MICAH

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL COURT DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 12767 OF 2024 MICAH ELIFURAHA MRINDOKO t/a NEW BP KILWA ROAD SERVICE STATION............................. APPLICANT versus BANK OF AFRICA TANZANIA LIMITED..................................... RESPONDENT RULING Date of last order: 27/08/2024 Date of ruling: 04/10/2024 AGATHO, J.: In this Application, the Applicant is seeking under Order XXI Rule 27 and section 68 (e) and 95 of the Civil procedure Code [Cap 33 R.E 2019], for an order of stay of execution of an exparte Judgement and Decree in Commercial case No. 75 of 2015, which was pronounced in favour of the Respondent on the 29th May 2018. In that case, the applicant herein was ordered to pay to the respondent bank the sum of TZS 6,333,642,614.87 and interest accruing therefrom at a contractual rate of 38% per annum from the date of accrual of the cause of action to the date of judgment. In support of the application, is an affidavit deponed by the applicant Micah Elifuraha Mrindoko. From the affidavit, the applicant swears that he was 1 dissatisfied with the outcome of the abovenamed case and hence sought for extension of time to set aside the ex parte judgment and decree, but the said application was dismissed for want of merit on 27th September 2021. Still unbending, he filed a notice of appeal against the refusal order in order to appeal to the court of appeal of Tanzania. Pending hearing and determination of the intended appeal, he lodged in the Court of Appeal an application for stay of execution of the decree vide Civil Application No 211/16 of 2022. That application was struck out on 14th February 2024. The applicant depones further in his affidavit that he still intends to proceed with challenging the ex parte judgment but then the respondent is also intending to proceed with the execution of the ex parte judgment and decree by attachment and sale of his only residential house. He states that his intended appeal stands overwhelming chances of success, therefore it is just and equitable that the application for stay of execution be granted forthwith. The respondent vigorously opposes this application. Together with his counter affidavit, she filed a notice of preliminary objection containing two points that: 1. The application is bad in law for contravening provisions of Order XXI Rule 27 ofthe Civil Procedure Code, Cap 33 (R.E. 2019) 2. The application is incompetent for being time barred 2 When the matter came up for hearing of the Preliminary objection on 27.08.2024, the applicant was represented by Advocate Emmanuel Kessy while advocates Denis Mtangi together with Beatrice Massawe were for the respondent. It was ordered that the matter be entertained by way of written submissions. The substance of submissions will be referred to in the course of determining this application. This court has given submissions by both parties the weight it deserves. Being a court of law, in determining this matter, the court will test the requirement of law as against the facts advanced by parties. The foremost argument extracted from the respondent’s submission in support of the preliminary objections is that prior to this Application, the Court of Appeal of Tanzania through Civil Application No. 211/16 of 2022, struck out with costs the Applicant’s Application for stay of execution of this same decree for being misconceived. This was on the 15th February 2024. This only means that the Applicant herein has filed the instant Application praying for same orders previously prayed and struck out before the Court of Appeal. The respondent argues that this is not appropriate as the same prayer has already been determined by the Court of Appeal. The applicant in his submission has evaded responding to this argument which in my view holds water and may end the matter at this very juncture. 3 In studying the record of this case, it is true from annexure ME 5 of the applicant that this very applicant through Civil application 211/16 of 2022 approached the Court of Appeal with an application for stay of execution of the judgment and decree in Commercial Case No 75 of 2015. The Court of appeal in that case was clearly audible under page 4 that the power of the court to grant stay of execution can only be exercised where the decree or order whose execution is sought to be stayed is not only executable but more importantly a subject of the intended appeal. An application for extension of time to set aside an ex parte judgment was held to not be the subject of execution. The court referred to its other cases of Keith Koran and Others v Zameer Sherali Rashid, Civil Application No 230/15 of 2019 and LRM Investment Company Limited and Others v Diamond Trust Bank Tanzania Limited and Another, Civil Application No 418/16 of 2019 (unreported). It should be borne in mind that this court is bound by the decisions of the Court of appeal. In this scenario it is not just a case with similar facts but the court sat to determine this same matter. One would wonder why the applicant herein has approached this court with an application which has already been determined by the Court of Appeal. In this, I am in