CIVIL APPLICATION NO 148 02 OF 2024 NSK OIL AND GAS LIMITED ANOTHER VS NATIONAL MICROFINANCE BANK PLC

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION No. 148/02 OF 2024 NSK OIL AND GAS LIMITED.................................................... 1st APPLICANT MAHESH INDERPALL BURDHRAM AGGARWAL...................... 2nd APPLICANT VERSUS NATIONAL MICROFINANCE BANK P L C .................................. RESPONDENT (Application for stay of execution of a decree from the Judgment of the High Court of Tanzania at Arusha) (Jiqanqa, 3.) dated the 29th May, 2023 in Land Case No. 03 of 202 RULING 21st August & 4th September, 2024 RUMANYIKA. J.A.: The applicant herein is seeking an order to stay execution of the decree of the High Court of Tanzania at Arusha dated 29th May, 2023 in Land Case No. 03 of 2020. The application is by a notice of motion made under Rules 11 (3), (4), 4A, (5) (a), (b), (6), (7) (a)-(d) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). It is supported by an affidavit sworn by Kamaljeet M. Aggarwal, who is the managing director of the 1st applicant company. The respondent has contested it i by an affidavit in reply sworn by Consolatha Mosha who is a principal officer of the respondent. Briefly, in Land Case No. 03 of 2020 the applicants had sued the respondent seeking, among other things, a declaration that the appointment of Charles B. Rwechungura as a receiver manager of the applicants' property was premature and unlawful. She also asked for an order restraining the 1st and 2nd respondents and their agents from causing any disturbances on the suit premises. However, in that suit the respondent counterclaimed TZS 12,704,963,897.38. However, the applicant withdrew the suit leaving behind the said counterclaim. Consequently, on 29th May, 2023 applicants were ordered to settle their liability in respect of the overdraft facility of TZS 10,824,114,736.99. Aggrieved by the decision, they filed a notice of appeal on 16th June, 2023. However, the appeal process apart, the respondent filed Execution Application No. 73 of 2023 and served the notice on the applicants on 23rd November, 2023, hence the present application. At the hearing of the application, Mr. Steven Mushi, learned counsel appeared for Mr. Gwakisa Sambo, learned counsel for the applicant whereas Messrs. Keister Lyaruu and Moses Mbando, learned counsel teamed up representing the respondent. While holding the briefs of Mr. Sambo, Mr. Mushi informed the Court that, Mr. Sambo was indisposed thus, exempted from duty by a medical doctor for seven days. In terms of rule 38A (1) of the Rules, therefore, Mr. Mushi prayed for an adjournment of the hearing of the application. To Mushi's prayer for adjournment, Mr. Lyaruu objected on three grounds; one, that, there should have been another advocate in place of Mr. Sambo from the Patriotic Legal Consultants & Co. Advocates instructed to proceed; two, that, the respondent was conceding to the application thus, the matter is no longer involving and three, that, the respondent's advocates had travelled all the way from Dar es Salaam which is costly. Having heard the arguments from the learned counsel, it is my considered opinion that, the question is no longer whether or not Mr. Sambo was served for the hearing of the application, but rather, whether the hearing has to be adjourned in the circumstances. For the interest of justice, the prayer is untenable for three main reasons: one, it has not met the test in a long established legal principle that, any matter which is set for hearing, as is in this instance, it has to be heard unless some cogent reasons to the contrary worth to be recorded by the Court are given and recorded. On my part, I find no ground to record upon which to adjourn the hearing; two, the respondent has readily conceded to the application and three, Mr. Sambo was duty bound to assign strong reasons for not giving Mr. Mushi the instructions to proceed to the hearing of the matter. Responding to the application and stressing on the Court's exparte order dated 26th March, 2024, Mr. Lyaruu readily conceded to it. He contended that, the applicants had fulfilled all the conditions to warrant a grant of stay order, save for the requirement to provide security for the due performance of the decree. He thus, urged the Court, in its discretion to direct on the sum and form of the security as it may deem fit, just and equitable in the circumstances. Worth to be noted also, is whether the corresponding enabling provisions of the law