JUMA K

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB- REGISTRY AT MBEYA APPLICATION NO. 11894 OF 2024 CASE REFERENCE NO. 202405221000011894 (Originating in Land Application No. 3B of 2024 and No. 3 of 2015 in the District Land and Housing Tribunal for Mbeya) ZUMBA K. ZUMBA .................................................................. APPLICANT VERSUS JOEL NKWELELE ................................................................ RESPONDENT RULING Date of hearing: 12/09/2024 Date of ruling: 5/11/2024 NONGWA, J. The applicant is seeking stay of execution of the decree in Misc. Land Application No. 3B of 2024 and No. 3 of 2015 in the District Land and Housing Tribunal for Mbeya (DLHT). It is made under section 95, orders XXI rule 27, XXXIX rule 5(1) of the Civil procedure code [Cap 33 R: E 2019] (the CPC) and supported by affidavit of the applicant. It is alleged that the applicant unsuccessfully filed Misc. Land Application No. 3B of 2024 and No. 3 of 2015 in the DLHT against the respondent. I aggrieved, unsuccessfully appealed to this court vide Land 1 Appeal No. 06 of 2022. Through Misc. Land Application No. 7 of 2023 of this court applied to set aside unknown case, the application hit preliminary objection which upon hearing was sustained and the application was struck out. Further the applicant alleges that has filed notice of appeal to the Court of Appeal and requested from the deputy registrar to be supplied with necessary documents for processing the appeal. Meanwhile on 14/5/2024 the DLHT issued order of execution. Thus filed this application seeking execution in the DLHT to be stayed while awaiting to be supplied with requested document for filing the appeal. The respondent opposes the application through his counter affidavit. He also filed notice of preliminary objection. When the matter came for hearing parties appeared in person, they prayed and were granted leave to dispose the application by filing written submissions. They conformed to the scheduling order however, their respective submission will not be reproduced here for the reason to be apparent soon. In the course of composing ruling, I discovered that there was an oversite as there was no direction on the preliminary raised by the respondent. Thus, proceedings were reopened to affording parties opportunity to be heard on the preliminary objection. 2 The respondent submitted that this court has no jurisdiction to grant the order for stay of execution as there is no any decree that has been passed by this court and no proceedings that are connected with this matter that is still pending. On his part, the applicant began by informing this court that the raised Preliminary objection is not related to the application at hand rather it relates to Misc. Land Application no. 14631 of 2024 which was withdrawn while current application is No. 11894 of 2024. He insisted that the court has jurisdiction as per Order XXXIX rule 5(1)(2) of the CPC. While I agree that the Notice of Preliminary objection refers to the application that was withdrawn, the objection is still relevant to the application at hand and the respondent has submitted that this court lacks jurisdiction for proper forum is the tribunal that issued the decree. It needs to be re-emphasized that it is trite law that the issue of jurisdiction is paramount and is a matter a judge or magistrate should satisfy himself first before presiding over a matter placed before him. In the case of CRDB Bank PLC vs Lusekelo Mwakapala, Civil Appeal No. 143 of 2021 [2023] TZCA 17637 (22 September 2023, TanzLII), the court stated; ‘It is worth noting that, the question of jurisdiction is crucial and must be determined by the court/tribunal at the earliest opportunity. Jurisdiction is everything without which a court has no power to determine the dispute before it. Where a Court has 3 no jurisdiction there would be no basis for a continuation of proceedings. Generally, a court is barred to entertain a matter in which it has no jurisdiction.’ In another case of Mzee Omar Mzee vs Mwanamvua Rashid Kilindi, Civil Appeal No. 301 of 2021 [2022] TZCA 369 (16 June 2022; TanzLII) the court stated; ‘It is our considered view that the learned judge was obligated, at the earliest opportunity, to satisfy himself that the High Court had the requisite mandate to deal with the case the more so when the appellant had doubted it by way of an objection. In this case, even if there was inclination by the appellant's counsel to withdraw the objection on jurisdiction yet that did not relieve him of that duty for it is trite legal stance that jurisdiction is a creature of statute and parties cannot vest a court with a jurisdiction it legally does not have.’ The court’s power over application for stay of execution is emboded under orders XXXIX rule 5(1)(2) of the CPC, it provides; ‘5(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree but the Court may, for sufficient cause, order the stay of execution of such decree. (2) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for 4 appealing therefrom, the court which passed the decree may, on sufficient cause shown, order the execution to be stayed. Under the above provision, the court where the appeal has been filed has power to order stay of execution or where no appeal has been made the court which passed the decree, the overriding force being the applicant must demonstrate that there is sufficient cause. Under scrutiny, according to the affidavit of the applicant he has filed notice of appeal to the Court of Appeal but is yet to filed the appeal itself. According to the law proceeding in the Court of Appeal is commenced when the party filed notice of appeal. In Aero Helicopter (T) Ltd vs F.N. Jansen [1990] TLR 142 the court held that; ‘Once appeal proceedings to this court have been commenced by filing notice of appeal, the High Court has no inherent jurisdiction under section 95 of the Civil Procedure Code to order a stay of execution pending appeal to this court.’ In another case of Tanzania Electric Supply Company Limited vs Dowans Holdings (Costa Rica) & Another (Civil Application No. 142 of 2012) [2013] TZCA 437 (27 March 2013; TanzLII) the court stated ‘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 5 notice of appeal has been duly lodged, the High Court ceases to have jurisdiction over the matter.’ Applying the above law to the matter at hand, it has been admitted by the applicant that has filed notice of appeal to the Court of Appeal, hence commenced proceedings in that court. On those circumstance this court lacks jurisdiction to determine the proceedings for stay of execution. In the premises, the preliminary objection is sustained, the application is incompetent. Consequently, I strike out the application and owing to the circumstance of this matter and the parties themselves I order no costs. V. M. NONGWA JUDGE 5/11/2024 Dated and Delivered at Mbeya this 5th November, 2024 in presence of the Applicant and the Respondent in person. V. M. NONGWA JUDGE 6