said salum mohamed vs bakari selemani yombe 2009 tzhc 10 26 june 2009

said salum mohamed vs bakari selemani yombe 2009 tzhc 10 26 june 2009

The application for stay of execution is incompetent as the dismissal order is not executable. The application for extension of time and setting aside the dismissal order is incompetent for failure to cite the specific enabling provision (Order IX Rule 4 of the Civil Procedure Code) and reliance on general provisions is insufficient. Defects in the supporting affidavit of Dr. Fauz Twaib render it unreliable, but the application is still supported by the applicant's own affidavit. The preliminary objections on maintainability due to combining prayers are dismissed, but the objection on non-citation of enabling provisions is upheld.

Citation
said salum mohamed vs bakari selemani yombe 2009 tzhc 10 26 june 2009
Parties
Appellant/applicant: Said Salum Mohamed; Respondent: Bakari Selemani Yombe
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
26 June 2009
Procedural Posture
Civil Appeal / Ruling on Preliminary Objections to Applications for Stay of Execution and Extension of Time to Set Aside Dismissal Order
Outcome
Applications dismissed/struck out
Legal Topics
Extension of Time, Stay of Execution, Setting Aside Dismissal Order, Affidavit Defects, Citation of Enabling Provisions
Source Language
English
Civil Procedure Extension of Time Stay of Execution Setting Aside Dismissal Order Affidavit Defects Citation of Enabling Provisions

Case Brief

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Parties

Said Salum Mohamed

Appellant/applicant

Bakari Selemani Yombe

Respondent

Procedural Posture

Civil Appeal / Ruling on Preliminary Objections to Applications for Stay of Execution and Extension of Time to Set Aside Dismissal Order

Legal Issues

  1. 1 Whether an order dismissing an appeal for want of prosecution is capable of execution and subject to stay
  2. 2 Whether combining applications for extension of time and setting aside dismissal order is maintainable
  3. 3 Whether failure to cite or wrong citation of enabling provisions renders the application incompetent

Ratio Decidendi

The application for stay of execution is incompetent as the dismissal order is not executable. The application for extension of time and setting aside the dismissal order is incompetent for failure to cite the specific enabling provision (Order IX Rule 4 of the Civil Procedure Code) and reliance on general provisions is insufficient. Defects in the supporting affidavit of Dr. Fauz Twaib render it unreliable, but the application is still supported by the applicant's own affidavit. The preliminary objections on maintainability due to combining prayers are dismissed, but the objection on non-citation of enabling provisions is upheld.

Court Disposition

Applications dismissed/struck out

Orders

  • Application for stay of execution dismissed with costs
  • Application for extension of time and setting aside dismissal order struck out with costs