puma energy tanzania limited vs diamond trust bank tanzania limited 2023 tzca 17773 23 october 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWARIJA. J.A.. KENTE. 3.A. And MURUKE, J.A.~> CIVIL APPLICATION NO. 68/16 OF 2022 PUMA ENERGY TANZANIA LIMITED.......................................... . APPLICANT VERSUS DIAMOND TRUST BANK TANZANIA LIMITED........................ RESPONDENT (Application for stay of Execution of the Order the High Court of Tanzania, Commercial Division at Dar es Salaam) (Magoiga, 3.) dated the 17th dav of Mav. 2021 in Commercial Reference No. 06 of 2020 R U LIN G O F T H E C O U R T 30h August & 23rd October, 2023 M U R U K E, J.A: On 29th April, 2015, the High Court of Tanzania, Commercial Division at Dar es Salaam (Songoro, J.) delivered its ruling in respect of Commercial Case No. 39 of 2014 in which it dismissed the applicant's suit with costs for want of prosecution upon failure by the applicant's counsel to bring witnesses on the date set for hearing. Following the ruling, the applicant filed Civil Appeal No. 54/2016 in this Court. That appeal was however, struck out for being incompetent. l While the applicant was struggling to be heard on merit, the respondent proceeded with filing of a bill of costs, and upon hearing, on 17th November, 2020, the Registrar allowed an amount of T7S. 1,170,000.00. The respondent was dissatisfied by the decision of Deputy Registrar, thus filed reference No. 06/2020, which on 17th May, 2021 was decided on her favour, allowing TZS. 73,443,304.00 as instructions fees. The applicant was aggrieved by the said ruling and order of the High Court (Commercial Division) and on 27th May, 2021, lodged a Notice of Appeal together with a letter requesting for certified copies of the ruling, decree and record of proceedings for purpose of the intended appeal. While the applicant was waiting to be supplied with necessary documents for appeal purposes, the respondent proceeded to file an application for execution, and as a result, on 23rd February, 2022, the High Court issued a Garnishee Order Nisi against the applicant's Bank Accounts No. 9120001288138 and 9120001611974. Issuance of the Garnishee Order Nisi against the applicant's two accounts held at Stanbic Bank Tanzania, necessitated the filing of the present application under Rule 11 (3) (7) 48 (1) (2) and 49 (1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules".) 2 The application is supported by an affidavit sworn by Abdiilah Hussein, learned counsel for the applicant who had the conduct of the matter at the High Court of Tanzania, Commercial Division. The respondent did not file any affidavit in reply. According to the Notice of Motion, the application is premised on the following grounds. (1) The applicant has already lodged a Notice of Appeal seeking to challenge the decision of the High Court (Commercial Division) at Dar es Salaam in Commercial Reference No. 06 of 2020. (2) Regardless of the applicant's pending Notice of Appeal, the respondent has initiated execution proceedings in the trial Court resulting into a Garnishee Order Nisi issued by the trial Court on 10th Februar/, 2022. At the hearing of the application, the applicant was represented by Mr. Sinare Zaharan assisted by Mr. Obeid Mwandambo, learned counsel, while the respondent was represented by Mr. Zacharia Daudi assisted by Ms. Rashida Jamaldin Hussein, also learned counsel. Without wasting time, Mr. Zacharia Daudi, informed the Court that they were conceding to the application, subject to security for the due performance of the decree being furnished by the applicant on the sum equal to the decretal sum through a Bank guarantee. Mr. Sinare equally too, had no much to say; he only 3 insisted that the applicant shall comply with the Court order on security for due performance of the decree. Rule 11 (5) (a) and (b) of the Rules sets the conditions which are to be satisfied before the Court can order stay of execution of the decree, sought to be challenged. It provides that: " U - (1) ’ (4).... N/A 11 (5) No order for stay o f execution shall 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 of such decree or order as may ultimately be binding upon him." The above mentioned two conditions have to be satisfied by the applicant conjunctively, before stay is granted by the Court. Upon perusal of the Notice of Motion and affidavit in support thereof, we are satisfied that the conditions set out under Rule 11 (3) and (5) of the Rules have been met, because; One: - the applicant has already filed a Notice of Appeal seeking to challenge the decision of the High Court (Commercial Division) in 4 Commercial Reference No. 06/2020 in terms of annexure AH-5 pleaded in paragraph 13 and attached to the affidavit. Two, the respondent has initiated execution proceedings resulting into the issuance of a Garnishee Order Nisi dated 10th February, 2022 in terms of annexure AH-7 pleaded at paragraph 15 of the supporting affidavit. Three, the applicant has undertaken to provide bank guarantee as security for the due performance of the decree in terms of paragraph 20 of the affidavit in support of the application. Four, the contention by the applicant that it will suffer substation loss if a stay order is not issued was not opposed by the respondent. From the colossal amount involved, we find that its recovery by the applicant, in the event the intended appeal fails, will be difficult thus occasioning loss of use of that amount on the part of the applicant. Thus, we are satisfied that, the applicant has fulfilled the conditions set under Rule 11 (3) (4) and (5) of the Rules. We therefore grant the application and stay the execution of the decree of the High Court, Commercial Division arising from Civil Reference No. 06/2020 pending hearing and determination of the intended appeal. It is further ordered 5 that; the applicant should deposit a bank guarantee of TZS. 73,443,304.00, within 45 days from the date of delivery of this ruling, so as to assure the satisfaction of the decree in the event the appeal fails. Costs to be in the cause. DATED at DAR ES SALAAM this 20th day of October, 2023. A. G. MWARD A JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The ruling delivered this 23rd day of October, 2023 in the presence of Mr. Zacharia Daudi, learned counsel for the respondent who took brief for Mr. Zaharani Sinare, learned counsel for the Applicant, is hereby certified as a true copy of the original. 0kL A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 6