20110322 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RUTAKANGWA, J.A., MBAROUK, J.A., And MASSATI, J.A.) CIVIL APPLICATION NO. 82 'A' OF 2010 INDIAN OCEAN HOTELS LTD. t/a GOLDEN TULIP DAR ES SALAAM ................................. APPLICANT VERSUS NITESH SUCHAK t/ a SMART DRY CLEANERS .................. RESPONDENT (Application for Stay of Execution from the judgment of the High Court of Tanzania - Commercial Division at Dar es Salaam) (Mruma, J.) dated the 18th day of March, 2010 in Commercial Case No. 87 of 2006 RULING OF THE COURT 16th March, & 14th April, 2011 MBAROUK, J.A.: In this application made under Rule 11 (2) (b) of the Court of Appeal Rules, 2009, the applicant, Indian Ocean Hotels Ltd. t/a Golden Tulip Dar es Salaam, is' seeking. for an order that the execution of the decree in Commercial Case No. 87 of 2006 in the High Court of Tanzania Commercial Division at Dar es Salaam be stayed pending the determination of the intended appeal to this . 2 Court. The grounds stated in the applicant's notice of motion are that:- " (i) The applicant filed a Notice of Appeal and for which she has just obtained the judgment and decree except the proceedings to enable the filing of the appeal record. (ii) The respondent is now moving to execute the decree. (iii) The applicant will suffer irrecoverable economic loss in the event execution proceeds." At the hearing, Mr. D.J. Nyabiri, learned advocate, appeared for the applicant and Mr. Godwin Muganyizi, learned advocate, appeared for the respondent. As collected in the affidavit filed in support of the application sworn by Puneet Bhambi, the background giving rise to the application is as follows: The applicant being dissatisfied with the decision of the High Court in Commercial case No. 87 of 2006, (Mruma, J.) dated 18 th March, 2010, decided to file a notice of appeal to challenge the said decision. Having filed the notice on 13.4.2020 and served a copy to the respondent, the applicant also applied for copies of the judgment, decree and proceedings on 13.4.2010 for the purpose of lodging her appeal to this Court. Following the Registrar's letter dated 20 th July, 2010 to the applicant's advocates, copies of judgment and decree were ready and supplied to the applicant's advocate on 2ih July, 2010 except proceedings. However, the applicant could not have lodged its appeal to this Court without a record containing proceedings. On 27 th July, 2010 without any delay,· the applicant's advocate reminded the Registrar on the necessity to be provided with the proceedings to pursue the intended appeal. Surprisingly, on 5.8.2010, the applicant was served with the letter from the Registrar notifying it that an application for execution of the decree· in Commercial ·case· No. 87 of 2006 had be·en gra·nted. Furthermore, the applicant found from the High Court's Notice Board a Prohibitory Order addressed to it dated 28.7.2010 in respect of the decree supplied to the applicant's advocate on 27.7.2010. The 4 applicant further stated in the affidavit that a notice of warrant of attachment was served to it for the multi-billion property in the name of INDIAN OCEAN HOTELS LTD. t/a GOLDEN TULIP in the satisfaction of the decree with interest amounting to TShs. 48,523,567 /=. As pointed out earlier, this application is made under Rule 11 (2) (b) of the Court of Appeal Rules, 2009. In Rule 11 (2) (d), the conditions precedent for granting an order of stay of execution have been unequivocally spelt out. Initially, before the coming into force of the Court of Appeal Rules, 2009, the Court mainly relied upon conditions stated in its various decisions for granting stay of execution. This is not the case now, in view of the mandatory Rule 11 (2) (d) which specifically enumerates the conditions precedent to be complied with before the Court grants a stay of execution order. For ease of reference, Rule 11 (2) (d) states as follows: 5 "No order for stay of execution shall be made under this rule unless the Court 1s satisfied- (i) that substantial loss may result to the party applying for stay of execution unless the order is made; (ii) that the application has been made without unreasonable delay; and (iii) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him." (Emphasis added). Currently, we are of the considered opinion that, due to the change of circumstances where the conditions precedent for granting stay of execution have been so specifically stated statutorily, there is no other option but to comply with the provisions of Rule 11 (2) ( d). 