20060908 TZCA Dar es Salaam

t. -~- ~' "i . - 1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CORAM: LUBUVA, J.A., KAJI, J.A., And KIMARO, J.A.) CIVIL APPLICATION NO. 28 OF 1999 lOSINDILO ZUBERI .............................. APPLICANT VERSUS ALLY HAMISI ..... .. . ... . ... .... .. ... . . .. .. .. . . . RESPONDENT (Application for Stay of Execution from the decision of the High Court of Tanzania at Moshi) (Munuo, J.) dated the 15 th day of February, 1998 in (PC) Civil Appeal No. 27 of 1998 RULING OF THE COURT 30 August & 1.4 September 2006 LUBUVA, J.A.: The matter has come before this bench of three justices of the Court after a single Judge had adjourned it in terms of rule 55 (1) of the Court Rules, ·1979 for determination of the Court. Before the single Judge was an application for stay of execution of the decision of the High Court in PC Civil Appeal No. 27 of 1998 pending the determination of an intended appeal. By way of notice i, . 'f 2 of motion the application was made under the provisions of rule 9 (2) of the Court Rules. From the order of adjournment it is apparent that the single Judge took this course of action upon the ground that he was confronted with a legal problem whether the Court of Appeal has jurisdiction to certify a point of law in terms of the provisions of section 5 (2) (c) of the Appellate Jurisdiction Act (hereinafter the Act) and in view of the decision of this Court in Omari Yusuf v. Mwajuma Yusuf and Another (1983) TLR 29. It further appears to us that the situation became more problematic having regard to the decision of the learned colleague sitting as a single Judge in Civil 6Qplication No. 5 of 1999 certifying a point of law in the matter. To resolve the legal problem, according to the single Judge, it was more .. appropriate for the matter to be determined by the full Court. Hence this matter before the Court. In order to give a dear picture of the matter it is desirable to preface the ruling with a brief historical background giving rise to the case. In Usangi Primary Court, Mwanga District, the respondent Ally Hamisi,, successfully sued the applicant, Losindilo Zuberi,, for the 3 .. repossession of a piece of land. Unsuccessfully, the applicant appealed to the District Court and thereafter to the High Court. As the matter originated from Primary Court, a point of law had to be certified by the High Court. The applicant applied to the High Court for leave and certification of a point of law. The High Court, (Mchome, J), dismissed the application holding that no point of law was involved to be certified. Undaunted, the applicant made yet another application in this Court namely Civil Application No. 5 of 1999, for certificate of a p9int of law. As said before, the application was granted and a point of l'aw was certified by a single Judge of the Court. Before us in this application, Mrs. Rwebangira, learned counsel, appeared for the applicant, Losindilo Zuberi, who has since died. On the other hand Mr. Kalolo Bundala, learned counsel, represented the respondent . When the matter was called on for hearing Mrs. Rwebangira applied under rule 3 (2) (a) of the-Court Rules, 1979 to have Salehe Zuberi, the · administrator of the estate of the late losindilo Zuberi, to be made a party in these proceedings in place of the deceased, the applicant. The application was granted and it was 4 accordingly· ordered that Salehe Zuberi be made a party in these proceedings in place of Losindilo Zuberi. In her submission in support of the application for stay of execution, Mrs. Rwebangira conceded that as the case, subject of the intended appeal, originated from Primary Court, the appeal falls under the provisions of section 5 (2) (c) of the Act. That is, such appeal does not lie to this Court unless the High Court certifies that a point of law is involved in the decision appealed against. However, she submitted that from the time the Act was amended by Act No. 17 of 1993, the Court has been given more powers by way of revision. While she contended that apparently by oversight the learned single Judge did not take into account the provisions of section 5 (2) ( c) of the Act in deciding Civil Application No. 5 of 1999, she firmly maintained that had the learned single Judge done so he would still have come to the same conclusion in certifying the point of law. The reason she said was that by invoking revisional powers, the proceedings of the High Court (Mchome, J) refusing the application among others, for certifying an important point of law on customary land law for consideration of the Court would be corrected. 5 Mrs. Rwebangira also submitted that until the order of the single Judge certifying the point of law involved was reversed and set aside by the full Court, the intended appeal was accompanied with a proper certificate as required under the law. On the merits of the application, Mrs. Rwebangira was firmly of the view that at the stage of considering whether or not to grant the application for stay of execution what is important is the notice of appeal and the decision which it is intended to appeal against. The rest of the matters in the application including the propriety of certifying the point of law are matters to be considered when dealin9 with the merits of the appeal,, she insisted. After all, she further submitted, what is required of the Court at this stage is for the Court to give direction in its decision in Civil Application No. 5 of 1999 in . which the point of law was certified. Thereafter _the matter would be left to the parties to decide on how to proceed with the matter. She urged the Court to grant the application. For the respondent, Mr. Kalolo Bundala, strongly resisted the application. He submitted that there is no merit in the application. According to him, there was no proper certification of a point of law ./. ,i 6 in this application. He said under the provision~ of section 5 (2) (c) of the Act, only the High Court is empowered to certify a point of law and not the Court of Appeal. This legal position, he further submitted, was reiterated by this Court in its decision in Omari Yusuf v. Mwajun1a and Another (1983) TLR 29. In that situation, Mr. Kalolo Bundala stressed, as the certification issued was improper and invalid, no appeal would lie to this Court. Therefore, he concluded, there is neither logic nor legal basis upon which stay of execution could be granted. Finally, Mr. Kalolo Bundala submitted that revisional jurisdiction could not be invoked in this matter as urged by Mrs. Rwebangira. This is so he said because the circumstances of the case and the nature of the application before the learned single Judge were such that the case does not fall under the instances in which the revisional powers of the Court are invoked. At any rate, Mr. Kalolo Bundala observed, tile revisional' powers of the Court are exercised by the full Court and not by a single Judge. We shall: start with the legal issue which was raised by the respond'ent, that the appeal: is incompetent because no properi 7 certification of a point of law was obtained. On this, we think it is desirable to set out the relevant provisions of the law. Section 5 (2) ( c) of the Act provide that: No appeal shall lie against any decision or order of the High Court in any proceedings under Head (c) of Part III of the Magistrates' Courts Act, 1984 unless the High Court certifies that a point of law is involved in the decision or order. In the light of these provisions of the law governing appeals which shall lie to the Court, the question falling for consideration is whether the certification of a point of law in this case was proper . . . On this, both Mrs. Rwebangira, learned counsel, for the applicant, and Mr. Kalolo Bundala, learned counsel for the respondent, are at one with each other. As contended by Mr. Kalolo Bundala, Mrs. Rwebangira conceded that the certification of a point of law in this case does not accord with the provisions of the law set out above. Similarly, learned counsel for both the applicant and the respondent are also in agreement that the certification of the point of law by the !'earned single Judge of this Court is not supported by the 8 decision of this Court in the case of Omari Yusuf v. Mwajuma And Another (1983) TLR 29. In this case the applicant unsuccessfully applied to the High Court for, among others, a certificate that a point of law was. involved. After refusal by the High Court to certify the point of law, further attempt was made to apply for the same in this Court. The Court took the view that the power to certify that a point of law is involved is conferred on the High Court a·lone. Striking out the application, the Court inter alia stated: "Under section 5 (2) ( c) •f the ·Appellate Jurisdiction Act, it is the High Court alone which has jurisdiction to entertain an application for a certificate that a point of law ls involved so that matters originating from the Primary Court can go to the Court of Appeal." From the provisions of the law set out ab·ove, and the decision of the Court in Omari Yusuf (supra), we are ·with great respect, in agreement with Mrs. Rwebangira and Mr. Kalolo Bundala, learned counsel, that the certification of the point of law in Civil Application No. 5 of 1999 is not supported by the law and the decision of the Court in Omari: Yusuf. It would follow that the intended appeal', was 9 accompanied by an incompetent certificate. As such since the appeal involves a case which originated from the primary court no appeal would lie to the Court. This is the intended appeal in which the decision appealed against is sought in this application to be stayed. The question arises whether in the circumstances of the case, there is merit in the application for stay. On this, Mrs. Rwebangira and Mr. Kalolo Bundala, learned counsel, part company with each other. On one hand, Mr. Kalolo Bundala, for the respondent, ·firmly maintained that as the certificate obtained. in this case on a point of law in matters such as this which originate from primary court is a pre-requisite condition for an appeal to lie to the Court is improper, there is no legal basis upon which to grant stay of execution sought. There is no valid appeal which would lie to the Court, pending the outcome of which stay of execution could be granted, Mr. Kalolo Bundala stressed. On the other hand, Mrs. Rwebangira, for the ·applicant took the view that even though as ·shown earlier she had conceded that it is onl'y the High Court which has jurisdiction to certify a point ofr law in 10 matters such as this, still, in her view, the Court could validly certify the point of law by invoking its revisional jurisdiction. In that light, she went on in her submission, there would be a valid certificate in support of the intended appeal. Consequently, a proper appeal would lie to the Court pending which stay of execution sought is justified. She urged the Court to grant the application. From the submissions by Mrs. Rwebangira, learned counsel on this point, the issue is whether the Court can invoke revisional jurisdiction in this matter. The circumstances in which the Court can invoke revisional jurisdiction are settled by this Court in Halais Pro- Chemie v. \Nella A.G. (1996) TLR 269, Moses Mwakibete v. The Editor IJhuru, Shirika la Magazeti ya Ch_~ma And National Printing Co. Ltd. (1995} TLR 134 and in Transport Equipment Ltd. v. Devram P. Valambhia (1995) TLR 161 among others. In Transport Equipment Civil Application No. 46 of 1994, (supra), the Court inter alia stated: (i) (ii) (iii:) If a, party does not have- an automatic right of appeal, then he can 11 use the revisional jurisdiction after he has sought leave to appeal but has been refused. Possibly, in her submission urging the Court to invoke revisional jurisdiction · Mrs. Rwebangira, learned counsel, had in mind this holding of the Court. With respect, we do not agree with her in her submission on this point. In our view, the instant case is distinguishable from Transport Equipment which involved an application for leave to appeal. Rule 43 (b) provides for a party to seek leave from the Court after it has been sought and refused by the High Court. The application before us seeks stay of execution. In that situation, we see no basis upon which the Court could, as urged by Mrs. Rwebangira, invoke revisional jurisdiction to certify the point of law. Under section 4 (2) of the Act, as amended. by Act No. 17 of 1993, the Court can invoke revisional jurisdiction either for purposes of and incidental to the hearing and determination of any appeal or on its own motion i.e. suo motu to call for and examine the record of any proceedings before the High Court· In this case, the applicant specifically applied forr and sought stay of execution in respect of 12 High Court decision in PC Civil Appeal No. 27 of. 1998. In this situation, we are unable to see how the Court could invoke its revisional jl!risdiction to correct what Mrs. Rwebangira referred to as errors in the proceedings before the High Court (Mchome J) relating to land customary law. Consequently in recapitulation we are settled in our minds that in the circumstances of this case, revisional jurisdiction of the Court cannot be invoked as urged by Mrs. Rwebangira. Furthermore, it is also our finding that in view of the provisions of section 5 (2) (c) of the Act, the certificate on the point of law by a· single Judge of this Court in Civil Application No. 5 of 1999 was improper, it is contrary to the law as provided under the Act. With respect, we think had the learned single Judge addressed this aspect he would have come to the same view. It was of no legal consequence. In the circumstan~es, we are constrained to quash and set aside the order granting the certificate on the point of law. As said before, it follows therefore that in the absence of a proper certificate by the High Court that a point of law was involved, no appeal lies to this Court. 1.3 This being the position, we shall next address the pertinent question whether the circumstances of the case merit stay of execution to be granted. It is common knowledge that the Court has laid down principles which the Court has to consider in deciding whether or not to grant stay of execution. One such principle is that the Court would grant a stay of execution if it is demonstrated that the intended appeal has prima facie likelihood of success. See for instance, Tanzania Cotton Marketing Board v. Cogecot Cotton Company S.A. (1997) TLR 165 and Tanzania Electric Supply Company limited and Two Others v. Independent Power Tanzania limited, Consolidated Civil Applications Numbers 19 and 27 of 1999 (unreported). In this application not only that it cannot be demonstrated that prima facie there is likelihood of success in the intended appeal but there is no appeal which would lie to the Court against the decision which it is sought to be appealed against. Furthermore, on balance of convenience in such circumstance where no appeal lies to the Court, we do not think that stay of execution is warranted. There .would be no ground for de·nyin9 the respondent his right of enjoying: I • 14 the fruits of the decision and decree in his favour in a matter in which no appeal lies to the Court. In the event, for the foregoing reasons, the application is dismissed. In view of the protracted long history of the matter and the peculiar circumstances of the case, we make no order as to costs. DATED at DAR ES SALAAM this 8th day of September, 2006. D.Z. LUBUVA JUSTICE OF APPEAL S.N. KAJ] JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL I certify that this is a true copy of the original. ( S.A.N. Q'AJ?JRA) SENIOR DyP~';~GISTRAR