SEIF HOUSEHOLD STORE LTD v NEW MABAI STORE 1995 TLR 195 (HC)

 

SEIF HOUSEHOLD STORE LTD v NEW MABAI STORE 1995 TLR 195 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Kyando J

Misc Civil Appeal No 2 of 1994 B

June 30, 1994

Flynote

Civil Practice and Procedure - Execution of decree - Stay of execution pending appeal

against Decree of a Regional Housing Tribunal - Proper forum to lodge application for

stay of execution. C

Civil Practice and Procedure - Execution of decree - Decree passed by Regional

Housing Tribunal - Extent of powers of Resident Magistrate's Court - Order 21 r 24(1)

Civil Procedure Code 1966. D

-Headnote

This was an appeal from a ruling of the Housing Appeals Tribunal (HAT) granting an

application by the respondent for stay of execution pending an appeal to it (HAT)

from the decision of the Regional Housing Tribunal of Dar es Salaam. Initially the

respondent had lodged its application with a Resident Magistrate's E Court which

dismissed it for want of prosecution. The High Court, on appeal, considered the

extent of powers of the Resident Magistate's Court in entertaining applications for

stay of execution of decrees passed by the Regional Housing Tribunal and also

considered the proper forum to lodge such applications. F

Held:

(i) The Resident Magistrates' Courts' powers to entertain an application

for stay of execution are limited to staying execution of a decree for only a reasonable

time and for the purpose of enabling the judgment debtor to make an application to

either the Regional Housing Tribunal which passed the decree or to the Housing

appeals Tribunal, having appellate jurisdiction in respect of the decree or the

execution of it; G

(ii) The Resident Magistrate's Court had no power to stay execution of the

decree pending appeal;

(iii) The Resident Magistrate's Court's dismissal of the application did not

H affect the respondent's right to apply for stay in the proper fora, either the

Regional Housing Tribunal or the Housing appeal Tribunal

(iv) The application to the Housing Appeals Tribunal was properly

entertained by that Tribunal having been filed after the appeal had been lodged.

Case Infomation

Appeal dismissed. I

1995 TLR p196

KYANDO J

A Case referred to:

(1) Joseph EA Mwakajinga v. Prakash Brothers Ltd HC DSM, Civil Revision No 6

of 1990

Maira for the appellants.

B Chandoo for the respondents.

[zJDz]Judgment

Kyando, J:

This is an appeal from a ruling of the Housing Appeal Tribunal (HAT) granting an

application by the respondent for stay of execution pending an appeal to it (HAT)

from the decision of the regional housing tribunal of Dar-es-Salaam region. C

Briefly the respondent was a tenant of the appellant in respect of commercial

premises, a godown, in Dar-es-Salaam. The applicant then applied to the Regional

Appeals Tribunal for an order to evict the respondent from the premises. The

Regional Tribunal granted the application but the respondent was aggrieved. He D

took steps to appeal to HAT and before the appeal was heard, he applied to the

resident magistrate's court of Dar-es-Salaam at Kisutu for stay of execution of the

decree of the Regional Housing Tribunal. The decree had been sent there for E

execution. In the course of time the application had to be dismissed by the resident

magistrate's court for want of prosecution whereupon the respondent filed an

application in Housing Appeal Tribunal seeking again stay of execution of the F

decree of the Regional Housing Tribunal. The application was made under r 15 of the

Housing Appeals Tribunal (Appeals) Rules, 1987 and the Housing Appeal Tribunal

granted it. The appellant was aggrieved, hence this appeal.

G In the memorandum of appeal to this court the appellant sets out five principal

grounds of appeal. In the first ground he states that the learned chairman of the

Housing Appeal Tribunal misdirected himself at law in failing to hold that the

application was not properly before the tribunal. In the second ground of appeal he

contends that the learned chairman erred in law in his interpretation of r 15(2) of H

the Housing Appeals Tribunal Rules, 1987. In the third ground he says that the

chairman misdirected himself at law in failing to hold that the Housing Appeal

Tribunal and Regional Housing Tribunal has no execution power. In the fourth

ground he contends that the learned chairman misdirected himself at law and fact by

not holding that the applicant is a trespasser in the suit premises. And in the fifth

ground he states that the learned chair- I

1995 TLR p197

KYANDO J

man misdirected himself in assessing who will suffer more hardship if the A

application was decided in the issue of a third party.

Both parties are represented by counsel; the appellant is represented by Mr Maira,

learned advocate and the respondent is represented by Mr Chandoo, learned

advocate, counsel filed written submissions. B

By reg 6(6)(a) and (b) of the Regional Housing Tribunal Regulations 1990, execution

of an order or decree of the Regional Housing Tribunal 'shall be through the court of

a resident magistrate' and no execution proceedings can be commenced until after the

expiry of the period of appeal provided either under the Rent Restriction Act, 1984 or

the Regional Housing Tribunal Regulations. (Under C the regulations the period of

appeal provided for is thirty days - see reg 10).

