20100212 TZCA Dar es Salaam 2

i 1 I I IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ! (CORAM: MSOFFE, J.A, KI MARO, J.A And MASSATI, J.A:) CIVIL APPEAL NO. 39 OF 2009 USHIRIKA WA MIGAHAWA GEREZANI ~ .............................. APPELLANT VERSUS THE REGISTERED TRUSTEES OF I ' CHAMA CHA MAPINDUZI ............................................. ~. RESPONDENT I . (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) ' ( Wambura, J.) i dated the 12th day of December, 2008 in : Civil Revision No. 31 of 2008 RULING OF THE COURT MASSATI, l .A.: When the appeal was called on for hearing, Dr. Masumbuko Lamwai, learned counsel for the Respondent, informed the Court that he had filed a Notice of Preliminary lbjection under Rule 107 of the Court of Appeal Rules 2009; and seled it on the Appellant who is ~-- I represented by its secretary Mr. Lawtence Mwinyimvua who admitted ' . I' .- . that he was served with the Notice. Although, initially, Mr. ' Mwinyimvua had prayed for adjournment in order ~o file· a written ' ;' i I response/submission, he eventually agreed to pr~ceed with the I i hearing of the preliminary objection. I I 1 l . . , ' I' i I 2 Dr. Lamwai, succintly submitted that the order of the High i i I I I Court dated 1th December, 2008, aga'.inst which this appeal has been I preferred, is not only unappealable in terms of sectioh 5(2)(d) (as it is interlocutary) but also, even if not ihterlocutory it cln only be with leave in terms of section 5(1)(c) of thk Appellate Juris~iction Act (Cap !1 I I : 141 RE 2002). (the Act) Since therei was no leav~, ~he appeal was incompetent and should be struck olt with costs. Mr. Mwinyimvua readily conceded to the preliminary lbjections but p~ayed that they . J! I be let to go back and continuewith tile original suit a~d that costs be , I in the cause thereof. Dr. Lamwai resisted the last part of the I ,,,1 I' I Appellant's prayer on costs; and in~isted that the two matters are 11 different and his client had incurred costs in resisting the present I appeal. He reiterated his prayer for c~sts. i l i I : I There is no dispute that thei1 order sought to be appealed i I against is interlocutory, and thus u~appealable in terms of section 5(2) (d) of the Act. But even if it 1as not inter;oc~tory, since the i order did not emanate from the HigH1I Court's original ,!jurisdiction, it is !I I appeallable only with leave in termf of section 5(1)(c) of the Act. There is no such leave in the presen~ case. Undoubte~ly the appeal is / incompetent. I I I i I I l \ 3 On the issue of costs, the general rule is that a successful party in a civil proceeding is entitled to his costs unless there are exceptional circumstances that would deprive him of the same; or if the successful party agrees to waive them. In the present case the Respondent is not willing to waive his right to his costs; and we are not satisfied that there are exceptional circumstances to deprive him of his costs. For the foregoing reasons we strike out the appeal with costs. Order accordingly. DATED at DAR ES SALAAM this 1th day of February, 2010 J.H. MSOFFE JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL I Certify that this is a true copy of the ori (E.Y. Mkwizu) DEPUTY REGISTRAR