The applicants, Tito Shumo and 49 others, were involved in a land dispute with Kiteto District Council in Land Case No. 6 of 2007 before the High Court, Land Division.
The dispute had previously reached the Court of Appeal in Civil Appeal No. 58 of 2010. In that earlier decision, the Court of Appeal held, in substance, that the disputed land was reserved land, and indicated that the respondents could apply for land in accordance with the Village Land Act, 1999, rather than simply settling on what appeared to be vacant land.
Following that judgment, the District Registrar proceeded with execution and appointed a court broker. The applicants subsequently sought relief before the High Court. On 12 October 2012, Mziray J. declined to entertain their reference, holding that execution had reached an advanced stage and that the court was functus officio.
The applicants then approached the Court of Appeal seeking a stay of execution, relying principally on Rule 11(2)(b), (c), (d) and (e) of the Court of Appeal Rules, 2009.
Kiteto District Council raised a preliminary objection, arguing, among other things, that:
the order sought to be stayed was not appealable;
the application had been overtaken by events; and
the applicants had filed their written submissions outside the prescribed period.
The central issue was:
Whether the Court of Appeal had been properly moved to grant a stay of execution where the High Court order forming the basis of the application was itself not appealable.
The Court also considered the related question of whether the Court of Appeal possessed a general or inherent jurisdiction under section 4 of the Appellate Jurisdiction Act to entertain an application founded upon an order from which no appeal lay.
The Court of Appeal upheld the preliminary objection and struck out the application with costs.
The Court reasoned that Rule 11(2) of the Court of Appeal Rules contemplates a stay of execution in relation to an appealable judgment, decree or order. The order made by Mziray J. was an order refusing to entertain a reference. Such an order was not among the orders appealable under Order XL of the Civil Procedure Code. Consequently, the applicants could not properly invoke the Court of Appeal's stay-of-execution jurisdiction in respect of that order.
The Court rejected the argument that section 4 of the Appellate Jurisdiction Act gave it a blanket or unrestricted jurisdiction to entertain the matter. The Court emphasized that its jurisdiction is statutory and must be exercised within the limits established by the relevant legislation.
Most importantly, the Court stated the principle that:
“The right to appeal is a creature of statute.
Therefore, even though the High Court had apparently indicated that the applicants had a right of appeal, that statement could not create a right of appeal where the law did not provide one. A court cannot confer an appellate right which Parliament has not granted.
The case has considerable value on appellate jurisdiction and the limits of judicial power in Tanzania.
First, it establishes that the right of appeal is statutory.
A party does not have an inherent right to appeal merely because it is dissatisfied with a decision. The relevant legislation must provide an avenue of appeal. This principle has subsequently been relied upon by the Court of Appeal.
Second, an application for stay of execution is dependent upon an appealable decision.
The Court's reasoning means that Rule 11 cannot independently create appellate jurisdiction. There must first be a legally appealable judgment, decree or order capable of grounding the intended appeal.
Third, the case demonstrates the importance of jurisdiction as a threshold question.
The Court considered the first preliminary objection sufficient to dispose of the entire application. Once it found that the applicants were seeking to challenge an unappealable order, it was unnecessary to determine the other objections concerning execution having been completed or late filing of submissions.
Fourth, a judicial statement cannot substitute for statutory authority.
Even if a High Court judge tells a party that it has a right of appeal, that statement does not itself create appellate jurisdiction. The source of the right must be found in the statute.
A useful way of stating the ratio for legal submissions is:
“The jurisdiction of the Court of Appeal to entertain an application for stay of execution presupposes the existence of an appealable decision. Since the right of appeal is a creature of statute, neither the Court nor a judicial officer may confer a right of appeal where the governing legislation does not provide for one.”
This makes Tito Shumo v Kiteto District Council particularly useful when arguing that jurisdiction must precede consideration of the merits, and that a party cannot manufacture appellate jurisdiction by relying on an erroneous statement by a lower court or on the Court of Appeal's general powers.
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