RULING NBC vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA MISCELLANEOUS CIVIL APPLICATION NO. 2512 OF 2025 (Originating from the High Court of Tanzania at Songea in Civil Appeal No. 31639 of 2024) NATIONAL BANK OF COMMERCE (TANZANIA) …..…….…………. APPLICANT VERSUS JAMES JOSEPH MBEYA ….……….…………….…...…………... 1ST RESPONDENT RAISSA COMPANY LIMITED …….…………….….…………... 2ND RESPONDENT RULING 26th March & 10th April, 2025. KAWISHE, J.: The applicant herein above named, filed this application by way of chamber summons requesting this court to grant an order for stay of execution in an Application for Execution No. 000030931 of 2024, which is before the District Court of Songea at Songea pending determination of Civil Appeal No. 000031639 of 2024 which is before this court. The application is made under the provision of Order XXI, Rule 27, sections 68(e) and 95 of the Civil Procedure Code (Cap. 33, R.E 2019) (the CPC). 1 The application has been supported by the affidavit sworn by Mr. Dickson Ikingura, the Principal Officer of the applicant stating the grounds upon which the prayers sought in this application are premised to. At the hearing of the application, the applicant was represented by Mr. Yohana Ayall learned advocate and the respondent was represented by Mr. Eliseus Ndunguru, also learned advocate. The hearing of the application was by way of oral submission. At the onset, the respondent’s learned counsel informed this court that they did not file the counter affidavit. That, he will argue only on legal issues as required by the law. Following the respondents’ learned counsel preamble, the applicant’s learned counsel was invited to address the court on the application. Arguing in support of the application, the applicant’s learned counsel prayed for the affidavit sworn in support of the application to form part of his submission. He ssubmitted that the applicant is the decree debtor and the respondents are the decree holders in Execution No. 30931 of 2024 which is pending before the District Court of Songea at Songea, between the same parties. He averred that the instant application arises from Civil Appeal No. 31639 of 2024 pending before this court between the same parties and it intends to challenge the 2 decision of the District Court of Songea which refused to set aside an ex parte judgment between the parties. Mr. Ayall stated that, this application was filed within 59 days from the date the applicant was served with the summons of an application for execution on 7th December, 2024. It has been filed on the 59th day from the date of service for execution. He added that the application was filed within time prescribed under item 21 Part III of the Law of Limitation Act (Cap. 89, R.E 2019) which provides for an application of this nature to be filed within 60 days. He bolstered his position by citing the case of George Katabi Mtasha & Another vs. Mashauri Wilson Ntizu, Civil Appeal No. 02 of 2022. He contended that for an application of this nature to be granted, the applicant must prove three main conditions which were stated in the case of Tanzania Electric Supply Company (TANESCO) vs. Independent Power Tanzania Limited & Two Others, Consolidated Civil Applications Nos. 19 of 1999 and 27 of 1999 (unreported). He enumerated the three conditions to be; the presence of an appeal between the respective parties, whether the refusal of the application is likely to cause substantial and irreparable injury to the applicant and balance of convenience. It was his submission that the three conditions are available in the instant application to warrant the 3 court to grant the orders sought in this application. That, there is an appeal pending before this court between the same parties and the applicant is the appellant in that appeal. He claimed that, the appeal is against the refusal of an order to set aside ex parte judgment which the respondents seek to execute before the subordinate court and the appeal raises serious matters including curtailing the right to be heard. Moreover, he argued that, if this application will not be granted, it is likely to cause irreparable loss or injury to the applicant. His reason being that the applicant is in the banking industry and the attached property for execution is the building in which its business is operated. That, there is a likelihood of loosing confidence and goodwill of its customers. He argued that, the applicant’s public trust as a banker will be endangered and the loss to be incurred will not be atoned by form of monetary compensation. The applicant’s learned counsel also submitted that, on the balance of convenience the applicant is the one who is likely to suffer more if this application is not granted than the respondent. In his view, the respondent is already having an ex parte decree which under the law it can be executed within 12 years. That, to the contrary, the respondent may lose that public trust as a banker in the society. Hence, its customers if this application is not granted and as well will lose her 4 right to be heard in the pending appeal which may be overtaken by events and be rendered nugatory on the part of the applicant. To substantiate his stance, he cited the case of Nicholaus Lekule vs Independent Power Limited and Another (1997) TLR 58. Mr. Ayall avowed that, this court has power to issue an order for stay of execution under Order XXI rule 27 of the CPC and Order XXXIX rule 5 of the CPC is not applicable to the instant application. That, rule 8 of the said Order XXIX bars the applicability of Order XXXIX rules 5 and 6 in an application of this nature. He submitted that, Order XXIX rule 5 shall apply where there is an appeal arising from execution proceedings but where the application for stay of execution is made the proper provision is Order XXI rule 27 of the CPC. Finally, he stated that, in granting applications of this nature, this court has discretion power to direct that a security be issued. He added that, since the applicant in this application has cumulatively proved the three conditions, he prayed for the court to grant the orders sought and the applicant will be willing to comply with any order as will be directed by the court under Order XXI rule 27 of the CPC. The respondents’ learned counsel resisted the application on the ground that it is legally misplaced. He argued that, this court has power to hear and determine any application of this nature under Order XXXIX 5 rule 5 of the CPC and not under the provision stated by the applicant’s counsel in this application. However, he stated that, for an application of this nature to be granted, the court has to be satisfied that, there is an appeal against the impugned decree, there is a danger of irreparable loss to occur on party of the applicant and the court has to ascertain security to be given by the applicant for the due performance of such decree. He added that, under Order XXXIX rule 8 of the CPC which states the powers conferred by rules 5 and 6 shall be exercisable where an appeal has been preferred not from the decree but from an order made in execution of such decree. He argued that, in the instant application the decree is in place but it is yet to be executed but the application is made under Order XXI rule 27 of the CPC and Order XXXIX rule 5 of the CPC is applicable as the application for stay of execution is made before an appellate court and not the executing court. Nevertheless, he stated that, assuming this court has jurisdiction to grant the prayer made in this application, the conditions for stay of execution are provided under Order XXXIX rule 5 sub rule 3 of the CPC and they must be proved cumulatively. He added that, the conditions resemble with those stated under rule 11(2)(d) of the Court of Appeal Rules, 2009 as it was stated in the case of Monica Mbale vs Benedict Sudi, Misc. Civil Application No. 302 of 2022 (TanzLII) and Mbeya 6 Cement Company Ltd vs Sara Ole Daniel & Another, Civil Application No. 649/06 of 2021 in which the Court while referring to the decision of the Court of Appeal in the case of Felix Emmanuel Mkongwa vs Andrew Kimwaga, the Court stated that rule 11 (2)(d) is in pari materia with Order XXXIX rule 3 of the CPC requires insisting that all the conditions have to be accumulative. Mr. Ndunguru submitted further that, though the application is made under wrong provision, it does not oust the jurisdiction of the court to grant the relief sought provided that the court has jurisdiction. He submitted that, from the prayers made in this application, the court which has been referred to is the executing court and not this court as provided under Order XXI rules 24, 25, 26 and 27 of the CPC. He insisted that, Order XXI of the CPC does not deal with the appellate court but by the executing court and the jurisdiction of this court is provided under Order XXXIX rule 5 (1) of the CPC and this application is misplaced and must be struck out for want of jurisdiction. In his rejoinder to the respondent’s learned counsel, Mr. Ayall, insisted that the application was properly filed on a ground that, Order XXXIX rule 8 of the CPC ousted the applicability of XXXIX rule 5 and 6 in cases where an appeal has not risen from the application for execution. He amplified that, appeals which can be stayed under Order XXXIX rule 7 5(1) or (2) of the CPC are from the decisions of the executing court. He added that, the respondent’s counsel has misconstrued the provisions of Order XXI rules 24, 25, 26 and 27 of the CPC by stating that they do not deal with the powers of the appellate court. He insisted that, Order XXI rule 24 allows application to stay execution to be brought before the court where the decree was passed or to any court having appellate jurisdiction in respect of the decree or execution thereof. He rejoined further that, in the instant application the applicant has preferred an appeal to challenge the decision of the trial court refusing to set aside its ex parte judgment and the relevant provision is Order XXI rule 27 of the CPC and the parties are similar to those in the executing court. Though he agreed with the respondent’s learned counsel that, even where