NA TZCA Dar es Salaam5

·IN·THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (tO~AM: MBAROUK, J.A.,ORIYO,J.A. And MMILLA,J.A.) -CIVIL APPLICATIONNO.213 OF 2014 -_ -HAMME_RS-INf.:OPRPORATION CO.LTD ...................-........ -. .......... APPLICANT ' ' -

VERSUS THE BOA.RD O_F TRUSTEES OF CASHEWNUT - INDUSTRITY DEVELOPMENT RUST FUND ................ ~·......... ~ ... RESPONDENT (Application for.stay of execution f-rom the Decision of the High Court of Tanzania (Commercial Division) -at Dar essalaam) (Nyangarika, i.) · · · Dated the 3~ th day of July,-2014_ - . _ in _ . . • ·-.c,ommeircial Case 'No. ·-10s of2013·: . . . . . ~:.) Before the Court -is an applicatiofl for stay of execution lodged _rs : - through a Notice of [Viotion' under -Rule 48(1) and 64 (2) of the Court of Appeal Rules, 2009, the Rules:- In_ this application, the applicant, Hammers Incorporation Co. Ltd, is applyin~ for an order of, the Court that, the stay of execution order dated 30 th day-_of September 2014, be rescinded. The brief background of the matter in issue is as follows. On 10th December 2014, this Coutt struck out the res·pondent notice of appeal which was filed on 20th August 2014, for failure to take essential steps.(as the result there is no notice of appeal pending before this Court). -Aggrieved by the decision of the Court, the applicant duly lodged a· Notice of Motion in Court on 10/12/2014, through. Now reverting to· thf~ application which was filed byTaslima Law Chambers, Advocates and i,;upported by_ ·an affidavit of Haroun Rashid · ·. .M~tarifa P~incipa! Officer. of the applicant._~ ~~ ~ ' . . ... . · · ·:. .·,. •-. _ __,. Industry· :De~·elopment rrust, .,.::(:iJrough •Peter . ..... filcdn6tice · of . ~>reliri.1inar'( . obJe<~tfon.. challenging .... ~ Kibc1tala, ....... \:, . . the competency of the QppliG.::\ v,' ·' - -. :· - .s~_. namely·::'·· i· . r-;i ·.:, that it is_ 1!ot accornpdnied by a copy of ·the Rulinq and. Ordf~r striking out the Notice of Appeal, which Ruling and Order are the basis of the Orders sought.

2. That, the affidavit in support of the Applicant is fatally defective iii that while the Notice of Motion does· not list any issues of non- 2 compliance with Orders of deposit of security, . ' .paragraph 9 of the Affidavit deposes about - such.

3. The :Affidavit is· su·pport of the_ Application is . fatally defective in that it does not show who ---dates arid signs the averments thereof. At the hearing of ,:the applfcation Mr. Ndurumah Keya Majembe, ' . learned-advocate, repres_~_nte9_th¢. applicant, whi_le Mr-.TwahaJ~slnia _and · .. -- _, . . .' . ' _Pet~r Kibatala learned- advocates·re·p"resehted the respof)_g_~ntL -- , •. II : · ::.l:hc~, Court allowed 'MrMajenibe )leai·ned · counse·1 to argl_d¢. J:m -the· -·. . . .. - . ~ -·-~- -~ • • • . _ . , '::-- .. .. •• . ' . , • Ar • -.-..... ••- • , ·:--~-- _:,. • - • - y . pC)ihts thaf-thei;r ·application -before· the Court were not_~PJJT)t~r~Q J;>y_-th_e . . -4- ..... --~ .•.·-~= ~----·_-_ ... ~----·, '::-·"~·-~ -~ .. :. ... ..•. ·: -_ .; -~. u • ••• :·: - - ' - • ' ··• ~ - .. - • ,,--· • • .~ • ,,.. - . . . ..:.~ • • • ...; •• , . , ,__ , ',f:" .,. -:-- - -~ . ' . ~ ~, . · .. ..•.. - . - -: ' . .... ..... ·. ' .. , :respondent . . .. . on·'ttie--point·that . . the_ prelimin~.tY . ~:_:: _: . . ·. . -objection -was, rais.ed,·by a - -· ... - -- - ... . . . .. . . . . .' •• - ·:. • .r;.,. •• -.:-.":"·-:--• • ~ •. - stran_ge_r, a, p~rson who wa~{not party to the· pr6t~eding; as _the real ·=-· .. _respondent was •''Boatdof·Tr_usteesofCa:shewnut Iridostry Development Trust Fund'· and not"Board' of•. tnistees of Cashew' nut Industry .. D_evelop0e11[ Ti-ust'~ ·Tfle' essence of

MrMajembe subryiission is to the effect that the application ·was lodged on time, no affidavit on reply, praying the Court to· gra·nt orders as prayed on his notice of motion supported with affidavit-with costs. ·In his response MrKibatala learned-advocate, strongly resisted that point, and submitted thati the application in uncontested and missing of 3 the name "Fund" does not go to the ·roots of the application.On the ' point· that those are. two institutions;· Mr.Kibatala ·1earned advocate · submitted that those were mere presumption as there is no any prove of . - -.that. • · . After, we heard both pa1ties we find that, the issue concerns the missing word - "Fund" on respondent . . nam·es it. is .. curable and .does,_ not · '~ ~ affect the main_ application. We allowed the parties to acldress the Court As r"f:~-Qt·irds the first ground of Preliminary Objection; .Mr.Kibatala· .._ ...., I ~.. ,.. subiT1itted ,. that,·_tht1··t,asis· -· . . . . of"'t:he. •-appli'cant's'instant appliciation -has· . its•• - submitted- that there is• no specific-rule ··governif,g this aspect but this has been the result of dE:!Cided cases by this Court and practice of the Court. Applicant's -failure to attached copy is fundamental and ousts jurisdiction <. of the Court and it is defective.· The response by Mr. ·Majembe, learned advocate for-the applicant was understandably brief; the learned

advocate submitted that ·the applicatfr5n before the- Court was to -rescinding- the -·Order of · stay of execution which was delivered on 30th day of September 2014 and not the Ruling whicli struck dut trH~ Notice of AppeaL which was delivered on 4 .I \J 10~~·day _of .December 2014. It was Mr. Majernbe view that the inclusion . .• of.. t~e Rµling ~of Stay of execution was sufficient compliance with the . practic~ as evolved by the Court. · -On our part, let commence with the first ground of preliminary ·· objection. Admittedly, the requirement that· a copy of the decree or order ;sought to be stayed/ rescinded shouldaccompany a. Notice. of~ Motiqr1 is a_ mere practice.of the Court qnd not a statutory. requirement. . _.. ·- ... The:Jogic behind this long established practice· is that the. Court . - cannot revisean. order or proceeding w~ich is not before. it .or. which it . .-·-fl9-S not seen. Iri the instant application there is allegation that the order .. -=~· -~-.-.· _· :-:---of-lOt9_-day:i:>fDecernber 2014 whiqh struck,o.ut the said notice.of·r.:ppeal --opportunity a'r1d thus' --to form- •its opinion concern that ruling. The · - purpose of rescinding is to ·abrogate or to revoke and. it is- the responsibility of the· said party to take all the necessary measures including attaching to the record the impugned order. . . . . In the case of Ahmed AthumanNganga and 2 Oth~rs

:versus HatibeAbda~aah, Civil Application No 136 of 2004, which c[ted the case of Hass,1n Ramadhani versus SaadaMussa, Civil Appli·cation N9_ 84 of.. ;?._003- (unreported), the Court stated .thus:- .·_ ~"- It is the practice of · the court and: not the 5 il -~ ..... ·---· require_rnent of the rules to require the attachment of the order to applic..ation. Nonetheless, it is also common groµnr/ in my - . view that the practice and procedure evolved by the Court in connection with appeals or app!icat.ions f)as the same l(}giJ{ force as the express provisions of lhe rules."_ . .Jn .the _rescut, v,1esustain the preliminary objection and strike out the <-ippiicaUon vvith costs for being incompetent. H_aving reached this · .. conclusion, it is not necessa_iy far:.. l:l.~~"t<?., fO_nsi~er_ and determine the 0 oth~r gt:o~nd_s·of p'.·ellmina_ry. obj~ct/ons.... : ._ ' -- • •' ,r 2015. M.S. MBAROUK Jus·~rI~E OF APPEAL . K.K~ORIYO JUSTICE Of APPEAL B.M.MMILLA

JUSTICE OF APPEAL 6