CIVIL APPLICATION NO 243 01 OF 2024 EQUITY BANK TANZANIA LIMITED VS PRUDENCE ALIBALIO KATANGWA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 243/01 OF 2024 EQUITY BANK TANZANIA LIMITED..........................................APPLICANT VERSUS PRUDENCE ALIBALIO KATANGWA........................................RESPONDENT (Application for stay of execution of the Judgment and Decree of the High Court of Tanzania, at Dar es Salaam) ( Lataika. J.^ dated the 17th day of December, 2021 in Civil Appeal No. 226 of 2019 RULING 11 th & 20 th September,2024 MKUYE. J.A.: Before me is an application for stay of execution that is predicated under Rule 11 (3), (4), (4 A), (5) (a) and (b), (6) and (7) (a), (b), (c) and (d) of the Tanzania Court of Appeal Rules 2009 (the Rules) in which the applicant is seeking to have the decree and judgment of the High Court dated 17/12/2021 in Civil Appeal No.226 of 2019 stayed pending the determination of the intended appeal. The application is supported by an affidavit of Mgisha Kasano Mboneko, a Principal officer of the applicant, sworn on 2024. i Before embarking on the merit of the application, I find it appropriate to narrate, albeit briefly/ the facts leading to this application. They go thus: The respondent. Prudence Alibalio Katangwa, operated a bank account with the applicant, Equity Bank Tanzania Limited, at one of its branches located within Ilala District. Sometimes in 2016, the respondent approached the applicant with instructions for the latter to transfer funds to the tune of 7,000.00 pounds to a recipient situated in the United Kingdom. The funds were intended for purchase of a truck. However, according to the respondent, despite the funds having been debited from his account, they never reached the intended recipient. His efforts to be refunded proved futile. This led to the respondent to institute a suit in the District Court for Ilala District seeking a refund of the said 7,000.00 pounds and general damages. After the conclusion of the trial, the trial court found that the applicant was not liable and therefore the suit was dismissed. Aggrieved, the respondent successfully appealed to the High Court where it was found that the applicant herein was indeed, liable for the loss and thus ordered her to refund to the respondent 7,000.00 pounds which she had debited from his account and pay him TZS 100,000.00 as general damages. 2 Dissatisfied with the High Court's decision, the applicant lodged a notice of appeal intending to appeal to this Court as well as the instant application to have the decree of the High Court stayed. The respondent has not filed any affidavit in reply. When the application was called on for hearing, Mr. Karoli Tarimo, learned advocate, appeared representing the applicant whereas Mr. Nixon Ludovick, also learned advocate, appeared for the respondent. At the commencement of the hearing of this application Mr. Ludovick declared his stance that he did not contest the application except on one ground concerning the requirement of showing substantial loss the applicant may incur should the order for stay of execution be not granted. I note that in paragraph (iii) of the Notice of motion the applicant has stated that, if the decree of the High Court is not stayed and the same is executed the applicant stands to suffer irreparable loss while the respondent stands to suffer nothing if the order for stay is granted as prayed. This averment is reiterated in paragraph 9 (a) of the affidavit in support of the notice of motion where the applicant has stated as follows: 3 "That, if the order o f the High Court is not stayed and the same is executed by the respondent, the applicant stands to suffer substantial ioss in terms o f both pecuniary ioss and other financial drawbacks because the respondent's physical address is unknown therefore refund o f the decretal sum in the event the same is executed will be impossible and therefore on the balance o f convenience is proper that the execution o f the decree be stayed In his submission, particularly in respect of the ground relating to substantial loss, Mr. Tarimo while adopting the supporting affidavit and written submission reiterated what was shown in paragraph 9 (a) of the affidavit that the respondent has no means to refund the applicant should the appeal succeed and that his address of a bode was unknown. It was his further argument that the respondent is precluded to raise such factual matter which ought to have been contested by way affidavit in reply which he did not file. He, therefore urged the Court to find that the applicant has met all the requirements for the grant of this application for stay of execution and grant it as prayed. On his part, Mr. Ludovick maintained his stance of opposing the application on only one point as hinted earlier on contending that the applicant has not shown how she will suffer substantial/irreparable loss if the execution is carried out. He was of the view that the grounds shown in paragraph 9 (a) of the supporting affidavit that the respondent has no means of repaying or refunding the applicant should the appeal succeed or that his address of abode is unknown are immaterial in showing irreparable loss and are not known under the law. To support his argument he referred me to the case of National Housing Corporation v. AC Gomes Ltd, Civil Application No.53 of 2009 [....] TZCA.... (20.... ) In this regard, he urged the Court to decline the grant of the application. In rejoinder, Mr. Tarimo urged me to find that the aspect of substantial loss that the applicant will suffer has been sufficiently shown. He made reliance on the case of UAP Insurance Tanzania Limited v. Noble Motors Limited, Civil Application No. 260/01 of 2016 (unreported) page 10. Where it was stated that: "In respect o f substantial loss, the applicant had, in both paragraph 9 o f the affidavit in support o f the application, written submission and Mr. Tarimo's arguments before us, indicated that she stands to suffer substantial loss if the decreed amount, which is a colossal sum, is paid