Erick Massawe v. Tanroads & others 2005, (Application for Stay of Execution)

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA 

ARUSHA CIVIL APPLICATION NO. 6 OF 2005 

ERICK MASSAWE…………………….……….………..APPLICANT

AND 

TANROADS & OTHERS………. …………………RESPONDENTS

(Application for Stay of Execution from the Judgment and Decree of the High Court of Tanzania

(Land Division) at Arusha)

(Kileo, J.)

dated the 3^rd day of August, 2005

in

Land Case No. 16 of 2004

R U L I N G

22 September 2006 & 2 October 2006

LUBUVA, J. A.:

        Before me there is an application by Mr. Maruma, learned counsel, on behalf of Erick Massawe, the applicant.  Under the provisions of rule 9(2)(b) of the Court of Appeal Rules, 1979 (hereinafter the rules), the Court is moved for an order that the execution of the High Court (Land Division) decision and decree in Land Case No. 16 of 2004 of 3.8.2005 be stayed until the determination of the appeal pending in this Court.  The application is supported by an affidavit deponed by the applicant, Erick Massawe.  The attachment to the application comprises a copy of judgment and decree which is intended to be appealed against and nothing more.

        At the commencement of hearing the application, the Court suo motu raised the issue whether the application before the Court was competent.  The reason was the fact that from the record of the application placed before me there is no attachment of the notice of appeal lodged.

        Mr. Maruma, learned counsel for the applicant, responded to this point.  Forthrightly he conceded with regard to two issues.  First, that notice of appeal is a prerequisite condition for granting stay of execution under rule 9(2)(b) of the rules.  Second, that the notice of appeal was not attached to the application filed seeking stay of execution.

        However, Mr. Maruma submitted that the notice of appeal was mentioned in paragraph 3 of the affidavit in support of the application.  The notice of appeal at any rate, he further submitted, was filed in the Court registry on 17.8.2006.  From his submission, it would appear that the gravamen of his argument is that neither rule 9(2)(b) nor any other rule requires the annexing of the notice of appeal to the application.  What is required, Mr. Maruma stressed, is the filing of the notice of appeal.  This, he insisted, had been done on 17.8.2006 which fully satisfied the requirement of rule 9(2)(b) of the rules.  For these reasons, Mr. Maruma was firmly of the view that the application was competent.

        Mr. Kaishozi, learned State Attorney, for the Attorney General and Mr. Komba, learned counsel, represented the respondents.  The essence of their submission is to the following effect.  That the application for stay of execution as lodged is incompetent.  This is so because there is no notice of appeal attached to the application.  The initial notice of appeal filed by the applicant was, on the application of counsel for the applicant marked withdrawn by the Hon. Chief Justice on 28.7.2006.  Mr. Kaishozi availed to the Court a copy of the order of withdrawal.  In sum total it was counsel’s submission that the application is based on a non existing notice of appeal.  So, the application for stay of execution in which there is no notice of appeal is incompetent, it should be struck out.

        From these submissions, it is apparent that counsel for both parties are in agreement that the application was not accompanied with the notice of appeal.  However, they part company with each other with regard to the effect of such failure to annex the notice of appeal to the application.  While Mr. Maruma as already shown, ardently maintained that non-attachment of the notice of appeal to the application does not render the application incompetent,  Mr. Kaishozi and Mr. Komba held the opposite view. 

        I have no difficulty in agreeing with Mr. Maruma that rule 9(2)(b) of the rules does not provide for the attachment of the notice of appeal to the application for stay of execution.  Correctly as he observed, the pre-requisite condition under the rule is the lodging of the notice of appeal in accordance with rule 76.  However, it is to be pointed out at once that although the rule does not provide expressly for the attachment of the notice of appeal, both logic and common sense dictate its inclusion in the application.  Without the attachment of the notice of appeal, how would the Court satisfy itself that the pre-requisite condition of the rule is satisfied.

        In similar vein, it could as well be urged in line with Mr. Maruma’s reasoning that as the same rule 9(2)(b) does not expressly provide for the application for stay of execution to be accompanied with a copy of the judgment and decree, failure to attach these documents would not render the application incompetent.  On this, as Mr. Maruma, learned counsel, is no doubt aware, the current legal position held by this Court is settled.  In a number of cases, this Court has taken the view that failure to attach to the application for stay of execution a copy of the decision, judgment, order or ruling and decree which is sought to be stayed, renders the application incompetent.  This was held by the Court in Ngorongoro Conservation Authority v. Samwel Maeda, Civil Application No. 8 of 2003, East African Development Bank v. Blueline Enterprises Ltd., Civil Application No. 35 of 2003, and Tanga Cement Company Ltd. V. Ballast Construction Co. Ltd., Civil Application No. 2 of 2003 (both unreported).  See also Blue Star Service Station v. Jackson Musseti, (1997) TLR. 310.

         If this is the settled legal position with regard to the judgment and decree for which there is no express provision  under rule 9(2)(b), I am inclined to think that the situation is even more stringent when it comes to the notice of appeal.  As said before, rule 9(2)(b) makes it a pre-requisite condition that a notice of appeal has to be lodged.  In that situation, it goes without saying that the first item for attachment to the application is the notice of appeal.  This is in order for the court to be satisfied that the requisite condition has been satisfied.  In this application, there was none, the court was only informed from the bar upon enquiry that the notice of appeal was filed in the Court Registry on 17.8.2006.  There was no evidence on this and the court cannot either speculate into the matter or take it for granted from the bar that there is a notice of appeal filed.

        On the other hand, even if it is accepted that the notice of appeal was as informed from the bar, filed in the court registry on 17.8.2006, I do not think that this would in anyway assist the applicant in this case.  From the notice of motion and the supporting affidavit, the decision of the High Court which is sought to be stayed relates to Civil Case No. 16 of 2004 of 3.8.2005.  According to paragraph 3 of the affidavit, the notice of appeal lodged against this decision is dated 3.8.2005.  This notice of appeal, it will be observed, was as Mr. Kaishozi pointed out marked withdrawn by the Hon. Chief Justice on 28.7.2006.

        In the circumstances, it seems to me that Mr. Maruma’s effort to call attention of the Court that there is another notice of appeal freshly filed on 17.8.2006 is of no avail.  The notice of appeal, if at all, is not the one on which this application was based.  At any rate, with the withdrawal of the notice of appeal of 3.8.2005, filing of another notice of appeal on 17.8.2006 as claimed by Mr. Maruma would be of legal validity if the application is sought and obtained for extension of time in which to file notice of appeal out of time.  This aspect, I am not in the picture and in any case, it is not relevant to go into at this stage.

        In the upshot, for the foregoing reasons, I am increasingly of the view that the application for stay of execution is without any valid notice of appeal.  Therefore, it has no leg on which to stand, as it were, it is incompetent as argued by Messrs Kaishozi and Komba, learned counsel.

        Accordingly, the application is struck out.  I make no order for costs as the issue was raised by the Court suo motu.  

        DATED at ARUSHA this 2^nd day of October, 2006.

D. Z. LUBUVA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR

View other posts for your benefit...