| dc.contributor.author | NDIKA, MWANDAMBO, J.A. AND KENTE, J. A J.A. | |
| dc.date.accessioned | 2023-05-05T07:15:39Z | |
| dc.date.available | 2023-05-05T07:15:39Z | |
| dc.date.issued | 2022-07-15 | |
| dc.identifier.uri | http://localhost/handle/123456789/1220 | |
| dc.description | IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 656/01 OF 2021 (CORAM: NDIKA, J.A. MWANDAMBO. J.A. And KENTE. 3.A.)
JACKLINE HAMSON GHIKAS VERSUS MLLATIE RICHIE ASSEY.
[Application from the judgment and decree of the High Court of Tanzania at Dar es Salaam]
(Mqonya, J.)
preliminary objection-conditions to satisfy the preliminary objection.
Application of stay of excecution.
the applicant one Jackline HamsonGhikas has moved the Court to issue an order staying execution of the decree of the High Court of Tanzania, (sitting at Dar es Salaam) in Matrimonial Appeal No. 53 of 2021, is incompetent for being violative of rule 55 (1) of the Court of Appeal Rules 2009, (hence-forth "the Rules"). The notice of preliminary objection was issued pursuant to rule 107(1)(2) and (3) of the 2 Rules. Rule 55 (1) of the Rules with which the applicant is accused of having violated provides that: - "notice of motion, the affidavit and its supporting documents shall, within fourteen days from the date of filing, be served upon the party or parties affected." Mr. Msuya invited the court of appeal to strike out the application for allegedly being incompetent. The learned counsel was vehement that the applicant did not serve the respondent with the notice of motion and the copy of affidavit within the prescribed fourteen days of the filing of the application.
HELD
i) a preliminary objection must satisfy three conditions viz; one, the point of law raised must either be pleaded or must arise as a clear implication from the proceedings; two, that it must be a pure point of law which does not require close examination or scrutiny of the affidavit and counter affidavits and three, the determination of such a point of law in issue must not depend on the court's discretion.
ii) the preliminary objection raised by the respondent is incompetent and we accordingly reject it. We order for the application for stay of execution to be heard on merit on a date to be fixed and notified to the parties by the Registrar.
Statutory provision
The Court of Appeal Rules 2009
Cases referred to
Mukisa Biscuit Manufacturing Company v. West End Distributors Limited [1969] E.A 696
AlphonceBuhatwa v. Julieth Rhoda Alphonce, Civil Reference No. 9/01 of 2016 (unreported).
Arusha International Conference Centre v. Edwin William Shetto, Civil Application No. 69 of 1998
Hasmat Ally Baig v. Baig& Butt Construction Ltd (AR) Civil Application No. 9 of 1994 (both unreported)
Tanzania Telecommunications Company Limited v. VedastoNgashwa& 4 Others, Civil Application No. 67 of 2009 (unreported) | en_US |
| dc.description.abstract | i)a preliminary objection must satisfy three conditions viz; one, the point of law raised must either be pleaded or must arise as a clear implication from the proceedings; two, that it must be a pure point of law which does not require close examination or scrutiny of the affidavit and counter affidavits and three, the determination of such a point of law in issue must not depend on the court's discretion.
ii)the preliminary objection raised by the respondent is incompetent and we accordingly reject it. We order for the application for stay of execution to be heard on merit on a date to be fixed and notified to the parties by the Registrar. | en_US |
| dc.language.iso | en | en_US |
| dc.publisher | THE COURT OF APPEAL OF TANZANIA, DAR ES SALAAM. | en_US |
| dc.subject | DAR ES SALAAM. | en_US |
| dc.title | JACKLINE HAMSON GHIKAS VS. MLLATIE RICHIE A SSEY CIVIL APPLICATION NO. 656/01 OF 2021. | en_US |
| dc.title.alternative | CIVIL APPLICATION NO. 656/01 OF 2021. | en_US |
