CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 364 OF 2025 FIRST ASSURANCE COMPANY LIMITED....................................... APPLICANT VERSUS HERITAGE INSURANCE COMPANY TANZANIA LIMITED................................................................. RESPONDENT (Application for stay of execution of the Judgement and Decree of the Court of Appeal of Tanzania at Dar es Salaam) (Lila, Mwandambo And Fikirini. JJ. Pi) dated the 5th day of April 2023 in Civil Appeal No. 145 of 2018 RULING 28th February & 5th March, 2025 MANSOOR, 3.A. The application dated 18th February 2025, filed under the Certificate of Urgency, seeks for orders for stay of execution of the Judgement and Decree delivered on 5th April 2024 by the Court of Appeal, in Civil Appeal No. 165 of 2020, pending the hearing and determination of the review. This application is brought under Rule 4 (1), (2) (a), (b), and (c) of the Tanzania Court of Appeal Rules, G.N. 368 of 2009, as amended, and any other enabling provisions of the law. In opposition to the application, the respondent filed a Replying Affidavit on 24th February 2024, and a Notice of Preliminary Objection objecting the jurisdiction of this Court to entertain the application, and also on the competency of the affidavit of the applicant accompanying the application. Briefly, the facts leading to this application are that; the applicant herein, who shall be referred to as "the applicant" was the defendant in Commercial Case No. 145 of 2018 instituted by the respondent herein, referred to as "the respondent. Commercial Case No. 148 of 2018 was filed at the High Court, Commercial Division, whereas the applicant herein filed a counter claim. On 31st January 2020, Honourable Judge B. K. Phillip dismissed the suit filed by the respondent, and allowed the counterclaim of the applicant, and had ordered the respondent to pay the applicant a sum of USD 25,000, interests and costs of the suit. Aggrieved by the decision of the High Court, Commercial Division, the respondent filed an Appeal No. 165 of 2020 at the Court of Appeal. On 5th April 2023, the Court of Appeal allowed the appeal and quashed the decision of the High Court dismissing the respondent's suit. The Court of Appeal thus entered a judgement in favour of the respondent and had ordered the applicant to pay the respondent a sum of USD 533,530.25. Additionally, the respondent was awarded general damages to the tune of TZS 50,000,000, interests and costs of the appeal and the suit. Both the applicant and the respondent were aggrieved by the decision of the Court of Appeal in Civil Appeal No. 165 of 2020, and sought the Court to review its decision. While the applicant filed Civil Application No. 317/16 of 2023, the respondent filed Civil Application No. 432/01 of 2023 both challenging the decision of the Court of Appeal in Civil Appeal No. 165 of 2020. The applications for review are awaiting hearing and determination by the Court. While the applications for review are still pending before the Court, the respondent has filed an application for execution No. 1248 of 2024 in the High Court, Commercial Division seeking to execute the decree of the Court of Appeal. The High Court, Commercial Division has already issued garnishee order nisi attaching the applicant's bank accounts maintained at NCBA Bank Tanzania Limited bearing No. 1003826100038 (USD), and No. 103826100048 (TZS), Account No. 28810015599 kept at NMB Bank PLC and Account No. 0150210162700 at CRDB PLC. Thus, the applicant was notified of the garnishee order nisi by the banks on 13th February 2025, and on 14th February 2025, the applicant perused the court file of the High Court and had realised that there is an application for execution filed by the respondent. Promptly, on 18th February, 2025, the applicant filed the present application seeking for an order to lift the garnishee order nisi issued against the applicant's bank accounts. Against, the present application, the respondent objected the jurisdiction of this Court to entertain the application for stay of execution pending review. Relying on the decisions of Single Justices of this Court in the case of Director Tanga Cement Company Limited vs Ephraim Joram, Civil Application No. 307/18 of 2024, and the case of the Registered Trustees of St Anita's Greenland Schools (T) and 6 Others vs Azania Bank Limited, Civil Application No. 660/16 of 2023; in these cases, the Single Justices of Appeal have held that this Court has no jurisdiction to grant a stay order pending determination of review. Hon. Justice Mugasha in the