kagera transport co ltd another vs scania t ltd 2012 tzhccomd 37 2 may 2012

IN THE HIGH COURT OF TANZANIA (Commercial Division) AT PAR ES SALAAM COMMERCIAL CASE NO 47 OF 2006 (1)KAGERA TRANSPORT COMPANY LIMITED..............................................APPLICANTS (2)NIC0LAUS KAMPA Versus SCANIA TANZANIA LIMITED....... RESPONDENT Ruling. ( 20.03.2012 & 02.05.2012) Nyangarika, J. This is basically an application of stay of execution pending appeal to the Court of Appeal of Tanzania filed on 2.9.2011 by the applicants. The applicants were sued by the respondent for breach of contract and on 23.06.2011 this court (Mruma, J.) entered a judgment against the applicants both jointly and severally as follows. Pg-1 1. Payment of Tanzania shillings 46,350,000.00 for breach of contract. 2. Payment of commercial interest at the rate of 21% per annum from the date of filling the suit to the date of judgment. 3. Payment of further interest at the rate of 7% per annum on the principal sum of T.shs 31,500,000.00 from the date of Judgment fill full satisfaction. 4. Costs for this suit. The applicants were aggrieved by the decision of this court ( Mruma, J.), filed notice of appeal on 28.06.2011 and applied to be supplied with copies of Judgment, decree, record of proceedings and list of exhibits admitted during trial for appeal purposes. On 23.08.2011, this court (Mruma, J ) amended the Judgment suo muto under section 96 of the CPC after it has discovered an arithmetic error in the principal amount awarded and therefore reduced the principal sum from 46,350,000.00 to T”shs 41,000,000.00. This application has been file under the provisions of Order 39 Rule 5(1) and section 95 of the Civil Procedure Code (cap 33 RE 2002) by way of a chamber summons supported by an Pg-2 Affidavit of one, Nicholaus Kampa, who is also the second applicant. The second applicant in his Affidavit supporting the application has deposed under paragraph 5 that the Judgment and decree of this court (Mruma J), the subject matter of the intended appeal, is problematic, in that, the judgment is pivoted on exhibits which were illegally admitted. Amplifying on the points , Mr.lshengoma ,leaned counsel for the applicant ,citing Order 13 rule 4 of CPC and the case of Robert Scheltens & Anothers Versus Valgbis Notaratemvolme &2 others,civil appeal No 24 of 2007 (CA)(Unreported) and SCS Societe Generale Desurvillance sa & Another Versus VIP Engineering & Marketing ltd ,civil Application No 12 of 2006 ( CA) (Unreported), contendedthat document admitted on the court record without any endorsement as prescribed by this rule cannot be regarded as being legally before the court .He said that this procedure for admitting exhibit is mandatory and an appellate court may refuse to read or permit to be used any document not endorsed in the manner required under rule 4 of order 13 of CPC. Mr.lshengoma told this court that although he was aware that in a number of cases both in this court and the court of appeal has P& 3 refused to grant an application for stay on the concept of chances of succeeding of an appeal, there a situation where success of the appeal has been a good ground for granting stay of execution especially where a judgment is problematic on the face of the record as in this case. He was of the view that in the intended appeal, the chances of the appeal succeeding is overwhelming. Citing a book titled Mulla ,code of Civil Procedure vol 2 at page1190 ,14 Edition, to guidance me, Mr.lshengoma argues that the procedure of endorsement of exhibits must be strictly followed, otherwise, the judgment or decision thereof is illegally, regardless as to whether an objection was taken or not during admission or trial of the case .He insisted that it is immaterial whether there was an objection or not. Mr.lshengoma has argued that the chances of success of the appeal is pegged on the face of the endorsement of the exhibits and since this aspect does not wait for arguments from both sides, if the applicants are compelled upon as of now to satisfy the decree .they will suffer irreparable losses as they will encounter some hardship to recover the money from the decree holder , especially if they finally succeed in the intended appeal ,which, on his view, has overwhelming chances of succeeding .He said that once the appeal is successfully, then an order for a Pg-4 retrial, might be the best option by the court of appeal and if that happens, and the decree holder is paid, then she might not opt for a retrial at the detriment of the applicants. On the rebuttal, the respondent