tanzania investment bank vs ms ilabila industries 3 others 2010 tzhccomd 8 24 december 2010

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO.27 OF 2002 TANZANIA INVESTMENT BANK.......................... PLAINTIFF/DECREE HOLDER

VERSUS M/S I LABI LA INDUSTRIES

JOHN MOMOSE CHEYO NGULA VITALIS CHEYO........................... DEFENDANTS/JUDGMENT DEBTORS AND VICTORIA REAL ESTATE DEVELOPERS LTD.....................................APPLICANT Date of last order: 01/11/2010 Date of final submissions: 11/10/2010 Date of ruling: 24/12/2010

RULING MAKARAMBA, J.: This is a ruling on the preliminary objection the Defendants/Judgment Debtors raised on the 9th day of September 2010 against the Applicant's application for order of delivery of possession, that this Court has no jurisdiction to entertain the application the Applicant filed in this Court under a Certificate of Urgency on the 2nd day of September 2010. The Applicant's application has been preferred under Order XXI Rule 93 and section 95 of the Civil Procedure Code [Cap.33 R.E. 2002] and any other enabling provisions of the law. It is for orders that this Court be pleased to order delivery of C.T. NO.32132, L.O. No.96015, Plot No.1472, Msasani Peninsula, and putting the Applicant into possession of the same, i and if need be, by forcefully removing the Defendants/Judgment Debtors therefrom if they refuse to vacate. The Application is supported with the affidavit of SULEIMAN NASSOR MOHAMED, one of the Directors and shareholders of M/S VICTORIA REAL ESTATE DEVELOPERS LIMITED, the Applicant herein. The Application by consent of the parties was disposed of by way of written submissions. The law firm of M.A. ISMAIL & CO. (Advocates) represented the Applicant and REX ATTORNEYS (Advocates) and KISARIKA, MALIMI & MLOLA (Advocates) advocated for the Defendants/Judgment Debtors. The nature of the present matter is such that a background to it is apposite. Briefly, on

the 14th day of September 2004, the trial judge Hon. Kalegeya (as he then was) delivered his ruling dismissing the Defendants'/Judgment Debtors' application to set aside a sale by auction. Following this ruling, a drawn order was extracted and signed by the trial judge but did not bear the date of the ruling as provided for under Order XX Rule 7 of the Civil Procedure Code, [Cap. 33 R.E. 2002]. The Defendants/Judgment Debtors were aggrieved by the said ruling and order and filed a Notice of Appeal to the Court of Appeal, and thereafter sought leave of the court to appeal to the Court of Appeal which application on 18/11/2004 was dismissed by Hon. Kimaro, J. (as she then was). The Defendants/Judgment Debtors undetered took the matter to the Court of Appeal in Civil Application No.159 of 2004, which on 20th December 2004, Hon. Munuo, J.A. struck it out. The Defendants/Judgment Debtors again vide Civil Reference No.4 of2005, successfully moved the Court 2 of Appeal and timely filed their appeal as Civil Appeal No. 106 of2005. The Plaintiff/Decree Holder, Tanzania Investment Bank (TIB) also filed a Notice of Cross Appeal. On the 16th day of August 2010, the Court of Appeal struck out Civil Appeal No. 106 of2005on account of the Drawn Order bearing a different date with the ruling. The record does not show what happened to the cross-appeal. As it turned out, the record shows

that the suit premises went for public auction and landed into the hands of the Applicant who has noiw come to this Court seeking to be put in possession of the suit property which application has met with objection from the Defendants/Judgment Debtors and hence this ruling. The record also shows that on the 18th day of October 2010 the Defendants/Judgment Debtors filed in this Court an application seeking a review of the ruling of Hon. Kalegeya, J. (as he then was) dated 14th September 2004 refusing to set aside the sale of the suit premises. In his submission in support of the preliminary objection raised against the Applicant's application, the Defendants/Judgment Debtors argued that a cross-appeal being an appeal of its own kind just like a counterclaim is a suit of its own kind, and just as a counterclaim does not collapse if the suit is dismissed, so is a cross appeal does not collapse automatically if the appeal is struck out, and therefore it survives a struck out Notice of Appeal or the appeal. In buttressing the point that a cross­ appeal survives a struck out Notice of Appeal or appeal, the Defendants/Judgment Debtors' Counsel referred this Court to the decision of Nyalali, C.J. (as he then was) in Dr. MASUMBUKO R.M. LAMWAI VS. VENANCE FRANCIS NGULA AND ANOTHER Civil Appeal No. 56 of 3 1997 and the decision of Kileo, J.A. in THE HONOURABLE ATTORNEY GENERAL VS.

MOROGORO AUTO SPARES Civil Appeal No.lll of 2004, copies of which were availed by the Defendants/Judgment Debtors' Counsel. In both these cases, the court held that the cross appeal survived and had to be disposed of before the business of the Court of Appeal is finally completed, the Defendants'/Judgment Debtors' Counsel further submitted. Applying the principle that the striking out of an appeal does not automatically disposes off a cross-appeal to the present case, the Defendants/Judgment Debtors' Counsel submitted further that the striking out of the appeal, Civil Appeal No. 106 of 2005 by the Court of Appeal did not automatically dispose off the cross-appeal. The Plaintiff/Decree Holder has to move the Court of Appeal for appropriate order, and since the Plaintiff/Decree Holder has not done this, then for all intent and purposes the cross-appeal is still a live issue before the Court of Appeal to be dealt with at a later at a date to be fixed by the Court of Appeal registry, the Defendants'/Judgment Debtors' Counsel further submitted. Arguing by analogy and utilizing the principle stated in AERO HELICOPTER LTD VS F.N, JENSEN (1990)T.L.R. 142 that a Notice of Cross-Appeal is like a Notice of Appeal, the Defendant/Judgment Debtors' Counsel submitted further that so long as the Notice of Cross-Appeal has not been disposed off by the Court of Appeal, the High Court has

no jurisdiction to entertain any matter relating to the suit. The jurisdiction remains with the Court of Appeal of Tanzania and therefore this Court has no jurisdiction to entertain this application whose subject matter is a 4 subject of the cross-appeal and as such this Court has to wait until the Notice of Cross-Appeal is finally determined, the Defendants/Judgment Debtors' Counsel cautioned rather cautiously. In the present case the Plaintiff/Decree Holder did not ask for the cross-appeal to be heard after the appeal was struck out, the Defendants' Counsel further submitted. It follows therefore that since there is a pending matter before the Court of Appeal to be determined at a later date, this Court cannot deal with the application while the same matter which is under consideration of the Court of Appeal is also the subject of the present application, the Defendants'/Judgment Debtors' Counsel further insisted. Buttressing further the position that the cross-appeal filed by the Plaintiff/Decree Holder is yet to be formally disposed of and thus this Court has no jurisdiction to deal with the application by the Applicant, the Defendants/Judgment Debtors' Counsel cited the ruling of Makaramba, J. in VIP ENGINEERING AND MARKETING LIMITED VS SGS SOCIETE GENERALE DE SURVEILLANCE SA & 2 OTHERS Commercial Case No. 16 of 2000, where the Court rejected the application to

pronounce judgment because the Court had no jurisdiction to deal with the matter whose Notice of Cross Appeal was still with the Court of Appeal, which position was confirmed by the Court of Appeal in the ruling of Hon. Mbarouk, J.A. in Civil Appeal No.65 of 2006 VIP ENGINEERING AND MARKETING LIMITED VS, SGS SOCIETE GENERALE DE SURVEILLANCE SA & 2 OTHERS (unreported). The Defendants/Judgment Debtors' Counsel surmised and prayed that in the 5 light of glaring lack of jurisdiction, the application by the Applicant be struck out with costs. The Applicant's Counsel in reply submitted that the preliminary objection is misconceived and ought to be contemptuously ignored on the grounds that the Notice of Appeal, the Notice of Cross Appeal and the proceedings between the judgment debtor and Decree Holder in this Court and the Court of Appeal do not touch on the Applicant. The Applicant's Counsel further argued that indeed the decision of this Court which became the subject matter in Court of Appeal in Civil Appeal No. 106/2005 did not involve the Applicant. The Applicant's Counsel submitted further that if the Judgment Debtor sought to bind the Applicant with any order of this Court or the Court of Appeal, the Judgment Debtor ought to have done so by serving the Applicant with the Notice of Appeal in terms of Rule 77(1) of the Court of Appeal Rules G.N. 102 of 1979 as amended, or Rule

94(1) of the Court of Appeal Rules G.N. 368 of 2009. The Applicant's Counsel surmised that the Judgment Debtor having failed to serve the Notice of Appeal to the Applicant in terms of the said Rules cannot rely on the pendency of any appeal or cross appeal to object to the hearing of this application. The Applicant's Counsel submitted further that the objection on jurisdiction is unfounded since it is on record that there is no order for stay of execution, and such even if there was such order, it would not affect the Applicant as it is neither a Decree holder nor a judgment Debtor given that an order for stay of execution would bind only the parties to the appeal or suit, not third parties like the Applicant. The Applicant's Counsel 6 distinguished the decision in AERO HELICOPTER LTD VS F.N. JENSEN (1990) T.L.R. 142 and submitted that in that case the Court of Appeal did not say that execution cannot proceed when a Notice of Appeal is lodged, otherwise if that decision had that effect, then Rule 9(2) (b) of G.N. 107 of 1979 or Rule 11(2) (b) of G.N. 368 of 2009 would become redundant and superfluous. Instead, the Applicant's Counsel insisted, AERO HELICOPTER LTD VS F.N. JENSEN (1990) T.L.R. 142 clearly shows that execution is not stopped by pendency of a Notice of Appeal hence the objection is without basis. The Applicant's Counsel also distinguished the decisions in Dr.

Masumbuko R.M. Lamwai vs. Venance Francis Nguia and Another (supra) as well as The Honourable Attorney General vs. Morogoro Auto Spares and VIP Engineering And Marketing Limited Vs SGS Societe Generate De Surveillance SA & 2 Others cited and relied upon by the Defendants'/Judgment Debtors' Counsel, as being out of context, because they did not deal with stay of execution and neither did they deal with whether execution can proceed or not when an appeal is pending. The Applicant's Counsel submitted further that the objection on pendency of cross-appeal is fallacious and made reference to the affidavit of Lugano Mwandambo for Decree Holder (Tanzania Investment Bank) that the Cross-Appeal was withdrawn on 16th August 2010, and that the Notice of Withdrawal was duly served on the Judgment Debtor who acknowledged it on 18/08/2010. The Applicant's Counsel submitted further that the Decree Holder having lodged a Notice according to Rule 104(1) of the Court of Appeal Rules, G.N. 368 of 2009, the Cross Appeal has come to an 7 end, hence it cannot be a basis of objection by the Judgment Debtor against third party proceedings. It was the further submission of the Applicant's Counsel that the objection does not make sense as it is directed to a wrong person, and as matters stand, the pendency or no pendency of a Notice of Appeal or Cross Appeal is not an issue in execution of a Decree or

in relation to the rights of the third parties like the Applicant. The Applicant's Counsel prayed for the dismissal of the preliminary objection with costs and that the application under Order XXI Rule 93 of the Civil Procedure Code, be granted. Rejoining, the Defendants'/Judgment Debtors' Counsel while conceding to the fact that the Applicant is not a party to the suit and the subsequent proceedings before this Court and at the Court of Appeal, which ensued did not involve it, submitted however, that yet what it is praying in this Court is a matter before the Court of Appeal under the cross appeal. The Defendants' Counsel surmised that given that the Applicant is aware that the proceedings at the Court of Appeal are still pending, therefore since the Application is premised on the ground that no any appeal or proceedings are pending in the Court of Appeal it is erroneous, and therefore since the basis of its application now is that so far there is no any matter pending at the Court of Appeal, then this Court has no jurisdiction to entertain the matter. On the argument by the Applicant's Counsel that since the cross appeal has been withdrawn according to Rule 104(1) of the Court of Appeal Rules G.N. 368 of 2009 and thus the cross appeal has come to an end and therefore cannot form a basis for objection, the Defendants' 8 Counsel rejoined that this is a misconception, since the

mere filing of a Notice to withdraw the Cross Appeal by the Decree Holder does not mean that the cross appeal has come to an end. There has to be a formal disposal of the fate of the cross appeal as was the case in the ruling of the Court of Appeal in VIP Engineering And Marketing Limited Vs SGS Societe Generate De Surveillance SA & 2 Others (supra) where the Court expressly struck out the cross appeal. On the fact that the Applicant's application is premised on the fact that it is a successful bidder and hence purchaser of the suit property with right to move this Court under Order XXI Rule 93 of the Civil Procedure Code, the Defendants' Counsel submitted that it is misleading and a furtherance of falsehood before this Court by the Applicant referring to the Counter Affidavit of John Momose Cheyo on record that the Applicant's Deponent who is the Director of the Applicant is on record that the Applicant was neither at the auction nor was it a successful bidder. The Defendants' Counsel making reference to paragraphs 7, 8, 9, and 10 of the said counter affidavit which convey to this Court what transpired in this matter, submitted further that the Applicant is apparently committing fraud to this Court and that the Applicant's application is furtherance of the Applicant's fraudulent conduct and/or illegality before this Court which should not be let to stand citing the decision of

the Court of Appeal in EXECUTIVE SECRETARY WAKF & TRUST COMMISSION ZANZIBAR VERSUS HEMED ABDALLA HEMED & 4 OTHERS Civil Appeal No. 13 of 2000 where Ramadhani, J.A stated that the court cannot wring its hands in utter desperation and let illegality stand. 9 The Application which has given rise to the present preliminary objection the subject of this ruling has been preferred under Order XXI Rule 93 and section 95 of the Civil Procedure Code [Cap.33 R.E. 2002]. Rule 93 of Order XXI of the Civil Procedure Code provides as follows: "93. Where the immovable property sold is in the occupancy of the judgment debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 92, the court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property and, if need be, by removing any person who refuses to vacate the same." (the emphasis is of this Court). I have gone through the affidavit and counter affidavit and the submissions of the parties. Three issues come up for consideration by this Court. The first issue is whether the Applicant is a purchaser of the immovable property the subject of the

present application. This issue is based on Rule 93 of Order XXI of the Civil Procedure Code under which the Applicant has preferred its application, in terms of which the only person with locus standi to move the Court for the order of delivery of possession is the "purchaser of the property" whose possession si sought to be delivered to the Applicant. The Defendants/Judgment Debtors argument is that the Applicant's Deponent who is the director of the Applicant was neither present at the auction nor was it a successful bidder. In my view, this argument calls for evidence so that this can establish the real purchaser and whether the purchase was obtained fraudulently as io alleged by the Defendants/Judgment Debtors. In any event since the allegation of fraud leveled on the Applicant's Deponent borders on criminal accusation, it has to be specifically proved by adducing evidence and the degree of proof required is a much higher than merely on a balance of probabilities. The Defendants/Judgment Debtors have not been able to discharge this burden. In any case the allegation of fraud is misplaced. This is not an appropriate forum for the Defendants/Judgment Debtors to raise allegations of fraud in the execution process. It is for the foregoing reasons, that I shall disregard the allegation of fraud. Let me now deal with the second issue relating to the status of a cross-appeal

following the striking out of an appeal. On this issue two positions emerge from the Counsel's submissions. While the Defendants maintain very strongly that a cross appeal survives a struck out appeal, the Applicant on its part contends that this principle does not apply in third party execution proceedings and to a third party who was not a party to the suit and the subsequent proceedings in the Court of Appeal. The general principle as correctly stated by the Defendants' Counsel and as it finds judicial expression in AERO HELICOPTER LTD VS F.N. JENSEN (1990) T.L.R. 142, on an appeal being struck out, a cross-appeal, which for all intent and purposes is like an appeal, does not automatically come to an end - there must be an express order by the Court of Appeal stating that the said cross appeal has come to an end. From the submissions of Counsel, there is not much controversy as to the settled law, which is reflected in Dr. Masumbuko R.M. Lamwai vs. Venance Francis Nguia and Another (supra) as well as The Honourable Attorney Genera! vs. 11 Morogoro Auto Spares and VIP Engineering and Marketing Limited Vs SGS Societe Generate De Surveillance SA & 2 Others (supra), that a cross-appeal survives a struck out appeal, and that there has to be express order by the Court of Appeal bringing the cross appeal to an end before the business of the court is finished. The Applicant's

Counsel however, seems to differ with the Defendants' Counsel in so far as the reach of the principle laid down in these cases is concerned, which according to the Applicant's Counsel, did not deal with stay of execution and therefore did not concern the issue whether execution can proceed or not when an appeal or cross appeal is pending. The argument of the Applicant's Counsel is that in so far as there is no order for stay of execution, which in any case even if there was such order, it would not affect the Applicant as it is neither a Decree Holder nor a Judgment Debtor, since a stay order would bind only the parties to the appeal or suit, not third parties like the Applicant. The Applicant's Counsel distinguishing the decision in AERO HELICOPTER LTD VS, F.N, JENSEN (1990) T.L.R. 142 submitted that in that case the Court of Appeal did not say that execution cannot proceed when a Notice of Appeal is lodged otherwise if that decision had that effect, then Rule 9(2)(b) of G.N 107 of 1979 or Rule 1l(l)(b) of G.N 368 of 2009 would become redundant and superfluous. The said Rules relate specifically to stay of execution by the Court of Appeal once appeal proceedings have been commenced by filing notice of appeal to the Court of Appeal. In the first place the issue whether stay of execution can proceed where there is Notice of Appeal does not arise in the present 12 matter since

the appeal having been struck out, the Notice of Appeal fell with it. The issue before this Court is whether stay of execution can proceed where there is a cross-appeal. In resolving this issue I am at one with the analogy made by the Defendants' Counsel that since a cross-appeal is for all intents and purposes like an appeal, then it follows that in the absence of any express order by the Court of Appeal bringing the cross appeal to an end, the business of the Court of Appeal is not yet finished. Flowing from this then the issue now becomes whether in the absence of order of stay of execution cannot proceed where there is a cross-appeal. The argument by the Applicant's Counsel is that an order of stay of execution, if there was one, would affect only the parties to the suit or the appeal or cross-appeal but not third parties like the Applicant. This argument in my view I find it to be rather problematic. It is not controverted that the Applicant was not a party to the suit which gave rise to the appeal and cross-appeal and another was it a party in the proceedings in the Court of Appeal. The Applicant however, has come to this Court as a purchaser of a property which was the subject matter of the appeal which was struck out by the Court of Appeal and the cross-appeal pending at the Court of Appeal. The logic which flows from this argument is that since the property which

the Applicant now seeks to be put in his possession as a purchaser is still the subject of the pending a cross-appeal, at the Court of Appeal then the Applicant cannot come to this Court to moved it for an order of delivery of possession of the subject matter of the pending cross-appeal because this Court is not seized of jurisdiction and cannot therefore invoke its inherent 13 powers under section 95 of the Civil Procedure Code to entertain the application. As the Defendants' Counsel rightly submitted, the pendency of the cross-appeal which for all intents and purposes is like an appeal divests this Court of its jurisdiction in any matter touching on the pending cross­ appeal, which on the authority of the binding decision of the Court of Appeal in VIP Engineering and Marketing Limited Vs SGS Societe Generale De Surveillance SA & 2 Others (supra), it requires an express order of the Court of Appeal to bring it to an end. In my view since as the Defendants' Counsel argues that a cross-appeal is like an appeal, then the provisions of Rule 11(2) (b) of the Court of Appeal will come to bear which stipulates as follows: "11 (1)... (not relevant) (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) .... (not relevant) (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 staved 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." 14 As the Applicant's Counsel rightly argued, there is no order of stay of execution, not from this Court or from the Court of Appeal. The general principle enshrined under Rule 11(2) of the Court of Appeal Rules, 2009, is that where a notice of appeal and in this context a Notice of cross appeal has been lodged, an appeal and in this context a cross-appeal does not operate as a stay of execution of the decree or order appealed from nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree or order. Emanating from the foregoing therefore, much as there is not order of stay of execution, the fact that there a pending cross-appeal does not, in the absence of an order of stay of execution, operate as a stay of execution. I shall turn now to consider the third issue which is interrelated to the second issue which is whether the filing of a Notice to withdraw a cross-appeal means that the cross-appeal has come to an end. The parties have drawn

