CIVIL APPLICATION NO 749 16 OF 2023 USANGU LOGISTICS TANZANIA LIMITED VS SAS LOGISTICS TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 749/16 OF 2023 USANGU LOGISTICS TANZANIA LIMITED.................................. APPLICANT VERSUS SAS LOGISTICS TANZANIA LIMITED....................................RESPONDENT [Appeal for stay of execution of the Decree o the High Court of Tanzania, Commercial Division at Dar es Salaam] (AgathoJ.) dated the 30th day of June, 2023 in Commercial Case No. 28 of 2022 RULING 18th & 25thSeptember, 2024 MASHAKA, J.A.: Under a certificate of urgency and in terms of rules 11(3), (4), (4A), (5) (a) and (b), (6) (7) (a), (b), (c) and (d) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant is moving the Court for an order to stay the execution of the decree of the High Court, Commercial Division in Commercial Case No. 28 of 2022 dated 30th June, 2022 pending determination of the intended appeal. The application is supported by affidavit duly affirmed by Saadkhan Shermohamed Ismail, Director of the applicant. The respondent filed the affidavit in reply contesting the application. Both applicant and the i respondent filed written submissions for and against the grant of the application. During hearing of the application, Mr. Tumaini Shija, learned advocate appeared for the applicant whereas the respondent enjoyed the services of Ms. Mariam Masandika and Mr. Benson Mahuna, learned advocates. Before proceeding with hearing of the application, I called upon the parties to address me on the competence of the application. Mr. Shija submitted that the application has complied with rule 11(3), (4), (4A), (5) (a) and (b), (6) (7) (a), (b), (c) and (d) and rule 48 (1) of the Rules save for rule 11 (7) (a) of the Rules and affidavit in support and the written submission which he prayed to form part of his oral submission. He argued that there is no notice of appeal accompanying the application because there is an appeal pending in Court and the respondent has not controverted this position that an appeal exists, emphasizing that the respondent has not indicated in her affidavit in reply. It was his contention that the intention of a notice of appeal is to show that the applicant intends to appeal to the Court. He referred me to paragraph 5 of supporting affidavit which averred that on 15th August, 2023 the applicant lodged Civil Appeal No. 438 of 2023 in the Court of Appeal of Tanzania at Dar es Salaam and the same is still pending. He urged me that though there is no notice of appeal, it should not be an impediment to grant the application which has complied with the conditions set by the Rules and that the applicant averred at paragraph 12 of affidavit in support her willingness to deposit a bank guarantee for the due performance of the decree. He implored me to invoke section 3 A and 3 B of the Appellate Jurisdiction Act, (the AJA) and apply the overriding objective principle that at the time of filing the application the appeal was already lodged in the Court. On the issue of costs for this application, he urged that it follows the event of the appeal. In reply, on the competence of the application, Ms. Masandika submitted that in their written submission in reply, they discovered that the application was incurable defective for failure to comply with the mandatory requirement of rule 11 (7) (a) of the Rules that a copy of a notice of appeal must accompany the application. She implored me to strike out the application with costs. Rejoining, Mr. Shija reiterated his submission in chief. I have given due consideration to the notice of motion, supporting affidavit, affidavit in reply and parties' written and oral submissions and after perusing the record of the application, the issue for my determination is whether the applicant has satisfied the conditions for me to grant an order for stay of execution as per rule 11 (3) of the Rules. In Registered Trustees of The Chama Cha Mapinduzi & Others v. Mehboob Ibrahim Alibhai (Civil Application 117 of 2018) [2021] TZCA 444 (26 August 2021, TANZLII) the Court had this to say: "It is the position o f the iaw that the applicants are enjoined to comply with all the conditions set out under rule 11 (4) (5) (a) and (b) and (7) (a) (b), (c) and (d) o f the Rules. The Court would decline to grant the application for stay o f execution where an applicant fails to cumulatively meet all the conditions." For ease of reference, rule 11(7) of the Rules states that: "An application for stay o f execution shah be accompanied by copies of the following- (a) a notice of appeal; (b) a decree or order appealed from; (c) a judgment or ruling appealed from; and (d) a notice o f the intended execution. " [Emphasis added] The provision mandatorily requires an application for stay of execution to be accompanied by copies of a notice of appeal, a judgment, a decree, and a notice of the intended execution. In this application, the notice of motion at paragraph iv states that there is a pending Civil Appeal No. 348 of 2023 and at paragraph 5 of supporting affidavit, the applicant averred that Civil Appeal No. 438 of 2023 was lodged on 15th August, 2023 at Dar es Salaam. Thus, the notice of appeal which instituted the said appeal has not been attached to the notice of motion. The Court has severally held that to grant an order for stay of execution, it is mandatory for the applicant to comply cumulatively with rule 11 (4), (5) (a), (b) and (7) (a), (b), (c), (d) of the Rules. For an application of this nature to be competent before the Court, it must be accompanied by copies of the listed documents under rule 11 (7) of the Rules. If these documents are absent, the application is incompetent and liable to be struck out. This application is accompanied by copies of the judgment and decree of the High Court Commercial Case No. 28 of 2022 dated 30/06/2023 respectively and the notice of the intended execution which was served on 04/10/2023 to the applicant. There is no notice of appeal accompanying the application. Where the conditions are 5 not met cumulatively, the application is incompetent and liable to fail, see Mabruck Mengele v. Vernon David Law and Another, Civil Application No. 87 of 2004 (unreported). Since, the applicant has failed to comply with rule 11 (7) (a) of the Rules, the application is incompetent. For the above reasons I cannot exercise the jurisdiction under rule 11 (3) of the Rules to grant the orders sought because the applicant has failed to cumulatively fulfil the conditions set under rule 11 (7) (a) of the Rules. That said, this application is incompetent and I hereby struck it out. Costs shall abide the main cause DATED at DAR ES SALAAM this 24th day of September, 2024. L. L. MASHAKA JUSTICE OF APPEAL Ruling delivered this 25th day of September, 2024 in the presence of Mr. Tumaini Shija, Ms. Betha Bihondo, learned counsels for the Applicant and Ms. Violate Mutale, learned counsel for the Respondent, is hereby certified as a true copy of the original. 6