Court name
High Court of Tanzania

Seif Household Store Ltd vs New Mabai Store () [1994] TZHC 8 (30 June 1994);

Law report citations
1995 TLR 195 (TZHC)
Media neutral citation
[1994] TZHC 8
Coram
Kyando, J.

Kyando, J:
This is an appeal from a ruling of the Housing Appeal Tribunal (HAT) granting an application by the respondent for stay of execution pending an appeal to it (HAT) from the decision of the regional housing tribunal of Dar-es-Salaam region. C
Briefly the respondent was a tenant of the appellant in respect of commercial premises, a godown, in Dar-es-Salaam. The applicant then applied to the Regional Appeals Tribunal for an order to evict the respondent from the premises. The Regional Tribunal granted the application but the respondent was aggrieved. He D took steps to appeal to HAT and before the appeal was heard, he applied to the resident magistrate's court of Dar-es-Salaam at Kisutu for stay of execution of the decree of the Regional Housing Tribunal. The decree had been sent there for E execution. In the course of time the application had to be dismissed by the resident magistrate's court for want of prosecution whereupon the respondent filed an application in Housing Appeal Tribunal seeking again stay of execution of the F decree of the Regional Housing Tribunal. The application was made under r 15 of the Housing Appeals Tribunal (Appeals) Rules, 1987 and the Housing Appeal Tribunal granted it. The appellant was aggrieved, hence this appeal.
G In the memorandum of appeal to this court the appellant sets out five principal grounds of appeal. In the first ground he states that the learned chairman of the Housing Appeal Tribunal misdirected himself at law in failing to hold that the application was not properly before the tribunal. In the second ground of appeal he contends that the learned chairman erred in law in his interpretation of r 15(2) of H the Housing Appeals Tribunal Rules, 1987. In the third ground he says that the chairman misdirected himself at law in failing to hold that the Housing Appeal Tribunal and Regional Housing Tribunal has no execution power. In the fourth ground he contends that the learned chairman misdirected himself at law and fact by not holding that the applicant is a trespasser in the suit premises. And in the fifth ground he states that the learned chair- I

man misdirected himself in assessing who will suffer more hardship if the A application was decided in the issue of a third party.
Both parties are represented by counsel; the appellant is represented by Mr Maira, learned advocate and the respondent is represented by Mr Chandoo, learned advocate, counsel filed written submissions. B
By reg 6(6)(a) and (b) of the Regional Housing Tribunal Regulations 1990, execution of an order or decree of the Regional Housing Tribunal 'shall be through the court of a resident magistrate' and no execution proceedings can be commenced until after the expiry of the period of appeal provided either under the Rent Restriction Act, 1984 or the Regional Housing Tribunal Regulations. (Under C the regulations the period of appeal provided for is thirty days  -  see reg 10).
Then r 15 of the Housing Appeals Tribunal (Appeals) Rules (supra) provides: D
   15 (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appeals tribunal may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appeals tribunal may for sufficient cause order stay of execution of such decree. E
   (2) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing, the tribunal which passed the decree may on sufficient cause shown, order the execution to be stayed. F
   (3) No order for stay of execution shall be made under subr (1) or subr (2) unless the appeals tribunal or the tribunal is satisfied that:
   (a)   substantial loss may result to the party applying for stay of execution unless the order is made; G
   (b)   the application has been made without unreasonable delay, and
   (c)   security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
   (4) Notwithstanding anything contained in subr (3) the appeal tribunals or the tribunal may make an ex parte order for stay of execution pending the hearing of the application. H
In his submissions Mr Maira argues that the respondent, having filed an application for stay of execution in the resident magistrate's court, he was bound to pursue it. Having failed to pursue it the court dismissed it and his remedies then were to seek to have the order of dismissal set aside and, if unsuccessful in that, to make an I

