SINOHYDRO VS OBAL SERVICES

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA MISCELLANEOUS CIVIL APPLICATION NO. 26476 OF 2024 (Arising from Civil Application No. 26099 of 2024 HC and Civil Case No. 4/2023 of Kibondo District Court) SINOHYDRO CORPORATION LIMITED APPLICANT VERSUS OBAL SERVICES COMPANY LIMITED RESPONDENT RULING Date: 23 & 23/10/2024 NKWABI, J.: The applicant is pursuing to lodge an appeal against the decision of the trial court. In the trial Court, the applicant was found liable for breach of a sub-contract she had entered with the 1st respondent. She was st ordered to pay the 1 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 but the appeal was struck out for being incompetent owing 1 for failure to annex the decree of the trial Court to the petition of appeal. Currently, there is a pending application for extension of time to lodge an appeal out of time. In this application and at this juncture, the applicant is praying to be availed with the orders I emulate: 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 an application for extension of time to appeal in Miscellaneous Civil Application No. 000026099 of 2024 which is pending 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 counsel for the respondent who was in attendance in Court, virtually, when asked, he intimated to the Court that he does not wish to contest the application inter-parties. With that intimation and the prayer by the Counsel for the applicant that then this application be granted Now, in view of Stephen Ngalambe v. Onesmo Ezekia Chaula & Songea Municipal Council, Civil Appeal No. 27 of 2020 CAT (unreported) dated 22nd March 2022 where it was held that: ''In our considered view, . . . The averment to that fact, in paragraphs 4 and 10 of the appellant's affidavit in 2 support of the application/ was never denied or controverted by the respondents through their respective counter affidavits. In the absence of any evidence from the counter affidavits contradicting the appellants claim in the supporting affidavit that he became aware for the judgement on 14.12.2018 through his relative/ there was no justification for the learned High Court Judge to demand an additional affidavit from the appellants relative. // See also Mosses Ndosi v. Suzana Ndosi, Misc. Land Application No. 117 of 2013, S. Moshi, J. was cited with approval in the case of Emmanuel Gidahotay v. Gambanyashita Muhale, Misc. Land Application No. 41 of 2017, Maige, J. (as he then was) stated that: ·~ .. that failure to file a counter affidavit is a signification that the application is not factually opposed // That being the position, what remains is whether the applicant has satisfied the conditions for grand of an order for stay of execution. There is on this situation guidance from Nicholas Nere Lekule v. Independent Power (T) Ltd & Another [1997] T.L.R. 58 CAT where it was stated underscored that: 3 .. •~ .. it is common ground that one of the essential conditions for granting a stay of execution pending the determination of an intended appeal is loss or injury to which an applicant is subjected. It should not be any ordinary toss, it must be an irreparable loss which cannot adequately be compensated by way of damages. '' I have gone through the affidavit in support of the application which is evidence, the counsel for the applicant avowed that there is an application for extension if time within which to file an appeal in this Court and it has an overwhelming chance of success. The applicant is ready to furnish security. The application was filed promptly, and that application for extension of time is still pending in this Court. The counsel for the applicant too averred that if stay of execution is not granted, the applicant stans to suffer irreparable loss because the applicant may be stopped from the road construction project by attachment of his motor vehicles, while the project is ongoing. He avers also that the respondents shall not suffer any loss if the application is granted. 4 I have closely considered this application and the evidence that is in the file and I am satisfied that the application is merited. I warn myself not going into details that may affect the outcome of the pending application for extension of time within which to file the intended appeal. I follow the direction given in The Regional Manager - TANROADS Lindi v. DB Shapriya & Company Ltd, Civil Application No. 29 of 2012, CAT, (unreported) in which it was stated that: ''It is now settled that a Court hearing an application should restrain from considering issues that are to be dealt with by the appellate Court This is so in order to avoid making decisions on substantive issues before the appeal itselfis heard ... " 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 an application for extension of time to appeal in Miscellaneous Civil Application No. 000026099 of 2024 which is pending before this honourable Court. The applicant has to issue a bank guarantee for the satisfaction of the decree in Civil Case No. 4 of 2023 of the District Court of Kibondo. This order of stay of execution is 5 conditional on the bank guarantee being secured. I make no order as to costs as the respondent did not contest this application. It is so ordered. 6