Amani Fresh Sport Club v Mamboya and Another (88 of 2002) [2003] TZCA 10; (11 November 2003)

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR

(CORAM: LUBUVA, J.A., MUNUO, J.A., AND NSEKELA, J.A.)

CIVIL APPEAL NO. 88 OF 2002 BETWEEN

KATIBU MKUU,

AMANI FRESH SPORTS CLUB APPELLANT

AND

1. DODO UBWA MAMBOYA 1st RESPONDENT

2. KHAMIS MACHANO KEIS 2^nd RESPONDENT

(Appeal from the ruling of the High Court for Zanzibar at Vuga)

(Dourado, J.)

dated the 26^th day of March, 2001 in

Civil Case No. 40 of 1999

JUDGMENT

LUBUVA, J.A.:

This appeal arises from objection proceedings. It all started with Civil Case No. 40 of 1999 in which the first respondent, Dodo Ubwa Mamboya, filed a suit against the second respondent, Khamis Machano Keis, her former husband. Briefly stated, the facts giving rise to the case are as follows: Apparently, after sometime of living together as man and wife, the first and second respondents divorced. In Civil Case No. 40 of 1999, the first respondent claimed from the second respondent a total of shillings 195,000/= comprising: shillings 100,000/= for 20 packets of cement; 45,000/ = withdrawn by the second respondent from a joint Bank Account with the People's Bank of Zanzibar, and 50,000/ = paid to the second respondent. On 31.3.2000 the learned trial judge, Dourado, J. decided in favour of the first respondent. The court also ordered the sale of some properties including the shop at Amani Fresh, subject of this appeal.

Following the decision of the High Court from which no appeal had been preferred, the first respondent, filed an application for execution of the decree. The application was granted on 19.6.2000 when an order for the execution of the decree was made. On 26.3.2001, objector proceedings instituted by one Salum Mohamed, the Secretary of Amani Sports Club was heard. He had raised objection against the sale of the house at Amani Fresh which, it was claimed, belonged to the club. Dismissing the application, the learned Judge held that because the objector had not produced evidence to prove its claim, the house belonged to the first respondent.

From this ruling, the appellant has appealed to this Court. Mr. Mbwezeleni and Mr. Mnkonje, learned counsel, advocated for the appellant. The respondents were unrepresented. For the appellant, three grounds of appeal were filed.

At the commencement of hearing the appeal, at the instance of the Court, Mr. Mbwezeleni was asked whether in the instant case there was a right of appeal from the ruling of the High Court of 26.3.2001 concerning objector proceedings. Mr. Mbwezeleni, learned counsel, was quick to answer affirmatively. He was firmly of the view that there is a right of appeal because under the provisions of Order XLVII Rule 1 (j) of the Civil Procedure Decree, Cap. 8 of the Laws of Zanzibar, this is one of the orders listed therein which are appealable. He said the order in the instant case was made in terms of Order XXIV Rule 53 disallowing the appellant's claim over the attached house at Amani Fresh. As such, he submitted that it falls within the provisions of rule (1) (j) of Order XLVII, which is open to appeal. He further submitted that orders falling under the provisions of Rule 1 (j) of Order XLVII of the Civil Procedure Decree, require leave of the Court or the High Court in order to appeal as required under Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979. In this case, he said leave to appeal had been granted by the High Court of Zanzibar. So, he urged the hearing of the appeal to proceed.

We have closely examined the relevant provisions of the Civil Procedure Decree, Cap. 8 of the Laws of Zanzibar. These are Order XLVII Rule 1 (j) and Order XXIV Rule 53 as well as Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979. It is to be observed that we had raised the issue pertaining to the right of appeal in this matter in order to satisfy ourselves if in Zanzibar, there is the equivalent of the provisions of Order XXI Rule 62 in the Civil Procedure Code, 1966 of Tanzania Mainland. It is now settled that under the provisions of rule

62 of Order XXI, of the Civil Procedure Code, Tanzania Mainland which provides otherwise in terms of Section 5 (1) of the Appellate Jurisdiction Act, 1979, there is no right of appeal in objection proceedings. The Court had occasion to examine closely the impact and application of the provisions of order XXI rule 62 of the Civil Procedure Code 1966 Bank of Tanzania v Devram P. Valambhia, Civil Reference No. 4 of 2002 (unreported). In more or less similar situation in which objector proceedings were taken regarding a garnishee order, the Court took the view that in terms of the provisions of order XXI rule 62 in Tanzania, unlike the situation in India where a similar provision had been amended, there is no right of appeal. Instead, the Court further held, a suit should be instituted. Otherwise, according to the wording of this rule, subject to the result of such suit, if any, the order shall be conclusive.

In the instant case, unlike the situation obtaining in Tanzania Mainland, curiously in Zanzibar, apparently there is no provision in the Civil Procedure Decree equivalent to rule 62 of the Mainland. In that situation, and as urged by Mr. Mbwezeleni, learned counsel, the order from which an appeal is preferred falls under the purview of Order XLVII Rule 1 (j) and Order XXIV Rule 53 of the Civil Procedure Decree. We are therefore in agreement with Mbwezeleni that there is a right of appeal subject to obtaining leave in terms of Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979. In this case, leave to appeal was obtained. In that case if we are correct our view of the law in Zanzibar in which we were supported by Mr. Mbwezeleni, learned counsel, the principle enunciated in Bank of Tanzania v Devram Valambhia (supra) does not apply in this case.

Dealing with the merits of the application Mr. Mbwezeleni vehemently criticized the learned judge in dealing with the application so casually and superficially. It was his submission that the matter had been dealt with in such an unsatisfactory manner that he did not think it appropriate to invite the Court to step into the shoes of the High Court to evaluate and analyse the proceedings before the High Court.

With regard to the merit of the appeal, Mr. Mbwezeleni advanced two points. One, that the learned judge did not investigate the appellant's objection as required by law. He contended that in order for the judge to satisfy himself that the property, subject of attachment, belonged to the objector, the appellant, and not the first respondent, the judgment debtor, it was necessary to carry out investigation. This, the judge did not do in this case, Mr. Mbwezeleni emphasized. He further alleged that the appellant, as objector had evidence, documentary and otherwise, but was not given the opportunity to produce evidence.

Second he faulted the learned judge for disallowing the objector's claim because Fresh Sports Club were not a party to the suit. Mr. Mbwezeleni castigated the learned judge stating that it was a misdirection on the part of the judge because in objection proceedings, it is, as a matter of law open for third parties who were not party to the suit, to raise objection against the sale of the property in question as the appellant did.

The respondents, who, as already indicated, being lay person and unrepresented, did not say much on the merit of the appeal. The first respondent wondered why the objector, the appellant, did not appear in court to give evidence when the case was decided until now, almost two years later. For his part, the second respondent observed that the learned judge did not ask for evidence in support of the claim over the house.

We shall briefly make observation on what the first respondent stated. We can see no difficulty in the fact that the appellant, the objector, did not either appear in court or give evidence. The appellant was not a party in the main suit between the respondents. It was only during the time when the house was due for sale that the appellant became aware of the matter and initiated the objector proceedings. As regards the second respondent's complaint that the judge did not ask for evidence, we shall revert to it presently.