A appeal to this court against the order refusing setting aside. He says as an executing court the resident magistrate's court must be assumed to be having full powers of stay of execution of a decree passed by a Regional Housing Tribunal. Mr Maira says this was the intention of the legislature in conferring upon that court execution powers. He says in other words that the power to stay is implied in the power to execute. B
Mr Maira goes on to submit that by going to the Housing Appeal Tribunal with the application which was dismissed by the resident magistrate's court the respondent was forum shopping or the application was res judicata. He contends therefore that the Housing Appeal Tribunal erred entertaining it. Alternatively, he C contends the application should have been filed in the Regional Housing Tribunal and not in the Housing Appeal Tribunal because it was filed before the appeal to the Housing Appeal Tribunal had filed.
D To the above submissions Mr Chandoo for the respondent replies that the resident magistrate's court has no powers of stay of a decree passed by a Regional Housing Tribunal. He says the application he filed there was filed only for the purpose of stopping an execution which was being threatened before the E period of appeal, as provided for by the law, had expired. He says in effect that it was then left to lapse in the court and a proper application was then filed in the Housing Appeal Tribunal. He contends that the application to the Housing Appeal Tribunal was not res judicata.
F As for the submission that the application ought to have been filed in the Regional Housing Tribunal and not in the Housing Appeal Tribunal because the appeal had not been filed by the time when the application was filed, he says the appeal and the application were filed simultaneously.
G It is my view that the resident magistrate's court, as an executing court of decrees passed by Regional Housing Tribunals, has no general powers of stay in relation to those decrees. Its powers are limited and they are to the extent only as provided for in Order 21 r 24(1) of the Civil Procedure Code, 1966. Order 21 r 24(1) provides:
H    '24 (1) The court to which a decree has been sent for execution shall upon sufficient cause being shown, stay the execution of such degree for a reasonable time, to enable the judgment debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction in respect of the decree or the execution thereof for an order to stay execution or for any other order relating to the decree or execution which might have been made by such court of first I

   instance or appellate court if execution had been issued thereby, or if application for execution A had been made thereto.' (Emphasis supplied.)
So the resident magistrate's court's powers are limited to staying execution of a decree for only a reasonable time and for the purpose of enabling the B judgment-debtor to make an application to either the Regional Housing Tribunal, which passed the decree or to the Housing Appeal Tribunal, the tribunal having appellate jurisdiction in respect of the decree or the execution of it. This is what exactly happened in the instance case; the application to the court for stay was intended to enable the respondent to apply to the Regional the Housing Tribunal or C to Housing Appeal Tribunal for stay of execution pending appeal. The resident magistrate's court has no power, as an executing court, to stay execution pending appeal (see Joseph EA Mwakajinga v Prakash Brothers Ltd (1), decision by Mapigano, J which is to the same effect as the one I have made here). The D questions of applying for setting aside when the application was dismissed by the resident magistrate's court and appealing if setting aside did not succeed do not arise therefore. The court had no jurisdiction in the matter. The respondent realised after he had filed the application there that he had gone to the wrong forum. He left the application to lapse therefore and went to the right forum, the E Housing Appeals Tribunal.
Was it premature to go to the Housing Appeals Tribunal? This depends of course on whether the application was made simultaneously with the appeal as Mr Chandoo contends or whether it was made before the appeal was filed as Mr F Maira contends. Unfortunately the papers of the application and appeal to the Housing Appeal Tribunal are not in the record of appeal here, but the following statement by the chairman of the Housing Appeals Tribunal does show that the application was filed after the appeal: G
   'On 26 October 1993 he (the respondent) filed this application (for stay of execution of the decree of the Regional Housing Tribunal) after lodging his appeal No 85/93.' (Emphasis supplied.) H
So the application was lodged after the lodging of the appeal and this was well within the requirements of the rules.
I do not think having decided as above that I should consider the rest of the grounds of appeal. I consider that my above determinations fully dispose of the appeal and there is no need to consider the rest of the grounds in the memorandum of appeal. I hold in the final I

A result that the resident magistrate's court had no power to stay execution of the decree pending appeal. Its dismissal of the application made there by the respondent did not affect the respondent's rights to apply for stay to either the Regional Housing Tribunal or the Housing Appeals Tribunal. The application to the Housing Appeals Tribunal was properly entertained by that tribunal as it was made B after the appeal to it had been lodged. I therefore dismiss the appellant's appeal to this court with costs.

D