brought a Counter Affidavit challenging the instant application for having not advanced sufficient reasons for an order of stay sought for in the chamber summons. Mr.Juma Kimwaga, Learned counsel for the respondent, conceded the point that the exhibits were not endorsed as required under rule 4 of the order 13 of CPC but he was of the view that the defect is just a question of procedure which is curable by an order for retrial. He said that procedures are handmade rules. Citing Attanas Albert & Others Versus Tumain University (2001) TLR 63 (CA), Mr.Juma Submitted that the respondent is a sound reputable financial institution, capable of paying the applicants at any time if eventually the appeal finally succeeds. He was of the view that the loss, if any, would be atoned by way of monetary terms. On his final lap, Mr.Juma was of the view that since the application is made under the provision of order 39 rule 5 (1) of Pg- 5 the CPC, the applicants should have deposited security as a mandatory requirement under rule 5(3)(1) of the order 39 of CPC prior to the filling of the application for stay and beckoned me to dismiss the application with costs. In his short rejoinder, Mr.lshengoma challenged Mr,Juma ,on the issue of compensation by saying that the facts are not canvassed in the Counter Affidavit but Mr. Juma statements are from the b a r. However, Mr.lshengoma, was of the view that in practical terms, the idea put forward by Mr. Juma was not attractive as there is no point of allowing execution to go on by paying the respondent when it is obvious that the appeal will finally succeed and then come back again to the same court for compensation .He was of the view that it is better for this court to make an order of staying of execution pending the outcome of the pending appeal which will obvious succeed . On the issue of security for costs,Mr.Mshengoma ,Citing NMC Versus Jred Kamoga Lisso ,civil application No 61 of 1999 (CA) (Unreported) ,Mr. Ishengoma contended that security is not mandatory but only discretion of this court .He submitted that the power to grant stay is discretionary and therefore security for Pg-6 costs which is also embodied courts powers is also discretionary in determining an application for stay of execution. Mr. Ishengoma therefore submitted that it is illogical for the law to give the court discretionary powers and at the same time limiting its discretionary by demanding security for costs as condition for granting an order of stay of execution. In a worse scenario, Mr.Ishengoma, begged this court to allow the applicants to furnish security by way of an Insurance Bond for the performance of the decree, as a condition for granting an order of stay of execution. The issue of overwhelming chances of the appeal succeeding should not detain us here much. I have taken note of all the arguments raised by both counsels and also on the decided cases cited as the true position on the points .But, I have thoroughly studies the matter carefully and the issues of jurisdiction appears to me to be a preliminary issue before determining this application. I am well aware that jurisdiction in a question of law. As much as the parties cannot confer jurisdiction upon the court either expressly or by mere acquiescence, a court cannot confer jurisdiction upon itself, thus, once a court is on doubt on its Pg-7 jurisdiction, even if parties did not raise it, the court is bound to take it up and consider whether it has jurisdiction in the matter as jurisdiction is away an issue. The question now falling for consideration for me is a narrow one and it is this, Does section 95 and Order 39 rules 5(1) of CPC Confer jurisdiction on this court to order a stay of execution pending an appeal to the court of appeal. It is pertinent here to stance at the provision of section 2 of the CPC which says “subject to the express provisions of any written law, the provision of this code shall apply to all procedure in the High Court of United Republic, Court of Resident Magistrate and District courts. To me, this Code applies for stay of execution in the proceeding brought in the specified court because I am not aware of any written law which make provision to the contrary. There is no any specific provision in the CPC conferring jurisdiction on this court to stay of execution pending appeal to the court of appeal. The question therefore is, can section 95 and rule 5(1) of order 39 of CPC, be construed as conferring on this court for the purposes? pg. 8 Both counsel are well aware that the inherent powers of this court under