tanzania saruji company vs african marble company 1997 tzca 88 23 may 1997

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES^jmAAM CIVIL APPLICATION NO. 67 OF 1996 In the Matter of an Intended Appeal BETWEEN TANZANIA SARUJI COMPANY APPLICANT AND AFRICAN MARBLE COMPANY ......... ..... RESPONDENT (Application for Stay of Execution from the Judgment of the High Court of Tanzania at Dar es Salaam) (Ka^i^J.) dated the 11th October, 1996 in Civil Case No. 89 of ..19.8.7 _R^JJ_L_IJN G RAKADHANI, J.A.: This Court in Civil Appeal No. 38 of 1993 decided in favour of the African Marble Co., then the appellant, and ordered the High Court in Dar es Salaam to assess general damages. That was done by KAJI, J. but the Tanzania Saruji Co., the present applicant, then respondent, is aggrieved by that assessment and has filed a notice of appeal in this Court. Meanwhile the applicant is seeking for an order of stay of execution pending the determination of that appeal. The applicant was represented by Capt. Kameja, learned advocate. The learned counsel of the respondent, Mr. Marando, on the other hand, was absent. However, there was one Mumba Mabu, the Managing Director of the respondent company. For the reasons I have already given in Civil Application No. 9 of 1997 which I heard on the same day as this one, and between the same parties, I decided, for the sake of better meeting the ends of justice, to disregard the provisions of Rule 28(3) and allow Mumba Mabu to represent the respondent. Capt. Kameja gave three instances in which an order for a stay execution will issue. First, he said, it will issue where an appeal has a priraa facie likelihood of success,, In the second instance, he said, the order will be granted where its refusal will male© the applicant suffer irreparable injury. Lastly, he submitted, in case of doubt the court to decide on the balance- of probabilities, I agree with that statement as to the principles on which a stay of execution is granted. However, I am rather hesitant to consider th& first one, that is, a prima facie likelihood of success of the appeal because that will of necessity require me to go into the merits of the appeal, an area I would gladly steer away from* So, I propose to look at the second principle which is whether or not there will be irreparable injury to the applicant. The amount of damages granted to the respondent is a huge sum of Shs. 150«?60,260/20 and the applicant company in the affidavit in support of the application has doubted the ability of the respondent company to reimburse that amount should the appeal be successful. That averment has not been refuted in the counter­ affidavit of the respondent company. Before me Mumba Mabu just said that the amount can be repaid since the applicant company is still holding onto the machinery of the respondent company. Capt» Kameja has countered that by saying that the machinery is not held as a security but that the respondent company itself has not taken steps to take possession of the machinery. Mumba Mabu contended in Court that in money decrees stay of execution is not granted unless a sufficient reason is given# That may be so but only if the money is secured. Here the respondent company has not given any surety that the money can be repaid should the appeal be successful. I am inclined to grant the order prayed, foras I am not fully satisfied that the amount can be repaidshould the appeal be allowed but should it fail then, steps, which should have been taken now to enforce the decree, would then be 'token. In the event that the appeal will be dismissed, interest at the court1s rate will have to be paid on top of that sum. The application is allowed. Costs to follow event. It is so ordered. DATED at DAS SS SALAAM this 23rd day of May, 1997. A.S.L. RAMADHANI JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR