Registered Trustees of St. Anita's Greenland Schools (T) and 6 Others vs Azania Bank Limited (Civil Application No. 660/16 of 2023) [2024] TZCA 940 (26 September 2024)

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 ) ................... . ...............................1 st APPLICANT ANDREW PETER MASABILE MUNAZI ....... . ..........................2 nd APPLICANT ANNA MWAKOSYA . .......................................... . .................... 3 rd APPLICANT PETER RUTAIHWA............................................................... .4 th APPLICANT ABEL MWESIGWA ....... . ........................... . ............................5™ APPLICANT ALEX MWEMEZI . ................ . ............. . ........ . ......................... 6™ APPLICANT ANITA KISASEMBE ............................................................... 7 th 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 3

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; 7

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. 9