two clear positions on this issue. The Defendants contend that mere filing of Notice to withdraw the cross appeal by the Decree Holder does not mean that the cross-appeal has come to an end. There must be an express order by the Court of Appeal stating that the said cross appeal has come to an end. The Applicant on its part very strongly has maintained that since the Notice to withdraw was duly served on the Judgment Debtor who acknowledged it, then in terms of Rule 104(1) of the Court of Appeal Rules, the cross-appeal has come to an end, and hence it cannot be a basis of objection by the Judgment Debtor against third party proceedings. The Applicant's Counsel reiterated his argument that the 15 pendency of a Notice of Appeal or cross appeal is not an issue in execution of a Decree or in relation to the rights of the third parties like the Applicant. I have carefully considered the arguments by Counsel on this issue and the provisions of Rule 104(1) of the Court of Appeal Rules, 2009. The said Rule provides as follows: "1O4.-(1) A respondent who has given notice of cross-appeal or notice of grounds for affirming the decision of the High Court may withdraw it at any time before the appeal is called on for hearing by lodging in the appropriate registry a written notice to that effect, signed by him or on his behalf." Let me point out here that there are two types of notice of

cross­ appeal under the Court of Appeal Rules, 2009. The first type is that which is given under Rule 94 where the respondent desires to contend at the hearing of the appeal that the decision of the High Court or any part of it shall be varied or reversed, either in any event or in the event of the appeal being allowed in whole or in part. The second type is that which fall under Rule 100 where a respondent desires to contend on an appeal that the decision of the High Court or tribunal should be affirmed on grounds other than or additional to those relied upon by that court. Irrespective what type the notice of cross-appeal is, both can be withdrawn under Rule The provision of Rule 104(1) of the Court of Appeal Rules 2009, cited above only gives a respondent who has given notice of cross-appeal an opportunity to withdraw it at any time before the appeal is called on for 16 hearing by lodging in the appropriate registry a written notice to that effect and serve a copy of it on the appellant and copies of it on all other respondents who were served with the notice of cross-appeal under Rule 104(2). There is nothing in my view, with due respect to the Applicant's Counsel, under Rule 104(1) of the Court of Appeal Rules, 2009 suggesting that with the filing of the written notice to withdrawal a cross-appeal the cross-appeal thereby automatically becomes extinguished. I wish to

point out here that Rule 104(1) of the Court of Appeal Rules, 2009 does not carry the express words as to those in respect of the aftermath of notice to withdraw of appeal under Rule 102(1) which empowers the Registrar to strike out the Notice of Appeal. The said Rule 102(1) provides as follows: "102.-(l) An appellant may at any time after instituting his appeal and before the appeal is called on for hearing lodge in the appropriate registry a written notice that he does not intend further to prosecute the appeal and upon receiving such notice the Registrar or deputy registrar shall strike out the Notice ofAppeal." In terms of the most recent ruling of the Court of Appeal in the case of VIP Engineering and Marketing Limited Vs SGS Societe Generate De Surveillance SA & 2 Others Civil Appeal No.65 of 2006, which the Defendants' Counsel has relied upon and the Applicant's Counsel has made reference to by way of distinguishing, the mere filing of a Notice to withdraw a cross-appeal does not therefore automatically brings to an end the cross appeal. There has to be an express order of the Court bringing to an end the cross-appeal. I wish also to point out here that the 17 ruling of the Court of Appeal in VIP Engineering and Marketing Limited Vs SGS Societe Generale De Surveillance SA & 2 Others (supra) was handed down on 24th day of August 2010, well after the Court of Appeal Rules,

2009 had become fully operational. Our good guess is that the Court of Appeal entered its ruling in VIP Engineering and Marketing Limited Vs SGS Societe Generate De Surveillance SA & 2 Others (supra) while fully aware of the existence of Rule 11(2) of the Court of Appeal Rules 2009. Furthermore, in the absence of any provision in the Rules expressly empowering the Registrar to strike out a cross­ appeal following a notice to withdraw as is the case for a notice to withdraw an appeal, it cannot be second guessed that the striking out of an appeal automatically brings to an end a cross-appeal or the mere filing of a notice to withdraw a cross-appeal automatically brings to an end the cross-appeal. The settle legal position is that there must be an express order by the Court of Appeal stating that a cross-appeal has come to an end. In my considered view, and as rightly submitted by the Defendants' Counsel, a mere filing of a Notice of withdrawal of cross-appeal, which is acknowledged by the other side, is not sufficient to bring to an end the cross-appeal in the absence of an express order by the Court of Appeal to that effect. The issue remains begging however, whether in the absence of a specific order for stay of execution the mere existence of a cross-appeal automatically also operates as stay of execution. The position of the law as embodied under Rule 11(2) of the Court of

Appeal Rules, 2009 is that in the absence of an order of stay of execution either by the High Court or the Court of Appeal, the mere existence of an appeal, and in this context 18 by analogy, a cross-appeal, does not operate as a stay of execution for the appeal or cross-appeal for that matter. Does this mean that this Court is now seized of jurisdiction because the application for order of delivery of possession relates to execution proceedings by a third party? It is without much dispute that there is a pending cross-appeal at the Court of Appeal. It is not disputed that the Applicant is not a party to the pending cross-appeal or the struck out appeal which crumbled with its Notice of Appeal. As a matter of fact, the property which is the subject of the application forms part of the subject matter of the pending cross­ appeal. The general principle is that in the absence of order of stay of execution, the mere existence of a cross-appeal does not operate as a stay of execution. Does this mean that this Court is seized of jurisdiction to entertain the application for declaration of an order for delivery of possession of a property which is the subject of the pending cross-appeal? The Court of Appeal cannot enter orders on the cross-appeal in the absence of the court record containing the proceedings which gave rise to the struck out appeal and the pending cross-appeal. In such

kind of situation the court record has to be placed before the Court of Appeal for the necessary orders with regard to the pending cross-appeal. It is only after the Court of Appeal has done then this Court would be seized of jurisdiction to deal with matters arising from the execution process. In my view it will not serve the ends of justice and it is a flouting of clearly stipulated rules for this Court to determine the present application and order delivery of possession of a subject matter of a pending cross-appeal in the Court of Appeal. In my view, much as the law envisages concurrency 19 of jurisdiction of both this Court and the Court of Appeal in dealing with application for stay of execution in a suit where Notice of appeal to appeal to the Court of Appeal or a cross-appeal has been lodged, it was not the intention of Parliament to vests a court of inferior jurisdiction over a matter legally before a superior court, much to the legal tuft which would possibly arise as a result of fighting over jurisdiction which might lead to conflicting decisions in the same subject matter. Not only law but also common sense dictates that the Court of Appeal should be left to finish its business first over the matter before this Court can exercise its jurisdiction over the subject matter. In the upshot the preliminary objection that this Court lacks jurisdiction to entertain the application for delivery of possession is hereby upheld to the extent and for the reasons I have endeavoured to explain above. The circusmstances and nature of the matter is such that I shall make no order as to costs. Each party shall bear its own costs in this application. It is accordingly ordered. R.V. MAKARAM BA

JUDGE 24/12/2010 20 Ruling delivered this 24th day of December 2010 in the presence of Mr. Sinare, Advocate for the Plaintiff/Decree Holder, M/S Irene, Advocate for the Defendants/Judgment Debtors and Mr. Bethuel, Advocate for the Applicant. R.V. MAKARAMBA

JUDGE 24/12/2010 Words count: 5,701 21