Twiga feeds ltd and another vs National investments company ltd and another

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 1328 OF 2024 TWIGA FEEDS LIMITED........................ ................................. I st APPLICANT ABCON CHEMICAL LIMITED.... ........................................... ..2 nd APPLICANT VERSUS NATIONAL INVESTMENTS COMPANY LIMITED.................1st RESPONDENT JUMANNE N. KALELANDAT/A CROWN AUCTIONEERS LTD ................................ ...... .....2 nd RESPONDENT (Application for Stay of execution of the Ruling and Order of the High Court of Tanzania at Dar es Salaam) fLvakinana, DR.’) Dated the 7th day of October, 2024 in Execution No. 17393 of 2024 RULING 2nd & 10th December, 2024 MLACHA, J.A.: By notice of motion made under rule 11 and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicants, TWIGA FEEDS LIMITED and ABCON CHEMICAL LIMITED, filed an application for Stay of Execution of the ruling and order of the High Court of Tanzania at Dar es Salaam, made in Execution No. 000017393 of 2024 (L.B. Lyakinana, DR), pending hearing of Civil Appeal No. 1289 of 2024 lodged against the Ruling. The notice of motion is supported by the affidavit of Alfred Moshi, a principal of the applicants. The respondents, NATIONAL INVESTMENT COMPANY LIMITED and JUMANNE M. KALE LAN DA T/A CROWN AUCTIONEERS LTD, (the 1st and 2nd respondents, respectively), are resisting the application and have filed two affidavits in reply. The records has revealed that the matter originates from Land Case No. 29 of 2018 which was between the applicants (then plaintiffs) and the 1st respondent (then defendant). The case was dismissed but a counter claim of the 1st respondent was upheld. The High Court ordered payment of the principal sum TZS. 580,000,000.00 with 18% interest per annum from 2009 to the date of filing the case and further interest thereof at the rate of 7% per annum to the date of payment in full, with costs. The applicants' appeal before the Court in Civil Appeal No. 295 of 2021 was not successful. It was dismissed on 25/4/2024. In that regard, the judgment of the High Court is the document which carry the substantive rights of the parties. Backed with the decree of the High Court, the 1st respondent filed application for execution seeking to execute the decree of the High Court which has a decretal sum of TZS. 2,172,100,000.00. The records show that this application was filed on 19/7/2024 and served on the counsel for the applicants on 6/8/2024. There is also a record of service by publication through Mwananchi Newspaper of 5/9/2024. The applicants appeared in defence of the application for execution. They lodged a preliminary objection which was dismissed. The High Court appointed the 2nd respondent to execute the decree. The applicants are now seeking to move to the Court to stay of execution of the ruling and orders of the DR. The applicants were represented by Mr. Good chance Lyimo, learned advocate, whereas the respondents were represented by Mr. Benjamin Mwakagamba, also learned advocate. In his brief submissions, Mr. Lyimo, adopted the contents of the notice of motion and affidavit and contended that all the conditions for grant of the orders of stay of execution have been met. He made a special emphasis on the requirements of rule 11 (4) and 11(5) of the Rules. Amplifying, he submitted that the application was filed within 14 days from the date of service of the notice of execution and it has a firm undertaking to furnish security of due performance of the decree as reflected in paragraph 7 (f) (g) (j) of the notice of motion and paragraph 7, 8, 9 and 10 of the affidavit. He urged the me to grant the application. Submitting in reply, Mr. Mwakagamba adopted the contents of the affidavits in reply and contended that the application did not meet the conditions for stay of execution of the decree. They have rather supplied limited facts to mislead the Court. He contended that the applicants have failed to establish that they have a good cause to warrant the issue of the order of stay of execution as required by rule 11(3) of the Rules. Amplifying, he contended that, a mere fact that there is an appeal against the order of the DR cannot be said to be a good cause to stay the execution of the decree. He spent sometimes on the requirements of rule 11(4) and 11 (5) of the Rules. He contended that, the application was filed out of time. Amplifying/ he submitted that application for execution No. 17393 of 2024 was filed on 19/7/2024 and served to the counsel for the applicants on 6/8/2024 (as per annexture BMA2). A second service was made to the applicants and refused (as per annexture BMA3). The third service was made by publication in Mwananehi Newspaper of 5/9/2024 (annexture BMA4). He contended that, the averment in the applicant's affidavit that they became aware of the execution on 13/11/2024 is in correct and misleading because they were aware of the execution since 6/8/2024. He added that, the appointment of the 2nd respondent which was made on 7/10/2024 was done in the presence of counsel for the applicants. He added that, the service which was done by the 2nd respondent on 13/11/2024 was merely procedural. Counsel for the applicants went on to contend that execution is at an advanced stage for attachment have been done and the 2nd respondent is in the process of valuation. Interfering with it will cause undue hardships to the 1st respondent. He contended further that, the 1st respondent will suffer irreparable loss because the applicant had a prior order of stay of execution in the former appeal which he abused because he could not furnish security as ordered by the court. He wondered if he can honour the orders of this Court if they are granted again. He went on to state that the shareholders of the 1st respondent will suffer more because this is an old matter and the applicants are likely to fail to comply with the conditions of stay of execution. He stressed that the applicants have merely speculated that they will suffer irreparable loss without details. He submitted in the alternative that should the Court make the orders of stay of execution, then the applicants should be ordered to furnish security at TZS. 2.1 billions as stated in annexture TA5 of the affidavit. In rejoinder, Mr. Lyimo admitted that the High Court was executing the decree in Land Case No. 29/2018 but contended that they are not applying to the stay the decree but the Ruling of the DR. I had ample time to examine the record and consider the submission of the learned counsel. I note, as correctly observed by Mr. Mwakagamba that the application before me is misconceived. It is also time barred, I will try to demonstrate. The parties are in agreement that the DR Was executing the decree of the High Court in Land Case No. 29/2018. They also at one that there is no pending appeal against the decision of the High Court. It is also in common between the parties that the applicants lodged an objection to the competency of the application before the DR and it was dismissed. They are now seeking to challenge the Ruling of the DR for which, I agree that, they have a right. My problem, like Mr. Mwakagamba, is when did they become aware of the execution of the decree of the High Court in Land Case No. 29/2018? They make reference to the 14 days' notice of execution issued by the 2nd respondent on 13/11/2024 as the date on which they became aware of the execution. With respect, I think that is misceived. They were aware of the execution of the decree at an earlier stage; on 6/8/2024 (through their advocate) and 15/9/2024 (through publication). It is also a fact that they attended the execution proceedings before the DR. Counting from 6/8/2024 when they were served through their advocate to 25/11/2024 when this application was filed is 102 days. If we start from 5/9/2024 when the service was done through publication to 25/11/2024 you get 71 days. In both cases, it is over and above the period of 14 days provided under rule 11(4) of Rules. It follows therefore, that the application was filed out of time. This ground can dispose the application. I see no base for discussing other conditions. I will only add that there cannot exist an application for stay of execution of the ruling of the DR in isolation of execution of the decree of the High Court. With respect to the counsel for the applicants, I think that is a misconceived idea. The application is dismissed as being time barred with costs. It is ordered so. DATED at MOSHI this 10th day of December, 2024. L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 10th day of December, 2024 in the presence of Mr. Tazan Mwaiteleke, learned advocate for the applicants via video link from the Court of Appeal of Tanzania at Dar es Salaam and in the absence of the respondents is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL