general tyre ea ltd vs mandavin co ltd 1997 tzca 72 13 may 1997

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO. 25 OF 1997 In the ^atter of an Intended Appeal

BE WEEN GENERAL TYRE E.A. LTD..............APPLICANT AND MANDAVIN CO. LTD..................RESPONDENT {Applicatior for Stay of Execution from the Judgement/Decree of the High Court of Tanzania at Arusha) (Nchalla, ) dated the 17th day of February, 1997 in Civil Case No. 4 of 1995

R U L I N G This is an exparte application filed under Rule 52 (2) of the Rule* of this Court under a Certifica-t« -of -Urgency foe stay of execution of the decree issued by the High Court at Arusha. The reasons for filing this ex-parte application is that the respondent could not be traced to effect service. In execution of this decree, the High Court issued a garnishee order directed to the applicant's bankers, the National Bank of Commerce Clock Tower Branch at Arusha. The consequences of the garnishee order are of course known and are to be expected, but Mr. Ngalo Counsel for the applicant submits that as the applicant is a public company with an established address, there was no need to paralyse its operations by this garnishee order, secondly, he stated that in the event the intended appeal is successful, the applicant stands to suffer irreparable losses because the moneys so paid in execution of the decree cannot b« recovered -•^ora the respondent whose whereabouts are unknown. However, to r ,^protect the respondent's interests, Mr. Kgalo stated that the applicant is willing to execute a guarantee bond in the sum of the decretal amount in fayour of the respondent. Without wishing to hazard a guess on the possible^outcome of the intended appeal as I do not have all the papers in front of me, I am satisfied that the offer by the applicanttoexecute a guarantee bond for the

payment of the decretal amount would evenly balance the interests of both parties. The Managing Director of the respondent company could not be traced, hence it would not be safe to make the judgement debtor pay the whole decretal amount before the appeal is finally ■determined. Accordingly I allow this application for stay and make the following orders: <1) The execution of the decree issued by the High Court is hereby stayed pending the final determination of the appeal between the parties pending in this Court. (2) The Garnishee Order issued by the High Court in execution of the decree is lif ted. (3) The aDplicant is to execute a guarantee bond in the sum of the decretal amount in favour of the respondent. (4) The costs of this application to abide the outcome of the appeal. DATED AT DAR ES SALAAM THIS 13TH DAY OF KAY, 1997. L.M. MFALILA

JUSTICE OF APPEAL I certify that this is a true copy of the original. ( M.S.

DEPUTY REGISTRAR