case of Director Tanga Cement Company Limited (supra) said at page 14 and 15 of the ruling, and I quote: "thereforef given that in the case o f Dr. Luis B. Shija vs Ke/iu Kamo Lucas (supra) the Single Justice did not determine if the Court is vested with jurisdiction to grant stay order against its own decision, I shall determine that issue now. In my considered view, granting stay orders pending the determination o f review is tantamount to staying the very decision o f the Court which leaves a lot to be desired. I say so because granting stay orders after the court has determined an order or decree appealed from is a situation which was neither envisaged under Article 117 o f the Constitution or section 4 o f the AJA as operationalised under the Court o f Appeal Rules. In a nutshellan application for stay order is tenable where the Court is yet to determine the challenged decision o f the lower court and not otherwise." In the case of the Registered Trustees of St Anita's Greenland Schools (T), (supra), Hon Justice Ngwembe cited with approval the decision issued in Director Tanga Cement Company Limited, and said that the Court cannot stay its own decree once the Court has conclusively determined either an appeal or revision. The applicant who was represented by Counsel Robert Rutaihwa countered the objection stating that since stay of execution of a decree pending review is not catered for either in Rule 11 of the Court of Appeal Rules, or any other law, then the application for stay of execution pending review can be issued under Rule 4 (2) (a) and (b) of the Court of Appeal Rules. He argues further that where the Court is given power for review, then there must be a provision in the Court of Appeal Rules for protection of the subject of the review pending the determination of review. He said, since the Rules did not provide for such a situation, then the proper provision to be invoked is Rule 4 (2) (a) and (b) of the Rules in moving the Court to provide the remedy. To buttress his arguments, the Counsel refers to the case of Dr. Luis B. Shija vs Kellu Kamo Lucas, Civil Application No. 209/14 of 2024, and the case of Tanzania Transcontinental Trading Company Limited vs Design Partnership Limited, Civil Application No. 66 of 1996, in which this very Court had issued an order of stay of execution pending the determination of review by the Court. In the case of Tanzania Transcontinental Trading Company Limited (supra), the former Chief Justice Ramadhani J.A had said this at page 5 of the Ruling: "If the court reviews the award and orders specific performance while the Respondent has disposed o f the suit premises then that order cannot be executed, that wiii be irreparable damage." The Court restrained the respondent from disposing of the suit premises pending the determination of review. The Counsel for the applicant implored the Court to decide that it has jurisdiction to entertain an application for stay of execution pending review. Advocate Audax Vedasto made a rejoinder submissions and said the decisions in Director Tanga Cement Company Limited (supra) and that of the Registered Trustees of St Anita's Greenland Schools (supra) are recent decision, the first one was delivered on 19th September 2024 and the second one was delivered on 26th September 2024, while the decisions in Dr. Luis B. Shija (supra) was delivered in 1st August 2024, thus the later issued decision takes precedents, and on this he refers to the decision held in the case of ARCOPAR (O.M.) S.A VS Herbert Marwa and Family Civil Application No. 94 of 2013 at page 17 and 18 in which it was held that the best practice is to apply the latest decision. He also countered the decision in the Tanzania Transcontinental Trading Company Limited (supra) saying that the law applicable during those days is the Court of Appeal Rules of 1979, which have been repealed. He rested his submissions by imploring the Court to decline entertaining this application for want of jurisdiction. I have heard the rival submissions of the counsels for the applicant and respondent on the issue of jurisdiction. First and foremost, I am mindful of the position that is stated in the case of the Registered Trustees of St Anita's Greenland School (supra) in which the case of Richard Julius Rukambura vs Isaack Ntwa Mwakajila and Another, Civil Appeal No, 2 of 1998 (2004) TZCA 67 (19 January 20024) was cited, in which it was stated that: "the question o f jurisdiction is paramount in any court proceedings, it is so fundamental that in any trial even if it is not raised by the parties at the initial stages,; it can be raised and entertained at any other stage o f the proceedings in order to ensure that the court is properly vested with jurisdiction to adjudicate the matter before i t " Indeed, the question of jurisdiction is paramount, and a court must make sure that it has jurisdiction to entertain an action before tackling it, otherwise the decision given without jurisdiction is a nullity. Admittedly, as stated in the case of Director Tanga Cement Company Limited (supra) that the Rules did not provide for a remedy of stay of execution pending review, as in review the court is revisiting its own decision, the invocation of the Court's general powers under Rule 4 (2) (a), (b) and (c) of the Court of Appeal Rules is itself a confirmation that there is no specific express provision in the Rules of the Court for the relief of stay of execution pending review. Rule 4 (1) and (2) of the Rules empowers the Court to depart from the rules for dealing with any matter in the interest of justice and where it is necessary to make an order for dealing with any matter for which no provision is made by the Rules or any other written law. As it can be noted from the wording of Rule 11 (3) of the Rules, the stay of execution envisaged thereon is stay of execution of a decree or order pending appeal. This rule did not give remedy for stay of execution pending, revision, reference or review, but the Court has been granting stay of execution of decree or orders pending determination of revision, and the reasons has always been that Rule 4 (2) (a) and (b) of the Court of Appeal Rules permits, which provides that where it is necessary to make an order for purposes of dealing with any matter for which no provision is made by the Rules or any other written law, or for the better meeting the ends of justice, the Court may, on the application of a party or on its own motion, give directions as to the procedure to be adopted or to make any other order which it considers necessary. As there are no provisions in the Rules of the Court governing an application for stay of execution pending revision, for example, the Court in a number of cases invoked Rule 4 (2) (b) in entertaining the application for stay of execution pending revision. See the cases of Selcom Gaming Limited vs Gaming Management (T) and Gaming Board of Tanzania, Civil Application No. 175 of 2007; UAP Insurance (T) Limited vs Yuda Thomas Shayo & 5 Others, Civil Application No. 611/18 of 2022; Attorney General vs The Board of Trustees of the Cashewnut Industry Development Trust Fund and Another, Civil Application No. 72 of 2015 (215) TZCA 581 (13 May 2015 TANZLII), and the case of CRDB Bank Tanzania Limited vs Tunu Ahmed Lashiku, Civil Application No. 315/12 of 2022 (2023) TZCA 17879 (23rd November 2023, TANZLII). In these cases, the Court held that it had the requisite jurisdiction to grant the stay of execution even though there is no appeal pending in court or the decree which is sought to be stayed is not the decree which is appealed against. In these judgements of the Court, and in particular the caseof Attorney General vs the Board of Trustees of the Cashewnut Industry Development Trust Fund (supra), theCourt said, "we think that, the wording o f Rule 4(1) and (2) (a) and (b) o f the Rules, is wide enough to give discretion to this Court to go into any matter or give any order, if it is o f the opinion that it is required in the interest o fjustice. Also, of interest is the holding in the decision of Selcom Gaming Limited vs Gaming Management (T) Limited and Gaming Board of Tanzania (supra) in which the Court stated that where there is no provision governing an application for stay of execution pending revision, the Court is empowered and can invoke Rule 4 (2) (a) and (b) of the Rules to entertain such an application. Similarly, as said in the case of Attorney General vs the Board of Trustees of the Cashewnut Industry Development Trust Fund (supra), Rule 4 of the Rules of the Court is wide and can be invoked for purposes of dealing with any matter for which no provision is made in the rules or any other written law or for the better meeting the ends of justice, and indeed the Rule is wide enough for giving the discretion to the Court to grant a stay of execution order or for postponement of execution of sentences in criminal matters until the review is finally determined by the Court. In deciding on this matter, I take the stand given in the cases of Dr. Luis B. Shija vs Kellu Kamo Lucas (supra), and the case of Tanzania Transcontinental