PARCORN Limited vs Jackson Mwaipyaya (Civil Appeal No. 102 of 2023) [2026] TZCA 535 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A., FELESHI, 3.A. And NANGELA, J.A.l CIVIL APPEAL NO. 102 OF 2023 PARCON LIMITED......................................................................... APPELLANT VERSUS JACKSON MWAIPYAYA .......................................................... RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania at Dar es Salaam) (Kimaro, 3.1 dated the 15th day of January, 2003 in Civil Case No. 159 of 2002 JUDGMENT OF THE COURT 8Th& 11th May, 2026 FELESHI, J.A.: This is a long-standing matter which has remained in the court registry for approximately twenty-three years. The appeal challenges the decision of the High Court dated 15th January, 2003, whereby the appellant's suit was dismissed on the ground that the Court had become functus officio following an earlier decision rendered in objection proceedings arising from execution proceedings in Civil Case No. 27 of 1996. In order to appreciate the genesis of the dispute i

before us, it is necessary to state, albeit briefly, the background of the matter. In Civil Case No. 27 of 1996, Jackson Mwaipyana, the respondent herein, was the decree-holder whereas Pathenon Constructors, who is not a party to this appeal, was the judgment debtor. The dispute originated from Civil Case No. 27 of 1996 at the High Court Registry at Mbeya, where the respondent had instituted a suit against Pathenon Constructors seeking the return of his motor vehicle or, in the alternative, payment of its value. On 25th August, 1998, judgment was entered in favour of the respondent for TZS. 18,500,000.00 together with costs and interest. Following the failure by Pathenon Constructors to secure an order for stay of execution, a property known as Plot No. 7, Block "F", Ubungo, along Shekilango Road, now within Ubungo Municipality in Dar es Salaam (hereinafter referred to as "the suit property"), was attached in execution of the decree. Subsequently, Parcon Ltd, the appellant herein, instituted objection proceedings seeking to lift the attachment on the ground that Pathenon Constructors, the judgment debtor, had voluntarily wound up its affairs and had legally ceased to exist as from 15th 2

August 2000. However, Hon. Mackanja, J. (as he then was), dismissed the objection proceedings on 12th March 2002 after finding that there were irregularities in the winding-up process and that the objection lacked merit. Being dissatisfied with that decision, the appellant instituted the impugned Civil Case No. 159 of 2002 at the High Court Registry at Dar es Salaam, seeking, among others, a declaration that it was the lawful owner of the suit property and a permanent injunction restraining the respondent from proceeding with execution against the said property. In her ruling, Hon. Kimaro, 1 (as she then was), held that the High Court had become functus officio in relation to the ownership of the suit property and the validity of its attachment. The learned Judge observed that although the two matters had been filed in different registries, namely Mbeya and Dar es Salaam, they nonetheless constituted proceedings before the same court of record. The learned Judge further held that a fresh suit before the same court was not the proper forum through which to challenge the dismissal of objection proceedings. Since the issues relating to ownership of the suit property and the propriety of the attachment had already been extensively examined and determined by Mackanja,

1, the High Court held that it lacked jurisdiction to reopen the matter through a new suit. Consequently, the suit was dismissed with costs on 15th January 2003. Thereafter, a series of legal proceedings ensued until the year 2023 when the appellant was granted leave to challenge the said decision. Hence, the present appeal is founded on the following three grounds:

1. That the learned Judge o f the High Court erred in law and in fact in holding that the Court was functus officio in so fa r as the issue o f ow nership o f P lo t No. 7, Block "F" Shekilango Road\ D ar es Salaam , registered with CT No. 22620, and the attachm ent thereof were concerned.
2. That the learned Judge o f the High Court erred in law and in fact in holding that the issue o f ow nership and the propriety o f attachm ent o f the su it property, having been determ ined in objection proceedings, could not be challenged by way o f filin g a fresh su it in the High Court\ it being the sam e court o f record.
3. That the High Court erred in law and in fact in holding that the su it was m isconceived. At the hearing of the appeal, Mr. Denis Michael Msafiri, learned advocate, appeared for the appellant through video conference, while Mr. Simon Mwakolo, also learned advocate, represented the

respondent. Both counsel had filed written submissions pursuant to rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009. Arguing the appeal, learned counsel for the appellant addressed all the three grounds together and framed three issues for determination, namely: whether the High Court was correct in holding that it lacked jurisdiction to entertain Civil Case No. 159 of 2002 on the ground that the matter had already been determined in objection proceedings; whether a decision delivered in objection proceedings renders a court functus officio in relation to a subsequent suit arising therefrom; and whether the High Court was correct in raising and determining the issue suo m otu without according the parties the right to be heard. Counsel submitted that the High Court erred in holding that it was functus officio, whereas Rule 62 of Order XXI of the Civil Procedure Code, Chapter 33 (the CPC), permits a party aggrieved by a decision in objection proceedings to institute a suit for determination of ownership rights. He further argued that the decision rendered by the High Court at Mbeya Registry in the objection proceedings did not render the High Court at Dar es Salaam Registry functus officio. According to counsel, a party dissatisfied with a decision in objection

proceedings has neither a right of appeal nor revision againstsuch decision.In support of that contention, he referred the Court to the decision in Bank of Tanzania v. Devram P. Valambhia, Civil Reference No. 4 of 2002 (unreported) where the Court, while interpreting Rule 62 of Order XXI of the CPC, stated as follows: "Our reading o f the rule extracted above, m akes it abundantly d ear that if no su it is institu ted by the party against whom the order is m ade under this rule and subject to the resu lt o f the suit, the order is conclusive. In our view, in the course o f the su it the party against whom the order was made can am ong others challenge the validity or otherw ise o f garnishee order as w ell as establishing its rights... On the other hand, if no su it is preferred, like the Single Judge, we are o f the view that the order rem ains intact and conclusive. That in our view is the im port o f Rule 62 o f Order 21." Counsel added that the doctrine of functus officio means that a court, having discharged its duty, ceases to have authority over the matter. However, according to him, the High Court at Dar es Salaam Registry did not cease to have jurisdiction merely because the High 6

