restituta frank msongole vs michael mgaya shoo another 2021 tzhclandd 6974 17 november 2021

restituta frank msongole vs michael mgaya shoo another 2021 tzhclandd 6974 17 november 2021

The Tribunal erred by dismissing the application for stay of execution instead of striking it out, denying the appellant the opportunity to rectify procedural defects and file a fresh application. The correct remedy for procedural incompetence is striking out, not dismissal.

Citation
restituta frank msongole vs michael mgaya shoo another 2021 tzhclandd 6974 17 november 2021
Parties
Appellant: Restituta Frank Msongole; 1st Respondent: Maiko Ngaya Shoo; 2nd Respondent: Mussa Mwimbe
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
17 November 2021
Procedural Posture
Land Appeal / Judgment
Outcome
appeal allowed
Legal Topics
Stay of Execution, Procedural Irregularities, Attachment of Decree and Judgment
Source Language
English
Land Law Civil Procedure Stay of Execution Procedural Irregularities Attachment of Decree and Judgment

Case Brief

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Parties

Restituta Frank Msongole

Appellant

Maiko Ngaya Shoo

1st Respondent

Mussa Mwimbe

2nd Respondent

Procedural Posture

Land Appeal / Judgment

Legal Issues

  1. 1 Whether the Tribunal erred by dismissing the application for stay of execution instead of striking it out due to procedural irregularities
  2. 2 Whether the failure to attach a copy of the decree and judgment rendered the application incompetent

Ratio Decidendi

The Tribunal erred by dismissing the application for stay of execution instead of striking it out, denying the appellant the opportunity to rectify procedural defects and file a fresh application. The correct remedy for procedural incompetence is striking out, not dismissal.

Court Disposition

appeal allowed

Orders

  • Judgment and decree of the trial Tribunal quashed and set aside
  • Parties restored to original position before filing the application