CIVIL APPLICATION NO437 01 OF 2024 J W LADWA 1977 LIMITED VERSUS AMIR SUNDEERJI

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 437/01 OF 2024 J. W. LADWA (1977) LIMITED..................................................... APPLICANT VERSUS AMIR SUNDEERJI................................. ................... ...... RESPONDENT (Application for Stay of Execution to the order of the High Court of Tanzania at Dar es Saiaam) (Mlacha. 3.^ dated the 23rd day of October, 2020 in Miscellaneous Civil Application No. 820 of 2016 RULING 5thJuly & 3rd September, 2024 FIKIRINI. J.A.: The genesis of this application for a stay of execution stemmed from the High Court Civil Case No. 78 of 2016, whereby the respondent Amir Sundeerji then the plaintiff filed Miscellaneous Civil Application No. 820 of 2016 under Order XII rule 4 and section 95 of the Civil Procedure, seeking for judgment on admission based on the written statement of defence filed by the present applicant, J.W. Ladwa (1977) Limited. The court entered judgment on admission as prayed on 23rd October, 2020. The respondent, intending to execute a decree in his favour, filed for Execution Application No. 6229 of 2024, requesting to attach the applicant's twelve (12) different types of motor vehicles. The applicant was duly served on 19th June, 2024. This service prompted the applicant to lodge the present application on 28th June, 2024, by way of notice of motion predicated under rules 11 (3), 11(5) (a) & (b), 11 (6), (11 (7) (a) - (d), 4 (2) (a) & (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by two affidavits: one affirmed by Chandulal Walji Ladwa, the applicant's Managing Director and another by Dhirajlal Walji Ladwa, the Managing Director of a sister company, Simba Motors Limited. The respondent did not let the application go uncontested; he thus filed an affidavit in reply. On the date fixed for the hearing, Messrs. Theodore Primus and Robert Rutaihwa learned Advocates appeared for the applicant and on the respondent's part, Ms. Daines Simkoko and Mr. Rajabu Bakari also learned Advocates appeared for the respondent. Mr. Rutaihwa addressed me and prefaced his submission by adopting the notice of motion and the two affidavits in the support filed. Urging that the applicant has complied with all the requirements as stipulated under rules 11 (3) up to 11 (7) (a)-(d) of the Rules. Recounting that, immediately after being served with an application for execution on 19th June, 2024, the present application was filed on 28th June, 2024, which was within fourteen (14) days prescribed under rule 11 (4) of the Rules. Meanwhile, the applicant had already lodged a notice of appeal to challenge the impugned decision and had served the respondent. Besides, under paragraphs 7 and 8 of the supporting affidavit, the substantial loss to be suffered if the present application is declined has been demonstrated. Mr. Rutaihwa further submitted that the order sought to be executed involves money, and the decree-hoider is a foreigner; therefore, should execution proceed, the recovery of the money ordered by the High Court will be difficult on the one hand and, on the other, render the appeal nugatory. He went on contending that so far, twelve (12) of the applicant's motor vehicles have been attached for the recovery of the decretal amount, the exercise which, if no stay of execution order is granted, could interfere with the applicant's work, the motor vehicles being its tool of work. 3 Furthering his submission, Mr. Rutaihwa also listed as complied with the requirements under rules 11 (7) (a) - (d) of the Rules, since the copies of the notice of appeal, judgment, decree and execution application have been annexed to the affidavit in support of the application of Chandulal Walji Ladwa. Therefore, the three major conditions have been satisfied, which are those under rules 11 (4), (5) (a) & (b) and (7) (a)-(d) of the Rules, underscored, the learned Counsel. Countering the respondent's affidavit in reply, the learned Counsel contended that the respondent had controverted none of the facts deponed. He also disputed the amount of USD 3,500,000 as the sum involved and refuted the assertion that the applicant has not taken essential steps in seeing the intended appeal instituted, only that the applicant has not been furnished with the necessary documents requested. On the claim that the applicant has not demonstrated substantial loss to be suffered, he responded that the aspect had been dealt with specifically in paragraphs 7 and 8 of the affidavit in support. Additionally, Mr. Rutaihwa stressed that it would be difficult to recover the money if the applicant's appeal is successful since he is a foreigner. On the strength of his submission, he prayed for the grant of the application with costs. Ms. Simkoko prefaced her submission by adopting the respondent's affidavit to form part of her submission in opposing the grant of the stay of execution. She specifically addressed items in rules 11 (5) (a) & (b) and 11 (7) (a) - (d) of the Rules as not fulfilled. She challenged the applicant's willingness to deposit three (3) Certificates of Title in the 3rd party's name, who is neither part of the present application nor execution proceedings before the High Court. Moreover, the value of those plots has not been stated if greater than the decretal sum for the Court to consider them as good security, concluded the learned Counsel. Similarly, the applicant has failed to avail to the Court recent title search from the land office, which would have shown that the plots are not encumbered, maintained Ms. Simkoko. Considering the requirements under rule 11 (7) (a) - (d) of the Rules, she admitted that the notice of appeal had been lodged, but no appeal has yet to be lodged, warranting the grant of the application for stay of execution. Ms. Simkoko dismissed the averment and the submission that the respondent is a foreigner, contending that as averred in paragraph 9 of the affidavit, the respondent, in good faith and being foreigner had already deposited with the High Court USD 7,000. There is, therefore, nothing to hold onto that assertion. Finally, she contended that since it is a requirement that all the requirements be fulfilled cumulatively, which the present application has not, she thus prayed for the application to be dismissed with costs. Briefly rejoining, Mr. Rutaihwa argued that it was not a legal requirement that security must come from the applicant. The law requires a firm undertaking to furnish security; therefore, security from a sister company should suffice. Responding to the search related to the five (5) instead of three (3) Certificates of Title referred by Ms. Simkoko, he indicated readiness to furnish the Court with such information. Otherwise, he considered the affidavit by the Managing Director of the sister company sufficient. Mr. Rutaihwa reiterated his earlier submission that all three requirements had been fulfilled and prayed for the grant of the application with costs. I have serenely reviewed the notice of motion, affidavits for and against the application as well as the oral submissions by the Counsel for the parties. The only issue I am invited to determine is whether the application has fulfilled cumulatively the conditions set out in rules 11 (4), (5) (a) & (b), and (7) (a) - (d) of the Rules. Let me start by reproducing the requirement under rule 11 (3) of the Rules which provides thus: "11(3) In any civ il proceedings, where a notice o f appeal has been lodged by rule 83, an appeal, sh all not operate as a stay o f execution o f the decree or order appealed from nor sh all execution o f a decree be stayed by reason only o f an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay o f execution o f such decree or order." The above provision is to be read together with rules 11 (4) of the Rules that:- $ "(4) An application for stay o f execution shall be made within fourteen days o f service o f the notice o f execution on the applicant by the executing officer or from the date o f he is otherwise made aware o f the existence o f an application fo r execution. " 7 And rule (5) (a) & (b) of the Rules, which reads: "11 No order for stay o f execution shall be made under this rule unless the Court is satisfied that- (a) Substantial loss may result in the party applying for a stay o f execution unless the order is made; (b) Security has been given by the applicant fo r the due perform ance o f such decree or order as may ultim ately be binding upon him ." It is a settled principle that the requisite conditions under rules 11 (3), (4), (5) (a) & (b) and (7) (a) - (d) of the Rules are to be cumulatively satisfied. Some of the previous decisions of this Court include Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported), Integrated Property Investment (T) Limited and 2 Others v. The Company for Habitat and Housing in Africa Shelterafrique, (Civil Application No. 162 of 2015) [2016] TZCA 733 (5th February, 2016; TANZLii), and Hai District Council and Another v. Kilempu Kinoka Laizer and 15 Others, Civil Application No. 10/15 of 2017 (unreported) to mention a few. Now reverting to the application after visiting the applicable provisions, I am content that the applicant has satisfied the specified conditions. Starting with rule 11 (4) of the Rules, the applicant after service on 19th June, 2024 as indicated in annexture CW4 - Execution Application No. 6229 of 2024, the present application was filed on 28th June, 2024, which was within fourteen (14) days prescribed by the Rules. This condition is thus fulfilled. Next for consideration is the condition spelt out under rule 11 (7) (a) - (d) of the Rules. The applicant has equally complied with the requirement as annexed to the affidavit deponed by Chandulal Walji Ladwa are the copies of the ruling and drawn order marked CW1, notice of appeal marked CW2 and application for execution served on the applicant marked CW4. This condition has equally been satisfied. The last condition stipulated under