salum abdulkarim natu and the hon attorney general and another 1997 tzca 60 4 july 1997

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR ZNZ CIVIL APPLICATION NO. if OF 1996 BET. : EEN SALUM ABDULKAKIM NATU. . . . . . . . . . . APPLICANT AND 1 • THIS HON. ATTORNEY GENERAL 0 RESPONDENTS 2. YUSUF MAALIM SOPKAI jj . . . . . . (Application for leave to appeal to the Court of Appeal of Tanzania from the Order of the High Court of Zanzibar at Zanzibar) (Mbwezeleni, Ag. J.) dated the 20th day of December, 1995 in C i v i l Application No. 20 of 1996 R U L I N G RAMADHANI, J.A.: The applicant, Salum Abdulkarim Natu, is asking for leave to appeal to this Court against an order given by the High Court of Zanzibar (MBVJEZELENI, Ag. J. ) on 20/12/1995* This is after his application for leave was refused by the High Court of Zanzibar (KANNONYELE, J.). The learned advocate for the applicant, Dr. Lamwai, has contended that there is a point of law of crucial importance involved and that is whether an inferior Court can order the execution of its decree when there is an application for a stay of execution of that decree before a superior Court. A brief recount of what transpired is a necessary preface to this application. On V V 9 ^ Mr* MMILA, S.R.M. (Ext. Jurisdiction) gave a judgment in favour of the two respondents: (1) The Attorney-General of Zanzibar and (2) Yusuf Maalim. A notice of appeal was filed on 17/1/199^- £K.V\ and there was also $ jb application for a stay of execution. On 16/6/95 my learned brother, MNZAVAS, J.A., in two separate applications before him refused to grant a stay of execution (Civil Application No. 1 of 199*0 and struck out the notice of appeal (Civil Application No. 2 of 1995). The order of execution against which this application for leave is made, was given by MBWEZELENI, Ag. J. on 20/12/1995. Admittedly, on that day there were already two references filed from the decisions of MNZAVAS, J.A. These were Civil References No. 9 of 1995 and. No. 8 of 1995 respectively. The order of MBWEZELENI, Ag. J. for execution while this Court is seized with a reference against an order of a single judge refusing to stay execution, is what Dr. Lamwai refers to as an important point of law. I must say that I do appreciate that point of law but the decision of MBWEZELENI, Ag. J., unfortunately, cannot be said to raise it. MBWEZELENI, Ag. J. was making a follow-up of an order of execution which had been given earlier on 26/9/1995 by the Registrar of the High Court after the matter was sent to him by the Honourable Chief Justice of Zanzibar. That was the order which forced the applicant to give vacant possession of the suit premises. The applicant partially observed that order. He surrendered the premises to the second respondent but left some items of his property therein. All that MBWEZELENI, Ag„ J. did was to order the applicant to take away his items of property. .../3 So, the application for leave to appeal should have been filed against that order of 21/9/1995 and. not that of 20/12/1995 by MBWI2ZI3LENI t Ag, J. The application is misconceived and is dismissed with costs. It is so ordered. DATiSD at ZANZIBAR this 4th day of July, 1997. JUSTIC3 OF APPJSAL