prime catch exports ltd others vs ongujo wakibara nyamarwa 2019 tzca 79 28 february 2019

IN THE COURT OF .APPEAL OF Tl\NZ,4\NIA c , .~ (.cClRAf4: ~1~1NlllA,J.ib.t..MWANGESI, J.A.,. And f.iWAMBEGELEJ.A .. ) CIVIL APPLICATION NO. 450/16 OF 2018 PRIME CATCH EXPORTS lIfvUTED ---------------------------- 1st APPLICANT IRFAN .JESSA ------- .. --------------------------------.----------- 2nd APPLICANT lULFICAR. .JESSA .. ---------------------------------------------- 3rd APPLICANT VERSUS ONGUJO WAl<ISARt NYAMARWA ---"'--------------- .... ----- RESPONDENT I (Arising from Appeal against the judgment and decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Mruma, J.) dated the 28th day of September, 2017 in .commercial Case No. 80 of 2017 RULING OF THE COURT ::u:th february & 5ttl Marcil, 2019 The application herein which is by way of notice of motion, has been rr.n:acie under the provisions of RUle 11 (3), (4-), (5) and (7)[ 48 (1) and (2) a·.nd 49 (1) of the Tanzania Court of Appeal Rules, 2009, GN No. 368 as arrrended by GN No. 362 of 2017 (the Rules), whereby the applicant is ~miJving the Court for an order of stay of execution of the decree dated the 1 2g~fl September, 2017 in Commercial Case No. 80 of 2016, pendlnq hearinq and determination of art intended appeal against the said decision. The notice of motion has been supported by affirmed affidavit of Zulficar Jessa, the applicant. The grounds as to why the order for stay of execution of the decree in Commercial Case No. 80 of 2016 is being sought as contained in the notice of motion, are basically threefold namely. First that the applicant intends to appeal against the decision of the High Court of Tanzania whereby he has already lodged a notice of appeal and served the same on the respondent. Second, that the iudament intended to be challenged on appeal is tainted with serious issues of law that include that: (i) the trial Judge erred in law and fact in finding that there was novation of contract between the first applicant and W. E. Tilley (Mutha~ga) Limited; (ii) the trial Judge erred 117 law and in fact in finding the respondent had a cause of action against the second and third applicants end: (iii) tile trial Judge erred in law in entertaining a suit based on dishonored cheques whereby no notice of dishonor was issued to the drawer. '_r , .4" . " Three, that soostsntte! loss fnay result to the applicant if the decree and judglnent is executed, regard beil7y to the fact that; t, (a) the amount awarded to the respondent is an exorbitant sum of money and (b) the respondents financial position is unknown and there/ore doubtful if he may be in a position to retmborse the applicants should the appeal succeed On the date when the application was called on for hearing before us, )V1s Samah Salah, learned counsel, entered appearance for the applicants, whereas representation on the part of the respondent was th-rough Mr. Michael Kamba, also learned counsel. At the outset, (\Ill', 1:fatnha intimated to withdraw the preliminary objection which he had EJdged on the 9th October, 2018, a prayer which was granted after being l7ff.'!}t resisted by his learned friend. In that regard, we proceeded with the hearing of the application for stB1)l. To amplify the notice of motion after taking the floor, Ms Saf.a.h1 proy.t,ed to adopt the written submission which was lodged by the applicant OfT the 30th day of November, 2018 in support of the notice of motion, to }:0rr:J part and parcel of her ora! submission in Court. In essence, her brief Oi~a} submission before us, she unptored the Court to grant the sought re~:j{::;f '\,. by issuing an order of stay of execution of the execution of the decree, to await the. outcome of the. intended appeal for the reason that, the requirement for the grant of an order of stay of execution of a decree as stipulated under the provisions of Rule 11 (5) (a), (b) and (c) of the Rules have been met. To buttress her contention, she sought refuge from a plethora of decisions of the Court including, National Bank of commerce Vs Saoliqo Holdings limited and Joseph, Civil Application No. 267 of 2015, Nobel Motors Limited Vs Umoja wa Wakulima Wadogo Bonde 101 Kisere Uwaboke, Civil Application No. 103 of 2013 and Mantrac Tanzania Limited Vs Raymond Costa, Civil Application No. 11 of 2010 (all unreported). On his part, Mr. Kamba, on behalf of the respondent, also requested us to adopt the written submission by the respondent in opposition of the applicant's written submission, which was lodged on the 17tll December, 2018, only that he asked us to sever the submission in respect of the notice of preliminary objection, which he had withdrawn as earlier indicated above. Principally, Mr. Kamba was not in opposition to the grant of the sought order of staying the execution of the decree and judgment However, he requested the Court to order the applicants to deposit in .•. ",. 4 Court cash USD 605,000, which is the decretal sum as security for due performance of the decree as rright ultimately be qinding upon them. In so asserting, reliance was placed on the cases of Kurjeet Singh Nahal "S Inderjeet Kaul Nahal, Civil Application No. 90 of 1998 and Arusha Jnternaticnal Conference Centre Vs Edwin William Shetto, Civil Application No. 69 of 1998 (both unreported). In the light of wnat was submitted by either counsel above, what stands for our deliberation and determination is whether the application by the applicant is founded. As agreed upon by both learned counsel, the requirement for the grant of an order of stay of execution of a decree and Judgment has been provided under the provisions of Rule 11 (3) (5) and (7) of the Rules which stipulates inter alia thus: "11 (3) In any civil proceedmas, where a notice of appeal has been lodged in accordance with Rule 83/ an eppeet, shall not operate as a stay of execution of the decree or order appealed from nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree or order; but the Coart; may upon good cause shown order stay of execution of such decree or order. ~, " l 5 .