IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA DISTRICT REGISTRY

AT ARUSHA
MISC. CIVIL APPLICATION NO. 95 OF 2022

(C/F Civil Revision No. 1 of2022 High Court of the United Republic of Tanzania at
Arusha)

SIMON JOHN NGALESONI............................................................ APPLICANT

VERSUS
FATHER VELEMIR TOMIC (Suing as Legal Representative of
the Registered Trustee of Catholic Archdiocese of Arusha.... RESPONDENT

RULING

10th March & 3rd May, 2023

GWAE, J.

The applicant prays for leave to appeal to the Court of Appeal of

Tanzania against the decision of this court (Mwaseba, J) in Civil Revision

No. 1 of 2022 delivered on 12th July, 2022.

The application is made under section 5 (1) (c) of the Appellate

Jurisdiction Act, Cap 141 Revised Edition, 2019 (herein AJA) and Rule 45

of the Court of Appeal Rules, 2009 (Court of Appeal Rules). It is supported

by a sworn affidavit of Mr. Stephen D. Mushi, the applicant's learned

counsel.

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 Brief history leading to this application is as follows; the applicant

was successfully sued by the respondent in the Resident Magistrates'

Court of Arusha (trial court) vide Civil Case No. 42 of 2018 following the

accident caused by the applicant on 18th June, 2016. According to the

records, the accident left the respondent with permanent disabilities as

well as a damaged car, thus, he claimed for Tshs. 108,258,473/= as a

liquidated damage which the trial court granted.

Following non-satisfaction of the decretal amount, the respondent

successfully applied for execution of the decree against the applicant by

way of arrest and detention as a civil prisoner. Aggrieved by such decision,

the applicant filed an Application for revision to the court via Revision No.

1 of 2022 in this court (Mwaseba, J.) which was dismissed for want of

merit. Hence, the present application.

According to the affidavit, the applicant prays for leave to appeal to

the court of Appeal of Tanzania on the following grounds;

1. That, the High Court erred in law and fact in failing to consider

that, the executing court erred in law in issuing an order that,

the judgment debtor/applicant herein be committed as a civil

prisoner without taking into account compulsory conditions and

limitations specified under Order XXI Rule 39 (2) of the Civil

Procedure Code, Cap 33 R.E. 2019.

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 2. That, the High Court erred in law and fact in establishing bad

faith on the side of the judgment debtor/applicant herein while

there was no evidence to establish bad faith on his side that

would warrant the arrest and detention as a civil prisoner

specified under Order XXI Rule 39 (2) of the Civil Procedure

Code, Cap 33 R.E. 2019.

3. That, the High Court erred in law and fact in failing to consider
that, the executing court misdirected itself by ordering the
judgment debtor/applicant herein be committed as a civil

prisoner on the ground that, he did not appear in court to show

cause while in fact he was present during hearing of the
application for execution.

The respondent through Mr. Said Musendo Chiguma, the learned

counsel, filed a counter affidavit disputing the application resisting this

application. During hearing, Mr. Stephen Mushi, the learned advocate

represented the applicant whereas Ms. Lulu Monyo (adv) appeared

representing the respondent.

Supporting the application, Mr. Mushi prayed for the court to adopt

the contents of the affidavit and submitted that, the trial court failed to

observe Oder XXI Rule 39 (2) of the Civil Procedure Code, Cap 33, R.E.

2019 (CPC) instead, it issued a warrant committing the applicant to Civil

Prison. He argued that, it was the duty of the trial court to ascertain

whether there was compliance of Order XXI Rule 39 (2) of the CPC or not

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as held in the case of Safari Menzembe vs. Juma Fundisha, Civil

Application No. 503/06/2021 (unreported-, CAT). He averred that, there

is arguable case to be considered by the Court of Appeal as it was held in

the case of Lightness Damiani and others vs. Said Kasim, Civil

Application No. 450/17 of 2020 (unreported). He prayed that, this

application be granted.

Opposing the application, Ms. Monyo submitted that, this application

is baseless in law and the same should be dismissed. She asserted that,

according to section 5 (1) (b) (viii) of the AJA, arrest and detention order

was in lieu of execution of the decree. She added that, it has been seven

years for which the respondent has been striving to enjoy the fruits of his

decree but the judgment debtor now the applicant has been deliberately

applying delay tactics. She added that, the applicant has severally

attempted to set aside the respondent's decree but all his efforts were in

otiose.

It was Ms. Monyo's further submission that, since the Court of

Appeal cannot entertain the matter involving arrest and detention of a

decree debtor, the matter between the parties is not appealable before it.

Thus, the application is aimed at delaying of justice deliberately. She

prayed for the court to invoke the principle of overriding objective and

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deal with real matter and not mere technicalities. She prayed that, this

court be pleased to dismiss this application and supply the respondent

with an account number of either court or the prison authority to proceed

with the execution.

In his brief rejoinder, Mr. Mushi argued that, the respondent's

counsel submitted on matter of facts namely; allegedly caused delay and

unsuccessful cases filed by the applicant. According to him, these facts

ought to have been pleaded since submission is not part of the evidence

as held in the case of Registered Trustees of Archdiocese of DSM

vs. The Chairperson Bunju Village Government and 12 others. He

also disputed the fact that, the Court of Appeal of Tanzania has no

jurisdiction to entertain an appeal relating to arrest and detention

meanwhile section 5 (1) (c) requires an aggrieved party by the High Court

decision to apply for leave. He submitted that, the impugned decision was

on revision by this Court and not execution by the trial court and that, the

principle of overriding objective is not applicable in the circumstances of

the case since there is right of appeal.

