IN THE COURT OF
APPEAL OF TANZANIA
AT ARUSHA
ARUSHA CIVIL APPLICATION NO. 6 OF 2005
ERICK MASSAWE…………………….……….………..APPLICANT
AND
TANROADS &
OTHERS………. …………………RESPONDENTS
(Application for Stay of Execution
from the Judgment and Decree of the High Court of Tanzania
(Land Division) at Arusha)
(Kileo, J.)
dated the 3rd day of
August, 2005
in
Land Case No. 16 of 2004
R U L I N G
22
September 2006 & 2 October 2006
LUBUVA, J. A.:
Before me
there is an application by Mr. Maruma, learned counsel, on behalf of Erick
Massawe, the applicant. Under the
provisions of rule 9(2)(b) of the Court of Appeal Rules, 1979 (hereinafter the
rules), the Court is moved for an order that the execution of the High Court
(Land Division) decision and decree in Land Case No. 16 of 2004 of 3.8.2005 be
stayed until the determination of the appeal pending in this Court. The application is supported by an affidavit
deponed by the applicant, Erick Massawe.
The attachment to the application comprises a copy of judgment and
decree which is intended to be appealed against and nothing more.
At the commencement of hearing the
application, the Court suo motu raised the issue whether the application before
the Court was competent. The reason was the
fact that from the record of the application placed before me there is no
attachment of the notice of appeal lodged.
Mr. Maruma, learned counsel for the
applicant, responded to this point.
Forthrightly he conceded with regard to two issues. First, that notice of appeal is a prerequisite
condition for granting stay of execution under rule 9(2)(b) of the rules. Second, that the notice of appeal was not
attached to the application filed seeking stay of execution.
However, Mr. Maruma submitted that the
notice of appeal was mentioned in paragraph 3 of the affidavit in support of
the application. The notice of appeal at
any rate, he further submitted, was filed in the Court registry on 17.8.2006. From his submission, it would appear that the
gravamen of his argument is that neither rule 9(2)(b) nor any other rule
requires the annexing of the notice of appeal to the application. What is required, Mr. Maruma stressed, is the
filing of the notice of appeal. This, he
insisted, had been done on 17.8.2006 which fully satisfied the requirement of
rule 9(2)(b) of the rules. For these
reasons, Mr. Maruma was firmly of the view that the application was competent.
Mr. Kaishozi, learned State Attorney,
for the Attorney General and Mr. Komba, learned counsel, represented the
respondents. The essence of their
submission is to the following effect.
That the application for stay of execution as lodged is incompetent. This is so because there is no notice of
appeal attached to the application. The
initial notice of appeal filed by the applicant was, on the application of
counsel for the applicant marked withdrawn by the Hon. Chief Justice on
28.7.2006. Mr. Kaishozi availed to the
Court a copy of the order of withdrawal.
In sum total it was counsel’s submission that the application is based
on a non existing notice of appeal. So, the
application for stay of execution in which there is no notice of appeal is
incompetent, it should be struck out.
From these submissions, it is apparent
that counsel for both parties are in agreement that the application was not
accompanied with the notice of appeal.
However, they part company with each other with regard to the effect of
such failure to annex the notice of appeal to the application. While Mr. Maruma as already shown, ardently
maintained that non-attachment of the notice of appeal to the application does
not render the application incompetent, Mr.
Kaishozi and Mr. Komba held the opposite view.
I have no difficulty in agreeing with
Mr. Maruma that rule 9(2)(b) of the rules does not provide for the attachment
of the notice of appeal to the application for stay of execution. Correctly as he observed, the pre-requisite
condition under the rule is the lodging of the notice of appeal in accordance
with rule 76. However, it is to be
pointed out at once that although the rule does not provide expressly for the
attachment of the notice of appeal, both logic and common sense dictate its
inclusion in the application. Without
the attachment of the notice of appeal, how would the Court satisfy itself that
the pre-requisite condition of the rule is satisfied.
In similar vein, it could as well be
urged in line with Mr. Maruma’s reasoning that as the same rule 9(2)(b) does
not expressly provide for the application for stay of execution to be
accompanied with a copy of the judgment and decree, failure to attach these
documents would not render the application incompetent. On this, as Mr. Maruma, learned counsel, is
no doubt aware, the current legal position held by this Court is settled. In a number of cases, this Court has taken
the view that failure to attach to the application for stay of execution a copy
of the decision, judgment, order or ruling and decree which is sought to be
stayed, renders the application incompetent.
This was held by the Court in Ngorongoro Conservation Authority v.
Samwel Maeda, Civil Application No. 8 of 2003, East African Development
Bank v. Blueline Enterprises Ltd., Civil Application No. 35 of 2003, and Tanga
Cement Company Ltd. V. Ballast Construction Co. Ltd., Civil Application No.
2 of 2003 (both unreported). See also Blue Star Service Station v.
Jackson Musseti, (1997) TLR. 310.
If
this is the settled legal position with regard to the judgment and decree for
which there is no express provision under
rule 9(2)(b), I am inclined to think that the situation is even more stringent
when it comes to the notice of appeal.
As said before, rule 9(2)(b) makes it a pre-requisite condition that a
notice of appeal has to be lodged. In
that situation, it goes without saying that the first item for attachment to
the application is the notice of appeal.
This is in order for the court to be satisfied that the requisite
condition has been satisfied. In this
application, there was none, the court was only informed from the bar upon
enquiry that the notice of appeal was filed in the Court Registry on
17.8.2006. There was no evidence on this
and the court cannot either speculate into the matter or take it for granted
from the bar that there is a notice of appeal filed.
On the other hand, even if it is
accepted that the notice of appeal was as informed from the bar, filed in the court
registry on 17.8.2006, I do not think that this would in anyway assist the
applicant in this case. From the notice
of motion and the supporting affidavit, the decision of the High Court which is
sought to be stayed relates to Civil Case No. 16 of 2004 of 3.8.2005. According to paragraph 3 of the affidavit,
the notice of appeal lodged against this decision is dated 3.8.2005. This notice of appeal, it will be observed,
was as Mr. Kaishozi pointed out marked withdrawn by the Hon. Chief Justice on
28.7.2006.
In the circumstances, it seems to me
that Mr. Maruma’s effort to call attention of the Court that there is another
notice of appeal freshly filed on 17.8.2006 is of no avail. The notice of appeal, if at all, is not the
one on which this application was based.
At any rate, with the withdrawal of the notice of appeal of 3.8.2005,
filing of another notice of appeal on 17.8.2006 as claimed by Mr. Maruma would
be of legal validity if the application is sought and obtained for extension of
time in which to file notice of appeal out of time. This aspect, I am not in the picture and in
any case, it is not relevant to go into at this stage.
In the upshot, for the foregoing
reasons, I am increasingly of the view that the application for stay of execution
is without any valid notice of appeal.
Therefore, it has no leg on which to stand, as it were, it is
incompetent as argued by Messrs Kaishozi and Komba, learned counsel.
Accordingly, the application is struck
out. I make no order for costs as the
issue was raised by the Court suo motu.
DATED
at ARUSHA this 2nd day of October, 2006.
D. Z. LUBUVA
JUSTICE OF APPEAL
I certify that this is a true copy of the
original.
S. M. RUMANYIKA
DEPUTY REGISTRAR
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