there is a wrong citation of the law, the court may grant the prayers sought provided it has jurisdiction, he resisted the stance that this application was brought under wrong provision. He contested that, the case of Monica Mbale (supra) and Mbeya Cement Company Ltd. (supra) referred by the counsel for the respondent are distinguishable. He amplified that wile in Monica Mbale (supra) the application was made under Order XXXIX rule 5(1), 3 (a) to (c) and 4 of the CPC, and the application arose from an appeal against an order for execution, the instant application arises from an appeal from the trial 8 court’s refusal to set aside an ex parte judgment and the parties are the same and under such circumstances, Order XXI rule 27 of the CPC is the appropriate provision. He insisted that, the decision made in Monica Mbale (supra) do not bind this court and he invited this court to look on what has been submitted by the parties and come up with its own decision in accordance to the circumstances of the case. Distinguishing the decision in Mbeya Cement Company Ltd (supra) from the instant application he argued that, while the application in the decision of the Court of Appeal was made under rule 11 of the Court of Appeal Rules, the instant application has been made under the CPC and it does not apply at the situation at hand. Finally, he argued that, considering that nothing has been submitted by the respondent’s counsel in respect to the time for filing the application, irreparable loss that may be incurred by the applicant and balance of convenience, it seems the respondent has not resisted the application. He prayed for this application to be allowed and this court issue its orders as to security or otherwise as provided for under Order XXIX rule 27 of the CPC. I have keenly followed the submissions made by the parties’ counsel and having duly considered the affidavit sworn in support of the application, I find before determining the merit of the application, it is 9 pertinent to resolve the contention as to whether the application has been filed under proper provision of the law. It is the respondent’s counsel submission that, the application has been brought under wrong provision on account that the proper provision is Order XXXIX rule 5 of the CPC and not Order XXI rule 27 of the CPC. Despite his stance that the application is brought under wrong provision, it was his view that this court may grant the order sought in this application provided it is bestowed with jurisdiction over it. This has been joined by the submissions made by the applicant’s counsel in his rejoinder. This stance has been borrowed from the decision of the Court of Appeal in Ntuta Wailes vs. James Elias Dzunda & Others, Civil Application No. 499/06 of 2021, in which the Court stated that, where there is a wrong citation of the law, the Court may determine it provided that, what is prayed for is within the jurisdiction of the Court. Consequently, from the position established by the Court of Appeal in Ntuta Wailes vs. James Elias Dzunda & Others (supra), I find there is no need of labouring much in discussing on the proprieties of the enabling provision. Reverting to the merit of the application, one question to be resolved is whether the conditions for the grant of an order for stay of execution has been met. The application has been made under Order XXI, Rule 27 of the CPC. The provision empowers the court to order for 10 stay of execution if there is a pending proceeding in respect to the executable decree. It also provides for some conditions to be complied with for the application for stay of execution to be granted. It provides that: “27. Where a suit is pending in any court against the holder of a decree of such court, on the part of the 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.” The powers of the court to order for stay of execution provided in the above quoted provision can only be exercised upon fulfillment of three conditions. The conditions are set out under Order XXXIX, Rule 5(3) of the CPC. Order XXXIX, Rule 5(3) provides that: “No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the High Court or the court making it is satisfied that: - (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.” Now, the question is whether the applicant has met the requisite conditions set by the law? To answer this question, this court will have an ample time of going through conditions one at a time. 11 With regard to the first condition that there must be a substantial loss that may result to the party applying for stay of execution, the applicant’s counsel argued that, if this application will not be granted, the appeal which is pending before this court will be useless and the applicant will suffer irreparable loss. Reasons adduced being that, the property which has been attached for execution is used by the applicant in running her daily businesses in the banking system. That the inconvenience and loss to be suffered by the applicant herein will be more than the loss to be suffered by the respondent who is already holding a decree. The