Then r 15 of the Housing Appeals Tribunal (Appeals) Rules (supra) provides: D

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

order appealed from except so far as the appeals tribunal may order, nor shall

execution of a decree be stayed by reason only of an appeal having been preferred

from the decree; but the appeals tribunal may for sufficient cause order stay of

execution of such decree. E

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

before the expiration of the time allowed for appealing, the tribunal which passed the

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

(3) No order for stay of execution shall be made under subr (1) or subr (2)

unless the appeals tribunal or the tribunal is satisfied that:

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

unless the order is made; G

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

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

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

(4) Notwithstanding anything contained in subr (3) the appeal tribunals or the

tribunal may make an ex parte order for stay of execution pending the hearing of the

application. H

In his submissions Mr Maira argues that the respondent, having filed an application

for stay of execution in the resident magistrate's court, he was bound to pursue it.

Having failed to pursue it the court dismissed it and his remedies then were to seek to

have the order of dismissal set aside and, if unsuccessful in that, to make an I

1995 TLR p198

KYANDO J

A appeal to this court against the order refusing setting aside. He says as an

executing court the resident magistrate's court must be assumed to be having full

powers of stay of execution of a decree passed by a Regional Housing Tribunal. Mr

Maira says this was the intention of the legislature in conferring upon that court

execution powers. He says in other words that the power to stay is implied in the

power to execute. B

Mr Maira goes on to submit that by going to the Housing Appeal Tribunal with the

application which was dismissed by the resident magistrate's court the respondent

was forum shopping or the application was res judicata. He contends therefore that

the Housing Appeal Tribunal erred entertaining it. Alternatively, he C contends the

application should have been filed in the Regional Housing Tribunal and not in the

Housing Appeal Tribunal because it was filed before the appeal to the Housing Appeal

Tribunal had filed.

D To the above submissions Mr Chandoo for the respondent replies that the

resident magistrate's court has no powers of stay of a decree passed by a Regional

Housing Tribunal. He says the application he filed there was filed only for the

purpose of stopping an execution which was being threatened before the E period of

appeal, as provided for by the law, had expired. He says in effect that it was then left

to lapse in the court and a proper application was then filed in the Housing Appeal

Tribunal. He contends that the application to the Housing Appeal Tribunal was not

res judicata.

F As for the submission that the application ought to have been filed in the Regional

Housing Tribunal and not in the Housing Appeal Tribunal because the appeal had not

been filed by the time when the application was filed, he says the appeal and the

application were filed simultaneously.

G It is my view that the resident magistrate's court, as an executing court of decrees

passed by Regional Housing Tribunals, has no general powers of stay in relation to

those decrees. Its powers are limited and they are to the extent only as provided for in

Order 21 r 24(1) of the Civil Procedure Code, 1966. Order 21 r 24(1) provides:

H '24 (1) The court to which a decree has been sent for execution shall upon

sufficient cause being shown, stay the execution of such degree 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 relating to the decree or

execution which might have been made by such court of first I

1995 TLR p199

KYANDO J

instance or appellate court if execution had been issued thereby, or if

application for execution A had been made thereto.' (Emphasis supplied.)

So the resident magistrate's court's powers are limited to staying execution of a decree

for only a reasonable time and for the purpose of enabling the B judgment-debtor to

make an application to either the Regional Housing Tribunal, which passed the

decree or to the Housing Appeal Tribunal, the tribunal having appellate jurisdiction

in respect of the decree or the execution of it. This is what exactly happened in the

instance case; the application to the court for stay was intended to enable the

respondent to apply to the Regional the Housing Tribunal or C to Housing Appeal

Tribunal for stay of execution pending appeal. The resident magistrate's court has no

power, as an executing court, to stay execution pending appeal (see Joseph EA

Mwakajinga v Prakash Brothers Ltd (1), decision by Mapigano, J which is to the same

effect as the one I have made here). The D questions of applying for setting aside

when the application was dismissed by the resident magistrate's court and appealing if

setting aside did not succeed do not arise therefore. The court had no jurisdiction in

the matter. The respondent realised after he had filed the application there that he

had gone to the wrong forum. He left the application to lapse therefore and went to

the right forum, the E Housing Appeals Tribunal.

Was it premature to go to the Housing Appeals Tribunal? This depends of course on

whether the application was made simultaneously with the appeal as Mr Chandoo

contends or whether it was made before the appeal was filed as Mr F Maira

contends. Unfortunately the papers of the application and appeal to the Housing

Appeal Tribunal are not in the record of appeal here, but the following statement by

the chairman of the Housing Appeals Tribunal does show that the application was

filed after the appeal: G

'On 26 October 1993 he (the respondent) filed this application (for stay of

execution of the decree of the Regional Housing Tribunal) after lodging his appeal No

85/93.' (Emphasis supplied.) H

So the application was lodged after the lodging of the appeal and this was well within

the requirements of the rules.

I do not think having decided as above that I should consider the rest of the grounds

of appeal. I consider that my above determinations fully dispose of the appeal and

there is no need to consider the rest of the grounds in the memorandum of appeal. I

hold in the final I

1995 TLR p200

KYANDO J

A result that the resident magistrate's court had no power to stay execution of the

decree pending appeal. Its dismissal of the application made there by the respondent

did not affect the respondent's rights to apply for stay to either the Regional Housing

Tribunal or the Housing Appeals Tribunal. The application to the Housing Appeals

Tribunal was properly entertained by that tribunal as it was made B after the appeal

to it had been lodged. I therefore dismiss the appellant's appeal to this court with

costs.

1995 TLR p200

D