KHADIJA ABDALLAH v. AJESH VAJA AND TWO OTHERS 1996 TLR 126 (HC)

 KHADIJA ABDALLAH v. AJESH VAJA AND TWO OTHERS 1996 TLR 126 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mkude J

B

MISC CIVIL CAUSE NO 127 OF 1992

25 March, 1994

Flynote

Civil Practice and Procedure -- Stay of execution -- Jurisdiction of Resident

Magistrate's court to C grant such a stay -- Order 21 rule 24 of the Civil Procedure

Code.

Civil Practice and Procedure -- Revision -- Application for -- Section 79(1) and Order

43 rule 2 of the Civil Procedure Code.

-Headnote

The Respondents were ordered to vacate certain premises pursuant to a decree of the

D Dar es Salaam Regional Housing Tribunal passed on 19 October 1992. Upon

lodging a notice of appeal with the Housing Appeals Tribunal, the Respondents filed

for (and duly obtained) an order for stay of execution from the Resident Magistrate at

Kisutu in terms of Order 21 rule 24 of the Civil Procedure Code. E

The Applicant applies for the revision of the Magistrate's order, in terms of Section

79(1) and Order 43 rule 2 of the Civil Procedure Code. The Applicant contends that

the Magistrate granted the stay of execution without jurisdiction and/or pursuant to a

material irregularity and accordingly asks that execution be ordered to proceed

forthwith. F

Held:

(i) The only reason the Resident Magistrate's court granted a stay of

execution was because a notice of appeal had already been filed in the Housing

Appeals Tribunal.

(ii) The mere filing of a notice of appeal cannot amount to sufficient cause,

for the G purposes of Order 21 rule 24, for an order staying execution by the

executing court.

(iii) No sufficient explanation was given as to why the application for stay

of execution was brought before the executing court and not to either the Regional

Housing Tribunal or the Housing Appeals Tribunal.

(iv) The order of the Resident Magistrate's court staying execution is

therefore ultra H vires its powers.

(v) The Resident Magistrate's order is quashed, and execution is permitted

until such time as a lawful order for stay of execution is issued.

Case Information

Ordered accordingly.

Mwajasho, for the applicant. I

Magessa, for the respondent.

1996 TLR p127

[zJDz]Judgment

Mkude J: A

The Dar es Salaam Regional Housing Tribunal passed a decree on 19 October 1992

under which the respondents herein were to vacate certain premises. The

respondents promptly lodged a notice of appeal against the decision in the Housing

Appeals Tribunal B and on 27 October 1992 they filed an application for stay of

execution in the court of the Resident Magistrate at Kisutu under Order 21 Rule 24 of

the Civil Procedure Code. The application was heard on 16 November 1992 and in a

ruling dated 19 November 1992 the respondents herein were granted stay of

execution as prayed. This application C for revision under s 79(1) proviso to Rule 2

thereof is brought by the decree holder complaining that the court of the Resident

Magistrate had acted without jurisdiction and/or with material irregularity when it

granted the order to stay of execution. Mr Mwajasho, learned advocate, appeared for

the applicant/decree holder while Mr D Magessa, learned advocate, appeared for the

respondent/judgment debtor. Mr Mwajasho urged the court to revise the ruling of the

Resident Magistrates' Court and order execution to proceed forthwith.

Mr Mwajasho put forward three grounds for seeking revision of the order for stay of

E execution by the Resident magistrates' Court, viz:

(i) that no sufficient cause was shown by the respondent as to why up to

19 November 1992 they had failed to make an application for stay to either the F

court which passed the decree (ie the Dar es Salaam Regional Housing Tribunal) or to

the court having appellate jurisdiction in respect of the decree (ie the Housing

Appeals Tribunal).

(ii) that by granting an order for stay of execution for an unspecified period

and G exceeding thirty days from the date of the decree (ie 19 October 1992) the

Resident Magistrate's Court exceeded its jurisdiction.

(iii) that by entertaining the application for stay of execution when there

was no appeal preferred from the decree of 19 October 1992 the court exercised its H

jurisdiction with material irregularity.

The three grounds relied on by Mr Mwajasho are in accordance with the provisions of

s 79(1) of the Civil Procedure Code spelling out the situations in which this court can

I exercise its revisional jurisdiction. I will therefore deal with each ground in turn.