have been complied with. They read thus; 11(3)...an appeal, shall not operate as a stay of execution o f the decree or order appealed from nor shall execution o f a decree be stayed by reason only o f an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay o f execution o f such decree or order. (4) An application for stay o f execution shaii be made within fourteen days o f service o f the notice o f execution on the applicant by the executing officer or from the date he is otherwise made aware o f the existence o f an application for execution". Sub-rule (5) of rule 12 of the Rules reads: "No order for stay o f execution shaii be made under this rule unless the Court is satisfied that- (a) substantial loss may result to the party applying for stay o f execution unless the order is made; (b) security has been given by the applicant for the due performance o f such decree or order as may ultimately be binding upon him". (6)...N/A (7) "An application for stay o f execution shall be accompanied by copies o f the following- (a) a notice o f appeal; (b) a decree or order appealed from; (c) a judgment or ruling appealed from; and (d) a notice o f the intended execution" Applying the above cited provisions to this application, it is evident from the record that, the applicant was served with the notice of execution on 23rd November, 2023 and she lodged the application within fourteen days later on 7th day of December, 2023 in terms of rule 11(4) of the Rules. Also, the applicants have stated in item 7 of the notice of motion and paragraphs 10 11, 12 and 18 of the affidavit that they stand to suffer substantial loss since, the property sought to be attached include their residence and office accommodation. Further, it is the applicants' averment that, if the intended execution is left to push through, they would be left homeless and with no source of income. Moreover, the applicants have shown a clear undertaking to provide security namely; the landed property with Certificate of Title No. 186080/32, Plot C located at Chang'ombe Industrial area in Dar es Salaam and another one with Certificate of Title No. 4662 located at Themi Industrial area in Arusha region, for the due performance of the decree, pursuant to rule 11(5) (b) of the Rules. It is also noted that, in terms of rule 11(7) of the Rules, all the necessary copies of the notice of appeal, the impugned judgment and decree and the notice of the intended execution have accompanied the application. It follows therefore, that the issue for my determination is no longer whether the applicant has fulfilled all the requirements for the grant of stay of 6 execution. As such, it is in line with the trite law that, for an application for stay of execution to be successful, all the conditions set forth in the above cited rule must be fulfilled cumulatively. The Court has reiterated that proposition on different occasions such as in Felix Emmanuel Mkongwa v. Andrew Kimwaga, Civil Application No 247 of 2016 where we observed that: "...for an application for stay o f execution to be granted under the Rules, the above conditions had to be cumulatively complied with,... See for instance the cases o f Joseph Anthony Spares @ Goha v. Hussein Omaryf Civil Application No. 6 o f 2012 and Laurent Kavishe v. Ene/y Hezron, Civil Application No. 5 o f 2012 (both unreported)." The more so is that, the respondent did not have any qualms with the sum and form of security proposed by the applicants provided that, it should be such an amount that would sufficiently secure the total amount of TZS 21,059,360,581.00. The upshot of it is that, the applicant has advanced good cause for the grant of an order of stay. For avoidance of doubt, therefore, execution of the decree dated 29th May, 2023 of the High Court of Tanzania at Arusha in Land Case NO. 03 of 2020, is hereby stayed. Being guided by our proposition in Mantrac Tanzania Ltd v. 7 Raymond Costa, Civil Application No. 11 of 2010, the order is conditional upon the applicant depositing in court, a bank's guarantee for TZS 21,059,360,581.00, in favor of the respondent within sixty working days from the date hereof. Each party shall bear their costs. DATED at DAR ES SALAAM this 3rd September, 2024. S.M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 4th day of September, 2024 via video conference in the presence of Mr. Steven Dominic Mushi, learned counsel for the Applicants and Mr. Kester Lyaruu, learned Counsel for the Respondent, is hereby certified as a true copy of the original.