20130322 TZCA Mwanza1

IN THE COURT OF APPEAL OF TANZANIA V ATMWANZA (CORAM: BWANA, J.A., MASSATI, IA., And MUSSA, J.A.) MZA CIVIL APPLICATION NO. 2 OF 2012 MATHIAS CHARLES KASELELE ............................................. APPLICANT VERSUS THE REGISTERED TRUSTEES OF THE ARCHDIOCESE OF TANZANIA....................................RESPONDENT (Application from the decision of the High Court of Tanzania at Mwanza) (Ngwala, J.) dated the 22u day of February, 2012 in Civil Arnlication No. 2 of 2007 RULING OF THE COURT 22 & 25 March, 2013 MASSATI, J.A.: By a Notice of Motion filed under Rule 11(2) (b) of the Couit of Appeal Rules 2009, (the Rules) the applicant had sought to move this Court to order a stay of execution "pending determination of an appeal against the decision of Ngwala, 3. dated 22nd February, 2012 in "Civil Application No. 2 of 2009". The application is supported by his affidavit and a written submission. But the application is resisted by the respondent not only by way of an affidavit in reply and a reply to the Written Submission; but also by a battery of preliminary objections notice of which was previously filed under Rule 107(1) of the Rules, and served on the applicant. So when the application came up for hearing, we had to start with the preliminary objections. Mr. Paulin Rugaimukamu, learned counsel, who advocated for the respondent both in the lower court and in this Court, had initially raised three points, but argued only two of them. The first one was that the Notice of Motion was defective because it did not attach the Drawn Order of the High Court's ruling which is sought to be stayed. He said that this was contrary to Rule 11(2) (b) of the Rules, and renders the application incompetent. The second point of objection taken by the learned counsel, was that the Notice of Motion refers to a case (Civil Application No. 2 of 2007) different from the one decided by Ngwala, 3. which was Land Case No. 2 of 2007. As a corrolary, Mr. Rugaimukamu also went on to point out that even the Notice of Appeal attached to the application refers to Civil Application No. 2 of 2007. This means that even the Notice of Appeal was 2 invalid, and it, also, being an essential requirement under Rule 11(2) IN (b) of the Rules, renders the application incompetent. He thus prayed that the application be struck out with costs. In response, the applicant said that although he had tried his best to get the drawn order from the ruling, he was frustrated when he heard that Ngwala, 3. had left for Dar es Salaam with the draft drawn order; and that in order to beat the deadline, he had to file the Notice of Motion without the said drawn order. With regard to the confusion between Civil Application No. 2 of 2009 and Land Case No. 2 of 2009 appearing in his Notice of Motion and Notice of Appeal, the applicant readily conceded the defect and prayed that on account of the defects, the application be struck out, so that he may have a chance to start afresh. Rule 11(2) (b) of the Rules provides: - (2) (b) in any civil proceedings, where a notice of appeal has been lodged in accordance with Rule 83, an appeal shall not operate as a stay of execution of the decree or order appealed from except in so for a the High Court or 91 tribunal may order, nor shall execution of a decree or order be stayed by reason only of an appeal having been preferred from the decree or order, but the Court may upon good cause shown order stay execution of such decree or order" It has thus been held that for the Court to exercise its powers under Rule 11 (2) (b) there must be a valid Notice of Appeal which clothes the Court with jurisdiction to entertain the application (See IGNAZIO 1 MESSINO, NATIONAL SHIPPING AGENCIES v WILLOW INVESTMENT, COSTA SHINGANYA; Civil Reference No. 8 of 199 (unreported). For a Notice of Appeal to be valid it must be issued in compliance with Rule 83(6) and Form D in the First Schedule to the Rules. Form D categorically requires the notice to identify the matter sought to be appealed against. But it has also been held that in such applications, the notice of motion must also be accompanied by the decree or order sought to be stayed. (See NATIONAL HOUSING CORPORATION v ETIENNES HOTEL, Civil Application No. 175 of 2004, PERMANENT SECRETARY OF WORKS AND ANOTHER v TWIGA PAPER PRODUCTS LTD. Civil F. Application No. 18 of 2007 (both unreported). In the absence of a valid notice of appeal and the decree or order sought to be appealed against, the application becomes incompetent and liable to be struck out. Fortunately, in the present case there is no dispute that the notice of appeal attached to the Notice of Motion, and the Notice of Motion itself, refer to a different case. Thereby, they are defective, and invalid. But it is also not in dispute that the drawn order of the ruling against which it is sought to appeal is not attached. On the authorities, this means that the application before us is incompetent. It must suffer the inevitable consequences as we hereby proceed to strike it out with the attendant costs. DATED at MWANZA this 22nd day of March, 2013. S. J. BWANA JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. P. W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 5