to the respondent We find this to be sufficient compliance with the iaw." 5 He also insisted that the allegation from the bar should be disregarded. Before tackling this issue, I wish to make the record clear as to the application generally. Having examined the notice of motion, affidavital information, the written submission and the oral submissions from either sides, I am satisfied that all other requirements, as conceded to by Mr. Ludovick, are met. Regarding the competence of the application, I find that it was filed within the prescribed time. Much as it may appear that the period for filling an application exceeded fourteen (14) days as prescribed by law, but there is an explanation. Although the application ought to have been filed latest by 10/4/2024 after having been saved with notice to appear on 28/3/3034, that date fell on a public holiday as it was a day for celebrating Idd El fitr which ran for consecutive days. Hence, it is cured by Rule 8 (d) of the Rules read together with Rule 9 of the same Rules which excludes such days provided it was filed on the next business day of the Court. Thus, filing the application on 12/4/2024 was justified. Apart from that, I find that this application is competent before the Court as it is accompanied by the necessary documents such as the notice of appeal, decree appealed from, judgment and the notice of the 6 intended execution as required by Rule 11 (7) (a), (b), (c) and (d) of the Rules. Moreover, it is important to emphasize that, in order for an application of stay of execution to succeed, the applicant must satisfy all conditions set out under Rule 11 (5) (a) and (b) of the Rules. [See: UAP Insurance Tanzania Limited (supra); Africhick Hatchers Limited v. CRDB Bank PLC, Civil Application No. 98 of 2016. [2019] TZCA 148 (15 March 2019). Also, such conditions are to be complied with cumulatively, - [See: Joseph Anthony Soares Goha, v. Hussein Omary, Civil Application No.6 of 2012 [2013] TZCA 365 (3 May 2013) and Laurent Kavishe v. Enely Hezron, Civil Application No. 5 of 2012 [2013] TZCA 365 (3 May 2013); Rule 11 (5) (a) and (b) provides as follows: "(5) No order for stay of execution shall be made under this rule unless the court is satisfied that: (a) substantial loss may result to the party applying for stay o f execution unless order is made; (b) security has been given by the applicant for he due performance o f such decree" Starting with the requirement under Rule 11 (5) (b) of the Rules, it is not contested by the respondent, and rightly so in my settled view, that the same is satisfied as shown by the applicant in paragraph 9 (d) 7 of the affidavit in support of the notice of motion that she undertakes to furnish security for the due performance of the decree as may be ordered by the Court. The issue which needs to be addressed is whether the applicant's averments showing that substantial loss may occur if stay is not granted, is sufficient for the grant of the application. While Mr. Tarimo is of the view that such averrment is sufficient, Mr. Ludovick maintains that it is not sufficient and it is not a requirement of the law. In the first place, I think as was rightly argued by Mr. Tarimo, the issues raised by Mr. Ludovick are factual matters which ought to be brought by way of an affidavit in reply to counter what was stated by the applicant in her affidavit in support of the notice of motion. It was not proper for the respondent to Ruise them from the bar. Secondly, it is true that in paragraph 9 (a) of the affidavit in support of the application, the applicant has averred that she would suffer substantial toss in terms of pecuniary loss and other financial drawbacks on the ground that the respondent's physical address of abode is unknown. That is what is also stated in paragraph 2 B (iii) of the notice of motion and in the written submission. However, looking at the entire affidavit in support of the notice of motion, it is clearly shown as to what is 8 envisaged in executing the decree - (See para 5 where it is stated on how the respondent has initiated execution proceedings to execute the decree of the High Court) in that the respondent has sought to attach and sale the applicant's motor vehicle with Reg. No. T.467 DQW make Toyota Land Cruiser VXR 2019 whereupon he is seeking to execute payment of money to the tune of TZS 100,000/= and 7,000.00 pounds. As it is, the reason that the respondent's address of abode is unknown is not the only reason to justify substantial loss but an additional fact as to how it may not be possible to recover the money if the appeal succeeds. In any case, as was rightly submitted by Mr. Tarimo while relying on the case of UAP Insurance Tanzania Limited (supra), an indication by the applicant that she stands to suffer substantial loss if the decreed amount which is colossal if paid to the respondent is sufficient compliance with the law. In this regard, I am constrained not to agree with Mr. Ludovick contention. In the circumstances, in view of what I have endeavoured to discuss above, I find that the applicant has cumulatively fulfilled all the conditions set out under the law to warrant the grant of the application. Consequently, I order that, the execution of judgment and decree of the High Court of Tanzania at Dar es Salaam in Civil Appeal No.226 of 2019 dated 17/12/2021 is hereby stayed pending the hearing and 9 determination of the appeal in this Court upon a condition that the applicant furnishes with the Court a Bank Guarantee covering the decretal amount, that is to say, seven thousand pounds (£7,000.00) and TZS 100,000.00 within sixty (60) days of this Ruling. Costs of this application shall abide the outcome of the pending appeal. It is so ordered. DATED at DAR ES SALAAM this 18th day of September, 2024. R. K. MKUYE JUSTICE OF APPEAL The Ruling delivered on 20th day of September, 2024 in the presence of Kephas Mayenja, learned Counsel for the Applicant and also holding brief for Mr. Nickson Ludovick, learned Counsel for the Respondent, is hereby certified as a true copy of original. 10