19870112 TZHC Dar es Salaam

nt---THE_ HIC-1:I -COURT--OJ.ll TANZANIA AT ].13. ES S.ALAl.M CIVIL CASE NO. 85 'OF 1986 SJ.'..AB-SCJ,!'TIA AoB. t/ a SA.AB-SC.ANIA T.ANZ.AJ.'ITA BRANCH •••••••• ~.•• • •••••••••• •PLAINTIFF versus MAPINDUZI T.AILOB.ING CO-OPERATIVE SOOIEI'Y LOOTED • • • • • • • • • • • • • • • • • • •• • • • DEF'EN'D.AN'T R U L I N G BAH.ATii. J. This is an applicc\tion !or stay of execution ot the decree passed '"!y this court pending the determination of M intended appeal to the Tanzania Court of .Appeal.· The a.ppli... cation is supported by an affidavit. The application was filed under Order 39 Rule 5(1) of the Civil Procedure Code· and all enablinc provisions of Order 390 Mro Kisusi, learned counsel fqr the applic-ant, submitted that there was siJ.ff'icient cause for the court.to order stay of execution of the deoree. He a;rgued. that t.nere were chances of success in the intended appeal. Mr,, Iu.B"mi also submitted that the applica?rl would su.ffer substan:tial loss if stay of execution was not granted and that the applicant was ready• to give security for the performance of the ' . . decreeo Mr,, :t1.$,.tsi. i;ven suggested that the· applicant, beW a co-operative society, should be protected by the court in a=~ different from a non-co-operative boat,,. In re-;,J,y M:r.,, Kesaxic. learned oounsel for respondent submitted at great length that the security bond proposed by Mr. Kis~i a.a,.'-' way of compzying with rule 5(3)(0) of Orde:r:_ 39 would not be in order~_ He submitted that there were no chances of success .tn the intended ap_peal because the applicant had admitted all the facts oonstituti!'lg the claimc He also submitted that rule 5(3)(c) of Order 39 required pr,oper_..sec.ixtl:cy __ and that the applicant could not be treated above ' ' the 4wo With regard to this application being made under Order 39 Mrci Kesaxia submitted that the application was m.iscone-eived, Ha stated that section 2 of the Civil Procedure Code makes the Civil I . Procedure Gode applicable to the High Court and. the lower courts and that a stay of execution under 1Qizde:r 39 cannot be ma.de once there is an appeal to the Court ot Appealo He stated further that in case or an a~:·peal to the '~ourt of Ap:pea.1, stay of executio~ application can be maa.e only under Rule 9 ( 2) of the Court of Appeal Rules and that Order 39 of the C.,P.Co was for appeals to the High Court and not' appeals from the High Court to the CQ'UJ:'t of Ap~. 2/, ••••• 2 - Iri a. reply to the above :Mr. Kisusi coritend,ed that Ot'de;- 39 of the . C.'P.C. applied even for appeals from the High Cou.rt and that Rule 9 of .the ?~ania Cou.rt of Appeal Rules was not applicable here. Mr, Kesaria was able -to repl¥, with leave of this oou.rt to w~t ~. Kisusi had put forward concerll;lng Rule 9 of the Tanzania.Court of AppeaJ Rules and Ot'der 39 of the C.P.C. He stated that Order 3~ clearly ref ~ed to appeals to the High Court and not to the Court of Appeal~ He ,also submitted that the Civil Procedure Code had section 70· wh.ioh talks of appeals to the High Court and that the:i;e is no where in the C,P.C. where ~ t is prov:Lded about appeals to the Court of Appeal. He argued that appea.l,s to the Cou.rt of .Appeal are governed by special legislat;f.OfJ, namely I ,\ • the Appellate Jurisdiction.Act., He oonol,u.ded by contending that onoe the High Qourt passes a decrees as far as the C.P.C .. i.s concerned, eyer,ything oomes to an end and. that it is only by tp.e Appellate Jurisdiot:i.O?l Aot and rulee made thereun.den tbat anything else oan be done after a High Oourt deo~e. ~ this application I will just confine m;yself to the questj.on as to whetbe:iz the High Court may stay the execution of a decree passed by itself, beqa.~~ this will be enough to dispose of this applicationo As rightly pointed out wMr. Kesaria, learned counsel., the Civil Prooedtu:'e Code applies only ,, . to the High Court, the Resident Magistrate•s Court and the Dist;:ttt Court as seotion 2_ f'lf the C.P.C. provides. Secondly section 70 of the C.P.C~ clearly ret~rs to appeals from dRcrees passed by a resident Magistrate's Court or a dist~ot eourto Section 70 does not refer to appeals from deorees of the Hid1 Court. Thirdly, nowhere in the whole C.P.C. is it provided h"w to deal wi-W,. appeals from a.ecrec.3 passed by the F..igh Courto Fourthly, agqjn as right- ~ fointed out by Nrro Kc=.,r::aria, even Ot'der 39 of the c_.P.C. deals with appea~s .f.rQlll original decrees from lower courts and not appeals from original deorees . .. of the High Cou.:rtQ I cannot do bet'te+ than simply cite Ot'der 39 rule 1. It Jeads: "Every appeal shall be preferred in the form of memorandum sign~d by the appellant or his advocate and p:reseitwd to the High Court (hereinafter in th.ts Order referred to as"the Court 11 ) or to such officer as it appoints in this behalf. The memorandum sh.all be accompanied by a.copy of the cl,eeree appealed from and (unless the Court dispe~e, therewith) of the judgement on which it is fo1,1nded,"i The a,bO'V'e rule 1(1) of Order 39 cl~~ shows that the appeals referred to he~ are to the High Court. As fo:r! xul,e 5 of Ot'der 39, the marginal notes , . read with regro-;d to rule 5(1) "st~ by appe_Uate court" and rule 5(2) 11Sta.y .,, 3 - · by ..o.opt-wbioh.. paas.ed--tba..d.en:.ree''-c _. In .,rule.-~ ·,men~ _referenoe .·1s mad~ to th e High Court it is written 11 the Court 11 \7i th a capital "C" as provided by Rule 1(1.) that it should be r<➔ferred ao in this Ot'clc, Whenever a su.bard.i.na.L,, oou:rt is meant rule 5 refers to it ei~--e.s ·-#1;.he--.·court·-which passed -the ..dec.r.eetl--or·--Simply- ·11 the_ ogu.:i:t 11 wit1't & - ~ Co J,w, Rule • -5(-l) reads: "An appeal shall not opGr[1te as a stay of ·-proceedings under a. decree or order appealed fx·om except so far as the Cou;rt l'\C"" .. mq -e.-der,i .p.«t....shall.-exeoution of a decree be stayed by reason only ot ~ appeal having beem preferred .from the decree; ·but the Court m;q fo~. auffioient-cau.ae -ordeZ'- stay of----execution of such· deoree" • Referenoe to appeal here in rule 5(1) must be reference to appeal to the High CotU't as we have seen under rule l(l)c Then the:re is rule 5(2) which reads c ,.. "Where an application is made for stay of execution oi an appealable. d•ee before the expiration of the time allowed_for appealing therefrom, the •fl.Ou.rt ·which passed the--decree may ~n-sufficient cause shown order the ge,,utioP. to be staye(:'..· 1 ., Even in rule 5(2) r'efer~nce to appeal is an appeal to the High Court 'ofCa.use rule 5(2) is also governed by rule lC.) with regard to the meaning_ of appeal., Both ~cJ:;r:1110~ IJ.) :fJna. (2) of Ru.lea_ 5· provide stay er executi0}'.1-, ~ the case of subrule (2) by the Court which passed th~ decree which ex- p:ession must mean the subordinate court which passed the deoree iii view tf the pr.ovisions <5.f :r-clle J. ( J.) ~ Then there is subrule :(3 )-. Af .rule 5 which tm\,tea: 11 No order for stay of execution shall be made under su.brule (1) or sub=rule (2) unless the court making it is satisfied.=11 Bere the word the court appearj..ng in the last line of the subrule (3) . mi.st-mean_th.e....R:i.gh_Cou.r:t.....or-th~-suhordinate- court which passed the decree• It follows from the above analysis that nowhere in Order 39 is it Fovided how one is to apply for a stay of execution of a decree passed by ;he High Court • Any application under Order 39 for a stay of execution ot ~ decree of the High Court must be misconceived" I ag.ree entirely with Mt-. Kesaria that the pre~ent application.for a stay of execution of a derree passed by the High Court is misconceived., I also agree with Mr. Kesaria that . --. the applicant ·in thls ca·se has got a wcy ,)ut elsewhere name1¥ in the Tanza,iia Court---of__ Appeal Rules. Rule 9 (2) (b) states: 4/•••• - 4 - rr3u.b~ect to the provisions of sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution cu-t t_he court may -- in any civil prooeedings-, where a notice of appeal ha1;1 been lodged in accoxdance. with Rule 76, order a stay of executi~n, on such terms as the Court may think just"• In the '.ranzania Court of Appeal Rules the word 11 the Court is.de.fined in rule 2 to mean the Court of 'Appeal of the United Republic~ For all the reasons given above, I hold that this application is miseo?SOeived because , it has been brought before the wrong forum~ It is therefore dismissed. with costs'. ~-· .. - ..... -· ....... ·• . ~::_=~~? . . .. JUDGE. Cou.Jt · Ruling delivered iri presence of both advocates~. \ .,:,t j