Section 95 of Code is exercisable where the law has made no provision governing the particular matter at hand. Therefore since the provision of Order 39 rule 5(1) of CPC does not confer jurisdiction on this court on stay of execution pending appeal to the court of appeal, it might be argued that this court has inherent jurisdiction under section 95 of CPC as the code has no specific provision for stay of execution by this court pending appeal to the court of appeal. But the inherent jurisdiction of this court on stay under section 95 of CPC is limited to the proceedings of this court only. Once appeal proceeding have been commenced by the applicant by filling a notice of appeal in the court of appeal ,the law makes specific provisions relating to stay of execution by the court of appeal under Rule 11(2) (c) (d) (e) of the Tanzania Court of appeal Rules ,2009 ,so that there could no longer be an excuse by saying that this court would exercise its inherent jurisdiction because the law has made no provision governing the matter. This means that the high court can only deal with a matter which is properly and completely before it, including its inherent power under section 95 of CPC to decide whether or not to order stay. Pg-9 But under the Tanzania Court of Appeal Rules ,2009 and the Appellate Jurisdiction Act (Cap 141 RE 2002 ), the high court has no concurrent jurisdiction with the court of appeal on matter of stay of execution so as to decide whether or not to make an order for stay of execution pending appeal to the court of appeal. Section 95 of CPC can only be relevant and come into play in exercising the inherent jurisdiction which authorizes the High Court to be seized with the matter at hand .Obviously, there is no linkage ,so to speak .between inherent jurisdiction of the high court under Section 95 of CPC and Rule 11(2) of the Court of Appeal Rules, 2009,in proceedings relating to stay of execution pending an appeal now in the court of appeal . In my research, I did not find any law or rule which is plain that this court is empowered or authorized to consider whether or not to order stay of execution pending appeal to the court of appeal. Applying the above analysis to the situation at hand ,the applicants Affidavit supporting the application at paragraph 5 clearly states that a notice of appeal to the court of appeal was filed on 7.9.2011 ,and this had not been contradicted by both sides. In terms of Rule 11(2) of the Court of Appeal Rules, 2009, this court has no jurisdiction to determine an application for stay pg- io of execution pending an appeal filed in the court of appeal as it is not seized with the proceeding in the court of appeal upon a notice of appeal having been filed on 26.6.2011 in the Court of Appeal. In the case of Aero-Helicopter (T) LTD Versus F.W.Jansen (1990)142(CA), it was held by the full bench of the court of appeal that once a notice of appeal has been filed, then, the high court is functus officio in matters of stay of execution . (see also Rashid Abdulla Rashid El Sinani and Oman International Club versus Mussa Haji Kombo and Ali Mohamed Mussa, Civil Reference no. 5 of 2000,ZNZ(C.A)(unreported) As already said, the notice of appeal in respect of commercial case no.47 of 2006, was filed in this court on 28th day of June, 2011, and the application for stay of execution was filed in this court on 7th day of September , 2011, that is 71 days afterwards. It follows, therefore, that this court has no jurisdiction to entertain and decides the instant application for stay of execution. I will therefore decline to decide the application for stay of execution on merit for lack of jurisdiction and instead I would advice the learned counsel for applicants to file a motion for stay of execution in the court of Appeal itself. pg-11 I insist that this court has no concurrent jurisdiction with the court of appeal to decide on an application for stay of execution once the appeal proceedings to the court of appeal have been commenced by filling a notice of appeal as in this case. This ground alone, I am satisfied is sufficient reasons for disposing of the matter. Having taken this view, I think it unnecessary to deal with the merit of the application which was ably argued at the hearing. In the event, for the foregoing reason, the application for stay is struck out for want of jurisdiction. Each party to bear its own costs as this point which disposed of this matter was not raised by either party. Order according. K.M.Nyangarika, Judge. At Dar es salaam, 2 nd day of May, 2012. 2,866- words pg. 12