issa abdallah mikui and 44 others vs the project manager import co ltd 2012 tzhclandd 20 6 march 2012

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISCELLANEOUS LAND APPLICATION NO 40 OF 2010 ISSA ABADALLAH MIKUI, ABASISABUKU & 43 O THERS......... APPLICANTS VERSUS THE PROJECT MANAGER AGRO IMPORT CO. LTD ...............RESPONDENT RULING MUTUNGI. J. Before this Court, the Respondent through the service of J.S Rweikiza and Co. Advocates has raised the following preliminary objections:- 1)That this Honourable Court has no jurisdiction to entertain this application. 2) That there is no Applicant's appeal pending in the Court of Appeal. 3) That this application has been brought on wrong provisions of the Law. Mr. Kamugisha learned counsel advocated for the Respondent whereas the Applicant was represented by Nkoka learned advocate. At the hearing of the preliminary objection, Mr. Kamugisha prayed to abandon second and third points of preliminary objection hence prayed to argue the first point preliminary objection that this Honourable Court has no jurisdiction to entertain this application. Mr. Kamugisha contended that this Court has no jurisdiction to entertain the application for stay of execution on the reason that, the Law provides than once a notice of appeal has been filed, the High Court ceases to have jurisdiction to entertain any matter whose notice of appeal is a subject of appeal. The counsel further submitted that the applicant has lodged a notice of appeal against the decision of this court in the Court of Appeal No. 114 of 2007. In support of his argument Mr. Kamugisha cited the case Of SIMON KABAKA DANIEL VERSUS MWITA MARWA NYANGANYI AND 11 OTHERS HIGH COURT OF TANZANIA TLR (1989) Page 64 which is basis of his argument and submission, the case stated that this court has no jurisdiction to entertain the application for stay of execution pending determination of an appeal to the Court of Appeal since that jurisdiction is vested in the Court of Appeal. Mr. Kamugisha further propounded that the application should have been filed in the Court of Appeal. He further cemented the position as above by referring to the decision of Court of Appeal deliberating on the same issue in the case of E.A.D.B Versus BLUE LINE ENTERPRISES LTD Civil Appeal No. 101 of 2009. In view of the aforesaid authorities the counsel prayed the application be struck out for want of jurisdiction. In reply to the submission made by learned counsel for the Respondent, Mr. Mkoka the learned counsel for the Applicant submitted that, it’s true they have filed a notice of appeal one or two days after this Court had delivered its judgment. He contended that due to the circumstance of the matter itself there was an order by this Court (High Court Land Division) that the Applicants had to vacate immediately from the suit premises therefore they had no option but to file their application before this Court (High Court Land Division) as per Order XXI Rule 24 of Civil Procedure Code Act Cap R.E 2002 requesting for a stay of execution, while they are preparing for an appeal before the Court of Appeal. The counsel further submitted that their appeal has been admitted before the Court of Appeal and they have lodged the application for stay of execution in this Court with an urgency to prevent the decree holders from evicting the judgment debtor before the appeal in the Court of Appeal is determined. In Responding to the submission made on the case cited by the learned counsel for the Respondent Mr. Nkoka submitted that the Law allows the court which passed the judgment to determine the application for stay of execution. Mr. Nkoka further submitted that either the court which passed the judgment or where the appeal lies may determine an application for stay of execution. Therefore the counsel maintained that the law allows for this court to hear and determine the stay of execution provided there are reasonable grounds for doing so. Further to that learned counsel maintains that, it is proper in accordance to the circumstances of this matter to file an application for stay of execution before this court. The counsel submitted that since their appeal is in the Court of Appeal from 2007 and has not even been scheduled, therefore they humbly pray the application be allowed to be heard so that justice should not only to be done but seen to be done. Finally the learned counsel contended that failure of this Court to allow the application, the Applicants will suffer irreparable loss due to the delay of the matter being heard in the Court of Appeal. In the rejoinder Mr. Kamugisha strongly disputed what his learned brother submitted. He maintained that on the strength of the authorities he cited clearly provide that once a notice is lodged then it is the court of appeal which can entertain the matter and not this court. The learned counsel insisted that the application would have been properly filed before the Court of Appeal for it to be determine. He further maintained that all the reason of loss explained by the counsel for the applicants would have been advanced before the Court of Appeal instead of filing a stay of execution before this Court. This Court has jurisdiction only to stay execution before lodging of notice of appeal once lodged it seizes to have jurisdiction. He reiterated his prayer that the application should not be entertained and be struck out with costs. I have carefully studied arguments made by both learned counsels in view of this preliminary objection, but I am of the view that what the Respondent is asking this