20180602 TZCA Iringa

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA CIVIL APPLICATION NO. 462/ 10 OF 2017 THE REGISTERED TRUSTEES OF ARCH DIOCESE OF SONGEA ................................................ APPLICANT VERSUS C.F. BUILDER.S LIMITED ................................................. RESPON DENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Songea.) (Madame. Mutuncii, 5.) Dated the 7th day of December, 2016 in Civil Case No. 2 of 2006 RULING 301h May & 5th June, 2018 MKUYE, ).A.: This application by way of a Notice of Motion is brought under Rules 10, 11 (2) (b) and (d) and 48 (1) and (2) of the Tanzania Court of Appeal Rules, 2009, (the Rules). The applicant is seeking orders for extension of time and stay of execution of the judgment and decree of the High Court of Tanzania at Songea (Mutungi, 3.) dated the 7th day of December, 2016 in Civil Case No. 2 of 2016 pending the hearing and determination of the intended appeal against the said decision of 1 11 the High Court. In the Notice of Motion the applicant has raised six (6) grounds and it is supported by an affidavit deponed by Rev. Fr. Kelvin Mkondora. The applicant filed a written submission in support of the application on 14/8/2017. The respondent, did neither file an affidavit nor a written submission in reply. When the application was called on for hearing the applicant was represented by Mr. Anthony Nasimire leaned counsel; whereas the respondent had the services of Mr. George Nyangusu, also learned counsel who basically did not object the application. Despite the fact that Mr. Nyangusu conceded to the application the Court wanted to satisfy itself on the correctness of the application. The reason for such inquiry is that it observed that the application was brought under rule 10 and 11 (2) (b) and (d) of the Rules which relate to two different reliefs. To be particular, the applicant seeks reliefs which fall under two different forums with different mandates which are, one, extension of time which fall under the jurisdiction of a single justice and two, stay of execution which is under the mandate of a panel of three justices of appeal. 2 Initially, Mr. Nasimire argued that the application was properly before the Court but later, on reflection, he conceded that a single justice had no mandate to deal with an application for stay of execution. He thus urged the Court to grant the application for extension of time which was properly before the Court. He did not, however, produce any authority to support his proposition. On his part, Mr. Nyangusu apart from stressing his stance of supporting the application, he contended that it was not proper to seek the relief of extension of time which isunder the domainof a single justice together with that of stay of execution which is under the domain of the panel of three justices of appeal. He pointed out that, doing so renders the application omni-bus which has been always discouraged by the Court. Likewise, he contended that, though it was necessary for the applicant to advance good reasons for the delay in the application for extension of time, the applicant did not so. In rejoinder Mr. Nasimire in an endeavour to advance a reason for delay he contended that this application could not have been filed before filing a notice of appeal which was filed after leave was granted to file it in Court. On my part, after having dispassionately considered the submissions from both parties, I entirely agree with Mr. Nyangusu that the application is omni-bus. I say so because it seeks two different reliefs which are extension of time which is under the domain of a single justice; and stay of execution which is under the domain of a panel of three justices of appeal. This Court when faced with a situation like the one at hand in the case of Daudi Lengiyeu Vs Dr. David Shungu, Civil Application No. 28 of 2015. (unreported), while quoting with approval the case of Bibie Hamad Khalid v. Mohamed Enterprises (T) Ltd and 2 Others, Civil Application No. 6 of 2011 (unreported) stated as follows: - it was wrong for the notice of motion to contain omni-bus appflcations In that case of Daud Lengiyeu (supra) the Court went on to state that:- "As pointed earlier, it is wrong for a notice of motion to contain omni-bus applications. As application for Revision which is under the domain of three Justices 4 cannot be in the same notice of motion with a application for extension of time which is to be heard by a single justice. The defect renders the application incompetent for being omni-bus/' Even in this case, I am of the considered view that the applicant ought to have filed an application for extension of time first and if that application is granted, file an application for stay of execution. As it is, it seems to me that the applicant was working under assumption that the application for extension of time would be automatically granted and then the Court would proceed to consider the application for stay of execution which is not the case. The application of stay of execution is under the domain of a panel of three justices and not a single justice. Even for the sake of argument, assuming the application for extension of time was properly before the Court, upon probing the advocate for applicant as to whether there was any reason advanced for the delay be it in the affidavit or written submission, he did not have an answer which was certain. Strangely enough, the advocate 5 for the respondent did not object the application. However, it is trite law that in order for the extension of time to be granted the applicant has to show a good or sufficient reason for the delay. (See Rule 10 of the Tanzania Court of Appeal Rules, 2009; and Kalunga & Company Advocates Ltd Vs National. Bank of Commerce Ltd, [2006] TLR - 235. That, the applicant did not do. Given the circumstances, I find the application to be incompetent for being omni-bus and the same is hereby accordingly struck out. Each party is to bear its own costs. DATED at IRINGA this 2nd day of June, 2018. R. K. MKUYE )USTICE OF APPEAL I certify that this is a true copy of the Original. P. BAMPIYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL It