeal contravenes the mandatory provision of Order XXXIX, R.l (1) of the CPC. The ground for the respondent's preliminary objection is that, the orders of the District Court of Nzega in Miscellaneous Civil Application No. i 15 of 2022 ordering for the execution of the decree is not appealable. The respondent contended that the appeal has contravened mandatory provisions of Section 74 (1) of the Civil Procedure Code, Cap. 33 R.E. 2019 read together with Order XL. R.l of Civil Procedure Code, Cap 33 R.E 2019. The preliminary objection was argued by way of written submissions. I am grateful to the learned Counsel for complying with the court's scheduling order. The learned Advocate, Kamaliza Kamonga Kayaga appeared for the respondent and submitted in support of the preliminary objection while the appellants were represented by Mr. Ally Yusuph Maganga, also the learned Advocate who opposed the objection. Before submitting in chief, Mr. Kamaliza prayed to withdraw his second ground of preliminary objection. He then submitted that the appellant is appealing against the decision of the trial Court which is not appealable. He argued that under the provisions of Section 74 (1) of the Civil Procedure Code, Cap. 33 R.E. 2019 read together with Order XL. R.l of the same Code, the orders for execution given by the District Court of Nzega under Order XXI, R.10 of the Civil Procedure Code are not listed under Section 74 (1), and order XL, R.l of the same Act hence, they are not appealable. In response thereto, Mr. Ally Yusuph Maganga argued that Section 3A of the Civil Procedure Code, [Cap. 33 R.E. 2019] provides for overriding objective and requires the courts to exercise their powers by observing substantive justice rather than procedural rules. According to him, article 107A, (2) (E) of the Constitution of the United Republic of Tanzania provides that in dispensing justice, the court should not be tied with 2 procedural technicalities. He added that Order XXI, Rule 10 should not bar the appellant from appealing against the ruling of the district court. The learned Counsel contended that the point of preliminary objection raised is misconceived and has been raised to deprive the appellant of its right of appeal under article 13 (6) (a) of the Constitution of the United Republic of Tanzania. Mr. Ally concluded that, section 74 (1) of the CPC does not have merit in this appeal as what the appellant is appealing is the ruling of the court and not an order as stipulated under section 74 (1) of the Civil Code. I have carefully considered the records and submissions by the Counsel for both parties in regard to the raised point of preliminary objection. I appreciate the arguments by Advocates for both sides. Each is so persuasive in its own right; I have to admit. Now, the point for determination by this court is whether the order of the District Court in Miscellaneous Civil Case No. 15 of 2022 originating from Civil Case No. 04 of 2017 was appealable or not. This issue goes to the root of the matter regarding competence of the appeal at hand. Appealable orders to this Court are specified by the law. They are listed in Section 74 and Order XL of the Civil Procedure Code, [Cap. 33, R.E. 2019]. An order arising from the execution proceedings as in the matter at hand where the appellant was attaching sale a small-scale gold mine is not among of the appealable orders provided for under section 74 and Order XL, Rule 1 of the Civil Procedure Code. None of the available remedies was exercised by the appellant. He opted to appeal against the ruling. 3 The position that an execution order is not subject to appeal was stated by this Court in Ignasio Ignas vs Rose Hanselem Mpangala, Civil Appeal No. 65 of 2017, HCT at Dar es Salaam when my brother Hon. Siyani, J. held that: "I agree with Counsel Roman that, issues ofJurisdiction of the court in orders which are not appealable under either section 74 or order XXI, Rule 1 of the CPC can be challenged by way of revision under section 78. Allowing Appeals against any order relating to execution which otherwise was not intended by the drafters of our laws to be appealable and or where the law provides other mechanisms for challenging them; will be opening a floodgate of endless litigations." I associate myself with the above position of the law. The present appeal is against the execution order/ruling for attachment and sale of a small-scale gold mine. The said order is not covered under section 74 and Order XL, Rule 1 of the CPC which outlines appealable orders. Therefore, the impugned ruling is not appealable. For the aforesaid reasons, the appeal is incompetent before this Court. It is hereby struck out with costs. It is so ordered. ILU, MJ. JUDGE 28/07/2023 4 Ruling delivered in chamber on the 28th Day of July, 2023 in the presence of Mr. Fadhili Kingu, Advocate holding brief for Mr. Kamaliza Kayaga, Advocate for the Respondents. The appellant is absent. J. MDOE AG. DEPUTY REGISTRAR 28/07/2023. 5