IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

CIVIL APPLICATION NO. 660/16 OF 2023

THE REGISTERED TRUSTEES OF ST. ANITA'S

GREENLAND SCHOOLS ( T ) ................... ................................ 1st APPLICANT

ANDREW PETER MASABILE MUNAZI..................................2nd APPLICANT

ANNA MWAKOSYA ................................................................3rd APPLICANT

PETER RUTAIHWA............................................................... .4th APPLICANT

ABEL MWESIGWA................................... .............................5™ APPLICANT

ALEX MWEMEZI ................. ....................... .......................... 6™ APPLICANT

ANITA KISASEMBE............................................................... 7th APPLICANT

VERSUS

AZANIA BANK LIMITED........................................................ RESPONDENT

(Application for Stay of Execution of the decree of the High Court of

Tanzania (Commercial Division) which was upheld by the Court
of Appeal at Dar es Salaam)

(Mruma, J.)
dated the 27th day of March, 2023

in

Commercial Case No. 177 of 2017

RULING
13th& 26th September, 2024.

NGWEMBE. J.A.:

The applicants in this motion are seeking to stay execution of

the decree of the High Court of Tanzania (Commercial Division) which

decision was upheld by the Court in Civil Appeal No. 225 of 2019

before Justices Mugasha, J.A, Kihwelo, J.A and Rumanyika, J.A

delivered on 23rd February, 2023. Being dissatisfied with the judgment

of the Court and the Court being the final appellate Court in the land,

the applicants have ventured to exhaust the remedy of review by

instituting the Civil Application No. 218/16 of 2023 dated 29th March,

2023.

It is on record that, parties are at loggerheads over the failure of

the first applicant to pay the overdraft facility advanced by the

respondent. In compliance of the loaned overdraft facility, the rest of

the applicants guaranteed to indemnify the respondent in full, the

entire outstanding loan together with interest, in the event that the

first applicant defaulted to refund the overdraft facility. Indeed, the

first applicant defaulted to repay the loan, hence a tug of war in the

corridors of courts to date. At last, the dispute was conclusively

determined by this Court in Civil Appeal No. 225 of 2019 which

decision was delivered on 24th February, 2023. As already alluded to,

the application for review is pending in this Court, and at the same

time the applicants have preferred the instant application for stay of

execution pending final determination of the said application for

review.
 The applicants claim that the respondent has applied for execution

which, if not stayed, will not only render the review application

nugatory, but also cause substantial loss to the applicants.

The instant application has passed the stage of an ex parte order

for stay of execution which was granted by the single Justice on 14th

day of September, 2023, now is the hearing of the application inter

partes.

The applicants' learned advocate, Mr. Audax Kahendaguza

Vedasto, vehemently argued that the application for stay of execution

of the High Court's Decree pending hearing and final determination of

the pending application for review before the Court is made by notice

of motion under both rules 11 (3), (4), (5), (6) and (7) and rule 4 (2)

of the Tanzania Court of Appeal Rules, 2009 (the Rules). He justified

the use of rule 4 (2) by citing the decisions in the cases of National

Microfinance Bank v. Japhet Machumu (Civil Application 554 of

2019) [2022] TZCA 305 (25 May 2022); and Luis B Shija v. Kellu

Kamo Lucas (Civil Application No 209/14 of 2024) 2024 TZCA 675 (1

August 2024). He insisted that, the application for stay of execution

may be granted under rule 4 (2) of the Rules pending hearing of the

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application for review. Therefore, he was of the view that the

application is properly before the Court.

He went further to argue that, the application complied with rule

11 (4) of the Rules by instituting the application within 14 days and

the affidavit disclosed the nature of the substantial loss as required by

rule 11 (5) of the Rules. Moreover, Mr. Vedasto argued that the suit

premise being a residential house to the 3rd applicant; if stay is not

granted may be subject to disposal which will cause substantial loss

and suffering to the 3rd applicant's family.

Despite her submission on the merits of the substantive

application, Ms. Annette Kirethi, did not address the Court on the

propriety of the application in relation to the jurisdiction of the Court.

In rejoinder, Mr. Vedasto maintained his position that the

application for stay of execution pending final determination of the

application for review was proper. He therefore, implored the Court to

grant the orders sought in the notice of motion.

Since the question of jurisdiction is paramount in any court

proceeding, in disposing of this application, I shall initially address the

issue as to whether this Court is seized with jurisdiction to stay

execution pending hearing of the application for review.

 Mr. Vedasto, was firm in his submission that the Court has

jurisdiction based on its decisions in the cases of National

Microfinance Bank v. Japhet Machumu and Luis B. Shija v.

Kellu Kamo Lucas (supra), where the Court granted stay of

execution pending determination of the application for review.

However, in the said decisions of the Court, the question of jurisdiction

was not conversed and was not the subject for determination.

Therefore, the issue of jurisdiction of the Court pending final

determination of the application for review, remained undetermined.

It is a long-established legal principle that jurisdiction of a court is

sacrosanct that the issue takes precedence over every other issue in

the proceedings when it is raised. See Maisha Mchunguzi v.

SABSCANIA (T) Branch, Civil Appeal No. 41 of 1998 (unreported).

The Black's Law Dictionary (9th Edition) defined jurisdiction to

mean powers vested to a court of law to adjudicate claims and

proceedings related to a claim that is property before the court. The

Court in the case of K. S. F Kisombe v. Tanzania Ports Authority,

Civil Appeal No. 2 of 2009 (unreported), defined jurisdiction to mean

the extent of authority of the court to administer justice, More

precisely in the case of Richard Julius Rukambura v. Isaack

Ntwa Mwakajila & Another (Civil Appeal No. 2 of 1998) [2004]

TZCA 67 (19 January 2004) the Court observed as follows:

"The question o f jurisdiction is param ount in

any court proceedings: It is so fundam ental
that in any tria l even if it is not raised by the
parties a t the in itia l stages, it can be raised
and entertained a t any other stage o f the
proceedings in order to ensure that the court is
properly vested with jurisdiction to adjudicate
the m atter before it ."

In another similar decision of Tanzania Electric Supply

Company (TANESCO) v. Independent Power Tanzania Ltd

(IPTL) & Two Others [2000] T.L.R 324, the Court was firm to

observe that it is a principle of law that parties cannot by agreement

or otherwise confer jurisdiction upon a court. The issue of jurisdiction

of the Court to stay execution after it has conclusively determined an

appeal has exercised the minds of this Court. Recently, the single

Justice discussed the Court's jurisdiction to grant stay of execution

pending review in the case of Director Tanga Cement Company

Limited v. Ephraim Joram (Civil Application No. 307/18 of 2024)

[2024] TZCA 907 (19 September 2024) which ruling was delivered on

19th September, 2024.

 The single Justice specifically, determined the jurisdiction of the

Court to grant stay of execution after the appeal has been

conclusively heard and determined by the Court. That, there is no

provision neither in the Constitution nor in the Appellate Jurisdiction

Act which confer jurisdiction to stay its own decision pending hearing

an application for review. For clarity the Court observed as follows:

"...given that the purpose o f granting stay

order is to preserve the subject m atter in
dispute before the Court determ ines an appeal
o r revision, the Court in exercise o f the pow ers
o f dispensing ju stice is enjoined to observe the
provisions o f the Constitution and those o f the
law s o f the land in term s o f article 107B o f the
Constitution and not otherwise. In that regard,
since the Court is not clothed with jurisdiction
to grant stay orders against its own decision,
the present m otion brought under rules 4 (2)
(a) & (b) o f the Rules cannot be salvaged in
the guise o f ciever crafting. I am fortified in
that regard because the Court where
necessary, m ay sparingly invoke the said rule
for a three-foid purpose nam ely: O ne, dealing
with any m atter for which no specific provision
is made under the rules or any other written
law ; tw o, better m eeting the ends o f ju stice;

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 and th ree, preventing an abuse o f the process
o f the Court. The present application does not
fa ii under any o f the three categories because
the Court has already determ ined the appeal
against the warring p a rtie s"

Logically, the reasoning of the above quotation answers an

ancillary question of whether the Court may stay the execution of its

own decree. Once the Court has conclusively determined either an

appeal or revision, the decree therein becomes the decree of the

Court which cannot be stayed by itself. The Court may stay execution

of the decree of the subordinate courts or tribunals pending final

determination of the appeal or revision. Therefore, in the absence of a

specific provision to the contrary, the Court cannot invoke rule 4 (2) of

the Rules to grant stay of execution pending final determination of the

pending application of review.

The cases cited by the learned advocate for the applicants are

distinguishable because, as earlier alluded to, the question of

jurisdiction of the court pending determination of the review was not

conversed. Thus, the present application is not properly before the

court. I therefore, find no reason to consider other grounds raised and

argued by the learned counsels, since the Court lacks jurisdiction to

entertain the prayer in the motion.

In the up shot, the application is untenable in law and is hereby

struck out, parties to bear their own costs.

It is so ordered.

DATED at DAR ES SALAAM this 25th day of September, 2024.

P. J. NGWEMBE
JUSTICE OF APPEAL

The Ruling delivered this 26th day of September, 2024 in the

presence of Mr. Joseph Rugambwa, learned counsel for the Applicants

and Mr. Simon Barlow Lyimo, learned counsel for the respondent is

hereby certified as a true copy of the original.