Mwadawa Maulid vs Ayubu Semi Maulid (Civil Application No. 22 of 2011) [2018] TZCA 831 (18 June 2018)

• IN THE COURT'OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUSSA, 1A., MZIRAY, J.A., And NDIKA, J.A.) CIVIL APPLICATION NO. 22 OF 2011 MWADAWA 1'IAULID ............ ............................................... APPLICANT VERSUS A'Y'UBU SEF4I MAULID.......................................................RESPONDENT • (Application to strike out Notice of Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mwariia, J.) dated the 291h day of June, 2010 in Civil Revision No. 5 of 2008 RULING OF THE COURT 7 th & 20' June, 2018 MZIRAY, J.A.: Before this Court is an application by way of Notice of Motion made under Rule 89(2) of the Tanzania Court.of Appeal Rules, 2009 (the Rules), moving the Court to strikeOut the notice of appeal flied on 1st July, 2010 by Ayubu Seme Maulid (the respondent). The application is supported by an affidavit of Ms. Butamo Kasuka Philipo, an advocate (as she then was).

2 - * In essence what the deponent of the affidavit says is that this present application emanates from Civil Revision No. 5 of 2008 wherein the respondent raised a preliminary point of objection The preliminary objection was heard and at the end, the same was dismissed for lack of merit. Aggrieved by the dismissal order, the respondent filed a notice of appeal to challenge that decision. She contended that the dismissal order appealed against is not appealable under the law as it is interlocutory in nature. When the application was called on for hearing, the applicant appeared in person. The respondent did not enter appearance and he was reported dead. In the circumstances, and to avoid further delay, the applicant urged the Court to allow the application to proceed for hearing as scheduled. Having carefully considered the matter and upon going through the decision of Mwarija, 3. (as he then was) dated 29th June, 2010, in Civil Revision No. 5 of 2008, we allowed her to proceed under Rule 4(2)(a) of the Rules. The applicant made a very brief submission by adopting the contents of the supporting affidavit. 'I

What has been deponed-in the supporting affidavit is quite correct in our view that-the order dismissing the preliminary, objection was nothing but an interlocutory order. Appealing against a preliminary order is in contravention of the mandatory provisions of Act No. 25 of 2005 which amended Section 5 (2) (d) of the Appellate Jurisdiction Act, Cap 141 R.E. • 2002 (the Act). The said provision bars appeals from interlocutory orders and rulings, unless they have the effect of finally determining the matter. Section 5 (2) (d) of the Act, as amended states:- - - '(d) no appeal or application for revision shall lie

• - -against or be made in respect of any prelimina,y
• or interlocutory decision or order of the H,i/i Court Unless such decision or order has the effect of finally determining the criminal charge or suit." [Emphasis added] In the case of Stanbic Bank Tanzania Ltd vs Kagera Sugar Ltd, Civil Application No. 57 of 2007 (unreported) this Court held: "Section 5(2) (d) bars appeals or revisions on interlocutoty orders made on interlocutory matters' 3

4 4 4 That being the position, the application is meritorious. Accordingly we hereby strike out with costs the notice of appeal filed on 1s , July, 2010 intending to appeal to this Court against the Ruling of the High Court dated 29th June, 2010 in Civil Revision No. 5 of 2008. DATED at DAR ES SALAAM this 18th day of June, 2018. K. M. MUSSA JUSTICE OF APPEAL R.E.S.MZIRAY JUSTICE OF APPEAL G.A.M.NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. ru