19990000 TZCA Dar es Salaam

- I

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CORAM: $AMATTA, J.A.,And LUGAKINGIRA, J.A.) CIVIL REFERENCE NO.

12. OF., 1998 BETWEEN . ..,'-.... EflIASR EXPoRT & IMPORT COMPANY. .,. . . APPLICANT AND NAHD TRADING COMPANY. . . . . ., . . . RESPONDENT (Reference from the Ruling of a single Judge of the Court of Appeal of Tanzania at Dar es Salaani) (Lubuva, JA.) dated the Lfth day of September, 1998 4 Ci vil in 1998

RULING OF THE COURT SAMATTA, J.A.: This is a referenco brought under Rule 57 (1) (b) of the Tanzania Court of Appeal Rules, 1979 (hereinafter referred to as lithe Rules") from a ruling of a single judge of this Court (Lubuva, J.A.). In that ruling, the learned single Judge dismissed the applicant's application for stay of execution of a decree passed by the High Court (Kaji, J.) following an judgment entered in favour of the respondent. The following is the background to the application. In July 199+ the respondent filed a suit in the High C'urt against the applicant, claiming from it a coflosal sum of money, Following non-appearance of the applicantts counsel at the hearing of the case on July 10, 1997, Kaji, J., entered an te judgment in the respondent's favour. It is not in dispute' that no notice of appeal was lodged in respect of that decision. On August 15, 1997, 'following an application by the respondent for execution of the decree the High Court issued an one/2 -2- order for attachment of the applicant's property and a garnishee order against its (the applicant's) bank account. Having become aware if those le teps, the applicant rushed to the High Court and there filed an application for (1) setting aside the exparte judgment; (2) an order raising the attachment order; and (3) stay of exeôution. The application was heard by Chipeta, J. The learned Judge dismissed it.

The applicant was aggrieved by that decision. ix days 1at-, it lod€et a natico of appa.l in respect of it. The body o.f that rrotice read as follows: "TjKZ NOTICE that EL NASR EXPORT & IMPORT COMPANY LTD., the Appellant above-named, being dissatisfied with the decision of the Honourable Mr. Justice B.D. CHIPETA, given at Dar es $alaani on the 16th day of February 1998, intends to appeal to the Court of Appeal of Tanzania against the whole of the said rulings. The. .a2plic.ant then filed the applicatibn be.fore this Court, which rztually the learned single Judge dismissed, The learned single .Juige held that as the applicant had filed no notice of appeal in respect of Kaji, J,'s judgment, the subject of the application for stay of execution, the application for stay of execution was incompetent in law. In the course of his ruling, he cited the provisions of Rules 9 (2) (b) and 76 (6) of the Rules and went on to Say: UFrom the provisions of these rules, I am increasingly of the view that the notice of appeal necessarily has to specify the particular decision or such part of the decision against which it is desired to appeal. In this case, it is common ground that the notice of appeal lodged on 24.2.1998, pertains to the decision -3- of 18,2.1998 by Hon. Chipeta, J. However, the application indicates that it involves thé ex.-parte judgment in the High Court by Htn. Kaji, J.

This was as well conceded by Dr. Lamwai in his oral submission before me. His argument however, was that even though it was not specified which decision it was intended to be stayed, both the decisions concerned the same decision of the High Court i.e. Civil Case No. 159 of 199 4 . With respect, it is my view that Dr. Lamwai is wrong on this point. As the notice of appeal filed pertains to the decision of 18.2.1998 (Chipeta, J.) and not that of 10.7.199 8 (Kaji, J.) which it is intended to be stayed, it goes without saying that the application for stay of execution before me, was without the requisite notice of appeal. For that reason, it was, as submitted by Dr. Mwaikusa, incompetent.' Before us, it was contended by Dr. Laniwai, on behalf of the applicant, that the learned single Judge strayed into an error in law in dismissing the application for stay of execution on the ground that no notice of appeal had been lodged in respect of Kaji, J.'s decision. According to the learned advocate, if the learned single Judge had taken into account the following three points he would have arrived at a decision in favour of the applicant: (1) no notice of appeal could have been lodged in respect of Kaji, J.'s judgment before the applicant was granted extension of time to lodge the same; (2) the applicant could not take the first step of appealing against Kaji, J.'s decision before moving

the High Court to set aside that that decision; and (3) the ex parte judgment suffered from illegality because it was based on an affidavit and not oral evidence. Counsel sought to bolster that submission by reference to the decision of . - k this Court in Faizen EnterEi2Vs,11 mited v AfZiCMIersLi1flited, Civil Appeal Ni- 38 of 190 (Unrfported), a case which concerned, aliong other things, the question whether an expar judgment may be entered entirely n the basis it affidavit evidence. He strenously contended that the epati udgnent in the pesent case was in law no judgment. The learned advocate concluded his submission by arguing that since the applieation before Chipeta, J., was for setting aeid the ex parte decree", by necessary implation Kaji, J.'s judgment was on agenda. He urged us to reverse the learned single Judge's decision. On behalf of the respondent, Dr. Mwaikusa made a simple and alraigbtforward rpoaev He contended that since no notice of appeal has been l.dgad. ig res.e± -o.f Kji, L's disi,n, the stay of execution of which was being sought before the learned single Tud^ that disi. haz pot J.A law been b'o41nt btore this Cort and ther.fote no stay of e4poqtiaA of it can be ordered. We haue oarilly considared un.el ' s. rival srgiments and in the upstot we agree with Dr. Nwaikusa that there is no basis for taking a riew different from that arrived at by the learned

single Judge. We are of the settled opinion that the learned single Judge was perfectly right in h.lding, as he did, that the absence of a notice of appeal in respect of the decision the execution of which the applicant sought to be stayed was fatal to the application for stay of execution. As aptly put by Dr. Mwaikusa, a notice of appeal is the gear, so to speak, which moves this Court to exercise its power under Rule 9 (2) (b) of the &iles. In spite of Dr. Laxnwais ingenious argument, we entertain no doubt that lodging of a notice of appeal by an indirect method is a notion unknown to the law of this country. The provisions of Rule 76 (2) and (3) of the Rules as read with Form D in the First Schedule of those Rules plainly rule out that notion. .. .15 These previsions require an appellant to expressly apeciy in his notice of appeal the deciien of the High Court which he, i..t.ends to appeal ááinst, Frm D requires that the name of the judge who gave that decision be dli eiclo's'edi Sinte, in the present ease, no notice of appeal was lodged in respet of taji, J.'s judgment this Court clearly lacked juris.ictien to order stay of execution of the decree arising therefromo For the reasons we have given, albeit briefly, we can find no o'xnt for holddmg *.h,.t Ue a&5 Judge was 4 tl.d to 4,ccodingi.y, we d.iemjss the app1icato. The respondent company will have its costs. DATED at OAR ES SALAAM this daT f L.M. MAKAME B.A. SAMATTA

JUSTICE APPEAL K.S.K.LUGAKINGIRk

JUSTICE OF APPEAL I certify that this is a true copy of the eriginaL. C A.G.ARIJA )

DEPUTY REGISTRAR