| dc.description | MS. FARHIA ABDULLAH NUR VERSUS ADVATECH OFFICE SUPPLIES LIMITED AND ANOTHER
COURT OF APPEAL OF TANZANIA
(CORAM: MWAMBEGELE. J.A.. LEVIRA. J.A., And RUMANYIKA, J.A.)
CIVIL APPLICATION NO. 182/16 OF 2021
[Application for an Order of Stay of Execution of the Decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam] dated the 28th day of May, 2015 in Commercial Case No. 167 of 2014]
Civil Procedure and Practice – Security in due performance of decree – Stay of execution conditions
The applicant moved the Court by way of notice of motion made under Rules 11 (3), (4), (5) (a) - (c), 11 (6), (7) (b), (c), (d) and 45 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) to order stay of execution of the decree of the High Court of Tanzania, Commercial Division at Dar es Salaam (the High Court) in Commercial Case No. 167 of 2014 dated 28th May 2015. The notice of motion is supported by the applicant's affidavit. In addition, the applicant has lodged written submissions in support of the application. Initially, the first respondent opposed the application through affidavit in reply which she filed on 12th March, 2021. However, at the hearing of the application, Mr. Daud Ndossi, learned counsel who appeared on her behalf vacated the initial stance and supported the application save for the request for waiver of deposit of security for the due performance of the Decree of the High Court, subject of the present application as presented under paragraph thirty (30) of the supporting affidavit. The second respondent neither filed affidavit in reply nor appeared at the hearing despite being duly served. In the circumstances, in respect of the second respondent, Mr. Deogratias Lyimo Kiritta, learned advocate who appeared for the applicant moved the Court to proceed with the hearing of the application under Rule 63 (2) of the Rules, a prayer which was not contested by Mr. Ndossi and the same was granted by the Court.
Held;
i. It is common knowledge that security is provided so as to protect the respondent from facing difficulties or impossibility of realising the decree in case the intended appeal fails.
Application granted.
Laws cited
i. Rules 11 (3), (4), (5) (a) - (c), 11 (6), (7) (b), (c), (d) and 45 (1) of the Tanzania Court of Appeal Rules, 2009 (
Case laws referred
i. Africhick Hatchers Limited v. CRDB Bank Pic, Civil Application No. 98 of 2016 unreported).
ii. Rules 11 (3), (4), (5) (a) - (c), 11 (6), (7) (b), (c), (d) and 45 (1) of the Tanzania Court of Appeal Rules, 2009. | en_US |
