IN THE COURT OF APPEAL OF TANZANIA
AT MWANZA
fCORAM: RUTAKANGWA. 3.A.. KAIJAGE. 3.A.. And MUSSA. J.A.^
CIVIL APPLICATION NO. 7 OF 2012
ADOLF JOHN M A G E S A .................................................................... APPLICANT
VERSUS
ELIZABETH MOHAMED ............................................................. RESPONDENT
(Application for stay of Execution of Decree from the Decision of the
High Court of Tanzania
at Mwanza)
fMruma, 3.)
dated the 17th day of April, 2012
in
Probate Appeal No. 14 of 2011
RULING OF THE COURT
22nd & 26th November, 2013
RUTAKANGWA, 3.A.:
This is an application for a stay of execution of the decree of the
High Court of Tanzania sitting at Mwanza in Probate and as Administ
ration Cause Appeal No. 14 cf 2011 (the decree). The Judgment on
appeal was delivered on 17Ul April, 2012, in favour of the respondent.
Aggrieved by the decision, the applicant lodged a notice of appeal to this
Court on 19th April, 2012. To forestall any early attempts to execute the
decree before the intended appeal was determined, this application was
instituted on 14th June 2012.
The application is by notice of motion supported by the applicant's
own affidavit. The respondent opposed the application by filing a reply
affidavit. Before the appeal was scheduled for hearing, both sides
i
lodged their respective written submissions in accordance with the
requirements of the Tanzania Court of Appeal Rules, 2009 (the Rules).
When the matter came up for hearing before us, both parties appeared
in person and informed us of this fact. They urged us to determine the
application on the basis of their submissions.
Under normal circumstances, we would have reserved our ruling
on the merit or otherwise of the application. But the circumstances of
the case were out of the ordinary. We had our reservations on the
validity of the accompanying copy of the decree sought to be stayed in
this application.
It is trite law that every application of this nature must be
instituted by notice of motion. Furthermore, it is settled law that such
an application ought to be lodged within sixty (60) days and must be
accompanied or supported by a valid copy of the decree sought to be
stayed. See, for instance, Permanent Secretary, Ministry of Works
and Transport & Another v. Twiga Paper Products, Civil
Application No. 18 of 20C9 (unreported). For a decree to be valid either
for appeal, revision, stay orders, etc. purposes, it must be signed by the
judge who issued it or his successor in office and must bear the date of
the day on which it was issued. With respect to the copy of decree
accompanying the notice of motion, we have noted, the date when it
was issued is conspicuously missing. Fortunately, the applicant
conceded this glaring omission. It goes without saying, therefore, that
there is no valid copy of the decree before us whose execution we can
lawfully stay. The absence of a valid copy of the decree sought to be
stayed renders this application, therefore, incompetent.
All said, we strike out this incompetent application. We make no
order on costs.
It is so ordered.
DATED at MWANZA the 26th day of November, 2013.
E.M.K. RUTAKANGWA
JUSTICE OF APPEAL
S.S. KAIJAGE
JUSTICE OF APPEAL
K.M. MUSSA
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
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P.W. BAMPIKYA
IOR DEPUTY REGISTRAR
COURT OF APPEAL
