20140929 TZCA Dar es Salaam

..• ,,/. t-'· IN THE C:OURT OF APPEAL OF TANZANIA.. ,, .... ,.· AT DAR ES SALAAM -: (CORAM: MSOFFE, J.A .• MJASIRI. J.A. And MANDIA. J.A.) ·c:tVIL APPLICATION NO. 156 of 2014 BOARD OF TRUSTEES OF CASHEWNUT INDUSTRY DEVE.LOPMENT TRUST FUND ....................... ·.......... ~ ..... APPLiCANT VERSUS ... HAMMERS.INCORPO.RATION co. LIMITED .................. RESPONDENT . ('App_lication for stay of.execution from the decision of the High Court · :'.of Tanzania (Commercial Division) at Dar es Salaam) (Nyangarika, J.) dated l1 st July, 2014 ,/ in. ·.r Commercial·Case No. 108 of 2013 RULING .OF THE COURT . . • J ·· · 25 th & 30thSept~mber, 2014 . · MlASIRt J.A.: . By a Noti_c_e of Moti·on filed under Rules 11(2) (b) (c) and (e) of the Tanzania Court· of Appeal Rules 2009, (the Court Rules) the applicant is .--·_.···-.;. ' . _s~eking for-~- stay of execution of the decree passed on July 31, 2014. The . . . ~-------'-..,..----- . . ' ..___/ grounds upon -which the Notice of Motion is based are as follows:- (1) If the order for stay is not granted the applicant' will suffer irreparably as most of the cashewnut farmers in Tanzania · will not get subsidized cashewnut farming inputs supplied by 6nly the ·' _applicants in the country. (2) . The resultant effect will be ceasure of its operations. The Notice of Motion is supported by the taffidavits affirn1e~ by Mr. Twaha Taslima; the lea'rned advocate on record for the applic~ht. The respondent has also filed an affidavit in reply sworn · by Mr. Haru~- ·Maarifa, .·its principal officer. At the hearing of the application the applicants had the services of ,. . Mr. Tvvaha Taslima learned advocate who was assisted by: Mr. Joseph · __ ·Tad_ayo, learned _advocate. The respondent was represented._ by Mr. Nduluma Majembe, learned advocate. Mr: Taslima on his part strongly argued that it is important for the Court to stay the decree dated July . 31, 2014 in order to prevent the \ ' applicant's business from going under. Mr. Majemb~ on his part s&bmitted ·...~. ,. with_ equal force that the respondent's business will also collapse- if he is · prevented from executing the decree. 2 ,.I · We on our ·part,· after: a careful analysis of the. Notice of Motion, · ·· ~ffidavits a:nd submissions made. by counsel, we would like to make the . . . ....... ·· ., ·. . . . . . . . . . .. following observations. The principles_ for granting a stay of execution a-re . . _well_ known~- In exercising its unfettered discretion, the Court considers --_ various factors to determine whether _to grant the application or otherwise. In taking ., all the surrounding circumstances of this application, we are . of. the cpns,idere~ view that on the balance, we should grant an order for . stay of exect:1tion. ,· We therefore order that the execution of the High Court decree be ·. stayed pending the· determination of the applicant's 'appeal in this Court . . The app.licaQt should furnish security in the sum of Tanzania Shillings Nine · Hundred Fifty Three Millior;i, One Hundred and Forty Two Thousand Seven l , 1! Hundred Ninety Seven and Five cents (Tshs 953,142,797.05). : . ~· ... : . It is sq;" ordered. We make n'o order as to costs. 3 DATED at DAR ES SALAAM this 29th day of September, 2014. J.H. MSOFFE JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL · I certify that this is a true copy of the original. , F.rfliwE .DEPUTY REGISTRAR COURT OF APPEAL