Court at Mbeya Registry had dismissed the appellant's objection proceedings. He thus urged the Court to allow the appeal, quash and set aside the impugned decision, and remit the matter to the High Court for hearing on merits. For his part, Mr. Mwakolo supported the appeal but urged the Court not to condemn the respondent to pay costs on the ground that the impugned decision had not been instigated by the respondent. Having carefully considered the grounds of appeal and submissions by learned counsel for both parties, we are of the settled view that the three grounds of appeal may conveniently be determined together through one issue, namely, whether the High Court had become functus officio following the decision rendered in the objection proceedings. At the outset, we entirely agree with the common position taken by learned counsel for both parties. We find it appropriate to begin by examining the meaning and scope of the doctrine of functus officio. The phrase " functus o fficid ' denotes that a person or body having discharged its duty ceases to have any further authority over the matter. Black's Law Dictionary, 8th Edition, by Bryan Garner, defines the term " functus o fficid ' as meaning "a task performed."

A court or tribunal becomes functus officio when it has finally determined the rights of the parties and communicated its decision to them. This principle was stated in Kamundu v. Republic (1973) E.A. 540 where it was held that: "Court becom es functus officio when it disposes o f a case by a verdict o f g u ilty or passing sentence o r m aking som e orders fin a lly disposing o f the case " The pertinent question before the High Court in Civil Case No. 159 of 2002 was therefore whether the decision delivered in the objection proceedings arising from Civil Case No. 27 of 1996 rendered the Court functus officio. As correctly submitted by learned counsel for the appellant, objection proceedings are governed by Order XXI Rules 59 to 64 of the CPC. Prior to the Revised Edition, 2023, those provisions appeared as Order XXI Rules 57 to 62. For purposes of this appeal, the relevant provision is Rule 64, which states: "Where a claim o r an objection is preferred, the party against whom an order is m ade m ay institute a su it to establish the rig h t which he claim s to the property in dispute, but, subject to the resu lt o f such suit\ if any the order sh a ll be conclusive / ' 8

As already observed, the appellant Instituted the suit following the dismissal of its objection proceedings. In our considered view, the appellant was perfectly entitled in law to do so. The position advanced by learned counsel for the appellant, namely that the appropriate remedy after dismissal of objection proceedings is to institute a fresh suit, correctly reflects the law. There is a long line of authorities supporting that proposition, including Khalid Hussein Muccadam v. Ngulo Mtiga (as legal personal representative of the Estate of Abubakar Omary Said Mtiga) and 2 others [2023] TZCA 17494 and NationalHousing Corporation v. Peter Kassidi & Others [2022] TZCA 475. In the latter case this Court had this to say: "Going by the above-cited two authorities, we take it to be firm ly established law that, pursuant to Order X X I Rule 57(1) o f the CPC, where an objection is preferred and an order determ ining that objection is subsequently made, in term s o f Rule 62 o f the sam e Order, the only rem edy available to the party against whom that order is made is to institute a regular su it to prove h is claim . Put in other words, after the decision on an objection proceeding has been made by a com petent 9

court, there is no rem edy fo r appeal or revision. The rationale behind the above-stated stance o f the law is not farfetched. We hope that it w ill be im m ediately appreciated even by the doubting Thomases that\ not em anating from a su it ; an order determ ining objection proceedings is not appealable..." In view of the above authorities, it is evident that objection proceedings do not emanate from suits. They constitute independent proceedings initiated by a person who was not a party to the original suit giving rise to the execution process. Institution of objection proceedings does not signify dissatisfaction with the judgment giving rise to execution, rather, it signifies that the objector claims an interest or right in the property attached, or contends that the property does not belong to the judgment debtor. That being the legal position, where objection proceedings fail, the law expressly permits the aggrieved party to institute a substantive suit to establish the claimed right over the disputed property. That is precisely what the appellant did in the present matter. In the circumstances, the High Court ought to have heard the suit on merits and determine the respective rights of the parties.

In view of the above discussion, we allow the appeal, quash and set aside the ruling of the High Court dated 15th January, 2003 together with all consequential orders. The matter is remitted to the High Court for hearing on merit. Considering its oldest nature, it should be heard with urgency. Based on same consideration and the counsel's consensus, we issue no order as to costs. DATED at MBEYA on this 11th this May, 2026. R. K. MKUYE JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgment delivered virtually this 11th day of May, 2026 in the presence of Mr. Denis Michael Msafiri, learned counsel for the Appellant, Mr. Simon Mwakolo, learned counsel for the respondent and Ms. Anna Utou, Court clerk, is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL li