CHRISTOMOO NGOWI v WILLIAM LUSITO AND ANOTHER 1992 TLR 340 (CA)

CHRISTOMOO NGOWI v WILLIAM LUSITO AND ANOTHER 1992 TLR 340 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mnzavas JA

16 November, 1992 E

Flynote

Civil Practice and Procedure - Court of Appeal Rules - Application for stay of

execution - Notice of appeal not lodged.

-Headnote

The applicant was seeking for stay of execution of the orders of the High Court F

pending determination of an intended appeal to the Court of Appeal by the applicant.

There was no evidence to show that the applicant had lodged notice of appeal against

the decision of the High Court. G

Held: As there is no evidence to show that the applicant has lodged notice of appeal

against the decision of the High Court the application seeking stay of execution is

incompetent.

Case Information

Order accordingly. H

Ballonzi, for the applicant

Marandu, for the respondent

[zJDz]Judgment

Mnzavas, J.A.: This is an application seeking for stay of execution of the orders of I

Dar es Salaam High Court Miscellaneous

1992 TLR p341

MNZAVAS JA

Civil Case No. 30/1991 pending determination of an intended appeal to this Court by

A the applicant.

In support of the application Mr. Ballonzi, learned counsel for the applicant, argued

that the learned judge who ordered execution in Misc. Civil Case No. 38/1991 erred.

It was submitted that the High Court had no jurisdiction to entertain an application

for B execution in a matter which had already been decided by the district court. In

support of his argument the court was referred to s.38 and 13 of the Civil Procedure

Code. It was his argument that the pending appeal has reasonable chances of a

success.

In rebuttal Mr. Marandu, learned counsel for the respondent argued that an

application C to this Court seeking stay of execution can only be entertained when

there is an existing appeal before this Court against the decision against which stay of

execution is sought.

It was Mr. Marandu's submission that the applicant has not served the respondent

with notice of intention to appeal to this Court, if the applicant has in fact given

notice of D intention to appeal to this Court.

In reply Mr. Ballonzi argued that the applicant has already lodged a notice of appeal

against the decision of the High Court. The learned counsel continued - "We have no

E objection to serve the advocate (meaning Mr. Marandu, advocate for the

respondent) with notice of appeal. We served the party himself with notice."

The question of notice of appeal featured in respondent's counter affidavit in which

the respondent said he was not aware of any notice of appeal by the applicant. The

counter F affidavit was apparently not replied to by the applicant.

Rule 76(l) of the Court of Appeal Rules is clear and unambiguous. It says:

G Any person who desires to appeal to the Court shall lodge a written notice in

duplicate with the Registrar of the High Court.

The applicant has not proved to this Court that he has filed notice of appeal as

provided under Rule 76(1) quoted above. He did not even bother to reply applicant's

counter affidavit in which a question was posed as to whether notice of appeal against

the H decision of the High Court had been filed by the applicant.

Faced with this question Mr. Ballonzi merely told the Court - "We have already

lodged a notice of appeal against the decision of the High Court." I

1992 TLR p342

There is no indication in the record to support Mr. Ballonzi's argument that the A

applicant has in fact filed a notice of appeal against the decision of the High Court

before lodging his application to this Court seeking for stay of execution. Nor is there

evidence to show that the mandatory provisions under Rule 77 which requires the

applicant to serve the respondent with copy of notice of appeal have been complied B

with.

Rule 9(2)(b) of the Court of Appeal Rules quoted by Mr. Ballonzi only allows this

Court to use its discretionary powers and stay execution "where a notice of appeal has

been lodged."

As there is no evidence to show that the applicant has lodged notice of appeal against

C the decision of the High Court I agree with Mr. Marandu, learned counsel for the

respondent, that the application seeking stay of execution is incompetent and it is

accordingly struck out.

D Application incompetent.

1992 TLR p342

E