tanzania electric supply company limited vs dowans holdings costa rica another 2013 tzca 437 27 march 2013

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: RUTAKANGWA, 3.A., BWANA. 3.A., And LUANDA, 3.A.1 CIVIL APPLICATION NO. 142 OF 2012 TANZANIA ELECTRIC SUPPLY COMPANY LIMITED ............................................................... APPLICANT VERSUS 1. DOWANS HOLDINGS SA (COSTA RICA) 1 2. DOWANS TANZANIA LIMITED (TANZANIA)/............. RESPONDENTS (Application for stay of execution of the decree of the High Court of Tanzania at Dar es salaam) fMushi. 3.1 Dated 28th day of September, 2011 In Misc. Civil Application No. 8 of 2011 RULING OF THE COURT RUTAKANGWA. 3.A.: Dissatisfied with the judgment and decree of the High Court (Mushi, j.) dated 28th September, 2011, the applicant duly lodged a notice of appeal to this Court, in terms of Rule 83 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The notice of appeal was lodged on 04th October 2011. i Subsequent to the lodging of the notice of appeal the applicant, proceeding under Rule 11 (2) (b) of the Rules, formally moved the High Court to grant an order staying the execution of the decree. The High Court (Twaib, J.) declined to grant the relief sought predicating his decision on want of jurisdiction. The application was accordingly "dismissed"on 6th September, 2012. Following the dismissal of the application by the High Court, the applicant purported to try a '!'second bite" in this Court by way of this application seeking the same relief. This application, by notice of motion, is premised under Rule 11 (2) (b) and (c) of the Rules. The application was lodged on 19th September, 2012. We have found it very convenient to reproduce at the outset the relevant enabling provisions. It is provided in Rule 11 (2) (b) (c) and (d) as follows:- "11.-(2) Subject to the provisions of sub-rule (1), the institution of an appeal, shall not operate to suspend any sentence or to stay execution, but the Court may- (a) in any criminal proceedings, where notice of appeal has been given in accordance with Rule 68, order that the appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of the appeal; and (b) in any civil proceedings, where a notice of appeal has been lodged in accordance with Rule 83, an appeal, shall not operate as a stay of execution of the decree or order appealed from except so far as the High Court or tribunal may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree or order; but the Court may upon good cause shown, order stay of execution of such decree or order. (c) where an application is made for stay of execution of an appealable decree or order before the expiration of the time allowed for appealing therefrom, the Court, may upon good cause shown, order the execution to be stayed. (d) no order for stay of execution shall be made under this rule unless the Court is satisfied 3 (i) that substantial loss may result to the party applying for stay of execution unless the order is made; (ii) that the application has been made without unreasonable delay; and (iii) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him" [Emphasis is ours]. The application has been challenged by the two respondents on merit. It's competency has also been challenged through a notice of preliminary objection lodged on 20th November, 2012 containing two points of law. All the same, when the matter came up for hearing, Mr. Kennedy Fungamtama, learned advocate for the respondents, abandoned one of the said two points. The remaining point of objection to the competency of the application, reads thus: "The application is time barred having been lodged out of the prescribed period of 60 days". Mr. Fungamtama's submission in support of the raised point of preliminary objection, was brief but focused. He argued that in terms of Rule 11 read together with Rule 90 (1) of the Rules, the application ought to have been filed within 60 days of the lodging of the notice of appeal. As the application was lodged on 19/09/2012, after an elapse of 351 clear days, and no extension of time was sought and granted, the matter is hopelessly time barred and ought to be struck out with costs, he pressed. In support of his stance he referred us to these decisions of the Court:- (i) Irene William Mkenga v. Costa Othiniel Ohia, Misc. Civil Application No. 4 of 2011, • (ii) Mantrac Tanzania Ltd vs Raymong Consta, Civil Application No. 11 of 2011, (iii) Tanganyika Bus Service Company Ltd vs Israel G. Maregesi and Another, Civil Application No. 1 of 2011, and (iv) Muhoni Kitege v. Issa Elias, Civil Application No. 5 of 2011 (all unreported). Mr. Richard Rweyongeza, who together with Dr. Angelo Mapunda, Mr. Majura Magafu and Mr. Lugano Mwandambo, learned advocates, represented the applicant, treated the objection with the seriousness it deserves. He prefaced his counter submission with an apt observation to the effect that the validity or otherwise of the preliminary objection depended wholly on the proper interpretation of Rule 11(2) (b), "//? so far as it makes reference to the powers o f the High Court to direct otherwise." While not doubting the soundness of the decisions relied on by Mr. Fungamtama on the issue of limitation, he sought comfort in the words "except so far as the High Court or tribunal may order, " in Rule 11 (2) (b), words not found in Rule 9 (2) (b) of the revoked Tanzania Court of Appeal Rules, 1979 (the 1979 Rules). To him the current legal regime confers the High Court and the Court with concurrent jurisdiction to grant stay orders even after a notice of appeal had been lodged. Forthrightly conceding that he had no authority to prop up this proposition of law, he strongly urged us to rule in his fovour and dismiss the preliminary objection with costs, as the application was lodged within 13 days following the High Court ruling. He also quickly pointed out that if his construction is found to be flawed, then "the previous decisions should prevail." Mr. Fungamtama's brief response was to the effect that once a notice of appeal had been lodged, the High Court ceased to have jurisdiction over the matter. We have found the crucial issue before us to be whether or not Rule 11(2) (b) of the Rules confers the High Court with jurisdiction to grant a stay order pending appeal once a notice of appeal to this Court has been lodged. Indeed, we have gleaned from the ruling of Twaib, J. that he faced the same predicament. After scrupulously analysing the learned counsel's submissions on the issue, he came out with a firm finding that the "new law" does not confer the High Court with jurisdiction to "order stay of execution of its decree even where a Notice of Appeal has already been filed". We are increasingly of the view that he was right, for the following reasons. It is settled law in our jurisprudence, which is not disputed by counsel for the applicant, that the lodging of a notice of appeal in this Court against an appealable decree or order of the High Court, commences proceedings in the Court. We are equally convinced that it has long been established law that once a notice of appeal has been duly lodged, the High Court ceases to have jurisdiction over the matter: see Aero Helicopter (T) Ltd v F.N. Jansen [1990] T.L.R. 142. Counsel for the applicant do not challenge this legal position. The burning issue is whether this position has been radically changed by Rule 11 (2) (b) of the Rules, by the insertion of the words "except so far as the High Court or tribunal may order". As we have already intimated above, the learned High Court judge in the application before him contended with the same issue. We have found it instructive to have recourse to his holding on it. He held:- "I wish to state, with all due respect to learned counsel [meaning Mr. Mwandambo], that I do not think so. Though there is a statement to the effect that the court, can, under clause (b) of the Rules, grant stay of execution upon good cause being shown, it is also clear in my mind that the enabling provision under the 2009 Rules is clause (c) of sub rule (2) of rule 11, read together with Rule 3. It grants powers to order stay of execution exclusively to the Court of Appeal and sets out the terms on which the order may be granted.... The Hon. Chief Justice must have been aware of the legal position as laid down in several decisions of the Court of Appeal to the effect that once proceedings in the Court of Appeal have been commenced by filing of a notice of appeal this Court ceased to have jurisdiction to entertain an application for stay of execution... If His Lordship the Chief Justice had wanted to change the legal position and vest in the High Court and Tribunals the power to order stay of execution, he would have done so expressly." We have, indeed, found the above reasoning of the learned High Court Judge to be a correct exposition of the law on the issue and we subscribe wholly to it. The inclusion of the words relied on by Mr. Rweyongeza in Rule 11 (2) (b), was not meant to change the prevailing law, in our considered view. Although unnecessary, it was only a recognition of the prevailing view of law that the High Court and/or Tribunals had actually their inherent jurisdiction to grant orders of stay of execution pending appeal saved under section 95 of the Civil Procedure Code, Cap. 33. This, however, has always been subject to one condition that no proceedings in the matter have been commenced in this Court. For the order of the High Court or Tribunal, in our respectful firm opinion, to be valid, it should be or should have been made before a notice of appeal is lodged. This, in our considered view, is the only logical conclusion to be derived from the fact that the Rules exclusively apply to the Court of Appeal. Furthermore, the "Court" being referred to in the entire Rule 11 with powers to grant a stay order once a notice of appeal has been lodged is this Court. Apart from the case of Aero Helicopter (supra), this Court had other occasions on which to express itself explicitly on the issue of the High Court's jurisdiction once a notice of appeal has been lodged. See, for instance: (i) Komba Mkabara v. Maria Luis Frisch, Civil Application No. 3 of 2000 and (ii) Matsushita Electric Co. Ltd v Charles George t/a CG Travers, Civil Application No. 71 of 2001 (both unreported.) In the Matsushita case, the Court lucidly held that:- "Once a notice of appeal is filed under Rule 76 then this Court is seized of the matter in exclusion of the 10 High Court except for applications specifically provided for, such as leave to appeal, provision of a certificate of law...." We may as well add applications for extension of time to lodge a notice of appeal out of time. This jurisdiction, we must quickly point out, was conferred on the Court by the Appellate Jurisdiction Act, Cap. 141 (the Act) and not by the 1979 Rules. It goes without saying, therefore, that it will need an amendment to the Act to confer jurisdiction to the High Court to entertain matters relating to stay of execution once a notice of appeal has been duly lodged. All said and done, we have found ourselves constrained to hold that although the High Court still retains its inherent powers to grant stay orders pending appeals to this Court, it ceases to have such powers or jurisdiction once a notice of appeal is lodged in accordance with the governing provisions of the Rules. It was, therefore, legally wrong for the applicant to seek a stay order in the High Court, under Rules 11 (2) (b) of the Rules, which incidentally do not apply there, after it had lodged the notice of appeal. This so called "second bite" application is, in our view, totally misconceived since the applicant has no right to it under any prevailing law. The only right it has was to apply to this Court, as a matter of right, for a stay order under Rule 11 (2) of the Rules, within 60 days of the lodging of the notice of appeal. As fate would have it, it did not do so but attempted to move the Court 351 days later. The application is, therefore, unarguably time barred. We accordingly uphold the preliminary objection, find the application to be incompetent and strike it out with costs. It is so ordered. DATED at DAR ES SALAAM this 27th day of March, 2013 E.M.K RUTAKANGWA 3USTICEOF APPEAL S.J. BWANA 3USTICEOF APPEAL B. LUANDA 3USTICEOF APPEAL I certify that this is a true copy of the original :S^^KW IZU DEPUTY REGISTRAR COURT OF APPEAL 12