Sunflag (T) limited v. Yerome wambura and others, Civ case No. 45 2002.

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

ARUSHA CIVIL APPLICATION NO. 5 OF 2002

BETWEEN

SUNFLAG (T) LIMITED……………………….APPLICANT

AND

1. YEROME WAMBURA

2. HUSSEIN KHAMIS

3. SARIA MATHIAS

4. CHARLES J. SHAYO

5. JONAS JOHN…………………………………RESPONDENTS

(Application from the Judgement of the High Court of 

Tanzania at Arusha)

(Msoffe, J.)

Dated the 11th day of December,2002

In

Civil Case No. 45 2002

-----------------

R U L I N G

NSEKELA, J.A.:

This is an application by the applicant, Sunflag (T) Limited by a Notice of Motion for stay of execution of a decree of the High Court.

The Notice of Motion was filed under Rules 9, 45 and 46 of the Court Rules, 1979.  At the hearing of the application, I raised suo motu, whether or not the Court had been properly moved to hear and determine the application.

Mr. Maro, learned advocate for the applicant, submitted that the Notice of Motion had been brought under Rule 9 (2) (b) of the Court Rules.  He conceded however that in the Notice of Motion, the specific subrule had not been mentioned, but on reading the nature of the order being sought, it was clear that Rule 9(2)(b) was intended.  The learned advocate implored the Court to proceed to adjudicate upon the matter since his learned friend was not taken by surprise.  He was of the firm view that the Court had been properly moved by citing Rule 9 when read together with the order being sought in the Notice of Motion.

On his part Mr. Mwaluko, learned advocate for the respondents, submitted that the application before the Court was incompetent.  He was of the view that Rule 9 covers a number of issues and so the applicant was enjoined to specify the particular provision under which the Notice of Motion was made.

Fortunately, this issue is not virgin territory, for it had been traversed before.  This Court has stated in no uncertain terms that it is imperative to cite the relevant provision of the law from which the Court derives the power to hear and determine the application.  (See:  Civil Application No. 20 of 1997, National Bank of Commerce and Sadrudin Meghji (unreported); (ZNZ) Civil Application No. 2 of 2003 Harish A. Jina and Abdulrazak J. Suleiman (unreported); Civil Application No. 64 of 2003, Citibank Tanzania Limited and Tanzania Telecommunications Co. Ltd. and four others (reported).

Rule 9 provides as follows –

“9(1) No sentence of death or corporal punishment shall be carried out until the time for giving notice of appeal has expired or, where notice of appeal has been given, until the appeal has been determined.

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) in any criminal proceedings where notice of appeal has been given in accordance with Rule 61, order that the appellant be released on bail or that execution of any warrant of distress be suspended pending the determination of the appeal;

(b) in any civil proceedings where a notice of appeal has been lodged in accordance with Rule 76, order a stay of execution;

on such terms as the Court may think just.”

An identical situation arose in Abdulhamid Ramadhan Mjombo and three others v. Ali Salim Ali and two others, Civil Application No. 4 of 2004 (unreported) in which the complaint was to the effect that the Court was not properly lmoved to exercise its powers to grant a stay order because the specific provision under Rule 9 was not cited.

In the course of its Ruling, this Court has this to stay –

“On reading the contents of Rule 9 above, it is obvious that it is not dealing with one matter only.  It deals with several matters such as when sentence of death or corporal punishment has to be carried out; release on bail, suspension of warrant of distress and stay of execution.  It is therefore important for an application to be very specific in moving the Court to exercise its jurisdiction in any particular situation.  This Court has consistently held that in applications, the applicant has to cite the relevant provision from which the Court derives the power to hear and determine the application.”  (see:  Civil Appeal No. 45 of 2000, Mbeya – Rukwa Autoparts & Transport Ltd. and Jestina George Mwakyoma (unreported).

As stated above, Rule 9 deals with a number of different situations and is not limited to applications for stay of execution only in civil proceedings.

In the result and for the above reasons, the notice of motion is incompetent and is accordingly struck out.  As the issue as to the competence of the notice of motion was not raised by Mr. Mwaluko, but it was raised by this Court at the commencement of the hearing, it is ordered that each party is to bear its own costs in this Court.

DATED at ARUSHA this 27th day of October, 2004.

H.R. NSEKELA

JUSTICE OF APPEAL

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

(Sgn)

S.M. RUMANYIKA

DEPUTY REGISTRAR