victoria fiine food company ltd and 2 others v kiliagro and livestock products limited and another 2023 tzhc 22590 14 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA MISC. CIVIL APPLICATION NO. 50 OF 2023 (Arising from Misc. Civil Application NO, 49 of2023 High Court of Tanzania at Bukoba arid Civil Application No. 5 of2022 Resident Magistrate's Court of Bukoba; Originating from Civil Case No, 97of 2018 of the Resident Magistrate's Court of Arusha) VICTORIA FINE FOODS COMPANY LTD....... ........... ............. 1* APPLICANT FARID AHMED LUGUSHA................................ 2nd APPLICANT AISHA KOKULAMUKA LUGUSHA....... .......... ............... .......... 3rd APPLICANT VERSUS KILIAGRO AND LIVESTOCK PRODUCTS LIMITED............... ..1st RESPONDENT SHUSHANA SERVICES COMPANY LIMITED..................... 2ND RESPONDENT RULING 6£tland 14th November, 2023 BANZI, J,: The applicants have filed this application seeking an order for stay of execution of decree in Civil Application No. 5 of 2022 issued by the Resident Magistrate's Court of Bukoba (executing court), in which the second respondent who is the court broker attached and is in the process of selling the house in Plot No. 122, Block AA at Hamgem be area (the suit premises), the property of the applicants in order to fulfill the debt of Tshs.43,646,600/=. The staying order is sought pending determination of Page 1 of 8 their application for extension of time in Misc. Civil Application No. 49 of 2023 in order to file revision to this Court against the order of the executing court. Briefly, this matter originated from the Resident Magistrate's Court of Arusha in Civil Case No. 97 of 2018 where the first respondent sued the applicants claiming for Tshs.98,229,120/= as a result of breach of contract. In alternative, the first respondent prayed to be allowed to dispose of the suit premises which was provided as a security. However, parties decided to settle the matter out of court and they filed a deed of settlement in which the applicants agreed to pay Tshs.43,649,600/= in four instalments within twenty-four (24) months. It was also agreed that, all money to be paid through the bank account of Merit Attorney Bank, the first respondent's advocate. It was further agreed that, in case the applicants fail to pay that money within the agreed period, the first respondent would be at liberty to dispose of the suit premises in order to recover that amount. Unfortunately, the applicants failed to pay the agreed money. As the suit premises is situated in Bukoba, under Order XXI Rule 5 of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC), the case was transferred from the Resident Magistrate's Court of Arusha to the Resident Magistrate's Court of Bukoba for execution purposes. With that transfer, the first respondent filed Civil Application No. 5 of 2022 praying for suit premises to be attached for sale. Page 2 of 8 The executing court granted the order for execution of the decree by directing the applicants to pay that amount or else the suit premises be attached and sold to recover the amount as they agreed in their deed of settlement. As a result, the second respondent was appointed to fulfil that duty. The second respondent gave a 14 days' notice to the applicants to pay the agreed amount or else the suit premises would be sold in public auction. With that notice, the applicants filed Wise. Civil Application No. 49 of 2023 seeking for extension of time to file revision against execution order. Also, they have filed this application for stay pending determination of their application. At the hearing, the applicants were represented by Mr. Fahad Rwamayanga, learned counsel whereas, the respondents enjoyed the services of Mr. Pontian Mujuni, learned counsel. In his submission, Mr. Rwamayanga stated that, the applicants have filed this application seeking restraining order against the execution order issued by the executing court pending determination of Misc. Civil Application No. 49 of 2023 concerning extension of time in order to lodge application for revision to challenge the procedure applied to grant execution order to the respondents. It was his argument that, as the title deed of the house in Page 3 of 8 question is in the hands of the first respondent, execution should be stayed and where the court find that the procedure was proper, then the respondents will be at liberty to proceed with execution. He further submitted that, staying of execution is the only way to prevent the respondents to continue with the execution until the rights of each party is determined. According to him, without staying such execution, the third applicant will suffer irreparable loss including losing her residence and become homeless which will damage her physically and psychologically. In his reply, Mr. Mujuni resisted the application contending that, it aims at preventing the rights of the first respondent which is executed by the second respondent. He further conceded that, the title deed is in the hands of the first respondent following an agreement between them to pay Tshs.43,646,600/= and upon failure to pay, the house would be sold. Therefore, since they failed to pay that debt, the applicants have surrendered their rights over that house. According to him, as the learned counsel did not state whether they contravened any procedure, the applicants have filed this application aiming at delaying the first respondents right to enjoy her right because the applicants have been filing applications since 2018 which were dismissed hence causing her to incur costs of hiring Page 4 of 8 advocates to defend unmerited cases. He urged this Court to dismiss the application with costs. In rejoinder, Mr. Rwamayanga stated that, Mr. Mujuni concentrated in the merit of Civil Application No. 49 of 2023 which is still pending and hence, by going deeper will pre-empt the court over such application. According to him, as the counsel for the respondents did not dispute that the applicants will suffer irreparable loss and considering that the title deed is in the hands of the first respondent, the application be granted so that, parties can be able to argue the main application for their rights to be determined. Besides, granting this application will not prejudice the respondents. Having carefully considered the submissions of learned counsel for both parties, the issue for determination is whether the application has merit. It is settled that, granting stay of execution is within the discretion of the court. However, before exercising its discretion, the court has to consider the consequences of granting and not granting the same regard being whether the refusal is likely to cause irreparable loss to the applicant. In the case of MIC Tanzania Ltd v. CXC Africa Ltd [2019] TZCA 447 TanzLII, the Court of Appeal discussing on substantial loss had this to say: Pages bfS " With regard to substantial loss, we wish to reiterate our stance in the case of Tanzania Cotton Marketing board vs. Gogecot Cotton Co SA (supra) that granting ofa stay order is a matter of discretion which is to be exercised on common sense and balance of advantage basis. In that regard, in deciding whether to order a stay, the Court should essentially weigh the pros and cons ofgranting or not granting the order (see Global Tours & Travels Limited; Nairobi HC, Winding-up Cause No. 43 of2000)." In the instant application, Mr. Rwamayanga argued that, as the title deed is in the hands of the first respondent, staying of execution will not affect the respondents because in case the court finds the procedures were not flawed, execution may proceed. According to him, if the order is not stayed, the third applicant will suffer irreparable loss including becoming homeless which cannot be remedied later. Notably, there is Misc. Application No. 49 of 2023 pending before this Court in which the applicants have applied for extension of time so as to file revision against the decision of the Resident Magistrate's Court of Bukoba in Civil Application No. 5 of 2022 that granted the order of execution for the sale of the suit premises. As it was rightly argued by Mr. Rwamayanga, if the court will find that, the applicants deserve extension of time and where in Page 6 of 8 the main case the court will find the procedures were properly followed by the executing court, then execution will proceed as it was ordered. Nonetheless, if the stay order is not granted, Misc. Civil Application No. 49 of 2023 will be nugatory, and all subsequent applications including the intended revision will be overtaken by event. Also, if stay is not issued and execution proceeds as it was ordered, in case the court in the main application finds that, there were irregularities or illegalities in granting that order, it may be more problematic to recover the damages, hence, chaos to both parties. Although Mr. Mujuni contended that, the applicants have filed this application aiming at preventing the right of the respondents to sell the house, since the title deed is in the hands of the first respondent, the respondents are in safe side than the applicants because where it is found that, the procedure were adhered by the executing court, they will proceed to sell the house to recover their money. In that regard and considering that, the third applicant is likely to become homeless and to suffer monetary, physically and psychologically, granting of stay of execution is more advantageous than dismissing the application. Page 7 of 8 Having said so, I grant the application by restraining the respondents from selling the house in Plot No. 122 Block AA at Hamgembe pending final determination of Misc. Civil Application No. 49 of 2023.1 make no orders as to costs. It is so ordered. I. K. BANZI JUDGE 14/11/2023 Delivered this 14th November, 2023 in the presence of Mr. Fahad Rwamayanga, learned counsel for the applicants and in the absence of the respondents. Page 8 of 8