court is examine as whether it has jurisdiction to make an order of stay of execution once the notice of appeal and appeal has been lodged before Court of Appeal. It has not been disputed by either side that the Applicant has filed a notice of appeal and the appeal before the Court of Appeal registered as No. 114 of 2007. This has been revealed without controversy by both counsels in their submission that there is an appeal lodged by applicants before Court of Appeal in respect of the decision of this Court delivered by my learned brother P.A Rugazia in Civil Land Case 140 of 2004. Now before me, the Applicants have brought an application for stay of execution of the judgment delivered by my learned brother P.A. Rugazia, on 1st September, 2007. Civil Land Case No. 140 of 2004. The application which has been brought under Order XXI Rule 24 of Civil Procedure Code Act R.E 2002 and Rule 9 (2) (b) of the Tanzania Court of Appeal Rules 1979. The controversy centers as to whether this Court has jurisdiction to order stay of execution while the notice of appeal and appeal have been lodged to the Court of Appeal. Resolving the issue above as to whether this Court has jurisdiction to make an order of stay of execution once the notice of appeal has been lodged to the Court of Appeal I have perused through the already decided authorities. The position of law is very clear as enunciated by decision of Court of Appeal which in the case of AFRO HELICOPTER (T) LTD Vs. JENSEN (1990) TLR 142 -where Kisanga, J. held that Since there is a notice of appeal the court ceased to have jurisdiction in the matter as the proceedings are seized of the Court of Appeal. 8 Again the Court of Appeal reiterated the same position in the case of KOMBO MKABARA Vs. MARIA LUIS FRISCH, CAT - Civil Application Number 3 of 2000(unreported). Further more the Court of Appeal reiterated its position in MATSUSHITA ELECTRIC CO. LTD Versus CHARLES GEOPGS t/z CG TRAVERS Civil Application No. 7 of 2001 (unreported)where it was held that: Once a notice of appeal is field under rule 76 then this Court is seized of the matter in exclusion of the High Court except for application specifically provided for, such as leave to appeal, provision of a certificate of a point of law or execution where there is no order of • stay of execution from this court. Therefore It is a principle of the Law that, once there is a notice of appeal the proceedings ceases to be before the High Court and the Civil Procedure Code ceases to apply to the proceedings. And this was exactly what was said in the case of M/S LAW ASSOCIATES, ADVOCATES Versus INDEPENDENT POWER (T) LIMITED TLR 2004 Page 276 before Massati, J. I have my own misgivings on the submission by the learned counsel for the applicants that they have filed an application for stay of execution on the basis of its urgency to prevent the decree holders from evicting the judgment debtor before the appeal in the Court of Appeal is determined. The said reason is not swallowed by the position of the law enunciated in the aforesaid decisions of the Court of Appeal I find great difficulty to follow the line of reasoning adopted by the counsel for the Applicants by citing Order XXI Rule 24 Civil Procedure Code Act Cap 33 R.E 2002 as the law which according to the argument of the counsel it is the enabling law allowing for the same. 10 Am of the view that the above law that is Order XXI Rule 24 Civil Procedure Code Act cap 33 R.E 2002 could only be applicable if the proceedings of appeal have not commenced in the Court of Appeal but the Applicants counsel in his submission submitted that they have filed a notice of appeal as well as appeal which has been admitted and given number 114 of 2007. Therefore there is no dispute that the appeal has commenced already before the Court of appeal. Therefore if the proceedings have commenced to the Court of Appeal the application for stay of execution cannot be entertained by the High Court on reason that its jurisdiction ceases automatically unless ordered by Court of Appeal to do so. To cement the position above I wish to quote the words by Kisanga JA in the AFRO HELICOPTER LTD Case at page 145 where the Judge stated: “I think that the High Court has such Jurisdiction only as long as proceedings of ii appeal to this Court have not been commenced. Once such proceedings have been commenced the inherent jurisdiction of the High Court ceases”. In view of the above authorities of the Court of Appeal which I am bound by those decision, I proceed to hold that once there is a notice of appeal to the Court of Appeal the proceedings cease to be before the High Court and the Civil Procedure Code Act ceases to apply. I would not therefore have jurisdiction under Order XXI Rule 24 Civil Procedure Code Act Cap 33 R.E 2002 or any other provision to grant an order of stay of execution and up to now there is no order given to this Court by Court of Appeal directing this Court either to proceed with determining and granting the order of stay of execution. Therefore I do find that this Court has ceased to have jurisdiction to proceed with the application bought by Applicants for stay of execution. As a result I uphold Mr. Kamugisha’s objection that this Court has ceased to have jurisdiction to proceed with this application brought by Applicants and proceed to strike out the same. I make no order as to costs. B.R. MUTUNGI JUDGE 6/3/2012 Read this day of 6/3/2012 in presence of Hokololo for Nkoka for Applicants and Miss Gregory holding brief of Kamugisha for the Respondent. B.R. MUTUNGI JUDGE 6/3/2012 13