Trading Company Limited vs Design Partnership Ltd (supra), in which Justices Maige J.A, and Justice Ramadhani J.A, respectively, granted a stay of execution order pending determination of an application for Review by the Court. In entertaining the application for stay of execution pending review, and eventually granting them, the Justices did not assume jurisdiction, but they also invoked the provisions of Rule 4 (1), and (2) (a) and (b) of the Court of Appeal Rules, 2009 as, in Dr. Luis B. Shija's case, and the repealed Rule 3 (2) (a) and (b) of the Court of Appeal Rules 1979 in the latter case decided by Hon. Ramadhani JA. li I am aware that the decision in Dr. Luis B. Shija and the case decided by Honourable Chief Justice Ramadhani (as he then was ), the case of Tanzania Transcontinental Trading Company Limited vs Design Partnership Ltd (supra) has been decided differently to the cases of Director Tanga Cement Company Limited , and the case of the Registered Trustees of St Anita's Greenland Schools (T), and that the later cases are the recent cases, but since there are conflicting decisions, the best way to resolve the conflict is as provided under Rule 4Aof the Court of Appeal (Amendment) Rules, 2024 GN No. 188 published on 22/03/2024, in which it provides: 4A. where the ChiefJustice is o f the opinion that there are grounds for the Court to consider its conflicting decisions, departing from its previous decisions, or that an appeal or application before the Court be heard and determined by a full bench o f the Court, he may constitute a full bench o f the Court o f not less than five justices for the purpose o f considering whether to depart from the previous decision or resolving the conflicting decisions o f the Court or otherwise, or determining an appeal or application as the case may be." Until the conflicting decisions are resolved in the manner described under Rule 4A of the Rules, and since no decision of a single Justice takes precedence over the decision of the other single Justice, and since the decisions in the cases of Dr. Luis B. Shija and the case of Tanzania Transcontinental Trading Company Limited vs Design Partnership Ltd (supra) are still valid decisions and have not been made per incuriam, I agree, like in Revision, the Court has jurisdiction under Rule 4 of the Rules to entertain and grant or refuse to grant an order of stay of execution pending review. The principles that guide this Court in deciding an application for stay of execution requires the applicant to demonstrate substantial or irreparable loss, that if the order of stay is not granted the review will be rendered nugatory; and that it is in the greater interest of justice to grant an order of stay. Like in the High Court, by analogy, the High Court is empowered Under Order XXI Rule, 24 of the Civil Procedure Code to stay execution of its own decree pending appeal, revision or review, similarly, the Court under Rule 4 can stay execution of its own order or decree pending review as by doing so the Court preserves the subject matter from being rendered nugatory in the case that the review is successful, also for the greater interest of justice. In any case, the power to grant or refuse an order of stay of execution is interlocutory order and the Court at this stage is not determining the substantive rights of the parties. At this stage, in an interlocutory order of stay of execution pending review, the Court is not making any definitive findings of either fact or law. The order is interlocutory, thus temporary pending the outcome of the review, and no rights of the parties are permanently determined in an application for stay of execution. That said, the first limb of objection is overruled, this court has jurisdiction under Rule 4 (1) and (2) (a), (b) and (c) of the Court of Appeal Rules, 2009 as amended, to entertain an application for stay of execution pending review. The second objection raised is that the application is bad for being supported by a defective affidavit. The Counsel for the respondent says the affidavit in support of the application affirmed by Saum Abdi Sekule, the Legal Officer of the applicant is defective as it contains hearsay. He argues that paragraph 10 of the affidavit which says that the applicant became aware of the execution after she received the information from the banks, and in paragraph 9 of the affidavit, the deponent says that the banker informed the applicant by email. The Counsel for the respondent argues that the emails were attached to affidavit as annexure E forming part of the