SAID HIMID MWILIMA v TABORA REGIONAL TRADING CO 1997 TLR

 

SAID HIMID MWILIMA v TABORA REGIONAL TRADING CO 1997 TLR

156 (CA) C

Court Court of Appeal of Tanzania - Dar es Salaam D

Judge Ramadhani JA

CIVIL APPLICATION 65 OF 1996

23 May 1997

E (An application for stay of execution from the judgment of the High court of

Tanzania, Tabora, Mchome, J)

Flynote

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

granted - Notice of appeal inoperative because no leave to appeal obtained and time

for applying for such already run out F

-Headnote

The applicant applied for a stay of execution of a judgment pending an appeal. It

appeared that no leave to appeal had been sought or granted and the time for applying

for such leave to appeal had already run out. There was furthermore no G

application for an order to enlarge such time.

Held:

Granting an order of stay of execution pending the determination of a wishful

thinking appeal was idle. Stay of execution was in the discretion of the court and had

to be exercised judicially. In the present case it could not be granted. H

Case Information

Order accordingly.

No cases referred to.

Kashumbugu for the applicant.

Hatib for the respondent. I

1997 TLR p157

[zJDz]Judgment

Ramadhani JA: A

The applicant, said Himid Mwilima, was the defendant in a suit before the Resident

Magistrate's Court at Tabora. As that suit was decided ex-parte, the applicant was

aggrieved and sought to set aside the judgment. The case was reopened and both

parties were given a hearing. However, the judgment was still in favour of the BI

respondent. The applicant appealed to the High Court of Tanzania at Tabora where

Mchome J dismissed the appeal on the ground that the ex-parte judgment had not

been set aside and thus the subsequent proceedings were void and, therefore, there

was no appeal before him. C

The applicant is aggrieved by that decision of Mchome J and has filed a notice of

appeal in this Court. Meanwhile he has filed this application praying for an order of

stay of execution pending the determination of the appeal.

The applicant before me was represented by Mr Kashumbugu, learned advocate, D

while the respondent, the Tabora Regional Trading Co, was represented by one

Mohammed Hatib, the sales representative of the respondent here in Dar es Salaam.

I am well aware that Mr Mohammed Hatib, as the sales representative of the E

respondent in Dar es Salaam, is not one of the persons mentioned in sub-Rule (3) of

Rule 28 as persons who can represent a corporation. Even such persons have to be

appointed by resolution under the seal of the company a copy of which has to be filed

with the Registrar. So, Mr Hatib cannot be said to have represented the respondent

and that in effect the application was heard ex-parte under sub-Rule (6) of Rule 73. F

There is no dispute that the High Court judgment was delivered on 27 March 1996

and that the notice of appeal was filed on 10 April 1996. Mr Kashumbugu also

concedes that leave to appeal is required and that to date it has not been obtained.

The learned advocate told the Court that an application for extension of time for G

filing an application for leave to appeal was presented to the High Court at Tabora on

29 March 1996 but was not received because the file was in Dar es Salaam. Mr

Kashumbugu admits that at that time, 29 March, the applicant was already seven H

months late to seek leave to appeal. The learned advocate did not say whether or not

the application for the enlargement of time in which to file an application for leave to

appeal has now been filed.

The situation, then, is that there is a notice of appeal which is inoperative because

there is not the prerequisite leave to appeal and that time for applying for such leave

has already run out while it I

1997 TLR p158

RAMADHANI JA

A does not appear that an application to enlarge that time has been made. In any

case, one cannot say without any hesitation that there is an appeal pending in this

Court.

I have no doubt in my mind that granting an order of stay of execution pending the

determination of a wishful thinking appeal is, to say the least, idle. Stay of execution

is a discretion of the Court and, as usual, a discretion has to be exercised judicially. B

This appeal is dismissed. I cannot order any costs as the order is ex-parte. It is so

ordered. C

1997 TLR p158