20090626 TZHC Dar es Salaam

20090626 TZHC Dar es Salaam

The application for stay of execution is incompetent as the order sought to be stayed is not executable. The application for extension of time and setting aside dismissal is incompetent for failure to cite the specific enabling provision (Order IX Rule 4) and for citing only supplemental provisions (Sections 68 and 95). The defect in the supporting affidavit of Dr. Fauz Twaib renders it unreliable, but the application is still supported by the applicant's own affidavit. The preliminary objections on non-citation of enabling provisions are upheld and the application is struck out with costs.

Citation
20090626 TZHC Dar es Salaam
Parties
Applicant/appellant: 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
Outcome
Application struck out as incompetent
Legal Topics
Extension of Time, Stay of Execution, Affidavit Defects, Citation of Enabling Provisions, Setting Aside Dismissal for Want of Prosecution
Source Language
English
Civil Procedure Extension of Time Stay of Execution Affidavit Defects Citation of Enabling Provisions Setting Aside Dismissal for Want of Prosecution

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Said Salum Mohamed

Applicant/appellant

Bakari Selemani Yombe

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the application for stay of execution is competent where the order sought to be stayed is not executable
  2. 2 Whether two applications (extension of time and setting aside dismissal) can be competently combined in one chamber summons
  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 order sought to be stayed is not executable. The application for extension of time and setting aside dismissal is incompetent for failure to cite the specific enabling provision (Order IX Rule 4) and for citing only supplemental provisions (Sections 68 and 95). The defect in the supporting affidavit of Dr. Fauz Twaib renders it unreliable, but the application is still supported by the applicant's own affidavit. The preliminary objections on non-citation of enabling provisions are upheld and the application is struck out with costs.

Court Disposition

Application struck out as incompetent

Orders

  • Application for stay of execution dismissed as incompetent
  • Application for extension of time and setting aside dismissal struck out for non-citation of enabling provision