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.

-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 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 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;

(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

Judgment

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

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

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.

Order accordingly.

1989 TLR p143