BLUE STAR SERVICE STATION v JACKSON MUSSETTI 1997 TLR 310 (CA)

 BLUE STAR SERVICE STATION v JACKSON MUSSETTI 1997 TLR 310 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ

B CIVIL APPLICATION 7 OF 1997

1 December 1997

Flynote

C Civil Practice and Procedure - Appeals - Application for stay of execution

pending appeal - Decision sought to be stayed not accompanying the application -

Application incompetent

-Headnote

The applicant filed an application for the stay of execution pending the determination

of an intended D apeal to the Court of Appeal. The decree of execution which was

sought to be stayed was not attached to the documents nor were its terms disclosed in

affidavits filed in support of the application.

Held:

E Since the Court was empowered to impose terms as it thought just upon an order

of stay of execution it was assumed that the application would in any event be

accompanied by the decision or sufficient information concerning such decision

sought to be stayed and in the light of which the Court may determine whether to

impose conditions and if so what conditions. Where the decision sought to be stayed

did not accompany the application and no information concerning the terms of F

such decision was contained in the affidavit the application could not be anything but

incompetent.

Case Information

Application dismissed

Matata for the applicant

G Rutaisire for the respondent.

[zJDz]Judgment

Nyalali CJ:

This is an application for stay of execution of the decree of the High Court in a

judgment dated 24 H April 1997 pending the hearing and determination of an

intended appeal to the Court of Appeal. The application is supported by the affidavit

of Salim H Shivji. A counter affidavit was filed by the respondent on 27 November

1997. When the hearing of the application was resumed today, 1 December 1997,

after it had been adjourned on 26 November 1997, Mr Matata, learned advocate I

asked for leave to file and serve a supplementary affidavit. Initially Mr Rutaisire,

learned advocate for the

1997 TLR p311

NYALALI CJ

respondent objected to the request, after considering points raised by the Court, he

rightly withdrew A the objection and the supplementary affidavit was filed and duly

served.

There is one important problem with this application. The decree of which execution

is sought to be stayed is neither attached to the documents filed nor are its terms

disclosed in affidavits filed in B support of the application.

Mr Rutaisire has submitted that the effect of these omissions is to render the

application incompetent. Mr Matata on his side has argued that since there is no

specific requirement for the decree to accompany the application, the omission is

curable by allowing the applicant to supply the decree which, after considerable

delay, was at last supplied to applicant by High Court registry on C 18 November

1997.

The relevant provisions of Rule 9(2) of the Tanzania Court of Appeal Rules, 1979

under which this application is made states: D

`(2) Subject the provisions of sub-rule (1), the institution of an appeal shall not

operate ... to stay execution, but the Court --

(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.' E

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 sought to be stayed and in the light of F which the Court may determine

whether to impose conditions and if so, what kind of conditions. That being the

position, it follows that where 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 can not be anything but incompetent, and I so find.

Consequently, this G application is hereby dismissed with costs.

1997 TLR p312

A