Mangenyule Irumbila & another v. Dar es salaam City Commission, Civ no 39 of 2008

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 39 OF 2008

1.   MANGENYULE IRUMBILA

2.   SELEMANI NASSORO

    (as representative of 54 Others…………………….…….….APPLICANTS

VERSUS

DAR ES SALAAM CITY COMMISSION……………………..……RESPONDENT

(Application for Restraint Orders from the decision of the High Court of Tanzania at Dar es Salaam)

(Mihayo, J.)

Dated the 24^th day of April, 2007

in

Civil Case No. 140 of 2000

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RULING

16^th  June & 11^th  July, 2008.

MUNUO, J.A.:

        The applicants, through the services of Mr. Ogunde, learned advocate, brought this notice of motion seeking an order to restrain the respondent from demolishing their premises at Yombo Vituka, pending payment of Tsh. 494,970,000/= compensation awarded to them by the trial court.  They made a similar application before Mihayo, J. but he dismissed the same with costs.  Hence the present application.

        Mr. Ogunde adopted the affidavit in support of the application.  He stated that the applicants filed a Notice of Appeal on the 25^th April, 2007 and duly served a copy of the same on the respondent on 27^th April, 2007.  At paragraph 6 of the affidavit, the applicants stated that they have also filed a Memorandum of Appeal so the Court should issue a restraint order pending the determination of the appeal.

        In his submission, counsel for the applicants contended that the applicants will suffer irreparable loss if a restraint order is not granted because the respondent has commenced construction at the suit premises and is likely to evict them.

        Mr. Nchunga, learned advocate for the respondent, faulted the applicants for filing the application without annexing therewith, copies of the Notice of Appeal and the Ruling appealed from.   The omission, counsel for the respondent argued, renders the application incompetent.  He further observed that the respondent no longer exists because it was dissolved some years back.  In that regard, it was the view of counsel for the respondent that the premises of the applicants were demolished, and classrooms have since been constructed at the material place so the order for restraining the respondent would serve no useful purpose.  Hence the Court should dismiss the application because it lacks merit, counsel for the respondent urged.

        The issue is whether there is ground for granting an order for restraint.

        As counsel for the respondent rightly pointed out, the copy of Ruling or Order allegedly appealed against as well as the Notice of Appeal were not annexed to the Notice of Motion under consideration.  This omission is fatal irregularity.

        In the case of DLL Investment International Ltd. versus Tanzania Harbours Authority and Two Others, Civil Application No. 8 of 2001, (CA) (unreported), it was held that decisions or orders appealed against must be annexed to the application.  A similar decision was grounded in the case of East African Development Bank versus Blueline Enterprises Ltd; Civil Application No. 35 of 2003, (CA) (unreported) wherein the Court observed that:

“…….it hardly needs to be emphasized that both logic and common sense demand that the court should be seized with the decision by way of judgment, ruling or order which is the subject matter for stay of execution.

This is so in order to enable the Court to see and satisfy itself of the application before it.”

The Court held the same in the case of Blue Star Service Station versus Jackson Massati 1997 TLR 310 at Page 311 in which the Court stated that –

“………It is obvious that since the Court is empowered to impose terms as it may think just upon an order of stay of execution, it is assumed that the application would in any event be accompanied with the decision or sufficient information concerning such decision……… in the light of which the Court may determine whether to impose conditions………when the decision sought to be stayed does not accompany the application and no information concerning the terms of such decision is contained in the affidavit, the application cannot be anything but incompetent.

Although this application is not for stay of execution, the above decision are relevant in this case because in any application or appeal, the subject matter must be annexed to the same to enable the Court to view the order or ruling complained of or sought to be challenged.