affidavit. He says, that the email was sent to Ali Kassim and Amour Abbas Salum, and the email was never sent to the deponent or even copied to her, making the contents of paragraph 9 and 10 of the affidavit a hearsay. The Counsel argues further that the deponent has not stated in the verification clause that the contents of paragraphs 9 and 10 of her affidavit are the information she received from a certain source. That the applicant did not verify in the verification clause of her affidavit the source of information making the affidavit a defective one, he prays thus, paragraph 9 and 10 of the affidavit to be expunged. This objection shall not detain me much as firstly, as argued by Counsel Rutaihwa for the applicant, the objection does not qualify to be determined as the preliminary point of objection as it requires scrutinization of the evidence, particularly the emails, so as to be satisfied whether the emails were sent to the deponent or to the company or to other individuals. In order to determine the objection also, the Court will need to receive and analyse the evidence on how the deponent received the email from the other people mentioned in the email. Indeed, this is not a pure point of law, and cannot be determined at this stage. It is settled principle that a pure point of law does not arise if there are contentions on facts yet to be ascertained by evidence. See Ibrahim Abdallah vs Selemani Hamisi, (Civil Appeal 314 of 2020) [2022] TZCA 43 (21 February 2022). Again, Rule 107 (2) of the Court of Appeal Rules permits a party to rely on a preliminary objection only if such objection consists of a point of law which, if argued and sustained, may dispose of the appeal or application. The objection raised, even if it is sustained, it will not dispose of the application, thus the objection was raised in contravention of Rule 107 (2) of the Rules, and cannot be entertained. In any case, an affidavit is a sworn statement in writing made under oath or on affirmation before an authorised officer or Magistrate as defined in the case of OTTU v. AG and Others, Misc. Civil Application No. 15 of 1997 HC at Dar es Salaam (unreported). Affidavits are governed by Order XIX, Rule 3 (1) of the CPC which provides that: "Affidavits shall be confined to such facts as the deponent is able o f his own knowledge to prove, except on interlocutory applications on which statements o f his belief may be admitted: Provided that, the grounds there o f are stated. "(Emphasis supplied). Thus, an affidavit being sworn written evidence in substitute of oral evidence, it must be confined to such statements as the deponent is able of his own knowledge to prove. See the case decided by the Court of Appeal sitting in Mbeya, the case of Juma Busiga v. Zonal Manager TPC (Mbeya), Civil Application No. 8 of 2004. An affidavit is facts deposed or rather a declaration of facts by the deponent. The facts mentioned in an affidavit must be true to the best knowledge of the deponent. I agree that the applicant being a company, the internal procedures of circulation of emails within the office makes the information not belonging to a single officer of the company, but it is the information of the company. The person who deposes facts for and on behalf of the company is doing so as the representative of the company, and thus the information becomes the deponent's own information, and there will be no need to mention the source of information as the information are of the deponent's own knowledge. In any case, as stated in the case of Board of Trustees of Tanganyika National Parks vs NBC and 2 Others, Civil Appeal 2 of 2000, the Court found that the party who has acquired information through reading a document, he obtains the source of her information after reading the document. The deponent in the affidavit has obtained information through readings the office mails, thus the information contained in paragraph 9 and 10 of the affidavit are from the knowledge of the deponent and properly verified in the verification clause. Again, the second limb of objection is unmeritorious, and it is hereby dismissed. Overall, the preliminary objections being unmeritorious, are overruled with costs. It is so ordered. DATED at DODOMA this 5th day of March, 2025. L. A. MANSOOR JUSTICE OF APPEAL The Ruling delivered this 5th day of March, 2025 in the presence of Mr. Robert Rutaihwa, learned counsel for the Applicant and Mr. Audax Kahendaguze Vedasto, learned counsel for the Respondent, via video link from Dar es Salaam is hereby certified as a true copy of the original.