20140725 TZCA Mwanza

\ IN THE COURT OF APPEAL OF TANZANIA ATMWANZA CIVIL APPLICATION NO. 10 OF 2013 MATHIAS CHARLES K.ASELELE ...............................................APPLICANT VERSUS THE REGISTERED TRUSTEES OF THE ARCHDIOCESE OF MWANZA ......................... ~ .......... RESPONDENT {Appeal from the decision of the High Court of Tanzania, at Mwanza) (Ngwala, J.) Dated the 22 nd day of February, 2012 in (Land Case No. 2 of 2007} RULING MANDIA, J.A.: The applicant has filed a Notice of Motion in which he is applying for extension of time within which to apply for Stay of Execution. In the affidavit accompanying the Notice of Motion the applicant avers that this Court struck out a Notice of Motion he had file, and he attached the ruling of this Court as Annexure B. He is now applying 1 ·----- ----- -- - - - - - - ---- ~ - - - - - - - - - ~ - - - - - - ~ ~--- ~ - - ~ - - - - ' for the same prayers which he ap'plied for in the application which·: . was struck out by this Court on 22nd March, 2013.- At the hearing of the application, the applicant appeared in person, unrepresented. The respondent was represented by Mr. Pauline Rugaikamu, learned advocate. During the hearing it has tra~spired that there is a pending application in the High Court of Tanzania in which the applicant is applying for extension of time within which to file a Notice of Appeal to this Court. When this fact came to light, the applicant had second thoughts on the application before this Court. He therefore applied to have the present application withdrawn while he pursues the application now pending in t-he High Court. The applicant prayed to be spared from paying the costs of the present application. Mr. Pauline Rugairnukamu had no objection to the prayer for withdrawal of the application made by the applicant. He hcJwever prayed that the respondent be awarded the costs of the applications. on the ground that the application is frivolous. He gives two reasons 2 . ~· for this stand. The first reason is that there is no valid Notice of ., ' , .· < - Appeal upon which the application for Stay of Execution could be based, and the second reason is that execution had already been carried out so there is nothing to stay. As both the applicant and the respondent are agreed in the question of withdraw, the Court grants the prayer for withdrawal, and the application is withdrawn under Rt.1le 58(3) of the Court of Appeal Rules,2009. On the question of costs the applicant has conceded that there is a pending application in the High Court in which he is ·seeking for extension of time within which to file a Notice of Appeal to this Court, and that the application has not yet been determined. This means the applicant is conceding that he has ~•,,.,. ~ ..... not filed a Notice of Appeal in this Court. Rule 11(2)(b) of the Court of Appeal Rules in categorical where it states that in any civil proceedings, · where a Notice of Appeal has been lodged in accordance- ·with Rule 83 further 'process as enumerated in sub ~ ·· · rules (b),(cJ .. (d} ·and (e) can· follow. The plain· meaning of the underscored words· is lhat the filing of a ·Notice of Appeal is the pre- . · 3 '.I condition to anything required to be done under Rule 11(2) (b) of the Court of Appeal Rules, 2009. It is instructive to note that even under Rule 11(2) (a) which relates to criminal proceedings the precondition of filing of a Notice of Appeal is underscored where any further process is required under Rule 11 (2)(a). The absence of a Notice of Appeal, therefore, makes an application for Stay of Execution incompetent. It therefore goes without saying that there cannot be an application of extension of time to file an application for Stay of the Execution where the conditions for stay have not been met. The second reason which Mr. Pauline Rugaimukamu gave for the frivolity of the application is that execution had already been carried out so there is nothing to stay. This argument is sound. In SHELL AND BP TANZANIA LTD versus THE UNIVERSITY OF DAR ES SALAAM, Civil Application No. 58 of 1999 this Court (Lugakingira, JA) commented thus:- ''.As stated ear/ie0 stay may-be granted where there is something to stay. There is nothing to stay in this case. The case of Joachim Kalembwe (supra) cited by Mr. Kalolo actually decided that stay cannot issue where 4 ··· ' ex.ecution has.already taken place. And sd is ought to be • " in the instant case and the , application must fa-1Z" On the basis of the above, I am in agreement with Mr. Pauline Rugaimukamu that the application, even though it was withdrawn, wa!;i frivolous. As such, the prayer for costs is justified. I therefore award costs to the respondent. DATED at MWANZA this 25 th day of July, 2014. W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. F. J. KABWE DEPUTY REGISTRAR COURT OF APPEAL 5 , t