20150210 TZCA Dar es Salaam 1

' .\ r6 7cm-z.1 h 1 :, . . : -_. i '\: .. IN THE COURT OF APPEAL OF TANZANIA ,-. AT DAR ES SALAAM CORAM: MBAROUK, J.A., MASSATI. J.A., And ORIVO, J.A. CIVIL APPLICATION NO. 185 OF 2014 AFRICAN MEDICAL INVESTIMENT ·. , TANZANIA PUBLIC LTD ........................................... APPLICANT . _., . ,. VERSUS ·:;_ . :. NAVTEJ SINGH BAINS ......................................... RESPONDENT • I .. ' (Application for stay of execution from the judgment and decree of the High Court of Tanzania Commercial Division at Dar es Salaam) (Nyangarika J.} Dated 09 th day of September, 2014 in Comme·rcial Case No. 104 of 2013 RULING OF THE COURT • 5th & 12th February, 2015 · MBAROUK, J.A.: Aggrieved by the decision of the High Court of Tanzania (Nyangarika, J) in Commercial Case No. 104 of 2003 dated · .·9th September, 2014, the applicant lodged a notice of ---·,: '?ppea:i on 11th September,--2014 as per the requirements of _ ••• l ·- ·: · _:,- Rule 83 . of the Court of Appeal Rules, 2009 (the Rules) .. :. -:-- .. •/ 1 ; ·,Thereafter, on 23 rd October, 2014 the applicant -filed this 1 .;,_. ... , '·-·-: ,,. , . . ·.· ' .~ \. ' '.. ~ . ' ·:·.;: :,. ' ' .. r ., . ,, application in terms of Rule 11, (2) (b) (c) and (d) (i) and (ii) and 4 (2) (b) of the Rules seeking for the order of this Court to stay the execution of the decree in the above .. rnentioned case. The notice of motion is supported by an '· affidavit deponed by Lawrence Achola Principal Officer of the app_licant. In the notice of motion, the applicant gave four grounds in support of the application, which are as follows:- · 1. That substantial loss may result to the"·: applicant if execution of the decree is not 9 stayed. 2. That the application has been made without·. unreasonable delay. ·' 3. The applicant is ready and able to give .:·" r security for the due performance . of the, order as may ultimately be binding upon it. . . 4. That the intended appeal has enormous·-, chances of success. The above stated grounds also appear in the affidavi_t _in ' ,• support of the application sworn by the principal offic.~i- .of the applicant at paragraphs 16 and 17 of the said affidavit. 2 ~ .. ' " In this application, Mr. Onesmo Kyauke and Mr. Makarios Taira, learned advocates, appeared for the applicant, whereas Mr. Dilip Kesaria, learned advocate appeared for the respondent. At the hearing, Mr. Taira prayed to adopt to what has been stated in his written submission and the affidavit in ,, support of the application·. He then submitted that, all the ·_· .; requirements under Rule 11(2) (d) of the Rules have been fulfilled. He added that, as there is no aspect of delay)n . '. filing this application and as the applicant is ready to pay · security by paying USD 39,930 from January, 2013 to date . ·. minus the amount already paid to the respondent, he prayed · . 'for the application to be granted. He further submitted that ···. the applicant is also ready to pay a monthly rent until the . ' '. ·:;: .appeal is determined . . :' ·. ' .. ·' · . As on the issue of substantial loss, Mr. Taira requested . ::•· the Court to look the matter in this application to contain a ._:_.".unique scenario. He submitted that, the intended execution 3 <..,.: " 1' ·r ... , -,-:i·,, .·• ·r··_,• •;-;:, _:;· - . .. ;i ·.:\ is against a hospital which contains medic~I equiprpent in .. _ ... . areas such as laboratory, intensive care uni.t (ICU), operatio·n theater, radiology unit, pharmacy, ambulances and·_other important patients' datas. He further submitted .> with 4 .•.". ,. . ' emphasis that, if the execution is done upo~ the 'i,hspital ~ ! . • • . . ·'· ' I•'• equipment that may lead the hospital to be closed and .. •', .. •. hence. that will cause a major damage and loss not only to the applicant but also to the life of patients and .most probably some will die. He further emphasized that/ the '• most serious loss which is expected is the loss of :life of ,· ,.,,• ' '' patients. Mr. Taira ·added and cautioned that the dismantfi~g t of the hospital equipment require special expertise, whereas in the execution process a Court Broker may not have ,such a knowledge. He further added that the order of vacant r possession may lead to inconvenience on the part .· . ~(the ... •,· 9 . ;',. applicant, as it might be too difficult to get an alternative accommodation. 4 .. ·•.::,' C •.·" ){•, ',• ~; : . ,.t'~-·~J/:,!;:,__ .. Finally, he urged the Court to grant the prayer for stay . of execution pending the hearing and determination of the ·. :•intended appeal. ' On his part, Mr. Kesaria, submitted that, there· is no dispute on the issue of debt accrued from the accumulation of rent due for payment, because the applicant admitted to that effect and the advocate for the applicant stated that his · client is ready to pay. However, Mr. Kesaria stated that the ·· .· ·security has to be given for the whole of tlie decretal . amount and not part thereof, because even the notice of appeal shbws that the applicant intends to appeal against . the whole decision and not just part of it. He further submitted that, the admission of part payment of security has been raised at the hearing of this application from the bar . ·. and not in the sworn affidavit. He also submitted that even · -:_: __ :, the issue of irreparable loss has not been supported by a •.·.· sworn affidavit, hence the point deserves not to be considered and has to be rejected. 5 ;·o,;t·: ~ ., ... ,.. ~- Mr. Kesaria requested the Court to consider the: fact . that, the applicant has stopped to pay the rent for more than twenty six (26) months while occupying . the suit premises doing business. He said, the accumulation_·:of the . unpaid rent·amounts to USO 1,664,000 which is equivai~nt to . Tshs. Three billion which is substantial amount ma~i~g the . .. . . . . applicant to suffer and make him not to enjoy the fru\ts of th·e decree. He then urged us to find that, the applicant has failed to demonstrate that he is going to suffer substantial loss as that issue does not feature in the sworn affidavit. .:'. For that reason, he prayed for the application. to be dismissed with costs. In the alternative, · Mr. Kesaria . '• '. '·:. requested the Court to order the applicant to deposit' the whole amount as per the decree, which is USDl,664,000 minus 150,000 within ·seven days of the delivery of this ruling and continue to deposit into Court a monthly·. rent of USO 64,000 until the determination of the appeal. 6 . .:.. ·., .,'.·, - :, . ~ :·~~;, ~.,.,, ( :,, , ~ 1 . ,... w~.,. ~· , )(I ·;:·~2:1~~1~r,x: • ". );,,_ .. ,_. :. J • •::. '. .1. ',• ·.:··. :· : :.•. • : ' , · -,: •. ,> ... ', ..:, .,_. ,' ; ··• ~ '. .>(\;,\:.;.:,, _-'• ,._ :.''· ': ·-. ' applicant for the due performance of the . . decree in his favour or "such decree or_ order as· may ultimately be binding upon" it, in · case the intended appeal fails either wholly or partly, that is indeed the spirit and thrusts behind condition (iii) in Rule 11(2) (d)." It is not disputed that the respondent has been denied the enjoyment of the accumulation of his rent for . . .more . than twenty six months. For that reason, and considering the circumstances of this case, ! we are increasingly of the view that the order of security for the due performance of the decree is inevitable and cannot be avoided. In view of what we have endeavored to discuss, we ··. •· · see it pruqent to grant the application for stay of execution · .- on condition that the applicant deposit into Court USD ·: 1,664,000 minus USD 150,000 within a month from the ·. r , , · ~ • •· , .- .. :_: ·i. date of the delivery of this ruling. The applicant should also ': . ~ ',. ~ ·. . . \ ... 11 ... ~ ..·• '.' deposit into· Court a monthly rent to the tune of uso:·6l':,,OOO until the determination of the intended appeal. Hen~e, the application for stay of execution is granted subject .to the fulfillment of the conditions stated above. It is so ordered. DATED at DAR ES SALAAM this 10th day of February, 2015. M.S.MBAROUK JUSTICE OF APPEAL ·... S.A. MASSATI JUSTICE OF APPEAL !' ; K.K. ORIYO .~ . · JUSTICE OF APPEAL ·.. '• f the original. 12 ~- .:'.-· ;:~ .,.,. . ~ ...,. ,: ..... J ' . . ·.' '\ ! .... 11. )'.~ : '' ..... In support of. his submission, Mr. Kesaria relied upon the following authorities, Tanzania Cotton Marketing Board V. Cogecot Cotton Co. SA (1997) TLR 63, Mechmar Corporation (Malaysia) Berhad V. VIP ·,. · Engineering and Marketing Limited and another, Civil Application No. 184 · of 2008 and National Housing Corporation v AC Gomes (1997) Limited, Civil Application No. 133 of 2009 (both unreported). Having carefully examined the submissions from both sides in this application, we are obliged to consider the ~ requirements of the current Court of Appeal Rules, 2009 (the Rules) before reaching our decision. Unlike the old legal regime in the Court of Appeal Rules, 1979, the coming ·: i.nto force of the Rules specifically Rule 11(2) (d) of the Rules, the Court has .no longer a luxury of granting an order of stay of execution on such terms "as. the Court may think. just" ~he Court must be satisfied that the • ::•;, I . >'·.· conditions under Rule 11(2) ' ' (d) have been complied with . 7 r For instance, see Therod Fredrick v Abdusamadu ·salim, Civil Application ·No 7 of 2012, Geita Gold Mining Li11.1ited v Twalib Ally, Civil Application No. 14 of 2012: :(both unreported) as authorities for the conditions to be fulfilled · for the order of stay of execution to be issued by this-. ...Court. . The crux of the matter starts with Rule 11(2) (d) of the_ Rules 9 which stipulates, as follows: ',• .-· " Subject to the provisions of sub - rule (1). :. _· the institution of an appeal shall not · operate to su.spend any sentence or to stay execution, but the Court may (a) (not relevant). ..... '. .. . (b) (not relevant). ........ . (c) (not relevant). ........ . ,;·<:. {d} no order for stay of execution shall be made under this rule unless the Court is satisified:- 8 · .. ·.:~-.;.;:,: ·~. ---~-~1:-'l},i,':f:;:·:: ;~:#. ::;;.~.:.~ . •\.I {::1' ,\ . '. :·~\{;:_. (i) That the substantial loss may result to the •, :.•·: • • • • I ·party applying for stay of execution unless order is made/ That the application has been made without unreasonable delay/ and '. .. (iii) That security has been given by the :._.: : I• ' ·-:r.}\ -· applicant .for ._due . performance of such a decree or order - as may ultimately be 11 binding upon him. (Emphasis added); Several decisions of this Court have emphasized the . ,. ': necessity of compliance. of those requirements or .cs:>nditions under Rule 11(2) (d) of the Rules and that they must ·also be conjunctively and not disjunctively be satisfied. See · : / · Ahmed Abdallah v Maulid Athumara, Civil Applicati~n No . ., .<(' 16 of 2012, Noble Motors Limited v. Umoja wa ."•, .•. ; .Wakulim•a Wadogo Bonde la Mtera (UWABOKE) Civil ' .... . ." \ ·_ . .-, , •. ,l ,· ·.:·-,,,' Application No. 103 Joseph Antony Soares@ Goha v. 9 ·.· ., ., . . •', . :-.··,: .•: ~ "/ ·~/~·!•.' Hussein s/o Omary, Civil Application No. 6 of 2017 (All ·':"· unreported) .• Considering the facts and circumstances ., in this ,•· .. application, there is no flicker of doubt that the c1ppiicant ... ::··t ' .. , . has satisfied the two first conditions i.e. (i) and (ii) · tinder Rule 11(2) (d) of the Rules. However, as the cqnditions have to be complied . with conjunctively and. not disconjuctively,· we have to .satisfy ourselves that the third condition· has been complied with too before grantin~f the order of stay of execution·. Ttiis is because, we have to consider the position of the decree holder who is entitled to the immediate enjoyment of the fruits of the decree· in his favour. In the decision in Geita Gold Mining Limited (supra) this Court held as follows:- " if the respondent is to be denied the_ .· immediate enjoyment of this right he is_:;r entitle(1✓ ' and/or. ·. under the law/ to a definite tangible assurance or security from the. · . 10 ,·· ,. t '.-~ ' ?· :!\:~:-,,· . :./· : ·.~::. ,·s . ·J