19970624 TZHC Dar es Salaam

IN THE COURT OF APP8AL OF TANZANIA AT DAR ES SALAAM AR CIVIL APPLICATION NO. 2 OF 1997 NATIOr-1/\L 13/\Nl< OF' COJ\'iME:RCE . . . . . . /\PPLIC/\NT /IND JUSTO MSECIIU & SONS L'J'D. • • • • • RESPONDENT (Application from the Jurlgement of the High Court of Tanzania at Arusha) ctaterl the 24th day of December, 1996 in L1vil Case No. 40 of 1995 R U L I J\! G LUBUVA, J.A.: In this application, the applicant, the National Bank of Commerce is seek~rig to Stay the execution of the decree dated 24th December, 1996 pending the intended appeal. The decree wa~ issued by the High Court at Arusha (Mroso, J.) in Civil Case Noo 40 of 1995. In that case, the Respondent was awarderl specific damages at a sum of shillings 26,240,000/=. Being dissatisfied with the decision the applicant has lodged a notice of appcAl ■ :I'he application by way of ,J notice of motion supported by an affidavit sworn by \:Jilfrcrl l'-1lr;1111bo, learned Counsel' who together with Mr. Maira, learned Counsel had represented the applicant before the High Court. From the affirlavit the main ground for seeking stay of execution is that the applicant w~uld suffer great hardship if an order for stay of execution , is not granted. Furthermore, it is also stated in the affidavit that the intended appe~l has great chances of success. At the hearing of this application before me, the applicant was again ••• /2 • 2 advocaterl for by Messrs f1aira and Mirambo, h.'arnPrl Counsel. In elabora tj on, Mr. ~.-,oira, l(~arn0r! Counsel emphasizerl the f rict that. as the responclent comp;~i,y is ,:lormar,t ,-Ji th no n-c>turn filed since 1987, the applicant is likely to suffer irreparable loss if the appeal succeeds in his favour. This is so, he stated, because the respond2nt is so heavily inrlebted to the applicant bank that it would not be possible for the applicant to recover the decretal amount once execution takes place. In the course of his submission, Mr. Maira revea1Pc1 that the decretal amount of shillings 26,24 □ ,ono/~ has been paid unrler pr0t~st after the seizure and attachmecnt of tlie applicant's motor vehicles. Prompted by the Court as to what the application seeks to achieve if execution has been effected, Mr.Maira, learned Counsel while conceding anrl correctly so in my consirlered view that with the decretal amount pairl the application for stay 6f execution had been overtaken by events, he urged the court to issue an order for the responciert to deposit the amount of money in Court. In his submission, Mr. Maira was of the view that i t was safer to have the money rlPposited in Court than leaving it in the custorly of the responrlent. He subrnit--terl further that the Court could do so by invoking rule 3 of the Court's rules in order to ensure that justice is done. Mr. D. Ngalo, learnerl Counsel for the respond~nt vehementaly opposed the application. He availerl to the Court a copy of the letter from the applicant rlated 29th May, 1997 arl0ressed to the Respondent enclosing a cheque for shillings 26,240,000/=. It was Mr. Ngalo' s view that i.n terms of the provisions of rule 9 ( 2) the institution of an appeal shall not operate to suspend the execution of a decree. In this case, the execution having taken place, there was no basi~ for- sustaining the application for stay, ••• /3 he urged. Elaborating further, Mr. Ngalo submitted that as a matter of prirciple,· no stay of execution orrler can be issued after exE>cution has.been carried out. In support of this proposition, he r,~ferrerl to MULL/\ on Civil Proceriure Code, 14th Ectition, VoL 2 p.1188. He prayed for the rJismissal of the application. From the affidavit deposition by the applicnnt and the oral submissions by both the learned Counsel for each of the parties, it is common ground that shillings 26,240,000/= has been paid by the applicant in satisfaction of the decree in respect of the High Court (Arusha) Civil Case No. 40 of 1995. In the letter of 29.5.1997 ad~ressed by the Applicant's Zonal Director to the Respondent, it is staterl: "Enclosed herewith please find our