kcb bank t ltd vs vodacom t ltd 2023 tzhccomd 330 11 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 202 OF 2022 (Arising from Execution Proceedings in respect of Commercial Case No. 43 of 2011) KCB BANK (TANZANIA) LIMITED..................................... APPLICANT VERSUS VODACOM TANZANIA LIMITED..................................... RESPONDENT Date of Last order: 17th July, 2023 Date of Ruling: 11th September, 2023 RULING A. A. MBAGWA, J. This is an application for stay of execution. It has been made by way of chamber summons made under the provisions of section 95 of the Civil Procedure Code and section 2(3) of the Judicature and Interpretation of Laws Act. The applicant prays for the following orders; 1. That, the Honorable Court be pleased to stay execution of the judgment and decree in Commercial Case No. 43 of 2011 pending hearing and determination of Civil Application No. 557/16 of 2022 (Application for Extension of time to file Notice of Appeal) currently filed and pending for hearing in the Court of Appeal. i 2. That, costs and incidental to this application be in the course of the pending appeal. 3. Any and further reliefs the Hon. Court shall deem just and fit to grant. The chamber summons is supported by an affidavit sworn by Mr. Elisa Abel Msuya, learned counsel for the applicant. In rebuttal, the respondent contested the application through a counter affidavit sworn by Lulunga Jonathan Lulinga, learned counsel for the respondent. In brief, the facts obtaining in this application may be recounted as follows; The respondent, VODACOM TANZANIA LIMITED successfully sued the applicant in Commercial Case No. 23 of 2011. Consequently, the Court awarded the respondent TZS 500,000,000.00 being the value of the lost cheque, TZS 25,000,000.00 as general damages and interests of 7% and 11% respectively. Aggrieved, the applicant appealed to the Court of Appeal vide Civil Appeal No. 275 of 2017. However, before the appeal could be heard on merits, the applicant prayed to withdraw the appeal on account of defects in the certificate of delay. Having withdrawn Civil Appeal No. 275 of 2017, the applicant had to start afresh the appeal process including filing a fresh notice of appeal. As such, the applicant filed an application for extension of time within which to file a notice of appeal via Misc. Commercial Application No. 60 of 2022 but the same was dismissed by this Court before (Hon. Maruma, J) in its ruling dated 29th day of September, 2022. Still determined to pursue the appeal, the applicant, by way of second bite, filed Civil Application No. 557/16 of 2022 which is pending hearing in the Court of Appeal. While the application is pending for hearing in the Court of Appeal, the respondent filed an application for execution praying to attach and sell twenty (20) motor vehicles of the applicant. In the affidavit in support of appication, the applicant states that the whole exercise of appeal would be rendered nugatory and the applicant will suffer irreperably in the event a stay of execution is not granted. On the adversary, the respondent vehemently resisted the application through a counter affidavit of Lulunga Jonathan Lulinga. The respondent averred that the applicant has not disclosed sufficient reasons as to why the motor vehicles should not be attached. The respondent further stated that the applicant failed to demonstrate how the applicant stands to suffer irreparably in case the application is not granted. 3 This matter, upon consensus by the parties, was disposed of by way of written submissions. I am grateful to both counsel for their insightful submissions. However, I will not be able to reproduce them verbatim. Suffice it to say that I have accorded them the deserving attention in my decision. As hinted above, this application has been made under the provisions of section 95 of the Civil Procedure Code and section 2(3) of the Judicature and Interpretation of Laws Act which confer inherent powers to the Court. Thus, having read the parties' depositions and upon canvassing the rival submissions, the pivotal issue for consideration in determining this matter is whether, under the circumstances, it is just and equitable to grant the application. It is common cause that as of now, there is no pending appeal nor does a notice of appeal exists. Further, at paragraph 11 of the affidavit in support of application, the applicant admits that the respondent is a giant telecommunication company and its businesses have been booming to the extent of becoming the 1st Telecom Company to provide 5G services in the country. This fact confirms that the respondent is pecunious enough to refund the applicant in case its intended appeal succeeds and the High Court judgment is overturned. One main reason for issuing a stay order is that the applicant must demonstrate that it will suffer irreparable loss if execution is not stayed. However, having considered the obtaining circumstances in the matter at hand, I am of the unfeigned findings that the applicant will not suffer irreparably nor will the appeal necessarily serve for academic purposes. In arriving at the position, I am fortified by the decision of the Court of Appeal in the case of Wilson Ndetaramo Minja vs John Godson Ngowi, Misc. Civil Application No. 2 of 2007, CAT at Arusha where it held; 'Otherwise a party who gets from a court a decree in his favour is entitled to enjoy the fruits of his success, even if the other party wishes to challenge such success in an appeal. If the decree holder is to be prevented by the court from enjoying the fruits of his success, then there must be good reasons for the court to take such unusual step' In view of the above decision and taking into account that the respondent is liquid enough to refund the applicant in the event the intended appeal succeeds, I find no valid reasons to stay the execution. Thus, this application is without merits and consequently, it is hereby dismissed with costs. JUDGE 11/09/2023 5