20000915 TZCA Dar es Salaam

Nmm~~~~IP THE COURT OF kPPEAL OF TANZANIA - AT DAR ES SALAAM CIVIL APPLICATION NO. 72 OF 2000

BETWEEN NBC HOLDING CORPORATION .00O,...OWOAPPLICANT AND GPACE NDEANA RESPONDEI'T (Application for review from the judgment of the court of Appeal of Tanzania at Dodoma) (Parnadhani uuva,J.A.And Lu gakin dated 27th day of June, 2000 in

RULING Under certificate of urgency, this application has heQu fiJ 4. It Is an appileatlon braug)at under rules 3 .) of the C aa a moving the Court for an orde.r t h t the ecution of the (krt's. of 27th June, 2000 in Civil Appeal No. 76 of 1999 be s.tayed p ending tha ç3etermination of an applicetio fr the 1'eview of the said judgm mt VS the Court dated. 27,6.2000q In su.pport of the p1ication an af1idLt Sworn by Elizabeth Mamba, Corporation Secretary of the applicant, NBC Holding Corporation has been filed. From the affidavital deposition and the oral submission at the hearing of the application before me by Mr. Rweyongeza, learned counsel for the applicant, the main ground for the application is that the respondent is threatening to execute the decree at a decretal amount of Sha, 141+,513, 1+70/= which, according to Mr. Rweyongeza is a colossal amount that mayn,t be recovered from the respondent if the review application is successfully. determined In favour of the applicant after execution has taken place, Further- more, Mr. Rweyongeza was optimistically of the view that there are * - 2 great prospects for the pending application for review on account of two reasons First, this being a general damages ciair, there was no bank rate of interest indicated in the pleadings. As a result, Mr. Pweyongeza lamented, the respondent has charged at a very high rate of interest in the

threatened execution. This is one of the aspects to be addressed at, the hearing of the application for review, Mr. Rweyongeza added, Secondy he said that the applicant was not given the opportunity of being heard on whether the respondent was infact defamed by the words 'that the court found to be defamatory. This, insi.eted Mr. iweyongeza; is yet anoier - important point for the Court 1 s consideration on review. . Mr. N,julumi learned counsel for the respondent. strenuously urged that the application was misconceived. The reason he said was that there is no appeal pending and so to bring up the application under rule 3 was a misconception because rule 3 was not meant to apply in situations such as this. In support of this submission, the Court was referred to the decision of a single judge of the Court in the case of Ao Ally Rashid v. Asmat Khan Hakiikhan, Civil Application No0 k of 1988 (unreported),' In this case, Nyalali, C.J. (as he then was) elaborated on the circums- tances in which rule 3 can be invoked,. As regards the interest rate, Mr Njulumi took the view. that this was no ground for seeking review. The reason he gave was that interest is in the discretion of the court. In this case, he said it was not necessary to plead interest in the pleadings because it was a general damages claime It is common ground that where it is shown that the outcome of the intended

appeal would' be rendered nugatory if the anpeal succeeds, ,.the court normally exercises its discretion to.. grant a stay order in favour of the aplicant0 The Court does so under circumstances in which prima facie, the intended appeal has a likelihood of success. In this case, what are the prospects of the intended appeal? On the basis of . -3- the two main grounds advanced in the intended review I am with repect, far from being satisfied that the application for the pending review can be said to have, prima facie, a likelihood of success. In the rirst ground of appeal as correctly submitted by Mr. Njulumi 7 learned cnsel for the respondent, this being a general damages claim, it was not necessary as a matter of law to state the rate of interest in the pleadings. This is what was done in this case.Itnistelomentary that interest is a matter for the co'ts discretion. As was the e a si e'.here, if it is not stated, it is left open for the court to award 'the intrest rate as it deems appropriate. In that light, I do not thinkthat the jt.e'gted rviow 'can be said to have i'rima facie,. likelihood cxf on this point. As already indicated, tho second point f complaint is that thhg aWlicnt was not given an opportunity of being heard on the isaug whether the repoent as defamed by the words that this Court held to be defamathry. It &hould however be observed here that Mr. Rweyongeza,

learned advocate had made it clear that he wa not dipin, the fact that the words were, as found :by.the Court defamatory. The 'ni3r point of copltint Ic that in ,onsidr1rg 'ihetlicr the epondent was in fact defamed, the respondent was not given the opportunity of being heard. This is the point that the applicant would wish the Court to look into in the review proceedings. With respect, I did not think I need to be delayed on this point. A quick glance through the appeal record at pages 51 and 62 shows that this .sân issue on which both learned counsel for the applicant and the respondent respectively addressed inthoir written submissions. Likewise, at the hering of the appeal and as subrpitted by t4r. Njulumii counsel for both parties had the opportunity of being heard on whether it was necessary for the applicant to use the words alleged to be defamatory. .. ./k I - 4 - For this reason, it seems clear to me that the applicant's prospect on the intended application for review hardly standz any chance of success on the complaint that no oiportunity was accorded to the applicant to be heard. On the basis of these twc grounds for the Intended application for review, I am, with respect, inclined to the view that the jxtended applicatiin for review can harcIy 'e iid to hay-c prima facie, a likelihood- of sWees. Co eqiiently 1 I see 110 ground for granting a stay order pending tha

detmir1atio1' -of the application for review. Before concluding this ruling s I think it is desirable for me to mek brief ob rViOa1. on the - folIxorwine apect. I a m re9ottu13r in agreement with Hon. Nyalali, C.J. (as he then was) that rule 3 of the Court Rules 1979, was meant to deal with departure from the p"odure or pcactió -of the (!ot ro-d in e tn e1in with appeals - see Civil Application No. k of 1988, A. Ally 1ashid V. As!nat Khan Hakimkbn (unreported). This being a Court of Appeal cloaling primarily with appeals it is obvio.im that in oruer for the Court to deal with other mattorlgoutsiIeppea3- the rul have t< be amended. (uite undertax4ably, at the time when the rules were made in 1979, it was not envisaged to apply to situations seh as this application for review. I admit that logically in a deserving and warranted case where an application for review is awaited, and everything else being equal, it would be proper for the Court to exercise its discretion to grant stay of execution pending the determination of the review application. But as f pointed, out earlier, until an amendment to the Court Rules, 1979, is effected in order to accommodate departure from the rules in dealing with applications for review or revisions and stay of eçecütion pending the determination of an application for review or revision, it is high doubtful in my .../5 2. - 5'- mind that an application such as this one can be dealt with under the rules as they are now. In the event and for the foregoing reasons, the application is dismissed with costs. DATED AT DAR ES SALAAM THIS 15TH DAY OF SEPTEMB)ili, 2000.. • D. Z. LUBUVA

JUSTICE OF APPEAL .1 certify that this is a true copy of the original. ( u" A.G.t '4UIJA )

DEPUTY REGISTRAR • '