Having gone through the parties' affidavits, submissions and the

courts' records, I would first like to address the issue raised by

respondent's counsel that, according to section 5 (1) (b) (viii) of the AJA,

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arrest and detention order in lieu of executing the decree is not appealable

by the Court of Appeal. Disputing the same, applicant's counsel submitted

that, the same is appealable under section 5 (1) (c) AJA which requires

only one condition that, an aggrieved party by the High Court decision

has to apply for leave.

It is trite law in our jurisdiction that, save for appeals from matters

set out under section 5 (a) and (b) of AJA, all civil appeals to the Court of

Appeal require a leave from this court as per section 5 (c) of AJA including

decisions made out of application for execution of decrees. However, in

this application it is highly questionable if, the order of this court in

revision challenging legality of the order of the RM's court is appealable.

The RM's order directing arrest and detention of the applicant as a civil

prisoner is not appealable simply because, even an order of this court

exercising its original jurisdiction relating to arrest and detention is not

appealable as per Section 5 (1) (b) (viii) of CPC which reads;

'71/7 order under any of the provisions of the Civil

procedure Code, imposing a fine or directing the arrest or

detention, in civil prison, of any person, except where

the arrest or detention is in execution of a decree"

Emphasis added).

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 According to the above quoted provision of the law, the order of this

court when exercising its original jurisdiction under provisions of CPC,

imposing a fine or directing the arrest and detention is appealable save

where the order is in respect of arrest or and detention in an application

for execution of a decree. Thus, an order of the court directing arrest and

detention of judgment debtor as a civil prisoner is not appealable. Equally,

an order of a subordinate court directing arrest and detention of judgment

debtor is not appealable. The arguments by the respondent's counsel is

meritorious

An application for leave to appeal to the Court of Appeal of Tanzania

is granted at the discretion of the court. Much as the law is silent on how

this discretion should be exercised, the conditions for granting leave have

been given in a number of Court of Appeal decisions including that, of

Jireys Nestory Mutalemwa vs. Ngorongoro Conservation Area

Authority, Civil Application No. 154 of 2016, (unreported). In this case,

the Court Appeal while affirming the position elucidated in its previous

decisions it held that:

'We acknowledge that the law does not expressly state

the factors to be considered for the grant of leave to

appeal to the Court. However, it is now accepted that the

conditions were, lucidly, expounded by the Court in the

case of British Broadcasting Corporation vs Eric

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Sikujua Ng'maryo, Civil Application No. 138 of 2004
(unreported). In that case, as cited in the case of

Rutagatina C. L. vs The Advocates Committee and

Another, Civil Application No. 98 of 2010 (unreported),

the Court stated that;

"Needless to say, leave to appeal is not automatic. It is

within the discretion of the court to grant or refuse

leave. The discretion must, however judiciously

exercised and on the materials before the court. As a

matter of general principle, leave to appeal will be

granted where the grounds of appeal raise issues of

general importance or a novel point of law or where the

grounds show a prima facie or arguable appeal (see:

Buckle vs. Holmes (1926) ALL ER. 90 at page 91).

However, where the grounds of appeal are frivolous,

vexatious or useless or hypothetical, no leave will be

granted."

On the foregoing authority, much as the grant of leave is

discretionary, yet it is not automatic. The court

adjudicating on such application is not left free to do so.

It can grant leave to appeal only where the grounds of

the intended appeal raise arguable issues for the

attention of the Court. In other words, the grounds raised

should merit a serious judicial consideration by the Court.

This is intended to spare the Court from dealing and

wasting its precious time on unmerited matters (See the

Court's decisions in the case of (I) Harban Haji Mosi

(ii) shauri Haji Mosi vs (i) Omar Hilal Seif (ii) Seif
Omar, Civil Reference No. 19 of1997 cited in the case of

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 British Broadcasting Corporation vs Eric Sikujua

Ng'maryo (supra).

Subscribing fully to the case law above, therefore, leave to appeal

to the Court of Appeal of Tanzania cannot automatically be granted until

and unless the court is satisfied that, the conditions expounded above

exist. Applying the conditions in the above precedent and this present

application for leave, the court has to be satisfied that, the anticipated

grounds of appeal as set out under Para. 5 of the applicant's affidavit

raised issues arguable by the Court of Appeal. I have further looked at

the decision of this court subject of an intended appeal to the Court of

Appeal, I have not found any arguable issue or any issue of general

importance or point of law worth for consideration by the Court of Appeal.

I also further considered the fact that, the applicant is not desirous to

challenge the decisions dismissing his application to set aside ex-parte

judgment. Therefore, the intended appeal is aimed at delaying tactics.

The refusal or neglect found by the court on the part of the judgment

debtor to pay the decretal amount is constituted by his unnecessary and

untimely applications filed in the subordinate court and absence of any

justifiable reasons as to why the decree in favour of the respondent is not

satisfied.

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 However, I am of the firm view that, the applicant was to start being

imprisoned as a civil prisoner immediately after the order of the RM's court

especially when the fees payable by the decree holder are known. Doing

otherwise the courts' decrees shall not be executable since there are

persons/ judgment debtors who after having courts' decrees against them

not enforceable.

That said and done, I hereby dismiss this application. The applicant

shall bear the costs of this application

It is so ordered.

DATED and DELIVERED at Arusha this 3rd day of May, 2023.

Order: The order of the Resident Magistrate's Court should be complied

with as soon as practicable

JUDGE
03/05/2023

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