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Pirmohamed v Saving & Finance Ltd and Others (Civil Application No. 192 of 2005) [2006] TZCA 54 (20 April 2006)

.RTF of original document

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
CIVIL APPLICATION NO. 192 OF 2005

LALBIBI PIRMOHAMED ……………………………………….. APPLICANT
VERSUS
1. SAVING & FINANCE LTD.
2. MK AUCTIONEERS LTD.            …………………. RESPONDENTS
3. BADRAHAMAN NURMOHAMED

(Application for leave to appeal to the Court of Appeal
of Tanzania at Dar es Salam from the decision of the
High Court of Tanzania at Dar es Salaam
(Kalegeya, J.)
dated the 12th day of December, 2005
in
Misc. Civil Application No. 212 of 2001

 4 & 20 April 2006
-----------
R U L I N G

 MUNUO, J.A.:

         The applicant, Lalbibi Pirmohamed, the wife of the 3rd Respondent, through the services of Mr. Mkali learned advocate, filed the present Notice of Motion under Rules 43 (b) and 45 of the Tanzania Court of Appeal Rules, 1979, seeking leave to appeal to the Court of Appeal of Tanzania against the Ruling and Order of the High Court of Tanzania in Miscellaneous Civil Application No. 212 of 2001, before Kalegeya, J., on the 12.12.2005.

         The learned judge dismissed a similar application on the 12.12.2005 on the ground that the applicant submitted her written submission three days late on the 7.11.2005 instead of filing her written submission on the 4.11.2005 as ordered on by the High Court on the 21.10.2005. The applicant conceded that she filed her written submission on the 7.11.2005 but averred at paragraph 8 in support of the present application that the said 4.11.2005 was a public holiday, Idd El Fitr. The following day was a Saturday, again followed by a Sunday. That is to say, there were public holidays on the 4th, 5th and 6th November, 2005 because whereas the 4th November, 2005 was Idd El Fitr, the 5th was a Saturday which is not a working day. So is Sunday. That being the position the applicant rightly filed her written submission on the 7th, it being the next working day.
         I would have remitted the matter to the High Court for the learned Judge to determine the same on merit upon the written submissions of the parties. However, the sought leave to appeal arises from objection proceedings, which in law, are not appellable. Counsel for the applicant stated that the applicant has a right of appeal against the dismissal of the objection proceedings she instituted to contest the attachment and sale of a residential house cum matrimonial house which she occupies with her spouse, the 3rd Respondent. The latter had pledged the material house as security for a loan he raised from the 1st Respondent.
         Order XXI Rule 57 of the Civil Procedure Code, 1966, Cap 33 of the Revised Laws, 2002, lists under Order XL, orders against which parties can appeal. Objection proceeding orders under Order XXI Rule 57 upon which the present application is based, are not appellable because under Order XL, only Orders under Rules 72 and 92 of Order XXI are listed as appellable. This position is reinforced by Mulla, Code of Civil Procedure Vol. II, 15th Edition, Tripathi at Page 1799. The learned author has this to say on Order 21 Rule 58 which is in pari material with Order XXI Rule 57 of the Civil Procedure Code, 1966, Cap 33:
But orders made under rules 60, 61 and 62 made upon an application under r. 58 (here Rule 57) were not appellable, though they were subject to revision in appropriate cases. The remedy of the party affected adversely by such order was by way of suit under r. 63. Such suit had to be filed within one year from the date of the order under Art, 11 of the Limitation Act, 1908 --- but subject to such a suit the order was conclusive.
         From the above, it is clear that orders from objection proceedings are not appellable.
         For the reasons stated above, the application is misconceived. I accordingly dismiss the application with costs.
         DATED at DAR ES SALAAM this 20th day of April, 2006.
E.N. MUNUO
JUSTICE OF APPEAL





I certify that this is a true copy of the original.



( S.M. RUMANYIKA )
DEPUTY REGISTRAR

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