Introduction

Objection proceedings are the formal process through which a party can challenge procedural and substantive issues before or during trial. Under the Civil Procedure Code, [Cap. 33 R.E 2019] of the laws of Tanzania (Civil Procedure Code) objection proceedings are preferred where one intends to challenge an attachment order issued by a court of competent jurisdiction where the objector has an interest in the property subject to the attachment order or is in possession of such property as at the date of attachment, and they were not a party to suit in which the order for attachment was granted¹.  As is the case in many other jurisdictions, objection proceedings in relation to attachment or execution orders are not appealable. This means that, once a decision on an objection is made, it cannot be appealed to a higher court.

Legal framework and non-appealability

This position is founded on the provisions of Order XXI Rule 62 of the Civil Procedure Code which clearly provides that the decision in objection proceedings is conclusive. It is conclusive in the sense that the decision is final and binds the parties. The only remedy available to an aggrieved party (the objector) is to institute a new suit to establish the right which they claim to the property in dispute. This position has been held by the Court of Appeal in a number of cases such as Sosthenes Bruno & Another v. Flora Shauri (in the Court of Appeal of Tanzania at Dar es Salaam)² where the court held that the decisions of the court under rules 59 and 60 are final and not appealable. This position was also held in the more recent decision in Sweetbert Mathias Kutaga v. Eugenia Rutatora & two others (in the Court of Appeal of Tanzania at Dar es Salaam)³ where the court stated that the decision in objection proceedings is final and conclusive, thus it is not amenable to appeal or revisional proceedings. The court reiterated that the recourse of an individual whose decision in objection proceedings is unfavourable is to institute a suit through which the right they claim in the property may be established.

Implications of non-appealability

While this finality and non-appealability nature of objection proceedings is aimed at promoting efficiency and finality, its fairness is often subjective and could result in curtailing a party's right to property. Where an objector is not granted their claim, the attachment order continues to hold which gives the decree holder the right to proceed with execution, even if the objector proceeds to file a new suit. The objector cannot stop attachment of property in which they have interest and has no room to seek relief against the attachment, even in the new suit. Seen from this perspective, the right to institute a fresh suit is in some respects an academic exercise as it does not afford the objector the opportunity to seek court protection on the property in dispute pending the determination of the new suit.

Whilst this may be perceived as necessary for efficiency as at it brings finality in judicial proceedings, its fairness raises critical concerns that cannot be ignored. The non-appealability of objection proceedings has certain advantages including preventing abuse of court process, where a party misuses the appeal process to delay proceedings or gain some form of strategic advantage; allowing courts to focus their resources on substantive issues, thereby managing case load more effectively; and ensuring finality of decisions to prevent prolonged litigation. The advantages can only be optimised where fairness is guaranteed and, for this to be possible, there must be assurance of thoroughness, impartiality and robust decision-making in the initial proceedings, thus minimising the need for objection proceedings.

Comparison with Zanzibar and Indian law

The laws of Zanzibar unlike those of Tanzania mainland permit the objector to file an appeal if aggrieved by the order of the court in objection proceedings. Order XXIV Rule 53 of the Civil Procedure Decree⁴  (Civil Procedure Decree) provides that "where the court is satisfied that the property was, at the time it was attached, in the possession of the judgment debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the court shall disallow the claim". If the claim is disallowed by the court, and the objector is still aggrieved by the order, the law provides a remedy to appeal against such decision as provided under Order XLVII Rule 1 (j) of the Civil Procedure Decree which provides as follows: "An appeal shall lie from the following orders under the provisions of section 81 of the [Civil Procedure] Decree, namely, an order under rule 52 or rule 53 of Order XXIV releasing property from attachment or disallowing a claim to property under attachment." This position has been established in the Court of Appeal case of Katibu MKuu, Amani Fresh Sports Club v. Dodo Ubwa Mamboya⁵  where the court held that "…The order from which an appeal is preferred falls under the purview of Order XLVII Rule 1 (j) and Order XXIV Rule 53 of the Civil Procedure Decree. We are therefore in agreement with Mbwezeleni that there is a right of appeal subject to obtaining leave in terms of Section 5 (1) of the Appellate Jurisdiction Act, 1979."

Notably, where the order from objection proceedings has been issued by the High Court, the aggrieved objector is required to obtain leave from the High Court to appeal to the Court of Appeal pursuant to the requirements set out under section 5 (1) (c) of the Appellate Jurisdiction Act. Leave to appeal is not a prerequisite where the aggrieved objector is appealing against an order issued by subordinate courts, in which case the appeal would be filed at the High Court. It is also noteworthy that the provisions of Order XXI Rule 59, 60 and 62 of the Civil Procedure Code are pari materia with the provisions of the Code of Civil Procedure of India. However, the latter was amended by the Code of Civil Procedure (Amendment) Act, 1976 and the Indian Code of Civil Procedure now permits an aggrieved objector to appeal against an order arising from objection proceedings.

The legal frameworks in Zanzibar and India offer valuable lessons for Tanzania mainland in recognising the importance of providing an appellate remedy to ensure justice and to protect rights of individuals affected by orders that would provide for appeals in objection proceedings, thereby enhancing the overall fairness and credibility of the judicial system. Perhaps it is time for the legislature to look into the possible amendment of the Civil Procedure Code to allow appeals to judicial proceedings, which is essential to ensure that justice is not only done but seen to be done, by protecting the rights and interests of all the parties involved in the judicial process.

Concluding remarks

The non-appealability of objection proceedings under the Civil Procedure Code raises critical fairness concerns that cannot be ignored. While the intention may have been good to bring proceedings to finality, there is a need to strike a balance between judicial efficiency and the protection of individual rights. This change would align with jurisdictions such as Zanzibar and India, whose legal frameworks allow for appeals in objection proceedings, thereby enhancing the overall fairness and credibility of the judicial system. Allowing appeals in objection proceedings would not only rectify potential injustices but also provide a necessary mechanism for reviewing and correcting lower court decisions. This aligns with the broader principles of justice and due process, ensuring that parties have access to a fair and impartial legal remedy. Moreover, it will reinforce the public's trust in the legal system, by showing the judiciary's commitment to thorough and equitable adjudication.

Having introduced this change in the Indian Code of Civil Procedure close to four decades ago, Tanzania should embrace this philosophy and amend Order XXI Rule 62 of the Civil Procedure Code to allow appeals against decisions emanating from objection proceedings. By doing so, Tanzania would be taking a significant step towards modernising the legal framework and ensuring it meets the highest standards of justice and fairness. The amendment would also demonstrate Tanzania's commitment to upholding the rule of law and protecting the rights of citizens. Furthermore, implementing such a change could lead to broader reforms within the judicial system, encouraging continuous improvement and adaptation to ensure that legal processes are both efficient and just. As Tanzania continues to grow and develop, ensuring that its legal system remains robust and fair will be critical in maintaining social stability and fostering economic development.

In conclusion, the time is ripe for Tanzania to reconsider its stance on the non-appealability of objection proceedings, by amending the Civil Procedure Code to allow appeals. By doing so, Tanzania will not only enhance the judicial process and protect individual rights, but also align with international best practices. This reform is not just a legal necessity but a moral imperative to ensure timely and equitable access to justice for all.

1. Order XXI Rule 58 of the Civil Procedure Code
2. Civil Appeal No. 249 of 2020 (unreported)
3. Civil Appeal No. 565 of 2023 (unreported)
4. Cap. 8 of the laws of Zanzibar
5. Civil Appeal No. 88 of 2002