rule 11 (5) (a) and (b) of the Rules has been vehemently contested, that the applicant has not been able to demonstrate substantial loss that will be suffered and that the Certificate of Titles furnished as security belonged to the 3rd party who is neither a party to this application nor the execution proceedings. In addition, the value of the guaranteed landed property was not established if it was greater than the decretal sum. I am aware that fulfilling the condition varies from case to case, depending on the circumstances of each case. In the present application, whilst I share the applicant's concern that the respondent being foreigner once paid the claimed amount in execution of the decree, the applicant might find it difficult to recover the same. On the contrary, I have also considered the respondent's averment in paragraph 9 of the affidavit in reply that he had furnished security to the High Court amounting to USD 7,000. as a sign of good faith and commitment. The applicant has not negated this assertion. I thus do not take it that the respondent being a foreigner is a risk worth being given weight. Apart from the above and after I had examined the Execution Application No. 6229 of 2024 with its annexture marked as CW4, twelve (12) of the applicant's motor vehicles have been attached to recover the decretal sum of USD 300,000. While the applicant's loss after the sale of the attached motor vehicles can be atoned in monetary form, the loss would be substantial, assuming the attached motor vehicles are part of the applicant's tools of work. Moreover, no value has been given to each attached motor vehicle, making it harder to resist the applicant's application. Regarding security for due performance, the principle is so long as the applicant is willing to furnish security through an undertaking that suffices. The rationale behind security for the due performance is to protect the respondent from ending up failing to realize the decree in his favour, in the event the intended appeal fails, on the one hand and on the other avoid unnecessary inconveniences on the applicant's side in case the appeal succeeds. In the case of Lomayan Langaramu v. Christopher Pelo, (Civil Application No. 452/02 of 2018) [2021] TZCA 35 (25th February, 2021), which referred to the case of Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 (unreported) the Court stated thus:- "One other condition is that the applicant for a stay order m ust give security for the due perform ance o f the decree against him. To m eet this condition, the law does not strictiy demand that the said security m ust be given before the grant o f the stay order. To us, a firm undertaking by the appiicant to provide security m ight prove sufficient to move the court, a il things being equal, to grant a stay order, provided the Court sets a reasonable tim e lim it within which the applicant should give the same. " In the present application, the applicant, in paragraph 9 of the affidavit in support, has shown willingness to provide for security. Five (5) copies of the Certificates of Title belonging to its sister company, have so far been pledged as security for the due performance. Accompanying the copies of those Certificates of Title is an affidavit of Dhirajlal Walji Ladwa a Managing Director of Simba Motors, and Board Resolution. In Lomayan Langaramu (supra), the Court faced an akin situation in which it entertained security for the due performance in the form of a customary right of occupancy certificate. The pledged as security property belonged to the 3rd party who was neither part of the application nor the execution proceedings. Relying on the affidavit deponed, the Court affirmed the application and concluded that the applicant had met all the conditions. Similarly, in the present application examining the facts availed to me in totality, I am satisfied that the applicant has met all the conditions. I thus hereby grant the application and order that execution of the decree in Miscellaneous Civil Application No. 820 of 2016 be stayed pending a hearing of the intended appeal. This order is, however, subject to the applicant's deposit of the original Certificates of Titles with numbers 124738, 97819, 97764, 97728 and 12 123752 in the name of Simba Motors Ltd. In the alternative, the applicant is to deposit with the Registrar of the Court an irrevocable bank guarantee in the sum of USD 300,000. The intended bank guarantee should be amenable to renewal to cover the whole period until the pending appeal is determined and it should be deposited within sixty (60) days from the date of this Ruling. DATED at DAR ES SALAAM this 2nd day of September, 2024. P. S. FIKIRINI JUSTICE OF APPEAL The Ruling delivered this 3rd day of September, 2024 in the presence of the Mr. Theodore Primus, learned counsel for the applicant and Mr. Rajabu Yazidi Bakari, learned counsel for the respondent, is hereby certified as a true copy of the original. \£\\ R. W. CHAUNGU Id] DEPUTY REGISTRAR tg JJ COURT OF APPEAL .13