ECOBANK TANZANIA LIMITED VS. DOUBLE A CO. LIMITED 3 OTHERS. CIVIL APPLICATION NO. 178/16 OF 2021.
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THE COURT OF APPEAL OF TANZANIA, DAR ES SALAAM.
Abstract
Held: (i) The law is settled that for the full Court to grant a stay of execution, the check list of the requisite conditions stated under rule 11(4) (5) and (7) of the Rules should be satisfied cumulatively. The Court satisfied to hold that indeed unless the intended execution is stayed, the applicant stands to suffer irreparable loss, namely, the multi million bank loan allegedly defaulted by the respondents. (ii) If strictly our powers to stay of execution were restricted to the decrees directly issued by the High Court in its first instance sitting, in total disregard of the latter’s appellate, revisional, review and reference jurisdiction, the possibilities of the decree holders going out of the courts with empty decree which is a mockery of justice would be not be ruled out. For that consideration the Court settled that the copy of the said drawn order appended to this application suffices to be a decree sought to be executed, the Court granted the application with costs
Description
ECOBANK TANZANIA LIMITED v. DOUBLE A. CO. LIMITED & 3 OTHERS
COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM
(Mwambegele, Levira and Rumanyika, JJ. A) CIVIL APPLICATION NO. 178/16 OF 2021
(Application for stay of execution of the Ruling and Order of the High Court of Tanzania, Commercial Division at Dar es Salaam, Fikirini, J., dated 21st day of May, 2019 in Commercial Reference No. 2 of 2019.)
Court of Appeal Rules – Stay of Execution of Decree– Conditions – Whether the application is accompanied by a copy of a decree appealed from, in compliance with rule 11(7) (b) of the Rules.
Applicant in this instant application, lodged an application for stay of execution of the ruling and order of the High Court of Tanzania, Commercial Division at Dar es Salaam in Commercial Reference No. 2 of 2019 passed by Fikirini, J. (as she then was). An application was by way of notice of motion made under Rule 11(3), 11(4), 11(5) (a) – (c), 11(6), 11(7) (b), (c) and Rule 48(1) of the Tanzania Court of Appeal Rules of 2009 (the Rules). Before the High Court of Tanzania Commercial Division at Dar es Salaam, there was Commercial Case No. 164 of 2018 between the parties herein, whereby following a defective plaint based on preliminary objection raised by the respondents, the applicant’s suit was struck out on 07/03/2019. The respondents successfully filed a bill of costs which the Taxing Master, (Deputy Registrar) taxed at TZS.17,744,176.115 and USD. 168,250.5236 VAT excluded. As this decision aggrieved by the applicant, she preferred Commercial Reference No. 2 of 2019 which did not succeed as Fikirini, J. upheld the decision of the Taxing Officer on 21/05/2020. Still satisfied the applicant filed a notice of appeal on 04/06/2020. The respondents, the decree holders set the execution process on motion vide High Court Commercial Division, Taxation Cause No. 33 of 2019. It was contended that if that decree is not stayed, the applicant stands to suffer irreparable loss much. The respondents in this instant application opposing the application that the application is incompetently before the Court as there is no copy of the decree sought to be stayed, the ruling on the bill of costs issued by the Taxing Officer on 09/08/2019 is appended. Therefore, the questions for determination was whether the application has satisfied the conditions attached to granting of stay of execution of the decree set forth under rule 11(4) (5) and (7) of the Rules, and whether the application is accompanied by a copy of a decree appealed from, in compliance with rule 11(7) (b) of the Rules.
Held: (i) The law is settled that for the full Court to grant a stay of execution, the check list of the requisite conditions stated under rule 11(4) (5) and (7) of the Rules should be satisfied cumulatively. The Court satisfied to hold that indeed unless the intended execution is stayed, the applicant stands to suffer irreparable loss, namely, the multi million bank loan allegedly defaulted by the respondents.
(ii) If strictly our powers to stay of execution were restricted to the decrees directly issued by the High Court in its first instance sitting, in total disregard of the latter’s appellate, revisional, review and reference jurisdiction, the possibilities of the decree holders going out of the courts with empty decree which is a mockery of justice would be not be ruled out. For that consideration the Court settled that the copy of the said drawn order appended to this application suffices to be a decree sought to be executed, the Court granted the application with costs..
Order Accordingly.
Case Laws referred to:
•Mantrac Tanzania Limited v. Raymond Costa, Civil Application No.11 of 2010 (unreported).
•Joseph Antony Soares @ Goha v. Hussein s/o Omary, Civil Application No. 6 of 2012 (unreported).
• Hai District Council and Another v. Kilempu Kinoka Laizer and 15 Others, Civil Application No. 10/15 of 2017 (unreported).
•Salvatory Gibson v. William Laurent Malya and Another, Civil Application No. 6/05 of 2017 (unreported).
•Sudi Kipetio and 3 Others v. Bakari Ally Mwera, Civil Application No. 94 of 2004 (unreported).
Statutory provisions referred to:
•The Court of Appeal Rules, 2009 under rules Rule 11 (3),(4),(5) (a) – ( c), (6), (7) (b), (c).
Ms. Inviolata Wangom, for the Applicant.
Mr. Raphael Dismas, for the Respondent.