20041103 TZCA Dar es Salaam

t ' • :: t .. IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 106 OF 2004 In the Matter of an Intended Appeal. · BETWEEN TANZANIA RAILWAYS CORPORATION ............................... APPLICANT AND MRS. AUGUSTA UPENDO RWEYEMAMU ........................ RESPONDENT {Application for Stay of Ex_ecution from the decision of the High Court of Tanzania at Dar es Salaam) (Bubeshi, J.) dated the 24th day of September, 2002 in Civil Case No. 169 of 1996 RULING MSOFFE, J.A.: This is an application for a stay of execution lodged under Rule 9 (2) (b) of the Court Rules. It arises from the judgment and decree of the High Court (Dar es Salaam) in Civil Case No. 169/96. The· High Court entered judgment for the respondent to the tune of Shs. 15,000,000/= being damages for wrongful acts committed by one Paulo Marwa as an "agent" of the applicant. Paulo Marwa, a senior officer with the applicant Corporation at the material time, was the 1st defendant at the trial. The applicant has already filed a notice of ·appeal. On 22/12/95 the respondent boarded a ship (MV Victoria) at Bukoba on her way to Dar es Salaam via Mwanza. At around 11.00 p.m. she, her son, and other relatives had their dinner· arid threw .... 2 some left overs to the lake. The said Paulo Marwa came into the scene immediately claiming that the respondent had given birth and only to throw the baby to the lake. What followed thereafter was a long story. It will only suffice to say, briefly, that the respondent was then· mishandled, insulted etc. after which she eventually filed the civil case in a claim of damages for wrongful acts. The applicant was made party to the suit allegedly for being vicariously liable for the actions of the said Paulo. It will also be important to mention here that Paulo was off duty at the time of the incident. Mr. Kilindu, learned advocate, appeared for the applicant. He urged that the intended appeal has likelihood of success in that once the trial judge was satisfied that Paulo was off duty at the time of the incident it was wrong to impute vicarious liability on the applicant. 1 Mr. Kilindu s other reason for the need for an order of stay was that in the event of success of the intended appeal the respondent would not be able to pay. In this regard, he submitted that the averment under paragraph 5 of the affidavit in reply that the applicant has no proof that the respondent will not be able to pay does not assist the Court in that there is nothing to show whether the respondent is still employed, whether she has any property etc. Finally, it was Mr. Kilindu's view that the applicant is a parastatal organization of repute. Thus, in the event the applicant loses the appeal, it will be able to pay· the respondent not only the decreed sum but also interest. 3 After Mr.· Kilindu had finished making his oral submission, I wanted to know from learned counsel whether the judgment of the 1 trial High Court clearly stated or mentioned something about Paulo s liability in the matter. I did so because a look at the judgment would appear to me to show that while the said Paulo clearly features therein, the judgment does not specifically state the extent of his liability. The learned judge simply said "All factors considered, this Court is of the view that a sum of fifteen million shillings 11 (15,000,000) would meet the justice of this case • It is not clear from this statement whether this sum was to be paid by both parties. And if it was to be paid by both, one would have expected the judgment to show how much was to be paid by each party. In the absence of such clear statement Mr. Kilindu and Mrs. Kashonda, learned advocate for the respondent, agreed that this aspect of the judgment is problematic and this Court might have to look into it in the intended appeal. Indeed, it is also not clear from the ·judgment whether there was ever any exparte judgment entered against the said Paulo. In my view, it was important to say so in the judgment in order to show 1 whether or not Paulo s liability had since been adjudged. Mrs. Kashonda was quick to say that an order for stay should · • also carry with it an order for payment of security. Her view was that such order would be necessary because the applicant corporation Wili ·. soon be. leased out. And once that is dorie, she urged, it might be difficult for the respondent to recover the decreed sum in the event 1 the appeal fails. On the other hand,. Mr. Kilindu s view was that once 4 it is accepted that the applicant will be able to pay there would be no need for payment of security . . It will follow that in the light of Mrs. Kashonda's submission about the judgment, there is now no longer any serious objection to the application. Thus, it is fair. to say that it is true that this Court might have to address itself to the above aspects of the judgment. Prima facie, therefore, there is likelihood of success of the intended appeal. In the intended appeal it will also be important to consider whether the applicant was vicariously liable for · Paulo's actions committed when he was off duty. In other words, was the judge entitled to impute vicarious liability after holding that Paulo was not on duty? This, in my view, is another area in the judgment which also builds up a strong case for granting the application for stay. Having said that much there will be no need to discuss the other points raised by Mr. Kilindu. As for payment of security,· I am inclined to go along with Mr . . Kilindu, that there is no need of making an order to that effect. It is not in dispute that the applicant Corporation is a well established organization. Thus, in the event the appeal is unsuccessful it will, in my view, be able to pay the decreed sum to the respondent. I do not share the respondent's fear that it will be difficult to secure payment in case the applicant is leased out. If at some stage the applicant will be leased out there will certainly.· be another organization to take care of the applicant's interests. In any case, . .. - .. ..,. 5 there has not been any suggestion, let alone proof, that in _case the applicant is leased out it will lose its corporate personality. So, if the applicant's corporate status will remain the respondent should have - nothing to fear as she will be paid if the appeal fails. For the above reasons, there is good reason for this Court to exercise its discretionary power in favour of the applicant. The application is accordingly granted. Since the application has been decided mainly on a point raised by the Court there will be no order as to costs. DATED at DAR ES SALAAM this 3rd day of November, 2004. J.H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original. ( S. . . WAMBURA ) SENIOR DEPUTY REGISTRAR