AERO HELICOPTER (T) LTD v F.N. JANSEN 1990 TLR 142 (CA)

 

AERO HELICOPTER (T) LTD v F.N. JANSEN 1990 TLR 142 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JA

D 6 December, 1990

Flynote

Civil Practice and Procedure - Court of Appeal Rules - Jurisdiction - Application to

stay execution pending appeal to the E Court of Appeal of Tanzania - Whether High

Court has concurrent jurisdiction with Court of Appeal of Tanzania to entertain the

application - Court of Appeal Rules, 1979.

-Headnote

When an application for a stay of execution pending appeal to the Court of Appeal of

Tanzania came for hearing in F the Court of Appeal of Tanzania preliminary

objection was raised to the effect that the application was wrongly before it in that it

ought to have been made to the High Court in the first instance. Counsel for the

applicant and respondent referred to two apparently conflicting decisions of the High

Court on the point.

G Held: (i) The inherent power of the High Court under section 95 of the Civil

Procedure Code is exercisable where the law has made no provision governing the

particular matter at hand;

(ii) once proceedings of appeal to the Court of Appeal of Tanzania have been

commenced the High Court H could not properly apply section 95 of the Code for

the simple reason that the proceedings are no longer in the court as required by

section 2 of the Code,

(iii) once appeal proceedings have been commenced by filing notice of appeal

to the Court of Appeal of I Tanzania, the law makes specific provision, relating to

the stay of execution by the court, under rule 9 (2)(b) of the Court of Appeal Rules;

1990 TLR p143

KISANGA J

(iv) once appeal proceedings to this court have been commenced by filing

notice of appeal, the High Court has A no inherent jurisdiction under section 95 of

the Civil Procedure Code to order a stay of execution pending appeal to this court.

Case Information

Preliminary objection overruled. B

Maira, for the applicant

Majithia, for the respondent

[zJDz]Judgment

Kisanga, J.A.: There is before me an application for a stay of execution pending appeal

to this Court. When the C application came on for hearing Mr. Majithia, learned

counsel for the respondent, took a preliminary objection that the application was

wrongly before this court in that it ought to have been made to the High Court in the

first instance. Mr. Maira, learned advocate for the applicant, resisted the objection

and in the course of the submission D both counsel referred to two apparently

conflicting decisions of the High Court on this point.

The application for a stay of execution was brought under rule 9(2)(b) of the Court of

Appeal Rules which provides E that:

(a) subject to the provisions of sub-rule (1), the institution of an appeal

shall not operate to suspend any sentence or to a stay of execution, but the court may

(b) in any civil proceedings, where notice of appeal has been lodged in

accordance with Rule 76. order a F stay of execution. On such terms as the Court

may think just.

In his objection Mr. Majithia submitted that the High Court has concurrent

jurisdiction with this court to order a stay of execution pending appeal to this Court,

and so in terms of rule 44 of the Rules this application ought to have been G made to

the High Court first, which it has not. In support of the view that the High Court has

concurrent jurisdiction in the matter he relied on the decision of the High Court in

the case of Godes Ltd., v Nimrod E. Mkono - DSM High Court Civil Case No. 91 of

1989 the High Court had inherent jurisdiction under section 95 of H the Civil

Procedure Code to stay of execution pending appeal to this Court. The learned

counsel further relied on the decision of the Court of Appeal for Eastern Africa in the

case of Ujagar Sing v Runda Coffee Estates Ltd. [1966] E.A. 263 also cited by

Mapigano, J. in the Godes case. Again he referred me to a number of passages in I the

commentaries by both Sakar and Mulla on section 151 of the Indian Code of Civil

Procedure

1990 TLR p144

KISANGA J

A which is in pari materia with section 95 of our Civil Procedure Code and which

confers inherent jurisdiction of the court. Relying on all this learned counsel

vigorously contended that the High Court has inherent jurisdiction to stay of

execution pending appeal to this court. In resisting the objection, Mr. Maira relied on

the decision of the B High Court in the case of Saab-Scania A.B. t/a Saab-Scania

Tanzania Branch v Mapinduzi Tailoring Co-operative Society Limited. - DSM Civil

Case no. 85 of 1986 (unreported) where Bahati, J. ruled, in reference to Order 39 of

the Civil Procedure Code, that the High Court had no jurisdiction to order a stay of

execution pending appeal to this Court.

