Court name
Court of Appeal of Tanzania

Jose X Ferreira vs Mbaraka Salum () [1994] TZCA 30 (10 November 1994);

Law report citations
1994 TLR 214 (TZCA)
Media neutral citation
[1994] TZCA 30

Kisanga, JA, delivered the following ruling of the Court:
At the hearing of this appeal Dr Lamwai, learned counsel for the applicant, raised a preliminary objection to the appeal, he having given due notice of that objection in terms of Rule 100 of the Court of Appeal Rules. The objection is based on a B number of grounds.
Firstly, the appeal is incompetent because no leave to appeal to this Court was granted or sought. Elaborating on that ground Dr Lamwai submitted that the C decision of the High Court being appealed against ie the Order dated 25 June 1993 is not appealable as of right. That order is appealable only with leave in terms of s 5(1)(c) of the Appellate Jurisdiction Act, but no such leave has been granted or sought.
In reply thereto Mr Mbuya, learned counsel for the respondent, contended that the D said order fell within the ambit of s 5(1)(b)(viii) of the Appellate Jurisdiction Act and therefore it was appealable as of right. The relevant provisions of s 5 of the Appellate Jurisdiction Act say that:
`5(1) In civil proceedings, except where any other written law for the time being in force E provides otherwise, an appeal shall lie to the Court of Appeal -
(b) against the following orders of the High Court made under its original jurisdiction, that is to say - F
(viii)‚ an order under any of the provisions of the Civil Procedure Code, 1966 imposing a fine or directing the arrest or detention, in the civil prison, of any person except where the arrest or detention is in execution of a decree;'
The record shows that on 23 June 1993 counsel for the applicant applied under G Order 36 rules 1(b)(3)(1) and 5 of the Civil Procedure Code for the following orders:
`(1) That the respondent should show cause why he should not furnish security in the sum of Shs 10m/= for the due performance of the decree that may be passed against him. H
(2) If he fails to show cause he should be required to deposit Shs 10m/= into court.
(3) Upon his failure to deposit, he be committed to civil prison.'
After hearing arguments for both sides the learned judge on 25 June 1993 made the following order: I

After examining the papers in relation to this case, especially the affidavits in the application, and after hearing counsel for both sides, I am satisfied that this is a fit case for ordering security for appearance under Order 32 r 1(b) and s 5 of the Civil Procedure Code. This is the case especially because the respondent/2nd defendant was in the process, when he was B arrested under a warrant of arrest issued by this court, of leaving the country for India. Also, he (the respondent) is a non-citizen. It cannot be said at all under those circumstances, that the applicant's apprehensions that he (respondent) may be leaving permanently are altogether unfounded. Accordingly, I grant the application and make the following orders: C
I The respondent is to furnish security for his appearance by executing a bond of Shs 5,000,000/= with two sureties with each in the likesome. The sureties should be holders of Tanzania passports and should be having immovable property in this country and they are to deposit the title deeds of properties in court. D
II If he fails to execute the bond he should deposit Shs 7,000,000/= in court as a security.
III Failing the above ie (I) & (II), he is not to leave the jurisdiction of this court and for this purpose the passport which the Registrar ordered to be surrendered to the Police is to remain in Police hands. E
IVApplicant awarded the costs of this application.'
We can find nothing either in the application dated 23 June 1993 or in the corresponding order of 25 June 1993 to show or suggest that the court imposed a fine on or directed the arrest or detention, in the civil prison, of the respondent. The F case, therefore did not come within the ambit of s 5(1)(b)(viii) as asserted by Mr Mbuya. As Dr Lamwai rightly submitted this was a matter which fell under s 5(1)(c) of that Act in which leave to appeal was required. As no leave has been obtained or sought the appeal is clearly incompetent and must be struck out. G
That then was sufficient to dispose of this matter, but Dr Lamwai further charged that the appeal was incompetent for lack of the extracted order in appeal and that it was also time barred. Upon our examination of the record, and having heard counsel arguments for both sides, we are satisfied that objection on those H grounds was also well taken.
In the event, Dr Lamwai's preliminary objection succeeds, and accordingly the appeal is struck out with costs. I