19930519 TZCA Arusha

' ., . BEI'WEEN . . Nf.TIONi\L 131.NK. OF COMME'.lpE; , . . . ·. . .· . !J'PLIC/iNT : ' I.ND Ml.CU Siif~H LTD, ,, • • . . • • ~ . , RFSPOND~T (l~pplication f;.r Stay of Execution of the decree of the High Court •:f Tanzania at :.rusha) I. I dated the 16th day of January. 1992, in Civil Case No, 138 .•f 19(0 .. ;/.UL ING .~--.>~~ ~ !5,! MNZJ. VJ,S, J ,/1 • : ' Before· me is an applic,e:t.ion seeking st..ay o.f ,e;~cutii-n. pending determination of an appeal to tliis Colli·t. The J~pplicat.ion is brought; ·...... '\~. under rule 9 (2) (b) of the Court of Appeal Rules, Arguing in support of the application Miss Digeye learned Counsel for the applicant su"!xnitted that the applicant will stand to· suffer:i.t' execution takes place because in·'the event of the pend~g · appeal being dectcled in a~Jpl:1.cant 1 s favour the High Court 1 s order , · that the applicant be paid the sum -of Shs, l; 701. 632/15 by f.rusha-' Re 0ion Cooperative Union Enterprises Co, Ltd,, hereinafter ti'.'.! be referred. to as U1CU Company Ltd, was unenforcible as J~RDU Co, Ltd, was not a party to the present· suit. Secondly the learned ccunsel .... ./2 \ \ - 2 - submitted that as lonG as the sum of Shs, 1, 701 1 632/15 was st:i.11 owing . from, the respondent to the ap:;'.)licant as found by the High Cflurt, the applicant was entitled to remain in possession of the titl~ deeds ( which the High Court •rdered

the applicant to surrender ts the res 1;ond.ent) as security for the sum owed to the applicant by the respondent. Finally r-liss Bigeye aq,'llecl that the pend.in[; appeal has great chances of a success. To fortify her ar~ument the Ceurt wa:s referred to the decisiors of this Cm1rt in /Rl.0 I-!ELQOPTER vs F, H1 JL.NSDJ Ceurt of l,ppeal of Tansania Civil f;:ppeal r~~., "J.2.Ll?,,,90 (unrep•rted) and Ni.FCO vs NUL.D/.D:+W VILL'.GE J,,OU1'1CIL_ and Q!:_hers Court of ◄'•EPeal of f, It',., T&iuarw,, Civil i',pplication tJo 4 3 of l ~8 5 (unre;Jorted). :t,.., ', '' In rebuttal Vi;.~. Merinyo, learned counsel for the res~ndent, opposed the application ar g,uing that the applicant had failed to show sufficiePt. l!}'<>U!ld in support of the application for stay of execution. In support of this argument t.~:.e .Court. was reier.-d t~ - QIYIL UTiat.TIOJi Ill, oIT-L',Pi.E 3:W ED at page 39;. It was also-submitted that stay of execution is only granted in special circumstances and the decision in ROSE!Ti'. COOPE1 Ya G~~; NEVILL and ~.nether ( 12,59 l §'; 731 was 4uote0. in support of the submission. Mr. 11erinyo further submittecl. that the applicant has not shown .. . , in the affidavit in support of the application why the respond;nt cannot return the title deeds to him in the event the peno.ing appeal is decided in his faveur. .. ... /; / ..... ... - . ·- . - -·--·. -.--·-----~ . - 3 --

I ·nu1e 9 (2)(b) says: "the Court may in any civil proceec.ings where- a notice of appeal has been ledged , in accordance with l.ule 76 order a stay of execution on such terms as the Court . may think just. 11 The first point this Cou..·t has to consider is H!1ethe:.· the applicant has shown sufficient cause to \'farrant the Com·t to eJ~ercise its discretionary powers and orde1· stay of execut:i:,n of the dec1•ee of the High Court. Admittedly the applicant stands to lose ii' he surrendsrs the title deeds to the resp,::,n0.ent and later wins t:1.e a}~al because frc-m the evidence in the High Court /.""'.,CU Enterprises was not a party in the suit before the High Court; ano. that being the position the order by the High Court t:1.at J.,"J;U Fnterpr1ses pays the counter Claim to the applicant may be difficult to enforce. Indeed even Mr. Umbula learned counsel for the respondent a.greed that enforcement ef the order could pl"Ove difficult when he said: 11 1 agree the counter claim cannot be enforced as A:1CU Enter;>rises was not a party to the suit. 11 As for Mr. Merinyo' s submj_ssion that the a~Jplicant has shown ne sufficient reason to support her fear that the respondent will not return the title deeds to him (applicant) if he (applicant) wins the appeal the answer to that is founcl in Hr. Merinyo I s own submission ..... /4 ' f,.... :• ..,., 1 ___ _ 4 I.·,1 . ·-.~ that the

res::.ondent requfre::; the title deeds "for mortgaGi-ng for a loan.\1 If as ar::,ued. by r-1r, ileriny•, lea;~necl c•unsel for the res::,ohtent, ti1e re::;:,)on.3.ent :reriuires the t~.tle deeds. for mortgaging .to secure a loan there is no 2,uarantee that he. may not mort:-i;age them :immec1.:i.ately they a;.•e release(, to him; and in the event the :)ending apreal in this Court is ci.ecidecL in ap:Jlicant 's favou;.· the appliccmt Hill not be able to retrieve the t:;.tle deeds :frem the res:r10nclent as t\1e sar.1e will have been in the hands of the financial in::;titut~..on t.:,at ba:)pen to. have That bein~ the JO.'.liti.cm the .appl:i.cant could find itself in possescirin of a decree \·1hich coulo. m,t be enf~rced, Loo!d.nc; at the ev:i.d.ence tendered in the lmrer ceµrt it cannot be sa:ul U,at the present applica-tion is merely frivolous -0-r- veJ::.atious. arid without w:i.sh:i..nG to say anyth:ing to prejudice the matter _it would- apj;--ear t::,at the ;,enclihg; a)~.-eal has reasonable pi·ospects. In e:~ercise of t:1e discretionary ~wers of this Gourt under :::.u1e 9 (2)(b) of the Court of Appeal :1u1es t:,e a)plication for stay of execution is gi.·antecl. ui;on the foll01.6.n::, condition: As it is impei·ative t:-iat the :;.ntenC::.ed appeal be inotituted. at t.b.e earliest p•ssible pe:.·:i.ocl anu ,. ,:-.tl~eut any fu;.•ther d.elay s6 as t• mj_.nimise any loss t'.ie

res:·:·on,:..ent r,1ay stan•~- to suffer as a i·esult of stay of e:;:ecution of the d.ec;.·ee of tl1e ~::L:)1 Coui·t, U1e a:,)Illicant is ......·/5 5 •r4~red Lnalise institution of the appeal to this Court within three menths from today 1 s date. Failure to· do so e;-::ecution ,_l the decree •f .the High Ceurt will autematically fPll0w. C•st.s.te ... 1oll•w , t~-event. . . DELIVE:'~ teday ~ . . -t.ha 19-t,h day . oLMay, 199.3 a.~· AJl.USHA. i· .r N. S. HNZAVAS JUST!CE OF Af'P§A&_ I cer~µy that this is a true eopy of the original. M. S.

DEPUTY :!,' l - ,..."'~,., \:-.... ··~ \ \ \ I \ \ .,· \ ~ .,,"'~......<. •• ,, I '