Agness Masumbuko & Another vs NBC Holding Corporation (Misc Civil Application) [1999] TZHC 220 (14 October 1999)

DI TSE, HIGH COURT OF TANZANIA A!I' MOSHI MISC O'IVIL APP.LIC/lTION NO 66 OF 1999 (C/F az.ig.inating From l:1i5c App. No. 4V98, 1/99) ~ -<; 3/93 .{1)... ~~BUKO )__ (2). MSUM! MA.m &, WOOD WORKS) VERSUS ( 1) • NBC HOLDING CORPORA'I'.ION ) (SUCCESSOR OF DESUNCT NBL) I - • i$iL.S------ R U L I N G'

APPELLANT RESPONDENT BEFORE: HON: E.: N. MUNU01- J a ... - •• ....- The applicants through heir learned advocate, Mr. Lyasenga brought the apjllcation seeking ~ fer =•eeble property wrongly removed ,trom the premises of the applieants during execution o·f"tmril case No. 3/93, rehabilitation of the vandalized premises of the apliants, and the return of all.the machinery accessories and goods plus costs of the application. M:;-c A. Maruma learned a=te for NBC Holding Corporation, the first respondent, pt'fa inary . . . rightly raised a .L :- · 5#l) jection on the jurisdicton of the court in this matter. The first respondent has appealed to the Court of Appeal on the nullification on the attchment and se of the premises in dispute. He eorreetly cited the ease of Helicopter (T) Ltd. Versus F.N. Jansen 1990 TlR 14 wein Kisanga J 0 A. held;- 11 (ii). Once proceedings of appeal to the Court of Appeal of Tanzania have been commenced the High Sourt could not properly apply section 95 of the Civil Procedure Code for the simple reason that the proceendings are no longer in the Court as required by section 2 of the Code. (iii). Cn•e appeal proceedings have been commenced by filing notice of Appeal of the Court of Appeal c;f Tanzania, the law makes specific provision, relating to the stay of exeution by the court, un~ rule (2) (b) of the Court of Appeal Rules" ~4i Marurnit·-{~ther cited Mulla on Coda ef Civil PI-ooudure, 11th Edition at page 1188 wherein it is stated. ••. '?/ ••

• i .. ,,i Once on· appeal ie preferred from a decree, it is the appellant tourt alone that is :seized· of the matter• Md .an app]j,cat;i.on .. . . for a stay of ex,ecution should be made to that court~ 1, . . . In view of the above. authorities this. <:ourt lacks jurisdic·ion to e.ntertain the appliation. The pre1iminary objection is upheld, E.N~ MUNUO JUDGE 14/10/.1999 At Moshi this 14/10/1999. Appellants: present. Respondent: 1st Mr. Maruma For. . '
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