kiwengwa strand hotel ltd vs royal insurance t ltd 2008 tzhccomd 1 23 july 2008

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT OAR ES SALAAM COMMERCIAL CASE NO. 68 OF 2003 KIWENGWA STRAND HOTEL LIMITED PLAINTIFF VERSUS ROYAL INSURANCE (T)LIMITED DEFENDANT The applicants herein" ~oyal Insurance (T) Limited (who were Defendants in the main suit), lost a suit against the Respondents, Kiwengwa Strand Hotel Ltd (who were the Plaintiffs in that suit). Judgment was delivered on 25th February 2005. On the same day ie 25th February 2005 the Applicant filed a notice of Appeal against the Judgment and decree of this court. In March 2005 they filed an application for an order to stay execution, the application which was duly granted by the Court of Appeal n 6th May 2006. Earlier on, the applicant had filed Civil Appeal NO.45 of 2005 in the Court of Appeal. However, the Decree issued by this court was dated 1st March 2005, which is not the date on which the judgment was pronounced (i.e. 25th February 2005). The Applicant's Counsel made some efforts to rectify the defect and on 14th February 2008 he filed a supplementary record of Appeal containing duly and properly signed decree as required by law. While the counsel was doing all these efforts, the Respondent's Counsel did on 12th February 2008 filed a preliminary objection seeking to dismiss the appeal on the ground that the decree the subject of appeal was invalid. When the matter was called for hearing on 22nd February 2008, the Applicant's counsel readily conceded to the preliminary objection and the appeal was forthwith struck out. On 26th February 2008 the applicants filed an application for orders that they be granted extension of time within which to file a notice of appeal against the judgment and decree of this court in Commercial case No.68 of 2003 delivered on the 25th February 2005 and to serve a copy of the same on the Respondent. The Application is preferred under the provisions of su b-section (1) of section 11 of the Appellate Jurisdiction Act [Cap 141 RE 2002] and section 21 (2) and (3) of the law of Limitation Act Cap 89 RE 2002. On 28th.2.2008, the Applicants filed another application under he provision of section 21(2) and (3) of the Law of Limitation Act (cap 89 RE 2002), order XXXIX Rule 3(2), (3) and (4), section 93 and 95 of the Civil Procedure Act (Cap 33 RE 2002 praying for orders (Ex-parte) that execution of the judgment and decree of this court in commercial case NO.68 of 2005 dated 25th February 2005 be stayed pending the Applicant's application for leave to apply for stay of execution of the said judgment and decree out of time. They are also seeking for orders (inter parties), that the applicant be granted leave to apply out of time for an order to stay execution of decree of this court in commercial case No.68 of 2005 delivered on the 25th February 2005 pending determination of the Applicant's application for extension of time within which to lodge the notice of Appeal against the said judgment and decree, execution of the judgment and decree of this court in commercial case NO.58 of 2003 delivered on 25th February 2005 be stayed pending hearing and determination of applicant's application for extension time within which to lodge the Notice of Appeal against the said Judgment and decree, and pending the hearing and determination of the intended appeal. The Applicants are also praying for costs. As is the practice of this court both chamber summons are supported by affidavit and in this matter the supporting affidavit is that of Wilbert Basilius Kapinga counsel for the Applicants. When the matter was called up for hearing on 24th .04.2008, I allowed both applications to be argued together. Mr. Kapinga learned advocate appeared for the Applicant while Mr. Mbwambo, learned advocate resisted the applications for the Respondents. Submitting in support of an application for leave to apply for stay of execution of a decree out of time, the learned counsel contended that in the circumstances where there is no notice of appeal filed there is no enabling provisions under the Civil Procedure Code Act [cap 33 RE 2002] but when the provisions of sub-rule (2) (3) and (4) of Rule 5 of order XXXIX is read together with section 93 and 95 of the CPC and section 21(2) and (3) of the Law of Limitation Act the gap in the law is filled. The learned counsel submitted that the time limit prescribed by the law (which is 60 days for the application and 14 days for lodging notice), has long passed but since the appeal which was filed within the prescribed time has been struck out on technical grounds the Applicants have the right to file applications for leave to file an application for stay and an application to file a notice of appeal out of time, and in the circumstances the provisions of Order XXXIX Rule 5(2) of the CPC must be read together with section 21 (2) of the Law of Limitation Act which provides for exclusion of time during which the applicant was prosecuting with due deligence another proceeding whether in the court of first instance or Court of Appeal. Submitting on the second limb of the application, Mr. Kapinga contended that if the decree is executed the applicant's business will be brought to a stand still. On the requirement before a stay can be granted, the learned counsel referred this court to the decision of the Court of Appeal in the case of Tanzania Cotton Marketing Board Vrs Cogecot Cotton Company SA [1997] TLR 63, and in the case of TTCL vrs MIC (TJ Ltd, Civil Application No. 125 of 2002 - (unreported) pg 6. The counsel submitted that it is not necessary for the Applicant to satisfy all the grounds before the staying order is granted - on this point he referred this court to the decision of the Court of Appeal in the case of Ignazio Mecina and Another Vrs Willo Investment and Another civil reference NO.8 of 1999 (unreported) . Responding to Mr. Kapinga's submissions, Mr.Mbwambo submitted that the law allows exclusion of time where the applicant has been prosecuting other pleadings with due deligence. He said that the Applicants in the matter were not deligent because they failed to include in their appeal a valid decree. He said that the decree included clearly contravened the provisions of Rule 35 (1) of order XXXIX of the CPC, the provision which has been there since the enactment of the CPC. He cited the decision of the Court of Appeal in the case of Ami (TJ Ltd Vrs OTTU on behalf of P.L. Asenqa and 106 Others Civil Application NO. 76 of 2002 (unreportedJ where it was commented that court should not be linient to parties or advocates who waits for a wake up calls times and again. Secondly the learned counsel submitted that this application should be thrown over board because it does not comply with the requirements of Rule 5 (1) of order XXXIX of the CPC which prescribes some requirements before a stay of execution can be issued. He said that in the present matter time for appeal has long expired and there has never been order for extending it. The learned counsel submitted further that under the provisions of sub-rule (3) of Rule 5 of order XXXIX of the CPC no order shall be granted unless the court is satisfied that security has been given for the due performance of the decree. The learned counsel concluded that since there is no security deposited in this case no stay can be granted. Submitting on grounds for granting the stay, learned counsel contended that the applicants have simply shown that if the execution is not granted they may suffer crisis that may cause them to close down their business. He said that the Applicants have failed to show that they may suffer irreparably loss that cannot be reparable in the event their intended appeal succeeds. He referred this court to the decision of the Court of Appeal in the case of Unyanqala Auction Mart & Court Brokers & Another vrs PSRC and Another, Civil Application No.65 of 2004 (unreported), where it was held inter alia that where damages could be attorned the ground of irreparable loss cannot be sufficient. Submitting on the balance of convenient, the learned counsel contended that the balance of convenience in this matter is in favour of the Respondent's argument that stay should not be granted. On this issue, he cited the case of Ally Shomari vrs Mrs Nsiana Nathan Njua, Civil Application NO.186 of 2005 (unreported J. Now going by the record before me, there can be no dispute that immediately after the judgment in commercial case no.68 of 2003 was pronounced on 25th February 2005 the Applicant Counsel lodged notice of Appeal against the whole of the said Judgment and decree. This was followed by application for an order to stay execution of the said decree which was filed on 8th March 2005 in the Court of Appeal ie Application No.34 of 2005. On 6th May 2006 the Court of Appeal granted the application with the consent of the Respondents. This was followed by Civil appeal NO.45 of 2005 which was filed in the Court of appeal on 18th April 2005. It is this appeal which contained a defective decree. The Applicant's counsel cannot be blamed for the defects in the decree and taking into account the circumstances of the case and great efforts made by him to rectify the defective " decree before the Preliminary Objection was raised which resulted into striking out of the Appeal, I think this is a fit case to allow both applications that is to say: (i) An application for extension of time to file notice of Appeal against the judgment and decree of this court in commercial case NO.68 of 2003 delivered on 25th February 2005. (ii) An application for stay of execution of the Judgment and decree of this court in commercial case NO.68 of 2003 pending hearing and determination of the intended Appeal. Costs in the course. Order accordingly. A.R.Mruma JUDGE 23/7/2008 Date 23.7.2008 Coram: Hon. A.R.Mruma, Judge. For the Applicant/Defendant - Mr. Bahebe for Mr. Kapinga for. For the Respondent/Plaintiff - Mr. Bahebe for CC: R.Mtey. COURT: Ruling delivered. A.R.Mruma JUDGE 23/7/2008 2,708 jd