CIV

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 787/15 OF 2024 MANAGING DIRECTOR OF CRJE, ZA N ZIB A R ................................ APPLICANT VERSUS ZATHOCODAWU MEMBERS (Represented by the General Secretary of ZATHOCODAWU, ZAN ZIBAR)................................ RESPONDENT (Application for stay of execution of the judgment and decree of the High Court of Zanzibar (Industrial Division) at Zanzibar) fSuwedi, J.1 ) dated the 12th day of October, 2023 in Miscellaneous Civil Application No. 02 of 2021 RULING 14th & 18th February, 2024 MANSOOR, J.A. The applicant is a registered company, and the proper registered name is CHINA RAILWAY JIANCHANG ENGINEERING COMPANY "CRJE". I noted from the Ruling and Drawn Order of Civil Case No. 9 of 2006 issued by the High Court of Zanzibar by Hon. Mkusa I. Sepetu J, on 27th June, 2024, annexed to the affidavit of the applicant that the name of the applicant is cited simply as Managing Director, CRJE Zanzibar. I also noted that the Notice of Appeal filed by the applicant on 1st November 2023 intending to challenge the decision of the High Court of Zanzibar, Industrial Division issued by Honourable Aziza I. Suwedi J, the name of the intended appellant in the Notice is Managing Director of CRJE, this notice of appeal forms part of the annexure of the affidavit of the applicant in support of the notice of motion. Again, in the application for execution, the respondent has mentioned that the decree is to be executed against Managing Director CRJE, Zanzibar, while in the present application, the notice of motion shows that the applicant is Managing Director of CRJE, the name which was not a party in the proceedings before the High Court. That apart, it is important in all the pleadings in court, judgement and decree issued by the courts to have the names of the parties properly cited, otherwise the decree becomes un-executable. The issue here is not that the names of the applicant is incorrectly spelt in all his pleadings, judgements and decree of the courts below but the names of the applicant is of an entity which does not exist. I read from the acknowledgment note dated 27th June 2013 (annexure CRJE2) of the affidavit of the applicant that the applicant is actually a duly registered company in Tanzania, and the registered name is CHINA RAILWAY JIANCHANG ENGINEERING CO (T) LIMITED. There is no company or legal entity registered as CRJE. The parties to the proceedings should have cited the names CHINA RAILWAY JIANCHANG ENGINEERING CO (T) LIMITED as registered in the company registry. The initials could have followed the actual name as citing the initials only as a party to the proceedings is improper. CRJE Zanzibar is non-existent and cannot stand for CHINA RAILWAY JIANCHANG ENGINEERING CO. (T) LTD, a duly registered company and which is a party that exists. It is unfortunate that the matter proceeded to judgment and decree and to ruling and orders with the names CRJE ZANZIBAR, the judgment, decree, ruling or order carrying the name of CRJE ZANZIBAR as a party to the proceedings or a judgments debtor to a decree cannot be enforced nor executed. Unfortunately, the proceedings continued in the name of CRJE ZANZIBAR, and it is not clear if CRJE ZANZIBAR is the legal person different from CHINA RAILWAY JIANCHANG ENGINEERING CO. (T) LTD, or CRJE ZANZIBAR is the same legal entity as CHINA RAILWAY JIANCHANG ENGINEERING CO (T) LIMITED, the judgement, rulings and decree which were issued showing CRJE ZANZIBAR as the party instead of CHINA RAILWAY JIANCHANG ENGINEERING CO. (T) LTD, cannot be executed against CHINA RAILWAY JIANCHANG ENGINEERING CO (T) LIMITED. Therefore, all the previous processes are affected, they are a nullity unless a proper amendment is sought and granted by the competent forums. In the remarks by Peter Van Blerk, in Legal Drafting, Civil Proceedings, Juta and Company Ltd, 2014 which I find very persuasive to the effect that; "Generally speaking it is the practitioner representing the plaintiff whom is required to take the initiative in identifying parties to the action. This function must also receive the consideration o f the defendant's legal practitioner. It happens from time to time that to use the colloquial expression, the plaintiff has sued the "wrong party" or even, although less frequently that the wrong plaintiff has sued. A practitioner faced with one or the other o f these situations must identify precisely what has occurred. In the case o f the so- called "wrong defendant;"the first question to be asked is on whom the summons was served. Further as follows, "Is it the party cited in the summons? I f so, the second question is whether the cause o f action relied upon by the plaintiff is one that lies against the defendant cited by the plaintiff. I f the party served with the summons is correctly described (ignoring spelling errors or minor immaterial mistakes) then one should admit the allegations concerning identity o f the defendant and deny the appropriate allegations regarding the cause o f action. I f the description o f the defendant clearly does not apply to the person on whom summons is served, the person served has, technically speaking no duty to oppose the proceedings" In instant application, the applicant who is also the judgement debtor was not sufficiently described and non-description of the party in the proceedings did go to the root of the matter as the party cited was a non- legal entity as a result of which the proceedings could be held to be void ab initio. If the courts shall permit an amendment and the proper party's name be corrected, only then could the decree be executed. The above anomaly notwithstanding, Rule 11 (7) of the Court of Appeal Rules requires that the Decree/ Order and the Judgement or Ruling appealed from must be attached to the Notice of Motion, this sub rule reads as follows: Rule 11 (7) An application for stay o f execution shall be accompanied by copies o f the following a) a notice o f appeal b) A decree or order appealed from c) A judgement or ruling appealed from; and d) A notice o f the intended execution. The requirements enumerated in this sub rule 7 are mandatory requirements as the word used is "shall". In the instant application, although the applicant intends to ask the court to stay the execution of the decree/order issued by Honorable Aziza I. Suwedi, the Judge of the High Court of Zanzibar, Industrial Division, issued on 12th October 2023 in Miscellaneous Application No. 2 of 2021, there is no impugned Ruling or Drawn Order of the Court which is sought to be challenged attached to the Notice of Motion contrary to the requirements of Rule 11 sub rule 7 of the Rules. It is trite law that, in order for the Court to grant the application for stay of execution all the conditions required under Rule 11 (5) and Rule 11 sub rule 7 (a, b, c and d) must be cumulatively fulfilled. A copy of the decree, order, judgement or ruling appealed from as envisaged under rule 11(7) (b and (c) of the Rules, is a mandatory prerequisite for an application for stay of execution to stand. The applicant is mandatorily required to attach a copy of the Judgement or Ruling appealed from, and a copy of Decree or Order appealed from as part of the documents accompanying an application for stay of execution as provided under rule 11(7) of the Rules. Failure to attach the decree or order or judgement or ruling appealed from rendered the application incompetent and this was discussed in the case of Stanslaus Nganyagwa v. Seif Hamoud and Fax Auction Mart, Civil Application No. 110/12 of 2019 (unreported), where the Court ruled that an application for stay of execution which was not accompanied by a notice of appeal and a decree is defective and incompetent, it was held, among other things, that: "The wording o f Rule 11 (2) (b) [Now Rule 11(3)] o f the Rules Implies that a notice o f appeal is a vital document which ought to be attached in the record o f the application for stay o f the execution because the Court cannot know whether the applicant has already filed his notice o f appeal to show his intention to appeal'. I understand that there is letter annexed in the affidavit of the applicant as annexure CRJE3 written by advocate Rukazibwa to the Registrar of the Industrial Court of Zanzibar requesting for a number of documents including the proceedings, ruling and drawn order of Misc. Civil Application No. 2 of 2021 before Hon Aziza I Suwedi J dated 12th October 2023, but this letter is not a replacement of the documents required in Rule 11 sub rule7 (b) and (c). The application at hand remains incompetent as the requirements of Rule 11 (7) (b) and (c) were not complied with, and the effect of an incompetent application is to struck out as stated in the case of LRM Investment Company Limited & 5 Others VS Diamond Trust Bank Tanzania Limited and Another, Civil Application No. 418/16 OF 2019, reported in TANZLII. Based on the above reasoning, the application is incompetent for failure to comply with the provisions of Rule 11 (7) (b) and (c) of the Rules as well as for failure to implead a proper party, and therefore it is hereby struck out. I shall order that each party shall bear its costs for there was no resistance from the respondents who did not file reply affidavit, and did not oppose the application. It is so ordered. .DATED at DODOMA this 18th day of February, 2025. L. A MANSOOR JUSTICE OF APPEAL The Ruling delivered this 18th day of February, 2025 in the presence of Mr. Masoud Hamidu Rukazibwa, learned counsel for the Applicant and Mr. Abdillah Hamis Rashid, learned counsel for the Respondent is hereby certified as a true copy of the original.