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IN THE COURTOF APPEAL OF TANZANIA

(CORAM: LUANDA, J. A., MANDIA, J. A. And MMILLA, J. A.)

CIVIL APPLICATION NO. 170 OF 2012

TITO SHUMO & 49 OTHERS •...••.•.• 11 •••••••••••••••••••••••••• 11 ••••••••••••••••• APPELLANT

VERSUS
KITETO DISTRICT COUNCIL RESPONDENT

(Application for stay of execution of the order of the High Court of Tanzania,
Land Division at Dar es Salam)

(Mziray, J.)

Dated the 12th day of October, 2012

••••••••••• I ••••

RULING OF THE COURT

11th February & 4th March, 2013

Mmilla, J. A.:

Tito Shumo & 49 others had, through the services of learned counsel

Ukwong'a lodged in this Court an application for stay of execution of the

order of the High Court of Tanzania, Land Division in Land Case No. 6 of

2007. The said application was brought by way of notice of motion under the

provision of rule 11(2), (b), (c), (d) and (e) of the Court of Appeal Rules,

2009 (herein to be referred to as the Rules). Upon services on the

respondent, Kiteto District Council, its advocate learned counsel Mr.

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 Mgongolwa lodged a notice of preliminary objection in which he raised three

grounds as follows:-

(1) That this honourable court has not been properly moved to

exercise its powers in an application for stay of execution as the

decree sought to be stayed is not appealable under the

circumstances of this case and thus the application is misconceived

and incompetent and therefore the respondent prays that the same

be struck out with costs.

(2) That the application is an abuse of court process as the same has

been overtaken by events.

(3) That the applicant has filed written submissions in support of the

application contrary to rule 106 (9)) of the Court of Appeal Rules,

2009 and thus the respondent prays for the application to be

dismissed with costs.

In support of the first ground of the preliminary objection, learned counsel

Mr. Mgongolwa has submitted that the court has not been properly moved to

exercise its powers on the basis of the provisions cited. He has stated that

rule 11 (2), (b), (c), (d), and (e) of the Rules is very restrictive in that while it

gives discretion to order stay of execution, it qualifies that the decree against

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 which the appeal is directed must in the first place be appealable. He has

also submitted that the decree which is being referred to in the said Rule

(rule 110f the Rules) is the decree of the High Court. In his view, the decree

which is the concern of this application is not appealable on the ground that

the execution being complained of is based on the decree of this very Court

in Civil appeal No 58 of 2010. As such he says, his learned friend wrongiy

relied on the provisions of rule 11 (2), (b), (c), (d) and (e) of the Rules.

On another point in this regard, learned counsel Mr. Mgongolwa has

submitted that the order of refusing stay of execution is an interlocutory

order in as much as it merely gives a temporary relief such that it cannot

stand alone. In his view, there was supposed to be a pending matter, sayan

appeal waiting to be decided. In view of the above, learned counsel Mr.

Mgongolwa has asked this court to rule that the application is incompetent

for which it may be struck out.

In the alternative the second ground alleges that the application is an abuse

of court process because the sarne is overtaken by events. In support of this

ground, learned counsel Mr. Mgongolwa has submitted that after receiving

the judgement of this Court the High Court, Land Division appointed a court

broker who executed the decree and that the reserved land which is the

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 subject of this application is currently unoccupied. He has asked this Court to

uphold this ground too.

The third ground challenges that contrary to the dictates of Rule 106 (9) of

the Court of Appeal Rules, 2009, the written submissions had been filed after

expiry of 60 days. He elaborated that becausethe application was filed on 2nd

November, 2012, the 60 days expired on 2nd January, 2013. Since the

submission has been filed on 8th February, 2013, they are late by a month

and five days. He has added that though they could have applied for

extension of time in which to file the same in terms of that very rule; they did

not make any such application. In this case learned counsel Mr. Mgongolwa

has asked this Court to dismiss the application.

On his part, learned counsel Mr. Ukwong'a has resisted all the three grounds

raised by his learned friend. As regards the first ground, he has submitted

that the decree which is the subject of the intended appeal is not that of this

Court but that of the High Court, Land Division. He has stated that he is

saying so because the decree of this Court (Civil Appeal No. 58 of 2010) was

not an executable decree and that the order of the District Register does not

say he was dealing with execution of the decree of this court. He claimed

that the judgment of this Court was advisory because it did not say the Land

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 in dispute was reserved land; hence his view that the decree of this Court

was not executable.

Mr. Ukwong'a has also submitted that the application for revision in respect

of the District Registrars order which Hon. Mziray's order was appealable. He

adds that there was a hearing before the District Registers in the execution

process which entitled them to make a reference to a judge as it were.

Apart from that Mr. Ukwong'a has submitted that this Court has inherent

powers in terms of section 4 of Appellate Jurisdiction Act Cap. 141 of the

Revised Edition, 2002, to hear any appeal, including the appeal pertaining to

the instant application although the decree thereof is not listed under Order

XL of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002. He has

added that after all, Hon. Mziray indicated that the applicants had a right to

appeal. He has thus maintained that the present application is properly

anchored under rule 11 (2), (a), (b), (c), (d) and (e) of the Court of Appeal

Rules, 2009 because the order of Hon. Mziray, J is appealable.

Alternatively, Mr. Ukwong'a has drawn the attention of this court to the case

of Mantrac Tanzania Ltd. vs Raymond Costa, Civil Application No 11

of 2010 (at page 9) in which he says, the Court said that under rule 11

(2), (b) the Court may in its absolute discretion order a stay of execution of

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 the decree or order appealed from upon three conditions being satisfied or

fulfilled by the applicant namely:-

(i) After the lodging of the notice of appeal in accordance with rule

83,

(ii) Showing good cause, and

(iii) Complying with the provisions of item (d) of sub rule 2.

He has submitted therefore that the issue of the decree not being appealable

has no forum. He has asked this court to refuse this ground.

Mr Ukwong'a's submission in respect of the second ground was that to his

knowledge, his clients are still on that land. He asserted that they were not

shown the documents from the court broker indicating that execution had

taken place. He concluded therefore that it cannot be taken that filling of the

instant application is an abuse of court process.

While conceding in respect of the third ground that they did not file the said

submissions in time as demanded by rule 106 (9) of the Court of Appeal

Rules, 2009, nor that they applied for and were granted leave for extension

of time as stipulated by the same rule, Mr Ukwong'a requested however, the

Court to invoke rule 106 (19) of the Rules to allow the applicants to have

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"

their application argued. He has similarly submitted in the alternative that

under rule 34 (2), (c) of the Court of Appeal Rules, 2009, a party may file

submissions at least 48 hours before the appeal or application due to be

heard. He thus requested this court to similarly overrule this ground.

In a brief rejoinder, Mr. Mgongolwa reiterated regarding the first ground that

one of the conditions of granting an application for stay of execution is that

the order being appealed against must be appealable which he said is not the

case here. He stressed that the order of Hon. Mziray, J is not appealable

since it is nothing else but a refusal. It is incapable of being stayed. He

added that although Hon. Mziray, J said the applicants had the right of

appeal such a right cannot be granted by the court where the law provided

otherwise because an "appeal" is a creature of statute.

As regards the second ground Mr. Mgongolwa has submitted that in refusing

the application, Hon. Mziray, J said that the execution had gone to an

advanced stage. That meant he said, the application had been overtaken by

events.

On the third ground Mr Mgongolwa submitted that his learned friend has

improperly or wrongly resorted to rule 34 (2), ( c) of the Rules because that

rule concerns list of the authorities, and that it cannot be read in isolation of

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 rule 106 (a) of the Rules. The cure for noncompliance with the requirements

of rule 106 cannot be rule 34 (2), (c) of the Rules as his learned friend

attempted to impress. He has reiterated his prayer for this court to find the

application incompetent therefore that it should be struck out with costs.

After carefully considering the submissions of learned counsel for the parties,

we are of the firm view that the first ground, if decided in the affirmative, is

sufficient to dispose of this application. That ground queries, as aforesaid

that the Court has not been properly moved.

To begin with, we agree with Mr. Mgongolwa that rule 11 (2), (b), (c), (d)

and (e) of the Court of Appeal Rules, 2009 is restrictive. Reading that

provisions between the lines reveal that it refers to the decisions made by

the High Court. It is also contemplated under that rule that an application for

stay of execution must be anchored on an appealable judgement, ruling or

order handed down by the High Court. We have in mind the expression in

clause (b) of sub rule (2) of rule 11 of the Rules which say "in any civil

proceeding, where a notice of appeal has been lodged in accordance

with rule 83 an appeal shall not operate as a stay of execution of

the decree or order appealed from ...." In view of the above, the burning

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 land. The last paragraph of the judgment of this court in Civil Appeal No. 58

of 2010 is expressed that:-

"For the avoidance of doubt, the respondents can, if they wish,

apply for land as required by the provisions of the Village Land

Act, 1999 and not just settle on what to them appears to be

vacant land, which in this case, is reserved land."

It is more than perfect therefore, that in that appeal this Court was loud that

the land which was the basis of litigation was reserved land.

Back to the point, although Mr. Mgongolwa is stead-fast that the High Court

was executing an order of this Court, therefore that the present application is

incompetent because this Court's order is incapable of being appealed

against; Mr. Ukwong'a asserted, and we have caused to agree with him, that

this application is based on the decisions or order of the High Court. The

reason is clear that the notice of motion indicated that it was an application

for stay of execution of the order of the High Court of Tanzania, Land

Division dated 12th October, 2012 in Land case No 6 2007. No doubt this has

reference to the order of Hon Mziray, ] which fits the date cited. On reading

that order, it is not hard to appreciate that it was an application for reference

which he declined to grant on the basis that the court was functus officio

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 because the execution was at an advanced stage, hence that it would be an

abuse of court's process to do otherwise. Ipsa facto, that was refusal to

entertain a reference, thenceforth the issue whether this kind of an order is

appealable.

We agree with learned counsel Mr. Mgongolwa that the appealable orders

are listed under order XL of the Civil Procedure Code Cap 33 of the Revised

Edition 2002. We also agree that an order refusing a reference before a

judge is not appealable because it is not listed under that order. This means

that where this is the case, then an application such as the present based on

an unappellable order is incompetent. See the case of Ali Salim v. Gereza

Abeid, Civil Application No. 4 of 2007, CAT, Tanga Registry

(unreported).

The undeterred Mr. Ukwong'a has submitted in this regard that even though

the order of Hon. Mziray, J is not appealable under order XL of the Civil

Procedure Code, this Court has inherent power to entertain the instant

application though based on an unappellable order in terms of section 4 of

the Appellate Jurisdiction Act. He did not however, specify the relevant sub

section.

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It is beyond controversy that section 4 of the Appellate Jurisdiction Act

provides for the jurisdiction of this court. It stipulates that:-

"( 1) The Court of Appeal shall have jurisdiction to hear and determine

appeals from the High Court and from subordinate courts with

extended jurisdiction.

(2) For all purposes of and incidental to the hearing and determination

of any appeal in the exercise of the jurisdiction conferred upon it by

this Act, the Court of Appeal shall, in addition to any other power,

authority and jurisdiction conferred by this Act, have the power of

revision and the power, authority and jurisdiction vested in the court

from which the appeal is brought.

(3) Without prejudice to subsection (2), the Court of Appeal shall have

the power, authority and jurisdiction to call for and examine the record

of any proceedings before the High Court for the purpose of satisfying

itself as to the correctness, legality or propriety of any finding, order or

any other decision made thereon and as to the regularity of any

proceedings of the High Court.

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· . (4) The Court of Appeal may in accordance with this Act, the Tanzania

Court of Appeal Rules or any other law for the time being in force

providing for appeals to the Court summarily reject any appeal.

(5) The power conferred upon the court by subsection (2) and (4) of

this section and the power to examine the records of any proceedings

pursuant to subsection (3), shall not be exercised by a single judge of

the court."

A close look at this provision shows that the jurisdiction of this Court is

restrictive. Under this provision the Court is beaconed to the particular area

for which it has jurisdiction. We are strongly convinced that this court has no

blanket jurisdiction under that provision as Mr. Ukwong'a has attempted to

impress.

Apart from section 4 of that Act, we have section 5 of the same Act whose

opening words in subsection (1) are that in civil proceedings, except

where any other written law for the time being in force provides

otherwise, an appeal shall lie to the Court of Appeal against the decrees

and orders listed thereunder in clauses (a) and (b). This more shows that the

Court is directed to take into consideration other written laws when

deliberating whether or not it has jurisdiction of any appeal before it. Among

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 those laws is the Civil Procedure Code under which order XL thereof lists

down, as aforesaid, orders appealable to this Court. This Court is not

expected to ignore this. Now, because there is no mention under that order

that an appeal lies from an order refusing a reference to a judge, Mr

Ukwong'a's resort to section 4 of the Appellate Jurisdiction Act is baseless.

As afore stated, Mr. Ukwong'a has in the alternative drawn the attention of

this court to the case of Mantrac Tanzania Ltd. v. Raymond Costa, Civil

Application No 11 of 2010, Court of Appeal, Oar Es Salaam Registry

(unreported) in which he says, the Court said (at page 9) that under rule

11 (2) (b), the Court may in its absolute discretion order a stay of execution

of the decree or order appealed from upon three conditions indicated there

at being satisfied or fulfilled by the applicant.

We have anxiously considered the point, but we are of the firm view that the

referred statement in that case was given in a context different from what is

before us in the present case. While the court in that case was dealing with a

decision whose decree was appealable, that distinguishes it from the present

case on account that the decision in the present case is unappellable. In the

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. . circumstances, the rule in Mantrac Tanzania Ltd. v. Raymond Costa

(supra) cannot correctly be applied in the context of the present case.

Learned counsel Ukwong'a submitted similarly that the order of the High

Court was appealable on account that the Hon. Judge informed the

applicants that they had the right to appeal.

On this again, we hasten to say that we agree with learned counsel

Mgongolwa that the right to appeal is a creature of statute. That being the

case, the Court cannot validly grant such right where it has been expressly or

impliedly denied. In the circumstances of our present case, the High Court

had no power to confer the applicants the right of appeal which was not

given by statute. That was absolutely invalid, hence of no consequence.

For reasons we given in this ruling, we are satisfied that the first ground of

the preliminary objection that this Court is not properly moved is meritorious

and we uphold it.

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As pointed out at the beginning however, having said that this Court has not

been properly moved, it is not useful to tackle the rest of the grounds. The

application before us is incompetent and is accordingly struck out with costs.

Dated at Dar Es Salaam this 2pt day of December, 2013.

B. M LUANDA
JUSTICE OF APPEAL

W. S. MANDIA
JUSTICE OF APPEAL

B. M. MMILLA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

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DEPUTY REGISTRAR
COURT OF APPEAL

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