20091202 TZHC Dar es Salaam

...;, ,, ., 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 120 OF 2007 ( Originating from Kisutu Court of the Resident Magistrate in Civil Case 5 / 2005 Before Msongo - RM) THE BOARD OF TRUSTEES OF THE PARASTATAL RENSISONS FUND ............... APPLICANT VERSUS AYOUB CHAMSHAMA ...••............. . RESPONDENT Date of last Order 30/10/2009 Date of Ruling 2/12/2009 RULING Shangwa, J. Before this court are two applications for determination. The first one has two limbs. The first limb is an application for stay of execution of a decree in appeal issued by this court on 5/5/2008 in 2 Civil Appeal No. 120 of 2007 pending determination of the application for leave to file a notice of appeal out of .time. The second limb is an application for leave to file a notice of appeal out of time in respect of the decision of this court given in Civil Appeal No. 120 of 2007. The second application is an application for leave to appeal to the Court of Appeal of Tanzania out of time. Both applications are supported by affidavit of one Senen Edmund Mponda. Counsel for both parties prayed for disposal of these applications by way of written submissions and their prayer was granted. Their submissions were quite detailed. My role now is to look at the reasons which were given by the Applicant in support of its applications and see whether they are ,. l I sufficient reasons to grant both applications. The main reason which was given for an order to stay execution of the decree in appeal is contained at Paragraph 11 of Mr. Senen Edmund Mponda's affidavit in support of the application for stay of execution. This reason is as follows and I quote:- 3 " That the decretal sum constitutes the substratum of the appeal thus the appeal will be rendered nugatory if stay is not ordered. " The said reason was countered by the Respondent at paragraph 9 of the counter - affidavit of Mr. Daniel Ngundungi where it is stated inter - alia that the deponent is put to strict proof thereof and that the intended appeal does not raise arty serious issue of law. In my view, the deponent cannot be put to strict proof in respect of his averment at paragraph 11 of his affidavit. First of all, the deponent namely Mr. Senen Edmund Mponda is not the officer of the Applicant. He is counsel for the Applicant. How then can r counsel for the Applicant be put to strict proof of the fact that the decretal sum constitutes the substratum of the appeal. Secondly, the said fact does not require any proof let alone strict proof. Also, I am of the view that the question as to whether or not the intended appeal raises any serious issue of law is not relevant to an application for stay of execution pending the determination of an 4 . application for leave to file a notice of appeal out of time. This question was therefore wrongly raised by the Respondent. Suffice it to say here that the Applicant's contention that the appeal will be rendered nugatory if stay of execution is not ordered has merit. For this reason, I hereby order for stay of execution of the decretal sum pending the determination of the application to file a notice of appeal out of time in respect of the decision of this court in Civil Appeal No. 120 of 2007. The main reason which was given by the Applicar~.t for its application for leave to file a notice of appeal out of time in respect of the above mentioned decision is contained at paragraphs 4 and 6 of the affidavit of Mr. Senen Edmund Mponda. This reason is that the notice of appeal against the decision of this court Mwarija, J. delivered on 5/5/2008 had been filed within time save the fact that on 5/9/2008 the Court of Appeal of Tanzania struck it out on ground that the name of the Appellant in the said notice was wrongly described. The said reason was also countered by the Respondent at paragraph 6 of the counter - affidavit of Mr. Daniel Ngudungi where l 5 it is stated that "_ the notice of appeal was struck out for reason that it was filed by a stranger ( not a party to the proceedings)." Counsel for the Respondent Mr. Daniel Ngudungi contended that it was out of sheer negligence by counsel for the Applicant to file the notice of appeal in the name of the stranger and that therefore the Applicant's application should be dismissed. The reason as to why the Court of Appeal Luanda, J. A. struck ' I out the notice of appeal as per his ruling in Civil Application No. 89 of 2008 is quite clear. In actual fact, the Court of Appeal did so not because the Parastatal Pension Fund was a stranger to the proceedings but because it has no legal capacity to sue and be sued except through its Board of Trustees. Hence, its holding that the notice of appeal lodged by the Parastatal Pension Fund had no legal effect. In fact, the question whether the notice of appeal was simply wrongly named or whether it was filed by a stranger or whether it was filed by the Applicant through sheer negligence is immaterial to this particular application for leave to file a notice of appeal out of time. Such a question was pertinent to the application which was 6 filed in the Court of Appeal of Tanzania to strike out the Applicant's notice of appeal. For me, I think that as the notice of appeal had been filed within time but struck out by the Court of Appeal of Tanzania on grounds that it had no legal effect, the application for leave to file a notice of appeal which has legal effect out of time is highly justified and I do grant it. Let me now resort to the second application for leave to appeal to the Court of Appeal of Tanzania out of time. This court's record shows that the decision of this court Mwarija, J. which is intended to be appealed from was given in Civil Appeal No. 126 of 2007 on 5/5/2008 and the application for leave to appeal to the Court of Appeal of Tanzania against the said decision was filed on 16/5/2008. On 20/6/2008, counsel for the Respondent filed a notice of Preliminary Objection against that application saying that it is incompetent for lack of a proper notice of appeal. On 16/9/2008, counsel for the Applicant prayed to withdraw the application for leave to appeal to the Court of Appeal of Tanzania with liberty to refile the same. His prayer was granted. Now, as his 7 prayer to refile the same was granted, I do not see the reason why this application for leave to appeal to the Court of Appeal of Tanzania out of time against the decision of this Court in Civil Appeal No. 120 of 2007 should be refused. I hereby grant it with no order as to costs. A.Shangwa JUDGE 2/12/2009 Delivered in open court this 2 nd day of December, 2009 in the presence of Mr. Ogunde for Mr. Mponda and the Respondent appeanng 1n person. ~ A.Shangwa JUDGE 2/12/2009