Court name
Court of Appeal of Tanzania

Said Himid Mwilima vs Tabora Regional Trading Co () [1997] TZCA 15 (23 May 1997);

Law report citations
1997 TLR 156 (TZCA)
Media neutral citation
[1997] TZCA 15

Ramadhani JA:   A
The applicant, said Himid Mwilima, was the defendant in a suit before the Resident Magistrate's Court at Tabora. As that suit was decided ex-parte, the applicant was aggrieved and sought to set aside the judgment. The case was reopened and both parties were given a hearing. However, the judgment was still in favour of the BI respondent. The applicant appealed to the High Court of Tanzania at Tabora where Mchome J dismissed the appeal on the ground that the ex-parte judgment had not been set aside and thus the subsequent proceedings were void and, therefore, there was no appeal before him.   C
The applicant is aggrieved by that decision of Mchome J and has filed a notice of appeal in this Court. Meanwhile he has filed this application praying for an order of stay of execution pending the determination of the appeal.
The applicant before me was represented by Mr Kashumbugu, learned advocate,   D while the respondent, the Tabora Regional Trading Co, was represented by one Mohammed Hatib, the sales representative of the respondent here in Dar es Salaam.
I am well aware that Mr Mohammed Hatib, as the sales representative of the   E respondent in Dar es Salaam, is not one of the persons mentioned in sub-Rule (3) of Rule 28 as persons who can represent a corporation. Even such persons have to be appointed by resolution under the seal of the company a copy of which has to be filed with the Registrar. So, Mr Hatib cannot be said to have represented the respondent and that in effect the application was heard ex-parte under sub-Rule (6) of Rule 73.   F
There is no dispute that the High Court judgment was delivered on 27 March 1996 and that the notice of appeal was filed on 10 April 1996. Mr Kashumbugu also concedes that leave to appeal is required and that to date it has not been obtained. The learned advocate told the Court that an application for extension of time for   G filing an application for leave to appeal was presented to the High Court at Tabora on 29 March 1996 but was not received because the file was in Dar es Salaam. Mr Kashumbugu admits that at that time, 29 March, the applicant was already seven   H months late to seek leave to appeal. The learned advocate did not say whether or not the application for the enlargement of time in which to file an application for leave to appeal has now been filed.
The situation, then, is that there is a notice of appeal which is inoperative because there is not the prerequisite leave to appeal and that time for applying for such leave has already run out while it   I

  A does not appear that an application to enlarge that time has been made. In any case, one cannot say without any hesitation that there is an appeal pending in this Court.
I have no doubt in my mind that granting an order of stay of execution pending the determination of a wishful thinking appeal is, to say the least, idle. Stay of execution is a discretion of the Court and, as usual, a discretion has to be exercised judicially.   B
This appeal is dismissed. I cannot order any costs as the order is ex-parte. It is so ordered.   C
1997 TLR p158