ELIA ISRAELI 2222EDITED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI LAND REVISION NO. 17178 OF 2024 (Arising from Land Application No. 124 of2023 in the District Land and Housing Tribunal ofBabati at Babati) ELIYAHU ISRAEL........................................... APPLICANT VERSUS GODFREY LIKINDISHILU....................................... 1st RESPONDENT DAUD MUKAINE....................................................... 2ndRESPONDENT RULING 23" & 25"’ September, 2024. Kahyoza, J. This is a ruling in respect of an application for revision instituted suo motto. This Court received a complaint from Eliyahu Israel (Eliyahu) against the District Land and Housing Tribunal (the tribunal) for staying the execution of a decree passed by this Court. I called for examination the record of the tribunal and found that Mr. Godrey Likindishilu (Godfrey) and another person called Daud Mukaine (Daud) filed an application for Review before the tribunal. The tribunal heard Godfrey Likindishilu's application and stayed the execution proceedings. Upon reading the tribunal's proceedings and the resultant order, I became doubtful, whether the tribunal had jurisdiction to entertain an application for review when Mr. Godfrey and Daud had already lodged a notice of appeal to the Court of Appeal. I ordered suo motto revisional proceedings to be opened and invited the parties to appear and address this court, whether it was proper for the tribunal to entertain an application for Review and stay the execution when Mr. Godfrey and Daud had already instituted a notice of appeal to the Court of Appeal. I referred to Mr. Eliyahu as an applicant and Mr. Godfrey and Daud as respondents for convenience. At first, I had summoned Mr. Godfrey alone to address the court, however, after Mr Godfrey notified this court that Mr Daud was part of the suit, we also notified him. Unfortunately, Mr. Daud did not appear as the Court was informed that he was bedridden. At the hearing of the matter Eliyahu submitted that the tribunal had no mandate to review its decision. Godfrey submitted that their case had been in court for long time and that the tribunal stayed the execution of the decree pending the determination of the appeal filed to the Court of Appeal. He added that the applicant was seeking execution when there was an appeal pending in the Court of Appeal. As pointed above, the matter is whether the tribunal had jurisdiction to entertain an application for review and stay the execution of the decree pending the decision of the Court of Appeal. Indisputably, after Godfrey and Daudi lost the appeal before this Court, lodged a notice of intention to appeal to the Court of Appeal. It is very likely that Godfrey and Daud have already instituted the intended appeal. It is trite law that once a party has lodged a notice of appeal to the Court of Appeal, the High Court ceases to have jurisdiction on that particular proceedings. The Court of Appeal reiterated its position in a number of its decision, of them being in Mohamed Enterprises Tanzania Ltd V. The Chief Habour Master and The Tanzania Ports Authority Civil Appeal No.24/2015 CAT (unreported). The Court of Appeal stated that- "the institution of a notice of appeal deprives the High Court its power to entertain the proceedings giving rise to the notice of appeal, "(emphasis supplied) Yet in another case of Matsushita Electric Co. Ltd V Charles George t/a C.G. Travers, Civil Appl.No.71 of 2001 (unreported), the Court of Appeal stated, thus- 3 "Once a Notice of Appeal is field under Rule 76 (now Rule 83 (1) of the Rules) then this Court [the Court of Appeal] is seized of the matter in exclusion of the High Court except for applications specifically provided for, such as leave to appeal or provision of a certificate of law". In Aero Helicopter Limited V. F.N. Jensen [1990] TLR 142 the Court of Appeal pronounced itself regarding the jurisdiction of the High Court to entertain an application for stay of execution after the institution of a notice of appeal. It decided that - "Once appeal proceedings to this Court have been commenced by filing notice of appeal, the High Court has no inherent jurisdiction under section 95 of the Civil Procedure Code to order stay of execution pending appeal to this Court" I find that after the respondents lodged the notice of appeal to the Court of Appeal, this Court and tribunal ceased to have jurisdiction to entertain an application for stay of execution. The High Court or the subordinate courts and tribunal may execute a decree but may not stay it. A party who wish to apply for stay has to apply to the Court of Appeal under rule 11 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and satisfy the conditions before the order of stay may be granted. 4 The fact that there is an appeal pending before the Court of Appeal is not a ground to stay execution or an automatic of execution. It is trite law that the appeal is not an automatic stay of execution. The Court of Appeal held in Director Tanga Cement Company Limited vs Ephraim Joram (Civil Application No. 307/18 of 2024) [2024] TZCA 907 (19 September 2024) that- "Before determining the said issue, it is pertinent to point out that an appeal before the Court does not operate as automatic stay of execution of the decree or order appealed from. Thus, it is incumbent on the part of the intending appellant to lodge a notice of motion seeking the indulgence of the Court to stay the decree of the High Court pending the determination of the appeal." ( Emphasis is added) It evident from the above position of the law, that the tribunal had no jurisdiction to entertain an application for review to lift its execution orders and stay the execution after Godfrey and Daud had lodged a notice of appeal to the Court of Appeal. If, the respondents preferred to stay the execution of the decree, they had one remedy open to them, that is to apply to the Court of Appeal for stay of execution. 5 In the end, I find the proceedings for review, the ruling, and the resultant orders of the tribunal a nullity. Consequently, I quash the proceedings of review and I set aside the ruling together with the order staying the execution. I make no order as to costs. I order accordingly. Dated at Babati this 25th day of September, 2024. John R. Kahyoza Judge Court: Ruling delivered in the presence of the applicant and first respondent and in the absence of the second respondent. B/C. Ms. Fatina (RMA) present. John R. Kahyoza Judge 25. 9. 2024 6