ISRAEL SOLOMON KIVUYO v WAYANI LANGOI AND NAISHOOKI WAYANI 1989 TLR 140 (CA)

 

ISRAEL SOLOMON KIVUYO v WAYANI LANGOI AND NAISHOOKI WAYANI 1989 TLR 140 (CA)

Court Court of Appeal of Tanzania- Dar Es Salaam

Judge Nyalali CJ

12 August, 1989 B

Flynote

Court of Appeal Rules - Application for stay of execution before notice of appeal is

filed - Limitation period for filing the application - Interlocutory application only

entertained relating to legal action or step pending in court - Definition of

interlocutory proceeding. C

-Headnote

In an application for stay of execution of the decree of the Court of Appeal, the Chief

Justice found that the application was based on the intention of the application to

appeal D as no notice of appeal had been filed, that the application was of an

interlocutory nature as it related to discovery and inspection and had been filed out of

time. He accordingly declared the application incompetent and dismissed it with

costs.

Held: (i) In the case of an application for stay of execution of a decree pending an E

appeal where no notice of appeal has been given, the application will not be

entertained;

(ii) an application under written law for which no period of limitation is

provided under the Limitation Act, 1971 or any other written law has to be made

within a period of sixty days; F

(iii) it is trite law that an interlocutory application for discovery or inspection

cannot be entertained unless it relates to a legal action or step pending in court;

(iv) an interlocutory proceeding is incidental to the principal object of the

action, G namely, the judgment. Thus interlocutory applications in an action include

all steps taken for the purpose of assisting either party in the prosecution of their

cases, whether before or after judgment; or of protecting or otherwise dealing with

the subject matter of the action before the rights of the parties are finally determined;

or of executing the H judgment when obtained.

Case Information

Order accordingly.

Lamwai, for the applicant

D'Souza, for the respondent. I

1989 TLR p141

NYALALI CJ

[zJDz]Judgment

Nyalali, C.J.: This is an application by notice of motion filed by the Applicant, that is,

A Israel Solomon Kivuyo under the provisions of rule 3 sub-rule 1 and 2 of the

Tanzania Court of Appeal Rules 1979, under which he seeks stay of execution of the

decree of this Court given in Civil Appeal No. 16 of 1988. The judgment from which

the decree flows is dated 24th December, 1988 and the decree was settled under the

provisions of B rule 39 sub-rule 2 on the 16th May, 1989. The application is

supported by affidavit which lists various matters upon which it is based. The crucial

matters in this affidavit are to the effect that the record of appeal in Civil Appeal No.

16 of 1988 contains certain C omissions which were deliberately not rectified by

Counsel who represented the applicant at the hearing of the appeal, thereby

misleading the Court into giving judgment against the applicant. Dr. Lamwai, a junior

but very able member of the Bar, represents the Applicant and has appeared before

me by special permission according to the D practice of the Court. Mr. D'Souza, a

senior member of the Bar, represents the Respondents. When this application came

before me on the 24th July, 1989 a preliminary matter arose and invited submissions

in respect of it from both sides. The question is whether this application can be

entertained by this Court. As already stated, E the application seeks stay of execution

of the decree of this court. This basis for stay is contained in paragraph 8 of the

affidavit filed in support of the application. That paragraph reads: "... I am intending

to make an application for the comparison of the hand written Court record with the

record of appeal and necessary orders to meet the end of justice". F

Undoubtedly, the relevant provisions for making an application for stay of execution

of a decree of this Court is sub-rule 2 of rule 3 of the Rules of this Court. This is so

because, there is no other provision governing the matter either under the rules or

any other G written law. But can an application for stay of execution be entertained

by this Court where the basis for such stay is merely the state of mind of the Court to

take certain steps? I don't think that it is proper for any Court to grant stay of

execution of a decree before the applicant has taken legal action to move the Court in

a direction affecting the H decree. Thus in the case of an application for stay of

execution of a decree. Thus in the case of an application for stay of execution of a

decree pending an appeal where no notice of appeal has been given, the application

will not be entertained. This is the Rule in the case of Nganga v Kimani [1969] E.A.

page 67 where the High Court of Kenya I restated the rule. In my view that

1989 TLR p142

NYALALI CJ

rule is sound and correct in this country as well. It follows therefore, that this

application A for stay of execution of the decree of this Court cannot be entertained

unless and until the intended application mentioned in paragraph 8 of the above

mentioned affidavit is filed in this Court.

In the course of the hearing of this application, Dr. Lamwai requested this Court to

allow B him to file the intended application. Mr. D'Souza, learned Advocate for the

Respondents countered such move by submitting that the intended application is

already time barred. I agree with this submission since under item 21 of part III of the

First C Schedule to the Law of Limitation Act, 1971, an application under a written

law for which no period of limitation is provided under the Limitation Act, 1971 or

any other written law has to be made within a period of sixty days. The judgment in

Civil Appeal No. 16 of 1988 was delivered to the parties early this year, and the

decree was settled D in terms of rule 39 sub-rule 2 on 6th May, 1989.

It is obvious that by the 24th July, 1989 when the parties appeared before me for the

hearing of this matter, more than 60 days had expired from the time when the

intended E application could be made - that is after the delivery of the judgment

against the applicant. Dr. Lamwai's contention that the intended application had to

await settlement of the decree and the subsequent execution proceedings is untenable

in the light of the nature of the grievance made manifest in paragraph 9 which reads:

"Further, that I verily F believe that had the record of appeal been accurate, the

outcome of the appeal would have been different". Since the outcome of the appeal is

in the judgment, the intended application could be made as soon as the judgment was

delivered to the parties.

Furthermore, I am satisfied that the intended application is incompetent in law. I say

so G because, the intended application is in the nature of an interlocutory

application for the discovery or inspection of certain facts required to facilitate a

course of legal action. It is trite law that an interlocutory application for discovery or

inspection cannot be H entertained unless it relates to a legal action or step pending

in Court. In the present case, the application has not yet instituted a legal action or

step for the purpose of which discovery or inspection may be ordered by this Court.

Let us see whether the intended application can be construed as an interlocutory

application within the scope of Civil I Appeal No. 16 of 1988. According to Jowitt's

Dictionary of English Law, 2nd Edition at page 999 an interlocutory "proceeding ... is

incidental to the principal object of

1989 TLR p143

the action, namely, the judgment. Thus interlocutory applications in an action

include all A steps taken for the purpose of assisting either party in the prosecution

of his case, whether before or after final judgment; or of protecting or otherwise

dealing with the subject matter of the action before the rights of the parties are finally

determined, or of executing the judgment when obtained. Such are applications for

time to take a step e.g. B to deliver a pleading, for discovery, for an interim injuction,

for appointment of a receiver, for obtaining a garnishee order, etc. So an order giving

a plaintiff leave to sign judgment is interlocutory, because he must sign judgment

before he can issue execution ..." C

In the light of this exposition, it is clear that the intended application for comparison

of the Court records with a view to discover the alleged omissions cannot be

construed to be incidental to the judgment in Civil Appeal No. 16 of 1988, as it does

not directly flow or arise from that judgment. On the basis of the affidavit above

mentioned, it flows or D arises from something extraneous to the judgment - that is,

the alleged misconduct of the advocate who represented the applicant at the hearing

of the appeal. Such alleged misconduct of the applicant's advocate cannot in law be a

basis for the intended E application. It can be a basis for instituting a suit by the

applicant against that advocate.

In the final analysis therefore, I am satisfied that the present application for stay of

execution of the decree of this Court is incompetent and I am bound to dismiss it and

I do so now with costs. F

Order accordingly.

1989 TLR p143

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