20150323 TZCA Mwanza 1

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MASSATI, J.A., ORIYO, J.A. And MMILLA, ).A) CIVIL APPLICATION NO. 19 OF 2014 PATEL TRADING CO (1961) LIMITED. FREIGHT FORWARDERS TANZANIA LTDJ ..........................APPLICANTS VERSUS 1. BAKARI OMARY WEMA t/a SISI KWA SISI PANEL BEATING ENTERPRISES LTDJ..... RESPONDENT (Application for stay of execution of the decision of the High Court of Tanzania at Mwanza) (De-Mello, J.) Dated the 12th day of September, 2014 in Land Appeal No. 43 of 2014 RULING OFTHE COURT 181h & 24th March, 2015 ORIYO, JA.: Before the Court is an application for stay of execution lodged through a notice of motion under Rules 11(2) (b), (c), (d) and 48(1) and (2), of the Court of Appeal Rules, 2009. We have found it prudent to preface the decision of the Court with a brief background of the matter in issue. The applicants were successfully sued for trespass by the respondents before the District Land and Housing Tribunal for Mwanza at Mwanza in Civil Application No. 136 of 2006. They unsuccessfully appealed to the High Court. The order of the High Court on record states as follows:- "the appeal is out of time it collapses." Aggrieved by the decision of the High Court, the applicant duly lodged a Notice of Appeal to this Court on 3/10/2014; hence the application for stay of execution pending appeal. The application was filed through the services of IMMA Advocates (Mwanza Branch) and supported by an affidavit of Rahim Dhala, the accountant of the 2nd applicant. At the hearing, the applicant was represented by Mr. Faustine Malongo, learned advocate while Mr. Bakari Omari Wema appeared for the respondent company. Mr Bakary Omary Wema, prayed for the hearing of the application to be adjourned to another date. He explained that his counsel was prepared for the hearing which was scheduled on 17/03/2015 and not today, on 18/03/2015, hence his absence. Mr Malongo opposed the adjournment on the ground that the respondent counsel was duly 2 served with the notice of motion since 10/11/20 14 but he did not file an affidavit in reply. Likewise he was served with the written submissions on time and no reply submissions have been filed by the respondent's advocate todate, either. He submitted that, this conduct on the part of the respondents is evidence that they are not opposing this application. He prayed that the hearing proceeds as scheduled. Having taken into account the reasons submitted by Mr. Malongo, learned advocate and Mr. Bakari Wema respectively and having noted from the record the evidence that the respondents were dully served on the change of the dates for the hearing, from 17/03/2015 to 18/03/2015; as is evident from a copy of the summons on record which was received and acknowledged by Juristic Law Chambers; and coupled with the failure of the respondents to file pleadings in reply, (to the Notice of Motion and written submissions), we exercised the Court's powers under rule 106(10) of the Rules to order the hearing to proceed exparte. Before proceeding further, the Court, suo molt,, raised a point of law on whether the decree of the High Court complained of was executable. Mr. Malongo, learned advocate forthrightly submitted that the order of the High Court as it was, was not capable of being 3 executed. He submitted that there is a lacuna in the Court rules and prayed the Court to invoke rule 4(2) (a) and (b) of the Rules for the purposes of determination of this application. It is indisputable that neither the Court of Appeal Rules, 1979, (old rules), nor the Court of Appeal Rules, 2009, (current rules), define the word "execution", in respect of a decree/order of a court. However, in the case of Athanas Albert and Four Others versus Tumaini University College, Iringa, (2001) T.LI,R 63, the Court, in determining an application for stay of execution pending an appeal against a decision of the High Court which had set aside an order of injunction by the District Court, held:- "(i) There was nothing to stay in the revisional order of the High Court; (ii) A stay of execution can properly be asked for where there is a court order granting a right to the respondent, or commanding or dfrecting him to do something that affects the applicant." (Emphasis supplied). The application was accordingly dismissed. 4 See also the Court's decisions in the cases of Quality Group Limited versus Tanzania Building Agency, Civil Application No 69 of 2014 and East African Development Bank versus Blue Line Enterprises, Civil Application No 57 of 2004, (both unreported), where the Court relied on Re Overseas Aviation Engineering (G.B) Ltd (1969), 3 All ER 12, where Denning MR, (Master of Rolls), at page 16 stated as follows:- "Execution means, quite simply the process for enforcing or giving effect to the judgment of the Court and it is completed when the judgment creditor gets the money or other thing awarded to him by the judgment.'' On our part, we agree with the learned counsel that the decision of the High Court was not capable of being executed because it was merely a dismissal order. On the basis of the dismissal order of the High Court, the parties' positions reverted to the same status quo as they were before the appeal. In the absence of a decree that is capable of being executed, which this Court could allow or refuse to be stayed, we find that the application before us is misconceived. Consequently we strike it out. We 5 make no order for costs because the issue was raised by the Court suo mottu. DATED at MWANZA this 23rd day of March, 2015. S. A. MASSATI JUSTICE OFAPPEAL K. K. ORIYO JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. J W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 6