1996 TLR p128

MKUDE J

It is common ground between the parties that the Resident Magistrate's Court at

Kisutu A acted in the capacity of an executing court and the respondents had made

their application for stay of execution under the provisions of Order 21 r 24(1) of the

Civil Procedure Code, which provides as follows:

B `24(1) The court to which a decree has been sent for execution shall, upon

sufficient cause being shown, stay the execution of such decree for a reasonable time,

to enable the judgment debtor to apply to the court by which the decree was passed

or to any court having appellate jurisdiction in respect of the decree or the execution

thereof, for an order to stay execution or for any other order C relating to the decree

or execution which might have been made by such court of first instance or appellate

court if execution had been issued thereby, or if application for execution had been

made thereto.'

One thing that stands out clearly in this provision is that the power of the executing

court D in ordering stay of execution is very much restricted. The real power for stay

of execution is vested in the court that passed the decree and the court having

appellate jurisdiction in the respect of the decree. The power enjoyed by the

executing court has the following limitations, inter alia-- E

(i) sufficient cause must be shown by the applicant why the power should

be exercised by the executing court.

(ii) the period of stay granted must be reasonable F

(iii) the stay is granted only in order to enable the applicant to apply to the

court which passed the decree or the court having appellate jurisdiction in respect of

the decree.

After going through the ruling of the Resident Magistrates' Court dated 19 November

1992 and hearing learned counsel's arguments I am satisfied that the court erred and

G the order as made cannot be left to stand.

I gather from the ruling of the Resident Magistrates' Court that the only reason stay

of execution was granted is that the applicant had already by that time filed a notice

of appeal in the Housing Appeals Tribunal. With due respect the mere filing of a

notice of H appeal cannot amount to sufficient cause for the stay of execution by the

executing court. Since the power to order stay is primarily that of the court which

passed the decree or the appellate court, a sufficient explanation must be given why

the application for stay is sent to the executing court and not to one of the two courts,

in this case the I Dar es Salaam Regional Housing Tribunal on the Housing

1996 TLR p129

MKUDE J

Appeals Tribunal. As no such explanation was given by the judgment debtors the A

executing court ought to have declined to exercise that power. Let me hasten to add

that what is involved here is not a question of ouster of jurisdiction of the Resident

Magistrates' Court in rent matters. The point is that as long as the Resident

Magistrates' B Court acts as the executing court its powers are limited by the

statutory provisions of Order 21 Rule 2(1) of the Civil Procedure Code.

Grounds two and three go together. The requirement that the period of stay of

execution granted must be reasonable is tied up with the need to enable the judgment

debtor to C apply to the court by which the decree was passed or the court having

appellate jurisdiction in respect of the decree. It must be emphasized here that the

power given to the executing court under Order 21 Rule 24(1) is not a general power

of stay. That power as stated above, is enjoyed only by the court which passed the

decree or the D appellate court having jurisdiction in respect of the decree under

true provisions of Order 39 Rule 5. Rule 5 of Order 39 provides as follows:

`5(1) An appeal shall not operate as a stay of proceedings under a decree or

order appealed from E except so far as the Court may order, nor shall execution of a

decree be stayed by reason only of an appeal having been preferred from the decree;

but the court may for sufficient cause order stay of execution of such decree.

(2) Where an application is made for stay of execution of an appealable decree

before the expiration of the time allowed for appealing therefrom, the court which

passed the decree may on sufficient F cause shown order the execution to be stayed.

(3) No order for stay of execution shall be made under subrule (1) or subrule

(2) unless the High Court or the court making it is satisfied-

(a) that substantial loss may result to the party applying for stay of

execution unless the order is G made;

(b) that the application has been made without unreasonable delay; and

(c) that security has been given by the applicant for the due performance

of such decree or order as may ultimately be binding upon him. H

(4) Notwithstanding anything contained in subrule (3) the court may make an

ex-parte order for stay of execution pending the hearing of the application.'

I note in the present case that the order granting stay of execution is not made in

order to I enable the judgment debtor to apply to the Dar es Salaam Regional

Housing Tribunal or the Housing Tribu-

1996 TLR p130

MKUDE J

nal. It is an order for stay of executing pending the determination of the appeal. This

A order is clearly outside the scope of the order envisaged in Order 21 Rule 24 and it

is therefore ultra vires.

For the above reasons I am satisfied that the Resident Magistrates' Court exceeded its

jurisdiction when it made the order for stay of execution dated 19 November 1992.

The B order is hereby quashed and the decree holder is at liberty to proceed with

execution of the decree until such time that a lawful order for stay of execution is

issued. The applicant/decree will have his costs for this application and in the court

below. C

1996 TLR p130

D