20050908 TZCA Dar es Salaam2

LAZARO MASSAWE t/a SOMBETINI & TABATA MATUMBI PETROL STATION .............................................. APPLICANT VERSUS ENGEN PETROLEUM (T) LTD . .......................................... RESPONDENT (Application for Stay of Execution from the decision of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Dr. Bwana, J.) dated the 12th day of July, 2004 m Commercial Case No. 230 of 2001 RULING MUNUO, J.A.: The applicant, Lazaro Massawe t/a Sombetini and Tabata Matmbi Petrol Stations, through the services of _Mr. Maira, learned C. - advocate, seeks stay of execution of the Decree in Commercial Case No. 230 of 2001 pending the determination of the intended appeal. The respondent Engen Petroleum (T) Ltd. was represented by Mr. Mujulizi, learned advocate. The application was instituted under the provisions of Rule 9 (2) (b) of the Court of Appeal Rules, 1979 on the grounds that: 2 (a) if execution is not stayed, the intended · appeal will be rendered nugatory; (b) On the balance of convenience, the applicant would suffer greater hardship than the respondent if execution proceeds before the intended appeal is determined; and () \ ( c) There are triable issues in the intended appeal. The application is supported by an affidavit deponed to by the applicant, Lazaro Massawe. Mr. Maira fully adopted the said affidavit. He submitted that the applicant will suffer irreparable loss if execution of the decree is conducted before the intended appeal is determined. He further contended that the applicant is a businessman of average means so the execution of the decree would deplete his resources which would seriously inconvenience and cause great hardship and irreparable loss to him. Counsel for the applicant was of the view that if execution is stayed, the respondent economy would not be traum~tized . so on the balance of convenience execution ought to be stayed as prayed. Furthermore, Mr. Maira contended, the intended appeal has good chances of success so 3. execution should be stayed to avoid rendering the result of the intended appeal nugatory. In any event, counsel for the applicant urged the court to allow the application because the respondent filed no reply to counter the applicant1s affidavit. Mr. Mujulizi urged that there is no sufficient ground for granting stay of execution because the applicant did not demonstrate how he would suffer irreparable loss if execution is not stayed. Contending that the alleged irreparable loss must be substantiated, counsel for the applicant cited the case of Tanzania Sewing Machines Co. Ltd. versus CRDB (1997} Ltd. and Another, Civil Application No. 9 of 1999, Court of Appeal of Tanzania (unreported) in which a single judge held: ,.----- In any rate, it has not been shown how the applicant would suffer irreparable loss if stay of execution is not granted. The Court has on a number of occasions held the view that it is not sufficient to assert in general terms ·that the applicant would suffer irreparable- loss, particulars have to be shown of the irreparable loss to be.incurred -----: 4 fu,--thcrt;·1ore, counsei for the respondent argued that in view of the iarq2 debt, it will be more convenient for the debtor to discharge the said debt now to avoid more interest accruing thereon. He pointed out that if the appeal were to succeed, the respondent would repay the decretal amount without difficulty. He fu1tl1er cited the case of Deusdedit Kisisiwe versus Protas B. Bilauri, Civil Application No. 13 of 2001., Court of Appeal of Tanzania (unreported) wherein the Court ruled that the decree holder should not be denied the fruits of his decree unless there are good reasons for doing so. In Kisisiwe's case, a single judge held that - ----- a successful party should be allowed to reap the fruits of the judgment without unnecessary delay. This means that stay of ,. execution should not be granted where ~m applicant is applying delaying tactics and is abusing the process of the Court. I find no sufficient ground for staying execution in this case. Time and again, the Court has held that at this early stage, there is not sufficient material before the Court to be able to fairly gauge the 5 chances of the intended appeal succeeding. On this, Kisanga, J.A., held in the case of Linus Furaha Shao versus NBC, TBR Civil Application No. 9 of 1999, (unreported): ----- this Court has said on many occasions that the allegation that the intended appeal has overwhelming chances of success is no ground for stay because among other things, there is often no material on which the Court can at this stage ascertain that allegation ----- That apart, in this application, the applicant did not substantiate how, and, or what irreparable loss he would suffer if execution. proceeds. If stay is granted, and the intended appeal fails, the already large debt would be heavier because interest WbUld accrue thereon, over and above the interest that has already accrued·on the said debt. On ,. the balance of convenience, therefore, commonsense would dictate that the execution should not be stayed. Should the appeal succeed, the respondent would repay the decretal amount, plus interest to the advantage of the appellant. In view of the above, I dismiss the application for stay of . execution with costs. 6 ' . DATED at DAR ES SALAAM this 8th day of September, 2005. E.N.MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original.