IN THE COURT OFAPPEAL OFTANZANIAAT MWANZA

(CORAM: MASSATI, l.A., ORIYO, l.A. And MMILLA, l.A)

CIVIL APPLICATION NO. 19 OF 2014

1. PATELTRADING CO (1961) LIMITED--l2. FREIGHT FORWARDERSTANZANIA LTDj. •...........•.........•.. APPLICANTS

VERSUS1. BAKARI OMARY WEMA t/a 1-

SISI KWA SISI PANEL BEATING ENTERPRISES LTD'J •.•.• RESPONDENT

(Application for stay of execution of the decision of theHigh Court of Tanzania at Mwanza)

(De-Mello. l.)

Dated the 12thday of September, 2014in

Land Appeal No. 43 of 2014

RULING OF THE COURT

18th & 24th March, 2015

ORIYO, JA.:

Before the Court is an application for stay of execution lodgedf4

through a notice of motion under Rules 11(2) (b), (c), (d) and 48(1) and

(2), of the Court of Appeal Rules, 2009.

We have found it prudent to preface the decision of the Court with

a brief background of the matter in issue. The applicants were

successfully sued for trespass by the respondents before the District

Land and Housing Tribunal for Mwanza at Mwanza in Civil Application

No. 136 of 2006. They unsuccessfully appealed to the High Court. The

order of the High Court on record states as follows:-

lithe appeal is out of time it collapses."

Aggrieved by the decision of the High Court, the applicant duly

lodged a Notice of Appeal to this Court on 3/10/2014; hence the \",application for stay of execution pending appeal.

The application was filed through the services of IMMA Advocates

(Mwanza Branch) and supported by an affidavit of Rahim Dhala, the

accountant of the 2nd applicant.

. At the hearing, the applicant was represented by Mr. Faustin~

Malongo, learned advocate while Mr. Bakari Omari Wema appeared for

the respondent company.

Mr Bakary Omary Wema, prayed for the hearing of the application

to be adjourned to another date. He explained that his counsel was

prepared for the hearing which was scheduled on 17/03/2015 and not

today, on 18/03/2015, hence his absence. Mr Malongo opposed the

adjournment on the ground that the respondent counsel was duly

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served with the notice of motion since 10/11/2014 but he did not file an

affidavit in reply. Likewise he was served with the written submissions, -

on time and no reply submissions have been filed by the respondent's

advocate todate, either. He submitted that, this conduct on the part of

the respondents is evidence that they are not opposing this application.

He prayed that the hearing proceeds as scheduled.

Having taken into account the reasons submitted by Mr. Malongo,

learned advocate and Mr. Bakari Wema respectively and having noted

from the record the evidence that the respondents were dully served on

the change of the dates for the hearing, from 17/03/2015 to

18/03/2015; as is evident from a copy of the summons on record which

was received and acknowledged by Juristic Law Chambers; and coupled

with the failure of the respondents to file pleadings in reply, (to the

Notice of Motion and written submissions), we exercised the Court's

powers under rule 106(10) of the Rules to order the hearing to proceed

exparte.

Before proceeding further, the Court, suo mottu raised a point of

law on whether the decree of the High Court complained of was

executable. Mr. Malongo, learned advocate forthrightly submitted that

the order of the High Court as it was, was not capable of being

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executed. He submitted that there is a lacuna in the Court rules and

prayed the Court to invoke rule 4(2) (a) and (b) of the Rules for the

purposes of determination of this application.

It is indisputable that neither the Court of Appeal Rules, 1979, (old

rules), nor the Court of Appeal Rules, 2009, (current rules), define the

word "execution", in respect of a decree/order of a court. However, in \,the case of Athanas Albert and Four Others versus Tumaini

University College, Iringa, (2001) T.L.R 63, the Court, in

determining an application for stay of execution pending an appeal

against a decision of the High Court which had set aside an order of

injunction by the District Court, held:-

"(i) There was nothing to stay in the revisiona/

order of the High Court;

(ii) A stay of execution can properly be asked

for where there is a court order granting a

right to the respondent, or

commanding or directing him to do

something that affects the applicant. "

(Emphasis supplied).

The application was accordingly dismissed.

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· See also the Court's decisions in the cases of Quality Group

Limited versus Tanzania Building Agency, Civil Application No 69 of

2014 and East African Development Bank versus Blue Line

Enterprises, Civil Application No 57 of 2004, (both unreported), where

the Court relied on Re Overseas Aviation Engineering (G.B) Ltd

(1969), 3 All ER 12, where Denning MR, (Master of Rolls), at page 16

stated as follows:-

"tixecatton means, quite simply the process for

enforcing or giving effect to the judgment of the

Court and it is completed when the judgment

creditor gets the money or other thing awarded

to him by the judgment. "

On our part, we agree with the learned counsel that the decision

of the High Court was not capable of being executed because it wag

merely a dismissal order. On the basis of the dismissal order of the High

Court, the parties' positions reverted to the same status quo as they

were before the appeal.

In the absence of a decree that is capable of being executed,

which this Court could allow or refuse to be stayed, we find that the

application before us is misconceived. Consequently we strike it out. We

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make no order for costs because the issue was raised by the Court suo

mottu.

DATED at MWANZA this 23rd day of March, 2015.

S. A. MASSATIJUSTICE OF APPEAL

K. K. DRIYDJUSTICE OF APPEAL

B. M. MMILLAJUSTICE OF APPEAL

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

. BAMPIKYASENIOR DEPUTY REGISTRAR

COURT OF APPEAL

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