20051121 TZCA Dar es Salaam2

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPIJ~·:ICATION NO. 6 OF 2005 TANZANIA TELECOMMUNICATIONS COMPANY .................. APPLICANT VERSUS MIC TANZANIA LIMITED ................................................ RESPONDENT (Application for an Order of Directions regarding the Interpretation of the Interim Order of Stay of Execution from the decision of the High Court of Tanzania at Dar es. Salaam) (Bubeshi, J.) dated the 6 th day of July, 2004 in Misc. Civil Cause No. 301 of 2000 RULING MUNUO, J.A.: Dr. Nguluma, learned advocate for the applicant, the Tanzania Telecommunications Company, brought the present application under Rule 3 (2) (b) of the Court of Appeal Rules, 1979, seeking interpretation of the Interim Order of Stay of Execution granted by a· single judge on the 29/11/2004 to stay execution in Miscellaneous Civil Application No. 201 of 2000 in the High C:ourt of Tanzania at Dar es Salaam, in respect of the Ruling of Bubeshi, J. as she then was, on the 6th July, 2004. The gist of the applicant's contention is that the said Ruling and the Interim Stay order included 999,998 shares which the respondent sought to sell under Proclamation of Sale on the 2nd 2 December, 2004, after the Interim Order for Stay of Execution was issued by the single judge. To resolve the dispute, the applicant brought this application seeking the interpretation of the said Interim Order for Stay of Execution. Dr. Nguluma deponed to an affidavit in support of the application. Mr. Mbuna, learned advocate, deponed to an affidavit in reply contending that the 999,998 shares in dispute were not adjudicated upon and were therefore not covered by the interim stay order issued by the single judge on the 29th November, 2004. The said 999,998 shares, he stated, were the subject of the Commercial Deed issued by Chipeta, J. as he then was, on the 31 st January, 2001. The Commercial Deed, Mr. Mbuna asserted, was not before the single judge so it was not covered by the Interim Stay Order on the 29th November, 2004. Additional Affidavits in Reply were deponed to by one Sazi Salula, a Principal State Attorney, and one Ngassa Dindi, a legal· consultant with the Parastatal Sector Reform Commission (PSRC). · Both learned attorneys stated that the government paid US$· 8.5 million to the respondent for the 999,998 shares thereby resolving lt 3 the dispute and settling the matter. Because the government has settled the matter Mr. Mchome, learned advocate for the respondent, submitted, that the application has since been overtaken by events for there is nothing to stay in respect of the 999,998 shares which have already been paid for by the government so the application is misconceived and ought to be dismissed with costs. Dr. Nguluma conceded that the government paid US$ 8.5 million for the 999,998 shares but said the applicant was not a party to the negotiations and, or, settlement so the application should be determined on merit. The law on applications which have been overtaken by events is clear. The learned author, Mulla on Indian Civil Procedure Code, 14th Edition Page 1188 states: An order for stay of execution implies that the decree has not been executed. Therefore, where a decree has been executed, no order can be made under this rule. r . 4 The Court reiterated the same in the case of General Manager KNCU (1990) Ltd. versus Mbatame Rural Cooperative Society Miscellaneous Civil Application No. 1 of 1999 (CA), unreported. In the said application, the applicant debtor sought to stay execution which had already been completed. The Court held that the application was misconceived and observed: The applicant lodged in court this application for a stay of execution knowing fully well that the order intended to be stayed had already been executed. The application therefore, is misconceived because it seeks for a remedy which no longer existed at the time of making the application. The same applies to the present application in which the applicant seeks, in effect, to stay the sale of 999,998 shares which have already been sold in consideration for US$ 8.5 million the government paid to the respondent. As it is, the application has been overtaken by events so it is misconceived. I accordingly dismiss the application with costs. ..• ... ., 5 DATED at DAR ES SALAAM this 21 st day of November, 2005. E.N. MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. (j'l:-7) RE~~R