Source
Source
(C/F Civil Revision No. 1 of2022 High Court of the United Republic of Tanzania at
Arusha)
RULING
GWAE, J.
Jurisdiction Act, Cap 141 Revised Edition, 2019 (herein AJA) and Rule 45
counsel.
i
Brief history leading to this application is as follows; the applicant
Court of Arusha (trial court) vide Civil Case No. 42 of 2018 following the
the applicant filed an Application for revision to the court via Revision No.
1 of 2022 in this court (Mwaseba, J.) which was dismissed for want of
1. That, the High Court erred in law and fact in failing to consider
2
2. That, the High Court erred in law and fact in establishing bad
3. That, the High Court erred in law and fact in failing to consider
that, the executing court misdirected itself by ordering the
judgment debtor/applicant herein be committed as a civil
Supporting the application, Mr. Mushi prayed for the court to adopt
the contents of the affidavit and submitted that, the trial court failed to
observe Oder XXI Rule 39 (2) of the Civil Procedure Code, Cap 33, R.E.
Prison. He argued that, it was the duty of the trial court to ascertain
whether there was compliance of Order XXI Rule 39 (2) of the CPC or not
3
as held in the case of Safari Menzembe vs. Juma Fundisha, Civil
the case of Lightness Damiani and others vs. Said Kasim, Civil
application be granted.
is baseless in law and the same should be dismissed. She asserted that,
according to section 5 (1) (b) (viii) of the AJA, arrest and detention order
was in lieu of execution of the decree. She added that, it has been seven
years for which the respondent has been striving to enjoy the fruits of his
decree but the judgment debtor now the applicant has been deliberately
applying delay tactics. She added that, the applicant has severally
attempted to set aside the respondent's decree but all his efforts were in
otiose.
decree debtor, the matter between the parties is not appealable before it.
prayed for the court to invoke the principle of overriding objective and
4
deal with real matter and not mere technicalities. She prayed that, this
ought to have been pleaded since submission is not part of the evidence
also disputed the fact that, the Court of Appeal of Tanzania has no
meanwhile section 5 (1) (c) requires an aggrieved party by the High Court
decision to apply for leave. He submitted that, the impugned decision was
on revision by this Court and not execution by the trial court and that, the
respondent's counsel that, according to section 5 (1) (b) (viii) of the AJA,
5
arrest and detention order in lieu of executing the decree is not appealable
that, the same is appealable under section 5 (1) (c) AJA which requires
only one condition that, an aggrieved party by the High Court decision
It is trite law in our jurisdiction that, save for appeals from matters
set out under section 5 (a) and (b) of AJA, all civil appeals to the Court of
Appeal require a leave from this court as per section 5 (c) of AJA including
The RM's order directing arrest and detention of the applicant as a civil
Emphasis added).
6
According to the above quoted provision of the law, the order of this
for execution of a decree. Thus, an order of the court directing arrest and
meritorious
is granted at the discretion of the court. Much as the law is silent on how
this discretion should be exercised, the conditions for granting leave have
the Court Appeal while affirming the position elucidated in its previous
7
Sikujua Ng'maryo, Civil Application No. 138 of 2004
(unreported). In that case, as cited in the case of
granted."
(ii) shauri Haji Mosi vs (i) Omar Hilal Seif (ii) Seif
Omar, Civil Reference No. 19 of1997 cited in the case of
8
British Broadcasting Corporation vs Eric Sikujua
Ng'maryo (supra).
and unless the court is satisfied that, the conditions expounded above
exist. Applying the conditions in the above precedent and this present
application for leave, the court has to be satisfied that, the anticipated
Appeal, I have not found any arguable issue or any issue of general
I also further considered the fact that, the applicant is not desirous to
The refusal or neglect found by the court on the part of the judgment
satisfied.
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However, I am of the firm view that, the applicant was to start being
imprisoned as a civil prisoner immediately after the order of the RM's court
especially when the fees payable by the decree holder are known. Doing
otherwise the courts' decrees shall not be executable since there are
persons/ judgment debtors who after having courts' decrees against them
not enforceable.
That said and done, I hereby dismiss this application. The applicant
It is so ordered.
JUDGE
03/05/2023
io