adolf john magesa vs elizabeth mohamed 2013 tzca 219 26 november 2013

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA fCORAM: RUTAKANGWA. 3.A.. KAIJAGE. 3.A.. And MUSSA. J.A.^ CIVIL APPLICATION NO. 7 OF 2012 ADOLF JOHN M A G E S A .................................................................... APPLICANT

VERSUS ELIZABETH MOHAMED ............................................................. RESPONDENT (Application for stay of Execution of Decree from the Decision of the High Court of Tanzania at Mwanza) fMruma, 3.) dated the 17th day of April, 2012 in Probate Appeal No. 14 of 2011

RULING OF THE COURT 22nd & 26th November, 2013 RUTAKANGWA, 3.A.: This is an application for a stay of execution of the decree of the High Court of Tanzania sitting at Mwanza in Probate and as Administ­ ration Cause Appeal No. 14 cf 2011 (the decree). The Judgment on appeal was delivered on 17Ul April, 2012, in favour of the respondent. Aggrieved by the decision, the applicant lodged a notice of appeal to this Court on 19th April, 2012. To forestall any early attempts to execute the decree before the intended appeal was determined, this application was instituted on 14th June 2012. The application is by notice of motion supported by the applicant's own affidavit. The respondent opposed the application by filing a reply affidavit. Before the appeal was scheduled for hearing, both sides i lodged their respective written submissions in accordance with the requirements of the Tanzania Court of Appeal Rules, 2009 (the Rules). When the matter came up for hearing before us, both parties appeared in person and informed us of this fact. They urged us to determine the application on the basis of their submissions. Under normal circumstances, we would have reserved our ruling on the merit or otherwise of the application. But the circumstances of the case were out of the ordinary. We had our reservations on the validity of the accompanying copy of the decree sought to be stayed in this

application. It is trite law that every application of this nature must be instituted by notice of motion. Furthermore, it is settled law that such an application ought to be lodged within sixty (60) days and must be accompanied or supported by a valid copy of the decree sought to be stayed. See, for instance, Permanent Secretary, Ministry of Works and Transport & Another v. Twiga Paper Products, Civil Application No. 18 of 20C9 (unreported). For a decree to be valid either for appeal, revision, stay orders, etc. purposes, it must be signed by the judge who issued it or his successor in office and must bear the date of the day on which it was issued. With respect to the copy of decree accompanying the notice of motion, we have noted, the date when it was issued is conspicuously missing. Fortunately, the applicant conceded this glaring omission. It goes without saying, therefore, that there is no valid copy of the decree before us whose execution we can lawfully stay. The absence of a valid copy of the decree sought to be stayed renders this application, therefore, incompetent. All said, we strike out this incompetent application. We make no order on costs. It is so ordered. DATED at MWANZA the 26th day of November, 2013. E.M.K. RUTAKANGWA

JUSTICE OF APPEAL S.S. KAIJAGE

JUSTICE OF APPEAL K.M. MUSSA

JUSTICE OF APPEAL I certify that this is a true copy of the original. r ~- !wBUr ... P.W. BAMPIKYA

IOR DEPUTY REGISTRAR

COURT OF APPEAL 3