Balton Tanzania Limited vs TIB Development Bank Limited & Others (Civil Revision No. 383/02 of 2023) [2026] TZCA 345 (26 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA. J.A., MASHAKA. 3.A. And ISSA, J.A.) CIVIL REVISION NO. 383/02 OF 2023 BALTON TANZANIA LIMITED ................................................. APPLICANT VERSUS TIB DEVELOPMENT BANK LIMITED ................... .............. 1 st RESPONDENT ATTORNEY GENERAL......................................................2 nd RESPONDENT MOUNT MERU FLOWERS LIMITED .................................. 3 rd RESPONDENT ALLAN REUBEN MOLLEL T/A FIRST WORLD INVESTMENT COURT BROKER .................. . .................... 4™ RESPONDENT (Application for Revision of the decision of the High Court of Tanzania (Commercial Division) at Arusha) (MkehaJO dated the 24th February, 2023 in Misc. Commercial Application No. 21 of 2022 RULING 15th October, 2025 & 26th March, 2026 ISSA. 3.A.: This is an application made by way of notice of motion under section 4 (3) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) read together with ruie 65 (1) (2) and (4) of the Tanzania Court of Appeal Rules, 2009 seeking to move this Court to exercise its revisional jurisdiction by examining the record of the proceedings and the decision in Misc. Commercial Application No. 21 of 2022. The background facts leading to filing of Misc. Commercial Application No. 21 of 2022 is that, the applicant, Balton Tanzania Limited successfully sued the 3rd respondent, Mount Meru Flowers Limited for a debt arising from the supply of agro-products at the High Court (Commercial Division) vide Commercial Case No. 03 of 2021. The High Court entered a default judgment in favour of the applicant on 26th May, 2022 for USD. 157,820.45 together with interest and costs. To realize the decree, the applicant commenced execution proceedings in which the High Court issued a prohibitory order on 28th September, 2022 attaching various properties of the 3rd respondent including greenhouses, generators, and motor vehicles. When the 1st and 2n d respondents became aware of the order of attachment, they filed an objection proceedings vide Misc. Commercial Application No. 21 of 2022. The 1st respondent claimed a superior interest in the attached properties by virtue of a mortgage and debenture it held over the 3rd respondent's assets, Further, it argued that a receiver manager had been appointed on 5th August, 2021 and had taken over possession of the properties which were, therefore, not liable for attachment by the applicant. The High Court delivered its ruling on 24th February, 2023 in favour of the 1s t and 2n d respondents. Although, it found the charges (mortgage and debenture) were not registered, it was satisfied that the properties under attachment were in the possession of 1st respondent's appointed receiver manager at the time of attachment. Hence, relying on Order XXI rule 58 of the Civil Procedure Code (the CPC) it held that, mere possession of the properties was a sufficient ground to lift the attachment. Consequently, the application was allowed and the attachment order was lifted. Aggrieved, the applicant filed the instant application for revision predicated on three grounds: 1. That having found the charges void for non registration, the High Court had no legal basis to make further orders in favor o f 1st respondent 2. The High Court erred by entertaining the matter and making a finding on possession in the absence o f the Receiver Manager, who was notjoined as a party. 3. The ruling is self-contradictory and renders the orders meaningless. Against the application, the respondents raised a preliminary objection on a point of law that: "The application is incompetent for being filed contrary to the requirement o f Order XXI Rule 62 o f the Civil Procedure Code, Cap. 33 R.E. 2019" As a normal practice, we started to hear the preliminary objection raised. The applicant was represented by Mr. Sheck Mfinanga, learned advocate whereas the 1s t and 2n d respondents had the services of Ms. Grina Aden, learned Principal State Attorney assisted by Ms. Lucy Kimaryo and Ms. Christabela Madembwa, learned State Attorneys. The 3r d respondent did not enter appearance though was duly served vide substituted service in two newspapers (Mwananchi of 30th September, 2025 and Daily News of 1s t October, 2025). The 4th respondent, on the other hand, had the services of Mr. Gwakisa Sambo, learned advocate. The hearing of the application proceeded in the absence of the 3rd respondent in terms of rule 63 (2) of the Rules. Addressing the preliminary objection, Ms. Aden submitted that in terms of Order XXI rule 62 of the CPC provides for the conclusiveness of the matter if it arises from objection proceedings. The application at hand arose out of the objection proceedings, hence, according to the learned Senior State Attorney it was concluded and thus by filing the instant application the applicant has contravened the law. She added that, if the applicant is still aggrieved the cause of action is to file a fresh suit and cannot come to this Court by way of revision. To bolster her argument, she cited the case of Khalid Hussein Muccadam v. Ngulo Mtiga (as legal representative of the Estate of Abubakar Omar Said Mtiga) and another [2022] TZCA 353, where the Court held that, the decision under Order XXI rule 62 of the CPC is final and not appealable. Further, she cited the case of World Oil (Tanzania) Limited v. Mrs. Zubeda Ahmed Lakha and Others [2023] TZCA 17724 (both reported in TANZLII) where the Court held that the word "may" in rule 62 of Order XXI means an aggrieved party may institute a suit or let it go. He may not institute an appeal or revision. Finally, she prayed for the application to be struck out with costs. Responding to the preliminary objection, Mr. Mfinanga submitted that he does not agree with the arguments advanced by the learned counsel for the 1st and 2n d respondents. He admitted that Order XXI rule 62 of the CPC bars appeal, but he argued that there is no authority which bars revision. He cited the case of Sosthenes Bruno and Another v. Flora Shauri [2021] TZCA 350, TANZLII to support his argument that under rule 62 of Order XXI of the CPC the words used are "he may institute a suit", which means revision is not barred. Mr. Mfinanga added that, the applicant is not disputing the ownership of properties of the 3rd respondent. All she wants is to execute her decree, therefore, rule 62 is not applicable. He added that