fact that the applicant will suffer more loss has not been resisted by the respondent’s counsel. Having considered the arguments made by the parties, I find the applicant has managed to prove that there will be loss on her party. Therefore, first condition for grant of an order for stay of execution has been established. Pondering on the second condition that the application has been made without unreasonable delay, the applicant’s advocate averred that, the application was filed within 59 days from the date the applicant came to know that there was an application for execution of an ex parte judgment. He argued that, the application was made within time in line with time limitation as set under item 21 Part III of the Law of Limitation Act (supra) which is 60 days. The respondent’s counsel had nothing to 12 argue on that issue. In my view, I find that this application was filed without unreasonable delay for it has been filed within the time limit prescribed by the law. Thus, the second condition is met. In respect to the to third condition on security being furnished by the applicant, the affidavit is silent on this requirement. The applicant’s counsel in his submission has submitted that, the applicant is ready to furnish any order to be given by the court including an order for security. Principally, in application for stay of execution, security is furnished so as to protect the respondent from facing difficulties or impossibility of realizing the decree. In Africhick Hatchers Limited vs CRDB Bank Plc, Civil Application No. 98 of 2016 [2019] TZCA 148 (TanzLII) the Court insisted on the importance of security in the following terms: "Of course; most important is the fact that the respondent should not find it difficult or impossible to realize the decree in case the intended appeal fails. This is the cornerstone of the requirement for security. In such circumstances, the court is principally obliged to figure out whether or not any one particular mode of security vouchers risks on the part of the respondent.” I understand that the applicant has her right to pursue the application filed before this court. However, the court has to keep its eye open by taking measure to protect respondent’s rights of enjoying fruits of the decree in case the applicant's application fails. Consequently, the 13 applicant shall furnish a bond of security as was held in the case of Aron Tutus Kagurumjuli vs Jiji Co-operative Savings and Credit Society Limited (Civil Application No. 279 of 2025) [2025] TZCA 186 (7 March 2025). Where the Court held that: ” The applicant depose that he is ready to furnish security as directed by the court. It is my opinion that, since the subject matter is immovable property, the applicant must commit himself to provide a commitment bond that will relieve the respondent for him to satisfy the decree in case the appeal will be dismissed.” Also see the case of Suleiman Yussuf Ali vs Sultanal Abdallah Gulamhussein (Civil Application No. 421 of 2018) [2019] TZCA 452 (17 October 2019), Mohamed Masoud Abdallah & Others vs Tanzania Road Haulage (1980) Ltd (Civil Application No. 58 of 2016) [2019] TZCA 198 (24 June 2019) and Rose Benedict vs Janet Evarist Njau & Others (Misc. Civil Application No. 311/02 of 2024) [2024] TZCA 508 (27 June 2024) where the Court stated the condition that the applicant has to execute a commitment bond as a condition precedent to granting the application for stay of execution with a specified time. While guided with the authorities cited herein above, and the submission by the applicant’s learned counsel that the applicant is willing to furnish security as shall be directed by this court to protect the interests of the respondents, this court finds it proper to order for 14 security as a condition for granting the application. As a result, I find the third condition also has been met. Consequently, I find that the three conditions required for the grant of the application for stay of execution are cumulatively met moving the court to grant the application. Therefore, the respondents are ordered to stay execution of the attached property in the Application for Execution No. 000030931 of 2024 before District Court of Songea at Songea. I also order that parties maintain status quo of the attached property until the appeal is determined. This application is granted on a condition that, the applicant shall furnish a bond committing herself to ensure that the attached property remains in the same condition as it was at the time when the decree was passed until the hearing and determination of the pending appeal. The Commitment Bond shall be deposited in court within 30 days from the date of this Ruling. I give no order as to costs. It is so ordered. DATED and DELIVERED at SONGEA this 10th day of April, 2025. E. L. KAWISHE JUDGE 15 COURT: Ruling delivered in the presence of Mr. Eliseus Ndunguru, learned advocate for the 1st respondent and in the presence of Mr. Nadhiru Dadi, learned advocate holding brief for Mr. Yohana Ayall learned advocate for the applicant. E. L. KAWISHE JUDGE 10/04/2025 16