E R MUTAGANYWA v AHMED J ALADIN AND OTHERS 1996 TLR 285 (HC)

 E R MUTAGANYWA v AHMED J ALADIN AND OTHERS 1996 TLR 285 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Maina J

B

MISC CIVIL CAUSE NO 13 OF 1995

15 November 1995

Flynote

Civil Practice and Procedure - Appeals - Stay of execution pending appeal - Court

cannot C entertain application where no appeal filed - Order XXXIX Rule 5

-Headnote

The applicant applied for a stay of execution of the judgment of the Principal

Resident Magistrate, Kisutu pending an appeal against the judgment. The respondents

raised a D preliminary objection that the application was defective as there was no

appeal.

Held:

(i) Order XXXIX rule 5, which gave the court power to grant a stay of

execution pending appeal contemplated that an appeal had been filed: the court could

not E entertain an application for a stay where no appeal had been filed.

Case Information

Application dismissed.

Case referred to:

1. Ujagar Singh v Runda Coffee Estates Ltd [1966] EA 263 F

Applicant in person.

Mr Majithia for the respondents.

[zJDz]Judgment

Maina, J: G

The application before this Court is for stay of execution pending appeal. At the

commencement of the hearing, Mr Majithia raised a preliminary point, that the

application should be dismissed because when it was filed, there was no appeal. He

referred the court to the decision of the Court of Appeal in Ujagar Singh v Runda

Coffee H Estates Ltd (1) that `an appeal must be in being before an application for

stay can be entertained by the Court appealed from'.

On his part, the applicant said that he could not file an appeal immediately because he

had not been supplied with a copy of the proceedings and ruling of the Principal

Resident Magistrate. He admitted that he only gave notice of appeal but he had not

filed I an appeal.

1996 TLR p286

MAINA J

There is no dispute that the applicant had not filed an appeal when he applied for stay

of A execution. The application was made under Order 21 Rule 24(1) and Order 57

Rule 1 of the Civil Procedure Code, but as Mr Majithia submitted the Principal

Resident Magistrate dealt with three provisions exhaustively. They are not relevant to

the B application before this Court. Order 24 deals with stay of execution by a Court

which issued the decree. The relevant provision on stay of execution pending appeal

is Order 39 Rule 5 of the Civil Procedure Code. I agree with Mr Majithia that a court

cannot entertain an application for stay of execution pending appeal when no appeal

has been C filed. But as the applicant pointed out, he filed the appeal immediately

after he obtained certified copies of the proceedings and ruling of the district court

I think it is pertinent to state here that the dispute between the parties is over

tenancy of premises which belong to the second respondent, the National Housing

Corporation. D The applicant is in possession of the premises. He resists the eviction,

and his appeal filed after this application was filed, is against the decision of the

district Court which dismissed his application for stay of execution.

In my view, Order 39 Rule 5 of the Civil Procedure Code which gives power to the

Court E to grant a stay of execution pending appeal contemplates that an appeal has

been filed and the appellant then seeks the order for stay of execution. If there is no

appeal filed, there cannot be a basis to apply for stay of execution. It is true that the

applicant filed the appeal after this application was filed. But as the Court of Appeal

said in the case of F Ujagar Singh v Runda Coffee (supra) the Court cannot entertain

an application for stay of execution where no appeal has been filed.

The preliminary objection is upheld, and the application is dismissed.

1996 TLR p287

A