the one who possesses the properties is the receiver manager who was not a party to the case. Further, he submitted that the case before the High Court was about a right to property and it was clear that the property belonged to the 3r d respondent, but as the mortgage of the said properties was not registered there was nothing which could be attached. The 1st and 2n d respondents had unsecured claims. Furthermore, he submitted that there are illegality and confusion in the decision of the High Court which warrants this Court to exercise its revisional powers under rule 4 (3) of the Rules. He bolstered his argument by citing the case of Millicom (Tanzania) N.V. v. James Alan Russel Bell and 5 Others [2018] TZCA 355 and MS. Sykes Insurance Consultants Co. Ltd v. MS. Sam Construction Co. Ltd [2010] TZCA 2 (both reported in TANZLII). He concluded that in the circumstances of the presence of illegality, the court can exercise its revisional jurisdiction. He prayed for the preliminary objection to be dismissed with costs. Mr. Sambo, on his part, supported what was stated by Ms. Aden. He submitted that, such was the position of the law, but in exceptional circumstances the Court can invoke its revisional powers. He concluded that the complaint beforehand is that, the decision contained illegalities which can be taken as exception, otherwise the Court has no jurisdiction to entertain this application. In rejoinder, Ms. Aden reiterated what she stated earlier that, there is no room for revision and the party affected by the objection proceedings has to file a fresh suit. In addition, she distinguished the case of MS. Sykes (supra) submitting that, there was no ruling in the objection proceedings while in the instant case there is ruling which is conclusive. Further, she submitted that under rule 58 of Order XXI of the CPC, the 1s t respondent had possession of the properties and the law allows to show interest or possession. While the trial judge saw there was no interest, he was satisfied that, there was possession of the properties by the 1s t respondent. She concluded that, there was no issue of illegality nor the circumstances of the case fall under exception to the rule. The ruling of the court was very clear, and she prayed for dismissal of the application with costs. The determination of this preliminary objection calls for the interpretation of Order XXI rule 62 (now rule 64 of the CPC R.E. 2023) which provides: "Where a claim or an objection is preferred\ the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result o f such suit, if any, the order shall be conclusive." The above provision is very clear on the procedure to be followed by a party who is aggrieved by an order of dismissal of objection proceedings. The order of the court is conclusive and the law does not provide for an option of appeal or revision against such order. It directs the aggrieved party to institute a suit to establish the right which he/she claims to the property in dispute. The decisions of the Court on this subject are abundant. They include the cases of: Kezia Violet Mato v. The National Bank of Commerce and 3 Others [2006] TZCA 293, TANZLII, National Housing Corporation v. Peter Kassidi and 4 Ohers [2022] TZCA 475, TANZLII, Sosthenes Bruno and Another v. Flora Shauri (supra) World Oil (Tanzania) Limited v. Mrs. Zubeda Ahmed Lakha and 8 Others (supra) and Khalid Hussein Muccadam v. Ngulo Mtiga (as legal representative of the Estate of Abubakar Omar Said Mtiga) and another (supra). In the latter case the Court clearly stated the position of law, thus: "Since the application for objection proceedings was dismissed, it means that its determination was final and conclusive in the sense that the applicant was prohibited to bring the application at hand. Filing o f this application was wrong as it is prohibited by law. Under Rule 62 o f Order XXI o f Civil Procedure Code, the applicant ought to have filed a civil suit to establish his interest in the suit property. Put it in other words, the present application for revision o f the order emanating from the objection proceedings is incompetent before the Court since it is barred by Order XXI Rule 62 o f the Civil Procedure Code." In spite of the law being very clear, Mr. Mfinanga came with a different interpretation of the word "may" appearing on rule 62 and suggested that revision was not barred by rule 62 of Order XXI of the CPC. Fortunately, this matter was laid to rest in World Oil (Tanzania) Limited (supra) where the Court held: "... under the rules o f interpretation, the word "may" means an option/or not compulsory. However, it is plain from the wording o f the provision under scrutiny that the word "may" is preceded by the following phrase: "... the party against whom an order is made may institute a suit...", The option provided under this provision is given to an aggrieved party either to institute a suit or to let it go". Mr. Mfinanga, further, implored the Court to find an exception to the rule as he imputed illegality in the proceedings before the trial court. On our part, we did not find any illegality which would justify us to depart from the current established position of law. In our earlier decision in the case of Kezia Violet Mato (supra), the Court stressed that position and it stated: ”... it is our considered view that, where a party has no right of appeal but there is an alternative remedy provided by law, he cannot properly move the Court to use its revisional jurisdiction. He must first exhaust all remedies provided by law before invoking the revisional jurisdiction of the Court. The applicant who has not yet exhausted all remedies provided by law cannot invoke the revisional jurisdiction of the Court." In fine, we find the present revision application which emanates from objection proceeding is incompetent before the Court as it is barred under Order XXI rule 64 of the CPC. Therefore, we sustain the preliminary objection and consequently strike out the application with costs. DATED at DODOMA this 25th day of March, 2026. A. G. MWARLJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered virtually this 26th day of March, 2026 in the presence of Mr. Sheck Mfinanga, learned counsel for the Applicant and holding brief for the Mr. Gwakisa Sambo, learned counsel for the 4th Respondent, Ms. Christabela Madembwa, learned State Attorney for the 1st and 2n d Respondents, Mr. Nelson Novati Court Clerk and in the absence of dent; is hereby certified as a true copy of the original. ii