Hi Bros Canvas & Tents Limited & Another vs I & M Bank (T) Limited (Civil Application No. 446 of 2026) [2026] TZCA 481 (5 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 446 OF 2026 HI BROS CANVAS & TENTS LIM ITED ......................................1 st APPLICANT PARVEZ ABDULHUSSEIN H IR JI .............................................. 2 nd APPLICANT VERSUS I & M BANK (T) LIM ITE D ..........................................................RESPONDENT (Application for stay of execution of the judgment and decree of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Maqoiqa, J.) dated the 25th day of March, 2022 in Commercial Case No. 03 of 2018 RULING 10th April & 5th May, 2026 MDEMU, J.A.: This application is for stay of execution. The respondent through Messrs. Godwin Nyaisa and Robert Mosi, learned advocates of B & E Ako law, filed a notice of preliminary objection and served on the applicants through Robert R. Rutaihwa, their legal counsel. The notice contained two objections. However, before hearing commenced through virtual court from Dar es Salaam, Mr. Mosi abandoned the second objection in the notice. The remaining objection goes that: To the extent that there is no application for execution filed ' this application contravenes mandatory provisions o f Rule 11(4) and 11(7) (d) o f the Tanzania Court o f Appeal Rules,

2009, G.N. No. 368 o f 2009 as amended by G.N. No, 362 o f 2017, G.N. No. 344 o f 2019, G.N. No. 188 o f 2024 and the decisions o f this Court in Civil Application No. 300/16 o f2022: H i B ro s C anvas a n d Tents L im ite d & A n o th e r v. I & M B a n k (T) L im ite d a t pages 9-10; Civil Application No. 140 o f 2025: H i B ro s C anvas a n d Tents L im ite d & A n o th e r v. I & M B a n k (T ) L im ite d a t pages 9-10; Civil Application No. 621/17 o f2021: S.M . S aeed v. C orp o rate S e c u rity L td & 2 O th ers a t pages 9-11 and Civil Application No. 613/16 o f 2023: M aginga B u sin e ss H o ld in g Com pany L im ite d & 4 O th ers v. CRD B B a n k P L C a t pages 1-2. Looking at the objection being premised under rule 11 (7) (d) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the respondent's counsel is essentially objecting to entertain an application for execution on account that, advertisement in a newspaper for sale of the suit property, is not a notice of execution intended in the Rules. In arguing the objection, counsel argued for and against the objection in the context of rule 11 of the Rules, particularly sub-rule (7) (d). On that account, whether or not annexure H i Bros 3 (an advertisement) is a notice of execution, in my view, cannot be argued as a preliminary objection. It requires argument as to whether, in terms of rule 11 (7) (d) of the Rules, an advertisement in the newspaper is a notice of execution. It also send a message if, through that advertisement, the 2

applicant was made aware of the intended execution. I also considered relevant authorities in support of the preliminary objection as contained in the ground of objection and distinguish them in the following manner: One, Hi Bros Canvas and Tents Limited & Another v. I & M Bank (T) Limited (Civil Application No. 300/16 of 2022) [2024] TZCA 251 is distinguishable because, unlike the instant application where the applicant based on the advertisement, there, the applicant relied on the expiration of the order of the High Court mandating the outstanding sum to be paid within three months of the judgment date. So does in Hi Bros Canvas & Tents Limited & Another v. I & M Bank (T) Limited, Civil Application No. 140 of 2025 (unreported) where the objection regarding notice of execution did not base on advertisement in the newspaper but rather, failure to annex a notice of execution. Two, Magige Business Holding Company Limited & Others v. CRDB Bank Pic (Civil Application No. 1273 of 2024) [2024] TZCA 1309 is distinguishable on account that, unlike in this application, there, the preliminary objection was in respect of restraining the Court to entertain the grant of a temporary injunction. Three, in S. M. Sales Limited v. Corporate Security Limited & Two Others (Civil Application No. 621/17 of 2021) [2023] TZCA 17373, the Court found nothing in the 3

decree granting rights to the respondents enforceable against the applicant. In the instant application, the respondent is the decree holder. Having noted the contents of the objection focusing on the entire application for stay of execution and it being factual thus, calling for evidential concerns, I hold that, the said objection is not on a pure point of law, accordingly, is overruled. Reverting to the main application for stay of execution, counsel are at one that, in terms of the law, the application was made within fourteen (14) days as required by sub-rule (4) of rule 11 of the Rules. They are also at one that, judgment, decree and notice of appeal were annexed in the application thus, rule 11 (7) (a), (b) and (c) of the Rules have been complied with. The points of departure are threefold. First, is in respect of treating the advertisement in the newspaper intending to auction the suit premises as the notice of execution. This was the argument in the overruled preliminary objection. Second, the nature of security for the due performance of the decree in the form of a commitment bond and third, who between the applicant and the respondent stand to suffer irreparably should the stay order granted.

Beginning within the advertisement to auction the suit premises deposed in paragraphs 4, 5 and 8 of the supporting affidavit, Mr. Rutaihwa considers it to be a breakthrough to inform the applicant on the intended execution of the suit premises. It is from this the application for a stay order was founded. Mr. Rutaihwa relied heavily on the decision in Z. A. S. Investment Company Limited & Others v. Equity Bank Tanzania Limited & Another (Civil Application No. 1563 of 2024) [2025] TZCA 997 which treated the advertisement in the newspaper, a notice of execution. As to loss to be suffered should the stay order granted, Mr. Rutaihwa was of the argument that, the applicant stands to suffer more irreparably as compared to the respondent in twofold one, that, the property may be sold at a throw away price and two, that, the appeal will be rendered nugatory and redundant. Regarding security for the due performance of the decree, Mr. Rutaihwa's preference was for the issuance of a commitment bond to maintain status quo of the suit premises. When probed on the possibility to deposit a bank guarantee, he ranked it in the third position preceded by the commitment and insurance bonds. On that note, he urged me to grant the stay order. In reply, Mr. Mosi argued that, the advertisement is not a notice of execution within the meaning of rule 11 (4) and sub-rule (7) (d) of the

Rules. The learned counsel had the following reasons for that stance: One, that, the advertisement was not issued by the executing officer. Two, that, it has no any connection with the decree of the court because neither the decree nor Commercial Case No. 03 of 2018 are reflected. Three, the advertisement was issued in the exercise of the respondent's rights arising under the mortgage deed. He thus distinguished Z. A. S. Investment Company Ltd & Another (supra), mostly it being the decision of a Single Justice of Appeal. Four, the advertisement is addressed to an individual, unlike the stay order which is usually directed to the executing court. He made reference to National Housing Corporation v. Peter Kassidi & Others (Civil Application No. 243 of 2016) [2019] TZCA 153 imploring me to hold that, an advertisement is useful in injunctions as opposed to stay of execution which primarily is for staying execution of decrees. He also cited S. M. Sueed Limited (supra) to reinforce his argument. As to whom between the applicant and the respondent is likely to suffer irreparably should the stay order granted, Mr. Irungu submitted that, it is the respondent because the applicant secured the loan and to date, no any loan paid. He added that, the respondent's financial position has also been affected. 6

Regarding security for the due performance of the decree, it was Mr. Irungu's stance that, properties mortgaged to secure a loan facility cannot be used as a commitment bond because the respondent is in full control. Equally, the value of the said properties is unknown. He thus distinguished Africhick Hatchers Ltd v. CRDB Bank Pic (Civil Application No. 98 of 2016) [2019] TZCA 148 in which, properties in there stood as security because the decreed amount was lesser that the value of the properties. Moreover, in Junior Construction Company Limited & Others v. Mantrac Tanzania Limited (Civil Application No. 24 of 2019) [2021] TZCA 416, machines and equipment did not suffice to stand as security because their value was unascertained and in Rehema Said v. The Registered Trustees of Eemar Charitable Trust (Civil Application No. 623/17 of 2023) [2024] TZCA 876, performance bonds usually stands as security in monetary decrees. Having in mind the foregoing authorities, it came to the learned counsel that, should this application allowed, the applicant should furnish bank guarantee being the requisite security for the due performance of the decree and not any other form of security. Beginning with the requirement to annex the notice of execution in the notice of motion; the counsel are not at one. Whereas the applicants' counsel was of the firm argument that the advertisement in the newspaper 7

constitutes sufficient notice of the intended execution, the respondent's counsel was of a strong argument that, it does not. As I demonstrated above, the respondent's counsel stood on the understanding that, the advertisement exhibited the respondent's right over the mortgage collaterals for the loan facility. Therefore, the challenge ahead is in respect of the notice of execution or an application for execution which, towards the initiation of advertisement on 23rc f February, 2026, nor any application for execution of the decree was instituted in any court of law. This is to say, for the respondent, there is no notice of execution, the argument which was opposed vehemently by Mr. Mosi. I entirely agree with the applicants' counsel, particularly, in the words of the decision in Z. A, S. Investment Company Limited (supra) that: - "W ith re g a rd to th e q u e stio n a s to w h eth er o r n o t th e a d v e rtise m e n t in the n ew sp ap er in v itin g m em bers o f the p u b lic to b id a n d p u rch a se th e m o rtg ag ed p ro p e rtie s, am o u n ts to a n o tice o f an in te n d e d e xe cu tio n a s p re scrib e d u n d e r ru le 11 (7 ) ( d) o f th e R ules\ I re sp o n d w ith o u t h e sita tio n in the p o sitiv e . I say so because, it appears to me that the respondent who had opted to go back and exercise their right o f sale under the mortgagee and mortgagor relationship, did so in total disregard o f the applicants' right to 8

challenge the said enforcement o f the decree out o f the Court. The newspaper was served to the applicants as a threat to have properties sold and unless this court intervenes, even the appeal filed in the Court would be rendered nugatory. In the circumstances, the applicants could not be expected to sit idle awaiting for execution proceedings to commence so as to allow them to apply for staying the execution. Upon the threat created by the advertisement, the proper course would be an application for staying execution o f the decree pending hearing o f the appeal." [emphasis supplied] The principle in Z. A. S. Investment Company Limited (supra) fits squarely in the instant application for stay of execution as evidentially deposed in paragraph 4 of the supporting affidavit, that: "That, while awaiting the hearing o f the instituted appeal moved towards, the applicants have come to learn that, the respondent is now executing the decree o f the High Court through advertisement for sale by tender o f the 2nd applicant's properties which were securing the loan, the subject o f the appeal now pending in Court. From the advertisem ent posted in Zanzibar Leo and Zanzibar M ail Newspapers dated 2 J d February, 2026 at page 11 and 22 respectively, it is clearly 9

stated that, the respondent has appointed broker who is tasked to se ii the 2Pd applicant's properties and as a result, has invited bids from the public, and the tender opening is scheduled to take place on 11th March, 2026 at 10:00 am. I s ta te fo r fa c t th a t, th e re sp o n d e n t is n o w e xe cu tin g the decree, a s th e p ro p e rty re fe rre d in the a d v e rtise m e n t is am ong th e p ro p e rtie s fo rm in g p a rt o f th e ju d g m e n t o f th e H ig h Court. Annexed are copies o f the extract advertisem ent from Zanzibar Leo and Zanzibar M ail Newspapers dated 13th February, 2026 page 11 and 22, and extracts o f photographs with threatening words by the respondent, are attached and marked annexure HIBROS 3 to form p art o f the affidavit, "[emphasis supplied] It is quite obvious in the excerpt above that, the advertisement provided sufficient information for sale of the applicants' properties which was mortgaged to secure the loan facility from the respondent. The said properties, according to the affidavit, constitute part of the judgment which is challenged by the applicants in the pending appeal. It is the advertisement which threats to execute the decree. This, to me, constitutes a notice of execution or that, it informs the applicant of the intended execution of the decree. It cannot be dismissed casually on account stated by the respondent's counsel that, the decree or case 10

number, or, if I may add, the parties, are not reflected in the advertisement. Again, I cannot go by the respondent's counsel that Z. A. S. Investment Company Limited (supra) is not a good law simply it is a decision of a Single Justice of Appeal. I find that argument too remote. The question as to who stands to suffer a substantial loss between the applicant and the respondent, should not ruin my mind. I am saying so because, besides rendering the appeal nugatory should the stay order not granted, in both affidavits, the value of the properties to be auctioned is unascertained. In that stance, the applicant appears to suffer more substantially as compared to the respondent. With regard to the security for the due performance of the decree, I duly considered authorities cited by the counsel in that behalf. The respondent, firmly, is in favour of the bank guarantee. To Mr. Rutaihwa, by ranking his option from performance bond, insurance bond to bank guarantee, to me, has left the issue of what amounts as security for the due performance of the decree in the discretion of the Court. This, truly, is the position. It was stated in Junior Construction Company Limited & Two Others (supra) that, practice of the Court demands security for the due performance of the decree in a form of bank guarantee, much as insurance performance bond or even the performance bond for maintaining status 1 1

quo of the suit properties, are also acceptable securities for the due performance of the decree. In the end, I hold the instant application to have substance. Accordingly, the decree of the High Court in Commercial Case No. 03 of 2018 is hereby stayed pending the determination of Civil Appeal No. 2432 of 2025 on condition that, the applicants should, within sixty (60) days of the ruling, deposit in Court a bank guarantee of TZS. 2,590,240,074.08. or an insurance performance bond of the same amount, whichever appears feasible to the applicants. Costs of the application shall abide the outcome of the pending appeal. DATED at DODOMA this 4th day of May, 2026. Order delivered virtually this 5th day of May, 2026 in the presence of Mr. Theodore Trimus, learned counsel for the Applicants, Ms. Kavola Semu, learned counsel for the Respondent and Mr. Issa Issa, Court Clerk; is hereby certified as a true copy of the original. G. J. MDEMU JUSTICE OF APPEAL 12