Mwadawa Maulid vs Ayubu Semi Maulid (Civil Application No. 22 of 2011) [2018] TZCA 835 (18 June 2018)

IN THE COURT OF APPEAL OF TA~,ZANIA AT DAR ES SALAAM (CORAM: MUSSA, J.A., MZIRAY, J.A., And NDIKA, J.A.) . ' CIVIL APPLICATION.NO. 22 OF 2011 MW AD AWA MAU LID •••••••••••• ~ ■■• ■ •••••••••• ■■-■ ••••••• ■ I ••••••••• I ••••• •I! ■ .APPLICAN"T VERSUS1 AYUBU SEMI MAULID ••.••.••••••.•.•...••.•..••• 111 ........................... RESPONDENT ; ·. - {Application to strike out Notice of Appeal from the decision of the High Court of Tanzania at Dar es Salaam) 7 th & 2o th June, 2018 MZIRAY, J.A.: (Mwarija, J.) . dated the 29 th day of June, 2010 - in CivU Revision No. 5 of 2-008 I RULING OF THE COURT ' Before this Court is an application qy way of Notice of Motion made under Rule 89(2) of the Tanzania Court of Appeal Rules; 2009 (the Rules), moving the Court to strike but the notice· of appeal filed on 1 st 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).

•. 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

• . . . .: . ,·? • ,.:- . . ·:. ,(. . ,, '· r· ··: -~ , .. ; : 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, J. (as he then -was) dated-29 th
• June, 2010, in - Civil Revision No. 5 of 2008, we allowed her to proceed under Rule 4(2)(a) of .. • I; the Rules. The applicc;mt made a very brief submission by adopting the contents of the supporting affidavit. 2

t3 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 preliminary or interlocutory decision or order of the High 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 interlocutory orders made on interlocutory matters'~

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