20080502 TZCA Mwanza

,.,,,.,,· • 1 IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MSOFFE,J.A., RUTAKANGWA, J.A., And MBAROUK J.A.) BK. CIVIL APPLICATION NO. 1 OF 1998 SE-BASTIAN N DAU LA ........................................................... APPLICANT VERSUS JOSHUA RWAMAFA ......................................................... RESPONDENT (Application for stay of Execution from the judgment of the High Court of Tanzania at Bukoba) (Nyamasagara,PRM.Ext.Jur.) dated 6 th day of February, 1997 in (PC) Civil Appeal No.72 of 1996 RULING OF THE COURT 30 th April, & 2 nd May, 2008 MSOFFE, J.A: This is an application for stay of execution of a decree passed _ by Mr. E.J. Nyamasagara, Principal Resident Magistrate with Extended Jurisdiction (as he then was), on 6/2/1997 in (PC) Civil Appeal No. 72 of 1996 of the High Court of Tanzania at Bukoba. The application, which is by notice of motion, was lodged on 21/1/1998 and it is supported by the affidavit of Sebastian Ndaula, the applicant. 2 This is an old matter. From the record before us, it is apparent that it started at the Bisheke Village Council in Karagwe District. The village council mandated a special committee to look into a shamba dispute involving the parties herein and then make the necessary recommendations. The committee acted as directed, and in its report dated 23/11/1994 it decided that the respondent was the lawful owner of the disputed shamba. The committee went on to give the following advice:- USHAURI:- Kamati hii i!iyotoa uamzi imetoa muda wa s1ku 30 yaani mwezi mmoja kuanzia tarehe ya !eo mdai wa kesi hti kama hakundhtka na uamzi u!ioto!ewa ataomba barua ya kwenda ngazi nyingine kisheria. Aidha upande wa mdaiwa. (Emphasis supplied). Loosely translated, the above advice was to the effect that any aggrieved party was free to pursue the matter before a higher body within a period of thirty days from the date of the report upon receiving a letter of introduction from the village authorities. ., 3 We wish to observe here in passing that although the committee gave a period of thirty days for an aggrieved party to seek remedy before a higher body it did not specify or give the name of the body it had in mind. Anyhow, the applicant was not satisfied with the above· decision. He accordingly instituted civil proceedings in Bugene Primary Court, Karagwe District. The Primary court decided in his favour. The respondent successfully appealed to the District Court at Karagwe, vide Civil Appeal No. 32 of 1995. On appeal to the High Court at Bukoba (Nyamasagara, PRM Ext. Jur.) the respondent won. The court held in (PC) Civil Appeal No. 72 of 1996 that in view of the provisions of the Ward Tribunals Act No. 7 of 1985 the appeal was incompetent. Against that decision of the High Court passed on 6/2/1997 the applicant filed a notice of intention to appeal to this Court dated 17/2/1997. Pending the hearing of the intended appeal, this application for stay of execution was filed. The application came up for hearing before a single judge of this Court. In a Ruling dated 1/12/2000 the single judge _opined and directed as follows:- Upon hearing the parties both of whom were unrepresented and upon my perusal of the original recorct it is •' 4 apparent that this matter had been adjudicated by the Ward Tribunal at Bisheshe. Howeve~ as just obsetved, instead of following the procedure laid down under the Ward Tribunal Act 198~ the applicant took a different course. He instituted fresh proceedings at the Bugene Primary Court. Hence, the subsequent appeal to the District Court and then to the High Court. From my reading of the decisions of the courts below, I am increasingly convinced that though the High Court (Nyamasagara, PRM ExtJ.) was correct in holding that it was improper for the matter to be brought on appeal to the High Court instead of dismissing the appeal it should have quashed the whole proceeding before the District Court and the Primary Court on the ground that it was null and void. That would leave the matter to rest at the stage of the Ward Tnbunal as a status quo. That was not done. As the whole proceedings from the Primary Court to the High Court were a nullity, the proper course in my view is to have this application adjourned for determination by the Court. That would enable the Court to invoke its revisional jurisdiction suo motu to rectify the position by quashing the proceedings from the High Court down to the Primary Court. That would 5 rest the matter with the Ward Tribunal where the respondent was the winner. It was against the above background that the application is now before us, a panel of three judges. The first point that we have to consider is whether or not we should exercise our revisional jurisdiction and thereby declare a nullity the whole proceedings from the Primary -Court- to the High Court as advised by the single judge. We have given very careful thought to the point. In the end, we are of the settled view that we should not exercise that jurisdiction for one main reason. It occurs to us from the above background that it is arguable, or rather debatable, whether or not the matter really originated from the Ward Tribunal. This, we think, is a novel point which could best be canvassed in the intended appeal. Indeed, we note in the record before us that there is a copy of a memorandum of appeal dated 15/4/1997, and lodged before the High Court at Bukoba on the same date, in which the applicant is raising the point as his first ground of appeal. This is the farthest we can say on the point, lest we prejudice the intended appeal, if one will ever be filed eventually, 6 subject of course to compliance with Section 5(2) ( c) of the Appellate Jurisdiction Act No. 15 of 1979 and Rules 83 (1) and 89(2) of the Court of Appeal Rules, 1979. When the application came up for hearing before us on 30/4/2008 the applicant appeared in person. Since from the year 2002 there was information that the respondent had already died, one Grace Rwamafa appeared as the legal representative. Accordingly, in termS' of Rule 54(2) of the Court of Appeal Rules, 1979 we caused her to be brought on record as a party in place of the deceased respondent. For reasons which will be apparent hereunder we will not determine the application on merit. To start with, a look at the notice of motion will show that there is no citation of law or rule under which the application is made. The law is settled that wrong citation of law or rule under which the application is made renders the application incompetent. See, for instance, China Henan Intenational Cooperation Group v Salvand K.A Rwegasira, Civil Reference No. 22 of 2005 and 7 Pius Burchard v Maxmillian Athuman (BK) Civil Application No.1 of 2007 (both unreported). So, if a wrong citation of the law or rule renders an application incompetent, it is worse where there is no citation at all, as is the case here. Surely, where there is no citation of the law or rule under which the application is made, the application will be rendered incompetent. For instance, in Citibank (T) Limited v Tanzania Telecommunications Company Ltd and Others, Civil Application No. 65 of 2003 (unreported) this Court stated:- /n a notice of motion/ an applicant must state the specific provision under which the applicant wants to move the Court to exercise its Jurisdiction. We also note that a copy of the decree sought to be stayed has not been annexed to the application, and the applicant conceded that much before us. It is now well established that in an application of this nature an applicant has to annex a copy of the decree sought to be stayed. For instance, in the case of East African Development Bank v Blueline Enterprises Limited, Civil Application No. 35 of 2003 (unreported) this Court stated:- ..... 8 "... both logic and commonsense demand that the court cannot order stay of execution of an order which it has not seen. Furthermore/ by precedent the practice of the court in such a situation is that an application for stay of execution which is not accompanied with the order sought to be stayed is held to be incompetent .. " In the same spirit, also see Dunhill Motors Ltd v Tanzania Revenue Authority, Civil Application No.12 of 2000 (unreported). For the above reasons, this application is incompetent. It is accordingly struck out with costs. DATED at MWANZA this 2nd day of May, 2008. J.H. MSOFFE JUSTICE OF APPEAL 9 E.M.K. RUTAKANGWA JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. \ \ \