20100510 TZCA Mwanza 1

IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA CIV-It~J\~4IiCA.TlON NO. 7 OF 2008 {CORAM: M'SOFFE, itc,,M,8AR06«, \J.A.~ And BWANA, J.A.). _,,.· .~: ...... ,, THE EDITOR, MSANII AFRICA NEWSPAPER ~~ ............... ~ •••••••• APPLICANT \ VE;~iSUS ZACHARIA KABENGWE •••••••••••••••••••••••.••••••••••••••••••••••••••• RESPONDENT {Application for Stay of Execution of the decree of the High Court of Tanzania at Mwanza) 0 Dated the 26th day of November, 2008 in Civil Case No. 3 of 2001

RULING OF THE COURT 6 th & 10th May, 2010 MBAROUK, J.A.: This is an application for stay of execution in Civil Case No. 3 of 2001 of the High Court of Tanzania at Mwanza District Registry. The O application is made under Rule 9 (2) (b) of the Tanzania Court of Pippeal Rules, 1979 (the Rules) filed and was filed on 23-lZ-2008 supported by the affidavit of Silwani Galati Mwantembe. In this application, the applicant is represented by Mr. Silwani Galati Mwantembe, learned advocate, whereas the respondent appeared in person. 1 Vyt,en the application was called on for hearing, the Court suo motu raised a point on whether or not the application for stay of execution of a decree without there being a decree annexed thereto is competent. Mr. Mwantembe agreed that in the application for stay of execution of a decree the applicant has not annexed a copy of the decree sought to be stayed. He argued that Rule 9 (2) (b) of the Rules is silent on the requirement of annexing a copy of the decree in • u • • • • •• .. , ••••, •• .. - - • - • • • •• ••• • • •-••••••••• m •-•••"..-.- • • - - • • • • - ~ •• .,,..,_...,_,.,.. • . , , , _ , , . . . _ _ ,~,• ••• • an application for stay of execution. He further submitted that the requirement of annexing a decree in a stay of execation application ls only a requirement as previous decisions of this Court. In support of his argument, he cited to us

the decisions of this Court in Pius .Burchard v. Maximillian Athuman, (BK) Civil Application No. 1 of 2007, and Sugar Board of Tanzania v._ 21st Century Food and Packaging· Ltd. arid Two others, Civil Reference No. 1 of 2005 (Both unreported). Mr. Mwanternbei~ further submitted __ that the absence ·of an annexed copy of the decree has no effect to this application: because, after all, a decree is extracted from the judgement. 2 · ·Mr. Mwantembe urged us to invoke Rule 2 of the Court of Appeal Rules, 2009 (New Rules). However, it seems he forgot that this application is made under the provisions of the Court of Appeal Rules, 1979 (Old Rules) and not under the New Rules (2009). On his part, the respondent submitted that, a statute is not the only source of- . law. - He said, . even ..decisions _ ._. .•.. -······--, ----, .. - .. ._,_,.___ . .. ........ .. .. .. .. "' of the - . . Court/case laws - ······· . ... ........ .. .. "'" ' ..... " are among the sources of law too. In that regard, the respondent contended that the decisions cited by the advocate for the applicants are good law to be relied upon. He added that it is now a settled principle that an appHcation for stay of execution of a decree without a decree annexed therein ought to be struck out. See Pius Burchard · (Supra) and Sugar Board of Tanzania (supra) to ·mention a few. From the outset, let us clearly state

that as far as this application is made under the provisions of the Court of Appeal ------ Rules, 1979 we willnot-be ooligea-to-invoke-the-New-Rtlles.-i=he------ Court of Appeal Rules, 2009 will not be applied in this application. ,., .) ·· Having deared the way on which Rules we will rely upon, we can say that the Court of Appeal Rules, 1979 do not specifically require that a copy of the decree sought to be stayed should be annexed to the notice of motion for stay of execution under Rule 9 (2) (b) of the Court Rules, 1979. However, in practice, and also common sense requires that a copy .of the decree sought to be stayed should be ..ann_exed. As stat~d -~arlier, several decision.? of this ._court have emphatically stated to that effect. The decision of this Court in Sugar Board of Tanzania v. 21st Century Food and Packaging Ltd . and Two Others (supra) stated that: "The main reason for that requirement is that the Court cannot be expected to order the stay of execution of a decree or order it has not seen'~ We fully agree with -the respondent that previous decisions (precedent) of this Court are instructive. In support of that view, see for instance the decision of this Court in East Africa Development Bank v. BlueHne Enterprises Limited Civil Appeal No 35 of 2003 (Unreported) where it was stated as follows: 4 .. ~-- , by precedent the practice of the Court in such a situation

for stay of execution which is not accompanied with the order sought to be stayed to be incompetent." Also see the decision of this Court is Dunhill Motors Ltd v. Tanzania Revenue P6uthorsty, Civil Application No. -12 of 2000 ( (unreported). In the instant application, a copy of the decree sought to be stayed was not annexed with the notice of motion. The applicant has , annexed a copy of judgement instead of a decree. The Civil Procedure Code gives different definition between the term "decree" and "judgment". According to. section 2 of the Civil Procedure Code, "decree'; is defined as follows: ''means the formal expression of an adjudication which, so far as regards the court expressing it conclusively determines the right of the parties with ,:egard to all or any of the matters in controversy in the suit and may be either preliminary or final. " 5 . Whereas the term "judgment" is defined as: 11 Judgement means the statement given by the Judge or the Magistrate of the grounds of a decree or order'~ With that difference in those two terms found in the Civil Procedure Code the two terms are not one and the same thing. applicant has to annex a copy of the decree sought to be stayed has · · now acquired the status of law and we maintain and confirm that currently that is the legal position in our Courts. For the reasons stated herein above, the application is incompetent, hence it is hereby struck out with costs. DATED at MWANZA this 10th day of May, 2010. J. H. MSOFFE

JUSTICE OF APPEAL M.S.MBAROUK

JUSTICE OF APPEAL S. J. BWANA JUSTICE OF A-PPEAL 6