BP cheque No. A 050862 for Shs. 26,'240,000/::: being payment in satisfaction of the decree in respect of the above case. We thP.refore expect that the bank's three vehicles attached by the Court Broker in execution of the rlccree will b8 released immediately". The notice of motion file~ under rule 9 (2) (b) of the Court 0f Appeal Rules, 1979 seeks the Court's orrler in these terms: "That the execution of clecree in High Court Civil Case No. 40/1995 ctelivered at Arusha on 24/12/1996 be stayed until the rletermination of the intended appeal to the Court of t,ppeal of Tanzania". • •• /4 '/ .. /f 4 j From these facts and as already indicated, Counsel for both partiss are agreed, it is beyond dispute that what was sought to be achieved in the application for stay has already been accomplished. That is, as Mro Maira, learned Counsel for the applicant described it, the stage for stay orrler is nver. In Mulla, Civil Procedure Code, 14th Edition, p.1188, it is stated: "An order for a stay of execution implies that the decree has not been executed. Therefore, where a rlec~ee has been executed, no order can be marle un0er this rule." And so, as correctly conceded by the learned Counsel for both parties, this application has been overtaken by eventso There is hardly anything that this Court could do at this stage in this application in restoring the status quo which is the object of such an application. The granting of a stay order would not therefore serve any useful purpose. At this juncture it is relevant to observe that the application by way of a notice of motion was filed in the Court at the Arusha R80istry way back on 3rd January, 1997. This was reasonably soon after the decree was delivered on 24.12.1996. However, it is unfortunate that while the application was still pending, a warr~nt of attachment was issued on 9.5.1997 resultin~ in the attachment of the applicant's motor vehicles. Although as a matter of law uncter the provisions of rule 9 (2) that course of action cannot be faulted because the institution of an appeal is not a grou.nct for suspending the execution of a aecreP., nonetheless, if the fact that the application was already before t the Court was brought -to the attention of the High Court, it 5 could well be considered before the issuance of the execution orr:h.:r. In-the event of a refusal to stay the execution of the decree, it would be open for the party aggrieveci to "lppeal against that decision. As matters stanrl now, apart from sympathizing with the applicant, as a matter of law and procedure, this Court has no legal basis upon which to issue a stay orrler. As mentionerl before, JVJr. Maira, learned Counsel for the applicant made strenuous effort to convince the Court to invoke rule 3 of the Court's Rules, 1979 to orrler the Responrlent to deposit in court the money paid by the applic~nt in satisfaction of the ctecrc-!e i.e. Shs. 26,240,000/=. Ne":-'!dless to go into the details of this aspect, suffice it to state that rule 3 is meant to cover matters which are before the Court and for which no provision is made under the rules. In the instant case, it is clear to me that the matter pertaining to that aspect is not before this Court. That is, what is sought by Mr. Maira, namely, depositing the rlecretal amount in Court is an aspect touching on the process of execution. It concerrs the alteration of the conditions or terms of the execution an~ attachment process which is the concern of the Hiah Court. It should have been raised with the High Court if at all it was felt desirable. For that reason an0 with due respect to Mr. Maira, learned Counsel, I am unable to accept his prayer to have the money deposited in Courto In the event, anrl for the foregoing reasons, the applicc1tion is dismissed with costs. DATED at DAR ES SALAAM this 24th day of June, 1997. D ■ Zo LUBUVA JUSTICE OF APPEAL ••• /6 6 I certify that this is a true copy of the original. I \ (- \ \ ('• . ! ,1 '-: 'l 1~ ·, ..,.\\ ! A. ,.,, ,... .· u---..1 ,r--...,,,,.,\.. r-, i \'· i\\J- (·. i I ( B.M. LU/\ND/\) SENIOR DEPUTY REGISTRAR