\ ." " ~~. (4) An application for stay of execution shat! be made within tourteen days of service of the notice \. ~ ", of execution on the applicant by the executing officer or from the date he is otherwise rnade a ware ot the existence of an application for execution. (5) No order for stay of execution shall be made under this rule unless the Court is settstied thet: (a) substantial loss may to the party applying for stay of execution unless the order is made: (b) the application has been made without unreasonable delay/ and (c) security has been given by the applicant for the due pertormence of such decree or order as msv ummetetv De amama upon nun. I, " _ _ /I I , _ , _ • _ ,. _ _ I" (6)N/A (7) An application for stay of execution shall be accompanied by: (a) a copy of a notice of appeal/ (b) a decree or order appealed trom: (c) a judgment' and (d) a copy of a notice of the intended execution, rr . '., -.. ' . I 6 --_._--- __ - From what we could note in the records of the application before us! vile are at one with what was submitted .by fv'ls Salah that. all the requirements for the grant of an order of stay of execution of a decree as stipulated under the above quoted provisions of law have been met in that, the application has been lodged timeously and further that, the applicant has exhibited that a substantial loss may result if stay is not granted. The only dispute is on the type of security that has to be provided by the applicants for due performance of the decree as might be binding upon them, While under paragraph 5 of the notice of motion, the applicants have averred that they are williQg and ready to provide a bank guarantee as security for the due performance of the decree, the view of Mr. Kamba, was that such mere commitment by the applicants was not enough. He argued that the only security which could give assurance to the respondent for satisfaction of the decree should the appeal by the applicants fail, was deposit in Court of the decretal sum by the applicants. At this juncture, we had to ask ourselves if the stance presented by learned counsel for the respondent was the proper construction of Rule 11 (5) (c) of the Rules. Fortunately, the provision has been construed by the ., ; .~ '., .~. > .•. 7 C.C'urt: 2 rltJrnb2!' of CC"1SPS. Tn Mantrac Tanzania limited Vs Rayt~1\On{i; "Casta (s.upra), after due deliberations the Court held that., " .. a finn undertaking by the applicant to provide security .might prove sufficient to move the Court; all things being equal. to grant stay order provided the Court sets a reasonable time limit within which the applicant should give the same. ?/ In yet another case of BP Tanzania limited Vs Riakdlt Barnabas, Civil Application No. 75 of 2012 (unreported), where in asking the Court to stay the execution of the decree the applicant informed the (Court that he was prepared to provide security in the form of a bank guaranteer the Court arrowed him and stated thus: n~1le have given a careful thought to the arguments by the teemed counsel on security for costs. In the end, we are satisfied and accordingly order that the i:~pplica/1t should provide security in the manner proposed above by the said applicant within two weeks of the date of delivery of this ruling." ~~ g• . ::)., . .l.; V'Ve note in the application before us that, the insistence of ~./ir. Karnba that the respondent. has to deposit in Court the decretal sum is founded on the fact that, the type of undertaking which has been made by the applicant is in the nature of a mere promise! which in his view is not sufficient. While we agree with him that, a mere promise may look lnsufflcienl, from the practice Court as highlighted in the above holdings, a firm undertaking by the applicant has been taken to be sufficient provided that the applicant complies with the directives made by the Court. In regard to the authorities which were relied upon by the learned counsel for the respondent, we noted that those decisions were given prior to the advent of the Tanzania Court of Appeal, Rules 2009 wherein, grant or otherwise of stay of execution of decrees by the Court was based on case law. Since currently there is a statutory provision governing grant of stay of execution of decrees of which we fully associate ourselves to the construction which was made in the decisions above, we hold that the application by the applicant is founded. To that end, we grant the application by ordering that the eXE:."'CutiOf'i of the decree and judgment in Commercial Case No. 80 of 2016 dated the 28th September, 2017, be stayed pending the outcome of the appeal to 9 :n:pu~!n it This order is however conditional upon the applicant deposi,tJn9 hI Court tlle bank's guara[lte~ covering the entire decretal sum within a period of three weeks of delivery of this ruling. WE make no order as to co sts '.. ' S .~1. Order accordingly. DATED at..DAR ES SALAAM this 28th day of February, 2019, B. M. MMIlLA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE Of APP'EAl J. C. M. MWAMBEGELE JUSTICE OF APPEA.l I certify that this is a true copy of the original. b B. A. MPEPO DEPUTY REGISTRAR COURT OF APPEAL ------- ._-----------