MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA MISCELLANEOUS CIVIL APPLICATION NO. 16284 OF 2024 (Arising from Civil Appeal No. 16213 of 2024 and Civil Case No. 4/2024 Execution No. 15446/2024 Kibondo District Court) SINOHYDRO CORPORATION LIMITED APPLICANT VERSUS OBAL SERVICES COMPANY LIMITED 15T RESPONDENT SHASHI INVESTMENT LTD 2ND RESPONDENT RULING Date: 23 & 24/07/2024 NKWABI, J.: In the trial court, the applicant was found liable for breach of a sub- contract she had entered with the 1st respondent. She was ordered to pay theist respondent T.shs 246,983,763/75 as VAT refund, general damages at T.shs 30,000,000/=, interest on the decretal amount at the rate of 7% per annum from the date of judgment to the payment in full and costs. She was aggrieved by the judgment and decree. She has appealed to this Court and the appeal is still pending in this Court. Meanwhile, the applicant has lodged this application in order to be availed with the following orders: 1 1. That, this honourable Court be pleased to make an order staying execution of the decree in Civil Case No. 4 of 2023 of Kibondo District Court pending determination of Civil Appeal No. 16213 of 2024 before this honourable Court. 2. Costs of the application be provided for. 3. Any other relief (s) that this Court may deem fit and just to grant. The chamber summons is supported by the affidavit of Mr. Micheal Mwangati, learned counsel for the applicant. In that affidavit, Mr. Mwangati avows that the applicant is unsatisfied with the judgment of the trial court and has appealed to this Court. If the stay of execution order is not granted, the applicant shall suffer irreparable loss as opposed to the respondents. It is also asserted that the appeal has overwhelming chances of success as per the grounds of appeal. In a counter-affidavit that comprises five paragraphs, duly sworn by the counsel for the respondent, the respondent disputed the averments made by the applicant. When this application was called on for hearing, Mr. Michael Mwangati, learned counsel appeared for the applicant while Mr. Erick Mutta, also 2 learned counsel, represented the respondents. I am grateful for their submissions. Elaborating the application in view of obtaining the orders the applicant is craving for, Mr. Mwangati stated that the execution is sought to be. stayed as there is a pending appeal against the decree of the district court which is before the High Court. Further the execution if successful, the applicant would suffer irreparable loss. He explained that the applicant is a construction company with a reputation to the government of Tanzania. It is building a road from Kibondo to Kasulu. The construction implements have been listed as part of attachment, if they are attached, the project would be completely paralyzed, stressed Mr. Mwangati. He pointed out that the application has been brought under Order XXXIX Rule 5 of the Civil Procedure Code which provides for conditions for stay of execution. The second condition is that the application should be filed within reasonable time, which is the case and to furnish security. He maintained that they have already furnished security which is a bank guarantee, through NMB which is cash covered and have served the respondents. He underscored that that is assurance that if the appeal fails, the decree of the district court would be easily executed. In the premises, 3 ... Mr. Mwangati beseeched for the order for stay of execution be granted. He cited Atilio v. Mbowe [1969] H.C.D. No. 284. He solicited execution be stayed pending the determination of the pending appeal. He pressed that if the application is not granted, the applicants would suffer irreparable loss in terms of money and reputation. Mr. Mwangati added that they have a greater chance to win the appeal. He also craved for the application be granted with costs. Responding to the submission of his learned friend, Mr. Mutta maintained that the counsel for the applicant has not adopted the affidavit or otherwise. He is of the stance that that affects the affidavit as it will be disregarded. On his side, he adopted his counter-affidavit as part of his submission. He also stated that the main reason, to object the application, is that the bank guarantee would be furnished until when the matter shall be finalized in the Court of Appeal. He explained that in the bank guarantee there is unfavorable condition for the respondents. The bank guarantee is improperly procured contrary to the order given by this Court. The bank guarantee be revised and remove the condition that it will be effective until the decision of the Court of Appeal. He stressed that the law does not consider a big person or a small person and stated that even the pt 4 applicant is a huge investor. He pressed that the bank guarantee be brought within two days and should be properly procured. Finalizing his submissions in rejoinder submission, Mr. Mwangati accepted that there is a clerical error on the bank guarantee. He explained that it is supposed to be subject/pending judgment of the High Court. The clerical error may be rectified within two days. Mr. Mwangati further stated that it is the bank itself that committed the error and said that they are ready to make the necessary correction. He also pointed out that the bank guarantee has time limit within six months in which he is sure that the appeal would have been determined. He thus prayed that the application be granted with costs. It is trite law that for an order of stay of execution to be granted, the applicant has to comply with conditions restated in the decision of the Court of Appeal in Felix Emmanuel Mkongwa v. Andrew Kimwaga, Civil Application No. 249 of 2016 where it was stated that: "The duty of the applicant to satisfy all the conditions cumulatively has been constantly reiterated by this Court in its several decisions . . . It follows therefore that the applicant must satisfy that the application was filed 5 within a reasonable time. He will suffer substantial loss if the order is not granted; and he has furnished security for due performance of the decree sought to be stayed N See also, University of Dar-es-Salaam v. Richard Kajuma Muzo, Civil Application No. 117 of 2001 (unreported) where it was stated: "On a number of occasions, this Court has held that one of the circumstances in which stay of execution is granted is a situation where on the face of the record, prima facie the appeal stands reasonable chances of success. It is however, not in every case or situation that it is apparent on the face of the record that it can with certainty be that the appeal has great chances of success ... it is, however possible in certain situations on the face of the record, to gauge the prospects of the appeal on the face of the record." In this application, it is clear that the application was lodged within a reasonable time. The decree of the trial court is dated 18th June 2024 while this application was filed in this Court on 9th July 2024. The applicant has already furnished security for the satisfaction of the decree at the stage of lifting the attachment order, so the decree's satisfaction is well 6 secured. The counsel for the applicant has strongly argued that the applicant has a high chance of success in the appeal that is pending in this Court. Looking at the proceedings of the trial court and the decree and having in my view the decision of the Court of appeal in the case of Muzo (supra), the third condition is also satisfied. The respondent too does not seriously oppose the application as seen in the submissions of Mr. Mutta. In the premises, I grant this application. Execution of the decree in Civil Case No. 4 of 2023 of Kibondo District Court is stayed pending determination of Civil Appeal No. 16213 of 2024 that is before this Court. The applicant has to comply with the rectification of the bank guarantee, else, the respondents shall have power, in accordance with the law, to proceed with execution if the applicant fails in Civil appeal No. 16213 of 2024 which is now pending in this Court. Costs shall abide by the outcome of the appeal that is pending in this Court. It is so ordered. DATED at KIGOMA this 24th day of July, 2024. - W 'Vkr~, J. F. NKWABI \ JUDGE 7