K. V. Construction Ltd v. Mwananchi engineering & construction corporation Civ no 3 of 2004

IN THE COURT OF APPEAL OF TANZANIA

        AT DAR ES SALAAM

(CORAM:     H. R. NSEKELA, J. A., J. H. MSOFFE, J. A. AND N. P. KIMARO,J. A.)

CIVIL REFERENCE NO. 3 OF 2004

        

K. V. CONSTRUCTION LIMITED…...............................…...APPLICANT

AND

MWANANCHI ENGINEERING &

CONSTRUCTION  CORPORATION ...............................…... RESPONDENT

(Reference from the Ruling of a single judge of the

Court of Appeal of Tanzania at DAR ES SALAAM)

(Munuo, J. A.)

Dated the 31^st day of March, 2004

in

Civil Application No. 11 of 2004

R U L I N G OF THE COURT.

MSOFFE, J. A.:

        This is a reference made under Rule 57 (1) (b) of the Court of Appeal Rules, 1979 from a decision of a single judge of this Court (Munuo, J. A.) in Civil Application No. 11 of 2004 dated 31/3/2004. Mr. Rweyongeza assisted by Mr. Ukwong’a, learned advocates, argued the reference on behalf of the applicant and the effort was resisted by Mr. Mgongolwa, learned advocate for the respondent.

In a letter ref no. CIV/APP/11/03/1/04 dated 1/4/2004 and signed by Mr. Ukwong’a it is evident that the reference was preferred mainly because:-

“The ruling and the said order appears to be a judgment on an appeal that was not before the Court and if a ruling it was on a matter that was not before the Court……….”

In essence, therefore, the main complaint in the reference is that the single judge considered matters which were not before her.

The following background information is essential for purposes of a determination of the reference.  On 2/12/1998, the High Court (Chipeta,J.) in Civil case No. 255 of 1997 entered a consent judgment in favour of the respondent against the applicant herein in the sum of shs. 40,000,000/=.  Todate, the consent judgment was never challenged anywhere.  At best, the applicant filed an application in the High Court seeking, inter alia, an extension of time to file an application for review of the consent judgment. On 24/11/2003 the High Court (Ihema,J.) dismissed the application.  On 8/12/2003 the applicant filed a Notice of Appeal against the decision of Ihema, J.  And on 22/1/2004 the applicant filed an application for a stay of execution of the decision given by Ihema, J.  The single judge allowed the application and in the process she opined and held that the applicant having been declared a specified authority under Government Notice No. 543 of 1997 had no capacity to negotiate the consent judgment in Civil Case No. 255 of 1997.  Having said and held so, the single judge nullified the consent judgment, decree and a garnishee order that had been issued in the matter.

In his submission before us, Mr. Rweyongeza contended that it was the decision of Ihema, J. which gave rise to the notice of appeal and the application for a stay of execution.  That being the position, it was not open to the single judge to deal with the matter as if the decree sought to be stayed was that of Chipeta, J.  Furthermore, he went on to say, the single judge ought not to have nullified the consent judgment, decree and the garnishee order.

        On his part Mr. Mgongolwa was of the general view that the single judge had a discretion to or not to grant the orders sought in the application.  In his view, the single judge properly exercised her discretion in the matter.

To start with, we are in agreement with Mr.Rweyongeza that the application before the single judge was for a stay of execution of the decision given by Ihema,J.  Indeed, this is clearly borne out by the notice of motion wherein the court was asked to make the following order:-

1.           The execution of the judgment of the High Court in Civil Case No.255 of 1997 by Honourable Justice Ihema be stayed pending the hearing and final determination of the Appeal in the court of Appeal of Tanzania.

(Emphasis supplied)

It was not, therefore, open to the single judge to make orders relating to the decree given by Chipeta,J. because that decree was not the subject of the application before her.

        As already stated, in granting the application for a stay of execution the single judge also nullified the “consent judgment, decree and garnishee order”.  Assuming, for the sake of argument, that she could make that decision in an application for stay of execution, then there should have been no need for ordering a stay of execution because there would have been no decree left to be stayed.

In fairness to the single judge, we wish to point out here in passing that she was probably misled into making the above mentioned decision.  We say so because a look at the written submissions made to her will show that she was not addressed by learned counsel on the gist of the application for a stay of execution of the decision given by Ihema, J.  Rather, the submissions centred mainly on the decree passed by Chipeta, J. and the resultant garnishee order.

There is yet a final point which falls for consideration here.  This is whether the decision of Ihema, J. was capable of a stay order. With respect, we are of the view that it was not.  As already stated, Ihema, J. dismissed an application for enlargement of time to file an application for review.  He did not, therefore, grant a remedy capable of execution. Thus, in law no application for a stay of execution of his decision could lie for that matter.

For the reasons we have given, we allow the reference with costs.

DATED at DAR ES SALAAM this  30^th  day of July, 2007.

H. R. NSEKELA

JUSTICE OF APPEAL

J.H. MSOFFE

JUSTICE OF APPEAL

N. P. KIMARO

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

I. P. KITUSI

DEPUTY REGISTRAR

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