Exim Bank Tanzania Limited vs Nationa Furnishers Ltd, Civil Application no 53/17 of 2022.

This case answer the question as to whether failure to apply leave to appeal where the high court entertain original jurisdiction court of appeal may strucked out notice of appeal?

In response, Mr. Mwaiteleke agreed that the order giving rise to the notice of appeal filed by the respondent originated from execution proceedings. He agreed also that, the same was made by the High Court in its original jurisdiction. He however argued that, the applicable provision 

in respect of an appeal therefrom, is section 47(1) of the Land Disputes Courts Act, Chapter 216 of the Revised Laws (Cap. 216) and not section 47 (2) which requires that, leave be sought and obtained before an appeal is filed. The reason by the learned counsel is that, the order did not originate from an appeal or revision. He prayed that the application be dismissed.

Having considered the submissions of the learned counsel for the parties, we are of the settled mind that, indeed, from the nature of the order intended to be appealed against, leave to appeal is mandatory under section 5 (1) (c) of the AJA. Since the order arose from a land dispute, the applicable provision is section 47 (1) of the Cap. 216. That section states 

as follows:

“47- (1) A person who is aggrieved by the decision o f the High Court in the exercise o f its originai jurisdiction may appeal to the Court o f Appeal in accordance with the provisions of the Appellate Jurisdiction Act.”

[Emphasis added]

The governing provision of the AJA on appealable decisions and orders in civil proceedings is section 5. Subsection (1) of that provision

states that, an appeal shall lie to the Court;

“(a) against every decree, including ex parte or preliminary decree made by the High Court in a suit under the Civil Procedure Code, in the exercise o f its original jurisdiction.”

Section 5 (1) (b) specifies the appellable orders arising from the decisions of the High Court made in its original jurisdiction. They are listed under items (i) – (ix) of that section. An order arising from execution proceedings is not one of them. As correctly submitted by Mr. Msuya therefore, the order which is intended to be appealed against falls under section 5(1) (c) of the AJA which provides that, an appeal shall lie to the court;

n(c) with leave o f the High Court or o f the Court o f Appeal’ against every other decree, order,judgment, decision or finding o f the High Court.”

Now therefore, since the order sought to be appealed against by the respondent is appealable with leave which, under rule 45 (a) of the Rules, should have been applied for within the period of 30 days from the date of the decision, it is obvious that the respondent has failed to take that essential step. We thus agree with Mr. Msuya that, the notice of appeal deserves to be struck out under rule 89 (2) of the Rules. The same is accordingly struck out with costs.