C Both Mapigano, J. and Bahati, J. rightly held that the High Court had no

jurisdiction under order 39 of the Civil Procedure Code to order a stay of execution

pending appeal to this Court. In this connection it is noted that Mapigano, J. in his

ruling inadvertently cited Order 35 rule 5 of the Civil Procedure Code as being the

provision D under which the application before him for a stay of execution was

brought. However, a glance through the court case file clearly shows that the

application before him and counsel submissions pertaining thereto were based on

Order 39. In any case Order 35 is completely irrelevant and has nothing whatsoever

to do with stay of execution. E Allowing for the inadvertence, therefore, Mapigano,

J. and Bahati, J. share the view that Order 39 does not confer on the High Court

jurisdiction to order a stay of execution pending appeal to this court, and as I have

indicated sufficiently, I am also of the same view.

F Mapigano, J., however, went further and held that the High Court has such

jurisdiction in the exercise of its inherent powers under section 95 of the Civil

Procedure Code, and this is what counsel appear to regard as conflict of opinion

between Mapigano, J. and Bahati, J. on the matter. However, the true position is that

Bahati, J. did not decide on or consider the inherent jurisdiction of the High Court

under section 95 to order a stay of execution G pending appeal to this Court.

That issue was never before him either as raised by counsel or by the court itself. To

that extent I see no conflict myself, in as much as there is only the opinion of

Mapigano, J. on the point.

H The question now falling for consideration, therefore, is a narrow one, and it is

this: Does section 95 of the Civil Procedure Code confer jurisdiction on the High

Court to order a stay of execution pending appeal to this court? It is pertinent here to

glance at the provision of section 2 of the Civil Procedure Code which says:

I Subject to the express provisions of any written law, the provisions of this Code

shall apply to all proceedings in the High Court of

1990 TLR p145

KISANGA J

the United Republic, courts of resident magistrate and district courts. A

This Code applies to stay of execution proceedings brought in the specified courts

because I am not aware of any written law which makes provision to the contrary.

However, upon perusal of the Code, I have not been able to B find any specific

provision conferring jurisdiction on the High Court to stay of execution pending

appeal to this Court. The question, therefore is: Can section 95 of the Code be

construed, as urged by Mr. Majithia, as conferring on the High Court inherent

jurisdiction for the purpose? C

It is to be remembered that the inherent power of the High Court under section 95 of

the Code is exercisable were the law has made no provision governing the particular

matter at hand Mr. Majithia, therefore, may be justified in submitting that the High

Court has inherent jurisdiction here because, as I have observed, the Code makes no

D specific provision for a stay of execution by the High Court pending appeal to this

Court. But I should hasten to add that in my view such jurisdiction is limited and that

it is not for all the time. I think that the High Court has such jurisdiction only so long

as proceedings, of appeal to this Court have not been commended. Once such

proceedings E have been commended, I think that the inherent jurisdiction of the

High Court over the matter ceases.

I held this view for two reasons: First, once appeal proceedings to this Court have

been commenced, I think that such proceedings do not come within the ambit of

section 2 of the Code as set out above. That is to say, in my F view, they are

proceedings in the Court of Appeal and not proceedings in the High Court to which,

in terms of section 2, the provisions of the Code would apply. Therefore the High

Court could not properly apply section 95 of the code for the simple reason that, in

my opinion, the proceedings are no longer in that court. G

Secondly once appeal proceedings have been commenced by filing notice of appeal to

this Court, the law makes specific provision, relating to stay of execution by this

Court, under rule 9 (2) (b) of the Rules as reproduced above. So that there could no

longer be excused for saying that the High Court would exercise its inherent

jurisdiction H because the law has made no provision governing the matter.

I have read the case of Ujagar Singh which was cited before me by Mr. Majithia, and

which was also relied upon by Mapigano, J. for his decision. It is true that in that case

it was held that the High Court of Kenya had inherent I jurisdiction to order a stay

of execution pending appeal to the Court of Appeal for Eastern Africa. But that power

was

1990 TLR p146

KISANGA J

A expressly conferred by rule 53 of the East African Court of Appeal Rules which

were in force at the time. That rule provides that:

An appeal shall not operate as a stay of execution or of proceedings under the decision

appealed from unless the courts B before or the court or a judge so orders and no

intermediate act or proceedings shall be invalidated except so far as the court may

direct.

C The reading of the rule make it plain that either the Court of Appeal or the High

Court is empowered or authorized to consider whether or not to order a stay of

execution pending appeal to the Court of Appeal. In other words rule 53 provides the

source of authority for the court to be seized of the matter. And with reference to the

High Court it means that in dealing with the matter, which is now properly or

competently before it, it can exercise D its inherent jurisdiction or powers which it

has under section 95 of the Code to decide whether or not to order a stay. But in the

Tanzanian Court of Appeal Rules we have no corresponding provision to rule 53

above cited; we have no corresponding provision in the Appellate Jurisdiction Act

either. In other words once appeal proceedings E to this court the High Court have

been commenced, I could find no source of authority for the High Court to be seized

of the matter; and if that court is not seized of the matter, it is difficult to see how it

could proceed to exercise any inherent jurisdiction or powers which it has under

section 95 of the Civil Procedure Code.

F It therefore follows that the decision in the case of Ujagar Singh is of no assistance

here. That case is distinguishable in that there the High Court was seized of the

matter with rule 53 being the sources of such authority, while in this case the High

Court is not shown to have any sources of authority for it to be seized of the matter.

The G same is true also of counsel's reference to the various passages in the

commentaries by Mulla and Sakar on section 151 of the Indian Code of Civil

Procedure relating to the inherent jurisdiction of the court to order a stay of

execution. Such reference would be relevant and of assistance only upon showing that

there is a provision of law, H akin, to rule 53 of the East African Court of Appeal

Rules above cadet which authorises the High Court to be seized of the matter in the

first instance. If that were shown, then it could validly be said that once the matter is

competently before the High Court, then that court can exercise its inherent

jurisdiction or powers which it has I under section 95 of the Civil Procedure Code to

consider whether or not to order a stay of execution pending appeal to this court. But

in the absence of any such

1990 TLR p147

KISANGA J

enabling provisions, then there is no linkage between the inherent jurisdiction of the

High Court under section 95 of A the Civil Procedure Code and proceedings relating

to a stay of execution pending appeal to this Court, to which proceedings that said

section 95 of the code has no application. It is for these reasons that I differed with

Mapigano, J. and take the view that once appeal proceedings to this Court have been

commenced by filing notice B of appeal, the High Court has not inherent

jurisdiction under section 95 of the Civil Procedure Code to order a stay of execution

pending appeal to this Court.

Now applying this analysis to the situation at hand, the applicant' s affidavit in

support of the notice of motion, clearly states that notice of appeal to this court has

already been given, and this had not been contradicted. C Therefore in terms of rule

9(2)(b) of the Rules, as reproduced above, this court has jurisdiction over the issue of a

state of execution pending the appeal to itself. On the other hand, and for the reasons

I have endeavoured to state, I could find no support for Mr. Kajithia's contention that

the High Court has concurrent jurisdiction with this court in D the matter.

Consequently rule 44 which requires an application to be made in the first instance to

the High Court is of no application here. I am therefore satisfied that the application

for a stay of execution completely before this court. E

In the result the preliminary objection is overruled with costs to the application.

Nyalali CJ.: On the basis of the undisputed information brought to the attention of the

court to the effect that the F Applicant AERO HELICOPTER (T) LTD. has

withdrawn instructions from Mr. Maira and Co. as per notification filed in court on

1st April, 1993 and as per exchequer Receipt No. 215166 of same date, it is hereby

directed that Maira and Co. cease to represent the applicant hereafter in these

proceedings unless fresh instructions are given. G

Order accordingly.

990 TLR p148

A