WILLOW INVESTMENT v MBOMBO NTUMBA AND TWO OTHERS 1997 TLR 93 (CA) F

WILLOW INVESTMENT v MBOMBO NTUMBA AND TWO OTHERS 1997 TLR 93 (CA) F

Court Court of Appeal of Tanzania - Dar es Salaam G

Judge Nyalali CJ

CIVIL APPLICATION 13 OF 1997

13 March 1997

(Application for stay of execution from the decree of the High Court of Tanzania, Dar

es Salaam, Mapigano J) H

Flynote

Civil Practice and Procedure - Appeal - Stay of execution pending appeal -

Requirements for - Proceedings must be properly before court. I

1997 TLR p94

-Headnote

A In an application for a stay of execution pending appeal it appeared that the

intended appellant had not lodged an application for leave to appeal even though such

was required in the circumstances and by the time of hearing of the present

application the leave was already time-barred.

Held:

(i) The power of the court to grant a stay under Rule 9 was exercisable

only in proceedings which were properly before the court; B

(ii) The application was accordingly incompetent and could not be heard.

Case Information

Application struck off.

No cases referred to C

Maira, for the applicant.

Wambali and Mwaikusa, for the respondents.

[zJDz]Judgment

Nyalali, CJ

D This is a ruling on a preliminary objection raised by Counsel for the second and

third respondents against the hearing of the application for stay of execution pending

appeal. The applicant, namely Willow Investment, is represented by Mr Maira,

learned advocate, whereby the respondents, namely Mrs Mbombo Ntuba, hereinafter

called, the first respondent, and OCS Company, hereinafter called, the E second

respondent, and Gecamines, hereinafter called, the third respondent, are represented

by Mr Wambali and Mr Mwaikusa, learned advocates, the objection is based on three

grounds which read as follows: F

(a) That the application has been filed without complying with Rule 44 of

the Tanzania Court of Appeal Rules, 1979;

(b) That the High Court decree, the execution of which is sought to be

stayed by the application, is neither attached to the said application nor otherwise

made known to the respondents; and G

(c) That the third named respondent, who was not a party to the matter

whose decision has given rise to the intended appeal as well as to this application has

been joined as a party without the leave of the court.

H In the course of hearing the objection, the court pointed out to the parties

another basis which appeared to affect the competency of the application for stay of

execution and that is the failure by the intended appellant to seek leave to appeal to

this court. In the course of arguing in support of the objection, Mr Mwaikusa, learned

advocate, conceded to the effect that ground number one I

1997 TLR p95

NYALALI CJ

was misconceived, since in the light of precedent, an application for stay of A

execution cannot be entertained by the High Court after notice of appeal has been

given, as is the position in the present case.

With regard to the second ground, a consensus emerged between counsel on B both

sides to the effect that the use of the word `decree' in the notice of motion for stay of

execution is a misnomer and should be understood to refer to a decree consequent

upon the ruling by Mapigano, J, dated 6 February 1997. In the light of that

understanding, Mr Mwaikusa learned advocate indicated an intention on their side to

seek permission to file a counter affidavit before the application could be heard. C

On the third ground, Mr Maira, learned advocate after being made aware of the

contents of a relevant part of the record of proceedings in the High Court, conceded

that the third respondent was wrongly joined to the application, as that party had

been withdrawn therefrom. D

As to the point raised by the court, it is accepted by both sides that the ruling by

Mapigano, J, which is sought to be challenged in the intended appeal, is in law not

appellable as a matter of right but requires leave to appeal granted by either the High

Court or this Court. It is also accepted by both sided that no steps have been E taken

to date to seek such leave, and that, in fact, since Mapigano, J's ruling was given on 6

February 1997, such steps are already time-barred by virtue of the provisions of para

(b) of Rule 43 of the Tanzania Court of Appeal Rules, 1979. F

After the arguments on both sides were given at 10.40 am this morning, I pronounced

an order directing the application to be struck off but I reserved my reasons until 2.00

pm today. I now proceed to give them.

It is apparent that the real problem facing this application at this stage is the point G

raised by the Court. Of course I have no doubts whatsoever about the propriety of

this move. The court has inherent jurisdiction under Rule 3 of the Tanzania Court of

Appeal Rules, 1979, to raise to the parties, early in the proceedings, any point which

concerns the competency of the proceedings before it, so as to avoid, H not only

unnecessary costs to the parties, but also avoid waste of precious court time.

Mr Maira's submissions on this point are to the effect that the only pre-requisite for

an application for stay of execution under Rule 9 of the Tanzania Court of Appeal

Rules, 1979, is the prior existence of a notice of appeal, and that since such notice

exists I

1997 TLR p96

A here, the court should proceed to hear the application on its merits. The

submissions by Mr Mwaikusa and Mr Wambali, are to the effect that since the

intended appeal can be made only with leave of the court and since any move to seek

such leave is already time-barred, the court cannot proceed to hear the application

but should strike it out by virtue of the court's inherent jurisdiction. B

As already indicated in the interim order which I delivered at 10.40 am this morning,

I am satisfied that this application is incompetent at this stage. Obviously the power

of the court to grant a stay under Rule 9 is exercisable only in C proceedings which

are properly before the court. It is apparent from the record that this application was

filed in this court on 21 February 1997, that is, a day after the time for seeking leave

to appeal, expired. As already mentioned, no move has been made up to now to seek

such leave. In the light of this state of affairs, I am fully satisfied that as matters stand

at present, this application is incompetent and cannot be heard. That is why I ordered

it to be struck off this morning. D

1997 TLR p96