Dr. Edward Wilson Ngwalle vs Luxury Apartments Ltd (Civil Application No. 227 of 2014) [2014] TZCA 2383 (9 February 2014)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM -CIVIL APPLICATION NO. 227 OF. 2014 DR EDWARD WILSON NGWALLE.~ ........ ~ ... ; ............ : .. ~ ............... APPLICANT .'(ERSUS . . LUXURY APPARTM ENTS LTD ...·.•....•........... : ... _ ......................... RESPONDENT {Application for extension of time to filed stay of execution .from the decisi~n of the High Court· of Tanzania at Dar es Salaam) ORIYO, J.A.: { Nyanqarika , J.) dated the 21 th day of August, 2014 in Miscellaneous Cause No 175 of 2014 RULING At the hearing of the application for extension of time to file Stay of Execution pending. the hearing and determination of the intended appeal, the applican:t, .Dr Edward Wilson Ngwalle, was represented by Mr. Novatus Rweyemamu,' learned advocate and ~r.Onesmo Kyauke, learned advocate, appeared for the respondent,· Luxury·· Apartments Limited. The application was, initiated through a Notice of Motion under Rule 10 of the Tanzania Court of Appeal Rules, 2009, (hencefort_h. the Rules), and was StJpported jj)y an affidavit of Dr Cornel - Mtak, learned , < • • advocate. 1

pan per·usal of the record, it appears that a copy of theJ .,decision of the Commercial Division of the High Court, Order thereon) L - ·. - --' and the Notice bf Appeal on the intended appeal are lacking,:.. ,In an application of this nature for extension of time to file stay of execution, the notice of motion must be accompanied by the decree or order sought to be stayed; (See cases of MATHIAS CHARLES KASELELE VERSUS THE REGISTRED TRUSTEES OF THE ARCHIDIOCESE OF TANZANIA, Mz Civil Application No 2 of 2012; NTIONAL HOUSING CORPORATION v ETIENNES HOTEL, Ciyil ,-Application No. 175 of 2004; PERMANENT SECRETARY OF WORKS AND ANOTHER v TWIGA PAPER PRODUCTS LTD. Civil Application No. 18 of 2007 (all unreported). It has thus been held that for the Court to exercise its powers under Rule 11 (2) (b) there must be a valid Notice of Appeal which clothes the Court with jurisdiction to entertain the application; (See cases of JANE MACHESS MACHARIA Versus LUCY MACHARIA Civil Application No 132 of 2009 and IGNAZIO MESSINO and NATIONAL SHIPPING AGENCIES v WILLOW INVESTMENT and COSTA SHINGANYA; Civil Reference No. 8 of 1999 (unreported). For a Notice 2

•" of Appeal to be valid it must be issued in compliance with Rule 83 and Form D in the First Schedule to the Rules. In the absence of a copy of ruling or order complained of and a valid notice of appeal, the application is rendered incompetent with no legs to stand on. On the basis of the foregoing authorities, the application before the Court is incompetent and it is accordingly struck out. I make no order for costs because the issue was raised suo motu by the Court. DATED at DAR ES SALAAM this 9 th day of February, 2015. K.K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. Malewo M.A DEPUTY REGISTRAR COURT OF APPEAL 3