agreement with the respondent that the Applicant is maliciously playing delaying technique to curtail execution proceedings. That aside, the present application has been made under Order XXI Rule 27 of the Civil Procedure Code [Cap 33, R.E. 2019] which reads; 4 “Where a suit is pending in any court against the holder ofa decree of such court, on the part ofthe person against whom the decree was passed the court may, on such terms as to security or otherwise as it thinks fit, stay execution of the decree until the pending suit has been decided.” From the wording of the provision above, a condition sine qua non for grant of stay of execution is established. Before granting an order for stay it is paramount for the Court so expected to issue the order to satisfy itself as to the existence of a suit or pending suit, not just between the Decree Holder and the Judgement Debtor as the respondent put it but a suit against the holder of a decree of such court. The holder of the decree in this case is the respondent herein. The applicant has no case against the respondent in order to qualify for a grant of stay. As if that is not enough, through chamber summons, the Applicant has advanced the following, “That, the Hon. Court be pleased to stay the execution of an ex-parte Judgment and Decree of this Court in Commercial Case No. 75 of 2015 delivered on 29th May, 2018 delivered by Hon. Sehel J. pending the hearing and determination of the intended appeal currently pending before the Court ofAppeal of Tanzania at Dar es Salaam 5 in respect ofthe application for extension oftime to file an application to set-aside the ex-partejudgment and decree.” The statement above is but a naked lie by the applicant in order to defeat the hands of justice. Although the Applicant alleges existence of an intended appeal currently pending before the Court of Appeal, however the assertions remain unsubstantiated for want of proof thereof. Throughout his affidavit and annexures, there is no paragraph which justify existence of any pending appeal or rather an application, nor did the Applicant avail the court with the case number to which he claims apart from a Notice of Appeal, (Annexure ME 4) which relates to an application for extension of time to set aside exparte judgement. It is without doubt and as correctly submitted by the respondent, this application is filed maliciously to delay execution proceedings at the expense of the Decree Holder who is entitled to enjoy the fruits of the Decree. The applicant in his submission totally rebuts the objections raised by the respondent. In his submission he states that the whole submission by the respondent on the preliminary objections goes to the merit of the application hence the same cannot be raised as preliminary point of laws as it shall require the court to inquire and ascertain some facts as to whether there is a pending suit and whether or not the pending appeal is a suit or not. He cited the case 6 of Mukisa Biscuit Manufacturing Company versus West End Distributors Limited (1969) E.A 696, where it was held that, "A preliminary objection is in the nature ofwhat used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised ifany fact has to be ascertained or what is sought is the exercise of the judicial discretion " On my side, I fail to agree with the applicant on this point. It is the law under Order XXI Rule 27 of the Civil Procedure Code [Cap 33 R.E. 2019] with which this court is moved in this application that requires the existence of a pending suit in order to institute an application for stay of execution. It is clear and needs no long drawn process to find out from the pleadings by the applicant that there is no pending case against the respondent by the applicant in any court, let alone this court. Therefore, the contention that the preliminary objection raised is not a pure point of law, flops. In further preponderance of the matter, I came across the case of Awinia Mushi vs. Tropical Pesticides Research Institute, Civil Application No. 2 of 2006 cited in Civil application No 211/16 between parties herein at the Court of Appeal. In this case whose facts were more or less similar to the case at hand, an application for stay order was sought in respect of an ex parte decree pending determination of an intended appeal relating to an order 7 refusing to set aside the ex parte judgement. The Court of Appeal of Tanzania held that, “Since the intended appeal is not against the merits of the ex parte judgment delivered on 5/12/2005 but against the refusal delivered on 15/3/2006, in my view it would be improper to invoke the provisions of Rule 9 (20 (b) of the Court of Appeal Rules, 1979 and grant the order sought”. Without further ado, the first preliminary objection is upheld. Therefore, I find it nugatory to discuss the second point of preliminary objection on the matter being time barred. In the upshot, the Application is prone to be dismissed with costs as I hereby do. Order accordingly. DATED at DAR ES SALAAM this 4th Day of October 2024. U. J. AGATHO JUDGE 04/10/2024 Court: Ruling delivered today, 4th October 2024 by Hon. Minde, Deputy Registrar in the presence of the parties. 8 U. J. AGATHO JUDGE 04/10/2024 9