Benezeth Rweyemamu vs Cyprian Alexander Mlay and 2 others (Civil Application No. 867/01 of 2023) [2024] TZCA 894 (18 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 867/01 OF 2023 BENEZETH RWEYEMAMU APPLICANT VERSUS CYPRIAN ALEXANDER MLAY, 1 st RESPONDENT SALVATORY SOKA 2 nd RESPONDENT M. M. AUCTIONEERS 3 rd RESPONDENT (Application for stay of execution of the decree of the Resident Magistrate Court of Dar es Salaam at Kisutu in Civil Case No. 212 of 2012 dated 24th July, 2013 confirmed by the High Court of Tanzania at Dar es Salaam) 10th & 18th September, 2024, NGWEMBE. J.A.: The applicant, Benezeth Rweyemamu, through the legal services of Mr. Octavianus Mushukuma, learned advocate, moved the Court by notice of motion attached with an affidavit sworn by the applicant himself. The applicant cited Rule 11 (3) (4) (5) (6) (7) and Rule 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), seeking stay of execution of the fMasabo. J.^ Dated 11th day of February, 2020 in Civil Appeal No. 109 of 2016 RULING

decree of the Resident Magistrate Court of Dar es Salaam at Kisutu in Civil Case No. 212 of 2012 pending determination of Civil Appeal No. 101 of 2023. In the course of pleading the respondent raised one ground of preliminary objection based on the competence of the application itself contrary to rule 11 (7) of the Rules, which is subject of this decision. At the hearing of the preliminary objection, Mr. Rweyemamu appeared in person unrepresented, while Ms. Rose Charles Nyateja, learned advocate, appeared for the first respondent. The second and third respondents did not enter appearance. However, the applicant insisted that the absence of the second and third respondents should not affect the hearing of the preliminary objection. The same position was maintained by Ms. Nyateja and she added that the application is incompetent and incapable of being, neither adjourned nor withdrawn. Therefore, she implored the Court to proceed with hearing of the preliminary objection. In the circumstances, the Court decided to hear the parties by inviting the applicant's advocate to address the Court on the preliminary objection. The learned advocate recapped the contents of rule 11 (7) of 2

the Rules, that the application is incompetent for failure to attach the High Court's judgment and decree appealed from contrary to rule 11 (7) of the Rules. Thus, she implored the Court to strike out an incomplete and incompetent application. In reply, Mr. Rweyemamu was generous and quickly conceded to the incompleteness of the application, but he twisted his argument by inviting the Court to apply the oxygen principle and allow the application to be heard on merits. It is a trite law that Court rules are made to be complied with. The application of this nature is guided by rule 11 including its subrules. In subrule 7 provide mandatory requirement to accompany with copies of; (a) notice of appeal; (b) a decree or order appealed from; (c) a judgment or ruling appealed from; and (d) a notice of the intended execution. The Court discussed this provision in detail in many decisions including the case of Mbarala A. Maharagande & Others v. Mahiku A. Maharagande (Civil Application 469 of 2021) [2021] TZCA 584 where the Court insisted that: "The applicant needs to satisfy the following legal requirements, among others; one, the applicant 3

must lodge the application within fourteen days from the date that he was served with the notice of execution or from when he became aware of the execution proceedings. This is in terms o f rule 11 (4) of the Ruies. Two, the applicant must also attach to the application the notice of the intended execution in terms of rule 11 (7) (d) of the Ruies. Three, the applicant must make a firm undertaking and confirm at the hearing that he shall furnish security for the due performance of the decree . That is the legal requirement o f rule 11 (5) (b) of the Rules. The above three conditions...must be cumulatively met. "(Emphasis is added) All along the Court has been insisting that those prerequisites must be cumulatively complied with to make the application competent. See; Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010; and Mohamed Masoud Abdallah and sixteen others v. Tanzania Road Haulage (1980) Ltd, Civil Application No. 58/17 of 2016 (both unreported). It is also settled law that the application for stay of execution must observe time limitation as provided for in rule 11 (4) of the Rules that it must be filed within fourteen (14) days from the date of notification or 4

from a date the applicant became aware; provision of security in terms of rule 11 (5) of the Rules; and attachment of notice of appeal, decree or order appealed from, judgment or ruling appealed from and notice of the intended execution, all should be cumulatively complied with. The epicenter of the contest by the parties in this application is on the compliance with the conditions prescribed under the provisions of rule 11 (7) of the Rules, which complaint is admitted by the applicant that he failed to accompany his application with the High Court's decree and its judgment, instead he attached with the trial Resident Magistrates Court's judgment and decree. In paragraph 4 and 5 of the affidavit, the applicant states clearly that he filed Civil Appeal No. 109 of 2016 before the High Court. Even the Notice of Appeal and Memorandum of Appeal annexed, shows that the applicant seeks to challenge the decision of the High Court (Dr. Masabo, J), but he never attached the said judgment and its decree in this application. It is therefore, evident that the application is incomplete and thus incompetent. It is long ago established rule that an incompetent application cannot be condoned or cured by oxygen principle as the applicant purported to suggest. 5

Consequently, I agree with Ms. Nyateja, that this application is incompetent for failure to attach the relevant documents appealed from. Therefore, it is struck out with no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 17th day of September, 2024. P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 18th day of September, 2024 in the presence of Applicant and 1st respondent in person and in the absence of the 2n d and 3rd respondents is hereby certified as a true copy of the 6