adam mwita versus bakari mtango another 2023 tzhclandd 16850 31 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 406 OF 2023 {Arising from Land Application No. 278 of2014, by the District Land and Housing TribunalforIlaia) ADAM MWITA APPLICANT VERSUS BAKARI MTANGO RESPONDENT AGNESS G FRESCH 2^^ RESPONDENT RULING Date ofLast Order: 02. 08.2023 Date ofRuling: 31.08.2023 T. N. MWENEGOHA,J. The Applicant sought for the following orders given under Order XXXIX Rule 5(1) of the Civil Procedure Code, Cap 33 R. E. 2019, that; - 1. This court be pleased to stay the execution of the Judgment and Decree of the District Land and Housing Tribunal for Ilala, vide Land Application No.278 of 2014, dated 23"^ January 2023, pending the hearing and determination of an application for extension of time to appeal which has been filed in this court. 2. Costs of the case. 3. Any other relief as the court may deem fit to grant. The Application was supported by the affidavit of the applicant himself, Adam Mwita. The 2"^ respondent on the other hand, raised two preliminary objections against this Application as follows; - 1. The affidavit in support of the Application is incurably defective for not being signed by the applicant at the verification clause. 2. The Application is bad in law for being preferred under a wrong provision of the law. The preliminary objections were heard by way of written submissions. Advocate Daibu Kombo appeared for the 2"^ respondent, while the applicant was represented by Advocate Lilian Apolinary Nyambibo. However, the 2"^ respondent's counsel in his submissions, chose to abandon the objection and remained with the 2"^ objection. Arguing in favour of the 2"^ objection, Mr. Kombo was of the view that, the Application at hand was filed under Order XXXIX Rule 5(1) of the Civil Procedure Code, Cap 33 R. E. 2019. However, there is no pending appeal in Court for the applicant to invoke the said provision to stay the execution of the Judgment and Decree of the Tribunal. Above all, the execution proceeding was initiated at the District Land and Housing Tribunal for Ilala, filed under Regulation 23(1) of the Land Disputes (The District Land and Housing Tribunal) Regulations of 2003, G.N No. 174 of 2003. The applicant therefore, cannot file a stay of execution in this Court unless there is an appeal pending before it. The Application for stay of the execution, ought to have been filed at the District Tribunal and not at the High Court. In reply, Advocate Lilian contended that, stay of execution may be applied either In the executing Court or the appellate Court. That, Regulation25(l) of the Land Disputes (The District Land and Housing Tribunal] Regulations of 2003, G.N No. 174 of 2003 only applies where stay of execution has been filed in the executing Court. However, the said provision does not prevent a party from applying for stay of execution In the High Court where appeal lies. That, when the applicant makes an Application before the High Court, he cannot use Regulation 25(1) Land Disputes (The District Land and Housing Tribunal) Regulations of 2003, G.N No. 174 of 2003. She argued further that, the contention that, there is no pending appeal in this Court Is unfounded, as there Is already an Application for extension of time to file an appeal. This Application is part and parcel of the appeal. The applicant in other words has already started the appeal processe. The applicant's counsel invited the Court to apply an overriding objective rule as an alternative to the present Application as stated in Alliance One Tobacco Tanzania Limited & Hamis Shoni versus Mwajuma Hamis, Misc Civil Application No. 803 of 2018, High Court of Tanzania at Dar es Salaam (unreported). In his brief rejoinder, the respondents counsel reiterated his submissions in chief and insisted that, the applicant's counsel has conceded that, there Is no pending appeal. That, the applicant has initiated the appeal process however, the appeal process does not amount to an appeal. I have considered the submissions of parties through their respective counsels. The issue for determination Is whether the objection raised by the counsel for the 2"*^ respondent has merits. I have noted from the submissions of both counsels that, the centre of contention is on the competence of this Application in this Court in absence of any pending appeal. Let me start by reproducing the provisions of Order XXXIX Rule 5(1) of the Civil Procedure Code^ which was used as an enabling provision by the applicant in this Application, as follows; - 5.-(l)''An appealshallnotoperate asa stay ofproceedings under a decree or order appealed from exceptso far as the Court may order, nor shall execution ofa decree be stayed byreason only ofan appealhaving been preferredfrom the decree but the Court may, for sufficient cause, order the stay ofexecution ofsuch decree. Plainly, this provision informs an appellant, that an appeal cannot automatically, stay execution proceedings of the Order or Decree appealed from. Further, the Court is directed that, it should not stay an execution of Decree, by reasons that there is an appeal preferred from the impugned Order or Decree, unless there are sufficient reasons to do so. This provision, as argued by the 2"^ respondent's counsel, operates in favour of a person who intends to stay an execution pending his or her appeal. Without a pending appeal, the same cannot be used to apply for stay of execution as done by the applicant. The applicant's counsel, on the other hand, insisted that, there is an Application for extension of time to appeal, pending in this Court. Hence, to her, the said Application, being preferred, has initiated the appeal process, therefore, the Decree must be stayed using the above cited provision of the law. Again, I will sail in the same boat with the 2^^ respondent's counsel. There is no pending appeal in this Court challenging the Decree subject of this Application. An application for extension of time to appeal, is not an appeal. These are two different cases, with two different outcomes. One cannot say that, he or she has started the appeal process by reasons that he or she filed an Application for extension of time to file his or her Intended appeal. I therefore, find this argument to be misconceived. Further, the applicant's counsel made a call to this Court to apply the overriding objective principle to rescue the instant Application. The rules are settled, we cannot apply the said principle blindly. As the mistakes noted in the case, go to the root of the case, there is no way the same can be cured by the overriding objective rule see Njake Enterprises Limited versus Blue Rock Limited and Rock Venture Company Limited, Civil Appeal No.69 of 2017, Court of Appeal of Tanzania at Arusha, (Unreported) and Mondorosi Village counsel & 2 Others versus Tanzania Breweries Limited & 4 others. Civil Appeal No.66 of 2017,Court of Appeal of Tanzania(unreported). For the reasons I have wondered to give, I find the 2"^ objection to have merits and sustain it accordingly. In the event, the Application is struck out with costs. Ordered accordingly. T. N. MWENEGOHA JUDGE