6 In the course of hearing the application, Mr. Nyabiri admitted the fact that the applicant's affidavit in support of the application does not contain facts to substantiate loss to be incurred as stated in Rule 11 (2) (d) (i). He contended however that, it is a well known fact that the hotel being a business premises its occupants may have to vacate if stay of execution will not be granted. He thus submitted that, if these inconveniences will occur, substantial loss will be incurred by the applicant. He further submitted that even if no proof of loss has been stated in the applicant's affidavit, he urged us to take judicial notice that, the hotel attached, is a multi-billion property. On his part, Mr. Muganyizi, submitted that, the applicant's affidavit does not disclose facts on the issue of loss likely to be incurred. He thus urged us to find that condition has not been satisfied. In paragraph 9 of the affidavit, it is asserted that the attached facility is a "multi - billion property." It is further asserted in paragraph 11 that "in the event execution proceeds, the applicant will 7 suffer irrecoverable economic loss as a result there of." Although the applicant has not· disclosed the current market price of the attached property, it is our considered opinion that the value of a modern hotel of the type of Golden Tulip, all things considered, is much more than T. Shs. 48,523,567/= It's value, therefore, does not correspond with this decretal amount as is required under Order XXI, Rule 15(4) of the Civil Procedure Code Cap. 31 R. E. 2002. If the hotel is auctioned and the applicant subsequently succeeds on appeal, the loss it will . incur, in our considered opinion might, indeed, be substantial and irrecoverable. We accordingly find that the condition stated in Rule 11(2) (d)(i) has been met here. On the second condition, Mr. Nyabiri submitted that the applicant has lodged this application without unreasonable delay. He said, the application was filed on 9.8.2010 after being provided with copies of judgment, decree and proceedings. He thus urged us to find that the condition stated under Rule 11 (2) ( d) (ii) has been satisfied. 8 In his reply, Mr. Muganyizi blamed the applicant's advocate and the applicant for not having made a pressing follow up to acquire the proceedings. However, he later left it to the Court to decide on the issue whether there was unreasonable delay in filing the application or not. On this point, we are of the considered opinion that, the applicant showed due diligence in making a follow up with the Registrar so as to be provided with the necessary documents to enable her to lodge this application. The application, therefore, was made without unreasonable delay. As to the condition stated in Rule 11 (2) (d) (iii) on security for the due performance of the decree, Mr. Nyabiri first admitted that it had not been fulfiled, but shifted the blame to the court, because no court has stated the amount of security to be deposited. However, he said, his client is ready to deposit such a security if this Court can state the amount. He thus urged us to issue necessary orders to that 9 effect, and invoke Rule 2 of the Court of Appeal Rules, 2009 in the spirit of achieving substantial justice and grant stay of execution. On his part, Mr. Muganyizi submitted that, it is not disputed that the applicant has not deposited any security. He said, security has to be deposited before the hearing of the intended appeal. As to the issue of an amount to be paid, Mr. Muganyizi said, the decree shows the decretal amount,. hence the applicant should not shift the blame to the court. Having considered the rival submissions on the issue of security as a condition precedent for granting a stay of execution, we have to consider the principle concerning the right of the decree holder to enjoy the fruits of the judgment and decree which is in his favour. On the other hand, we have also to consider another principle that the judgment debtor has the right to appeal if dissatisfied and so desires to appeal. The Court has to balance the two principles properly to achieve substantive justice. \ 10 Having balanced the two. principles stated above, we are of the settled view that the interests of justice will be met if we allow the application for stay of execution subject to depositing into the Court as security for the due performance of the decree,· the sum of Tshs. 48,523,567/= within fourteen (14) days from the date of this ruling. Costs will be in the cause. It is so ordered. DATED at DAR ES SALAAM this 22 nd day of March, 2011. E.M.K. RUTAKANGWA JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL I Certify that this is a true copy of the Original. (Z. MARUMA) DEPUTY REGISTRAR