20131112 TZCA Dar es Salaam

c1 - le/ ~ IN THE COURT OF APPEAL OF TANZANIA AT :DAR ES SALAAM CIVIL APPLICATION NO. 102 OF 2012 SWISSPORT TANZANIA LTD PRECISION AIR SERVICES LTD J................. . .................. APPLICANTS VERSUS MICHAEL LUGAIYA .. ................................................................ RESPONDENT (Application for Extension of time to file an Application for stay of Execution from the decision of the High Court of Tanzania at Dar es sa.laam (iuma,J.) - Dated the 6th day of February, 2012 In. Civil Appeal No.11.9 of 2010 RULINGe . 2 1 it October & 14 November, 2013 MJASIRI, J.A.: By a Notice of Motion filed under Rule 10 of the Court. of Appeal Rules, .2009, (Court Rules) the applicants are moving the court togrant extension of time to file an application for stay of the order of the High 6th February, 2012 and that of the Kisutu Resident Magistrate's Court dated court dated. 17th May, 2010 pending the determination of the intended appeal to the Court of Appeal. 1 I When the application was caied on for nearing, Mr. Dairnu Haifani, learned advotate for the respondent raised a prehrninary objection, a notice of which was lodged in terms of Rule 4 (2) (a) of the Court Rules, containing five (5) grounds of objection namely: That t,.i- -i;,-- ;.- 1;1competent as the not/ce of motion does not state the grounds for the relief which Is contrary to Rule 48 (1) of the Court Ru/es. The application is incompetent as it does not conform to FORM A in the First Shedu/e to the Rules which is contrary to Rule 48 (2) of the Court Ru/es. The app//cat/on is fncomp L/IL LII e app//cant had no appeal in the Hijh court as such he cannot appeal to the Court against the decision oft/ic Hij/i Court. The app//cat/on is incompetent as the High court judgment and decree sought to be stayed only dismissed the appeal on technical grounds and cannot be executed. The Court has no jurisdiction to stay execution of the decree of Both counsel flied written submissions in comphance with Rule 106 -- I_fl . ruR At the hearing of the appflcation, the first applicant was - represented by Mr. Winfred Mnzava, learned advocate while the respondent had the services of Mr. Daimu Halfani, learned advocate. The -. second applicant was not present in Court. I was informed.by both counsel that the second applicant has filed a notice of withdrawal of his notice of appeal on May 31, 2013. After carefully reviewing the application, the arguments raised by both counsel and the authorities cited in relation to the preliminary objection raised, I am of the view that the pivotal ground for consideration is ground No, 4, that the application is incompetent as the High Court judgment and decree sought to be stayed only dismissed the appeal on technical grounds and cannot be executed, Mr. Halfani on his part submitted that the -order of the High Court execution as it did not create or deny any right. Any decree which is incapable of execution cannot be stayed. Mr. Mnzava on his part submittedthat the order of the High Court was capable of execution. He argued that the dismissal order of the High Court had consequences. It meant that the Resident Magistrate's the Court can proceed to execute the decree unless there is an order for stay of execution by the Court of Appeal. He argued that section 4 (2) of the Appellate Jurisdiction Act gives the Court of Appeal power to grant an order for stay. On my part, I am inclined to agree with the submissions made by Mr. Halfani that the order made by the High Court dismissing the appeal against an exparte judgment is not capable of stay. in Blacks's law dictionary (Eighth Edition) "dismissaV' is defined as under: - term/nat/an of an action or c/aim without ñirther hearing, especially before the trial of the issUes involved." - k--", - ne 1vv, - settieu. crc eXeutun i sougnt 4fl respect of a dismisal ord€there is no decree that s capable of execution which the Court can order to be stayed See for instance inteftc East Africa A/S Limited v B & S international, Civil Alication No, 16 of 1997 and Consolidated Holding Corporation v Charii Auto Garge, Civil Application No. 61 of 2001 (both unreported). Execution is not defined in the Court Rules nor in the Civil Procedure Code 1966 In East .Africaii Development Bank v Blue Line Enterprises, Civil Application No. 57 of 2004 reference was made to Re Overseas Aviation Engineering (GB.) Limited (1969) 3 ALL ER 12, where Denning, MR. at page 16 defined execution as follows:- tExecution means, quite simply the process for enforcing or giving effect to the judgment Of the Cour and it is completed when the juaçI,7lent creditor gets the money or other thing awarded to I,Y/. - .-.,-. .-._ ,iUo tje',c', e ji'c i..Qii Ld/r Of c Lc9!iIu C.4cLUULJl! . 0, &, oru f J-.. LOUI - , LL. u ii' -. £ _. ve judgment o decision of the Court. The decision of the High court dated 11.5. 2004 did not give any rights to the respondent which could trigger the process of enforcing or giving effect to the decision of the court. It follows therefore that the Court cannot grant a stay when in fact there is no order to stay" In Hassan Transport v Kari.bu Forwarding &. Clearing Co. Ltd, Civil Application No. 37 of 1999 (unreported) it was stated thus:- 'The central issue in this app//cation is whether the grant of a stay of execution is warranted in the circumstances of the case. It is relevant to consider the principal objective of seekinq a stay of execution, it is common ground that stay of execuL7 is granted in order to nw/rita/n the status quo as it obtains at the date of judgment the - 7 I Therefore for an order to be stayed it must be capable of being executed. The order of the High court dismissing the appeal from the Resident Magistrate's court is not capable ofxecution. Since the order dismissing the appeal is not capable of being executed, it follows as the night follows the day that an order which is not executable cannot be stayed. In conclusion, since the order dismissing the appeal is incapable of being stayed, the application is incompetent The preliminary objection is hereby sustained and the application is struck out with costs. • In view of my finding in respect of ground No. 4, I need not delve into the other points of objection. -. DATED at DAR ES SALAAM this 12th day of November, 2013. . S. MJASIRI JUSTICE OF APPEAL this is a true copy of the original. Z.A. MARUMA • • DEPUTY REGISTRAR •1• ••;.___.____- COURTOF.APPEAL - ; 2 ,' 7