Court name
Court of Appeal of Tanzania

Willow Investment vs Mbombo Ntumba & Others () [1997] TZCA 7 (13 March 1997);

Law report citations
1997 TLR 93 (TZCA)
Media neutral citation
[1997] TZCA 7

Nyalali, CJ
  D This is a ruling on a preliminary objection raised by Counsel for the second and third respondents against the hearing of the application for stay of execution pending appeal. The applicant, namely Willow Investment, is represented by Mr Maira, learned advocate, whereby the respondents, namely Mrs Mbombo Ntuba, hereinafter called, the first respondent, and OCS Company, hereinafter called, the   E second respondent, and Gecamines, hereinafter called, the third respondent, are represented by Mr Wambali and Mr Mwaikusa, learned advocates, the objection is based on three grounds which read as follows:   F
   (a)   That the application has been filed without complying with Rule 44 of the Tanzania Court of Appeal Rules, 1979;
   (b)   That the High Court decree, the execution of which is sought to be stayed by the application, is neither attached to the said application nor otherwise made known to the respondents; and   G
   (c)   That the third named respondent, who was not a party to the matter whose decision has given rise to the intended appeal as well as to this application has been joined as a party without the leave of the court.
  H In the course of hearing the objection, the court pointed out to the parties another basis which appeared to affect the competency of the application for stay of execution and that is the failure by the intended appellant to seek leave to appeal to this court. In the course of arguing in support of the objection, Mr Mwaikusa, learned advocate, conceded to the effect that ground number one    I

was misconceived, since in the light of precedent, an application for stay of   A execution cannot be entertained by the High Court after notice of appeal has been given, as is the position in the present case.
With regard to the second ground, a consensus emerged between counsel on   B both sides to the effect that the use of the word `decree' in the notice of motion for stay of execution is a misnomer and should be understood to refer to a decree consequent upon the ruling by Mapigano, J, dated 6 February 1997. In the light of that understanding, Mr Mwaikusa learned advocate indicated an intention on their side to seek permission to file a counter affidavit before the application could be heard.   C
On the third ground, Mr Maira, learned advocate after being made aware of the contents of a relevant part of the record of proceedings in the High Court, conceded that the third respondent was wrongly joined to the application, as that party had been withdrawn therefrom.   D
As to the point raised by the court, it is accepted by both sides that the ruling by Mapigano, J, which is sought to be challenged in the intended appeal, is in law not appellable as a matter of right but requires leave to appeal granted by either the High Court or this Court. It is also accepted by both sided that no steps have been   E taken to date to seek such leave, and that, in fact, since Mapigano, J's ruling was given on 6 February 1997, such steps are already time-barred by virtue of the provisions of para (b) of Rule 43 of the Tanzania Court of Appeal Rules, 1979.   F
After the arguments on both sides were given at 10.40 am this morning, I pronounced an order directing the application to be struck off but I reserved my reasons until 2.00 pm today. I now proceed to give them.
It is apparent that the real problem facing this application at this stage is the point   G raised by the Court. Of course I have no doubts whatsoever about the propriety of this move. The court has inherent jurisdiction under Rule 3 of the Tanzania Court of Appeal Rules, 1979, to raise to the parties, early in the proceedings, any point which concerns the competency of the proceedings before it, so as to avoid,   Hnot only unnecessary costs to the parties, but also avoid waste of precious court time.
Mr Maira's submissions on this point are to the effect that the only pre-requisite for an application for stay of execution under Rule 9 of the Tanzania Court of Appeal Rules, 1979, is the prior existence of a notice of appeal, and that since such notice exists   I

  A here, the court should proceed to hear the application on its merits. The submissions by Mr Mwaikusa and Mr Wambali, are to the effect that since the intended appeal can be made only with leave of the court and since any move to seek such leave is already time-barred, the court cannot proceed to hear the application but should strike it out by virtue of the court's inherent jurisdiction.   B
As already indicated in the interim order which I delivered at 10.40 am this morning, I am satisfied that this application is incompetent at this stage. Obviously the power of the court to grant a stay under Rule 9 is exercisable only in   C proceedings which are properly before the court. It is apparent from the record that this application was filed in this court on 21 February 1997, that is, a day after the time for seeking leave to appeal, expired. As already mentioned, no move has been made up to now to seek such leave. In the light of this state of affairs, I am fully satisfied that as matters stand at present, this application is incompetent and cannot be heard. That is why I ordered it to be struck off this morning.   D
1997 TLR p96