International Commercial Bank of Tanzania Ltd vs Juluma General Supplies Ltd & Others (Civil Application No. 202506060001060 of 2025) [2025] TZCA 1266 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 202506060001060 OF 2025 INTERNATIONAL COMMERCIAL BANK OF TANZANIA LTD ........ APPLICANT VERSUS JULUMA GENERAL SUPPLIES LTD ......................................... 1 st RESPONDENT FEREJI SAIDI FEREJI............................................................ 2 nd RESPONDENT LUCAS PIUS MALLYA ............................................................ 3 rd RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania Main Registry) (Dvansobera, dated the 16th day of May, 2024 in Civil Case No. 58 of 2022 RULING 28th Nov & 12th December, 2025 NGWEMBE. 3.A.: The applicant, International Commercial Bank (T) Ltd, was dissatisfied with the judgement and decree delivered by the High Court of Tanzania in Civil Case No. 58 of 2022. Thus, successfully lodged an appeal to the Court via Civil Appeal No. 1554 of 2024. Pending hearing and determination of the said appeal, the respondents filed Execution Application No. 25634 of 2024 in the High Court of Tanzania at Dar es Salaam before Deputy Registrar Hon. Lyakinana for execution of the High Court's decree in the above referred suit. Among the decreed of the High i Court was to release the landed property with certificate of title No. 177932, LO No. 92026 of plot No. 4 Block 34 Kariakoo area within Ilala District in Dar es Salaam Region also the applicant was ordered to hand over that certificate to the 2n d respondent. Having become aware of the application for execution which execution was to the effect of enforcing the release of the said certificate of title to the 2n d respondent, the applicant timely, on 12th June, 2025 lodged this application for stay of execution under certificate of urgency. However, in the course, the respondents unsuccessfully raised preliminary objections which were overruled together with an affidavit in reply. Briefly, the background of this matter as per the affidavit of the applicant shows that the dispute between the parties emanates from Overdraft loan facility whereby the 1st respondent secured from the applicant a total of TZS. 2,100,000,000.00. In that loan, the 2n d and 3rd respondents provided security guarantee for that loan facility. It is further stated that the 1st respondent dishonoured the loan agreement and after several demands for her to make good the breach proved futile. While the loan remained unpaid, the 1st respondent filed Civil Case No. 58 of 2022 claiming among others, that the loan agreement was frustrated by the operations of Tanzania Revenue Authority (TRA), which had confiscated her business stock for failure to pay tax dues. She sought 2 in court for orders that the loan agreement was frustrated as a result the court may eventually relieve her from that liability. But to the applicant, such action by TRA had nothing to do with the loan agreement. The High Court determined the suit by declaring that the loan agreement was actually frustrated. Consequentially ordered the applicant to hand over to the 2n d respondent the title deed No. 177932 of Plot No. 4 Block 34 Kariakoo Area, which was placed as security for the said loan. Such decree did not amuse the applicant, hence the pending appeal to the Court. It is on record that the applicant lodged an appeal which is pending before the Court and at the same time, moved the Court by way of a notice of motion under rule 11 (3), (4) (4A) (5) (6) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) supported by an affidavit sworn by Mr. Bahati Makamba identified as a Principal Officer of the Applicant, for stay of execution. In opposition to the application, the 1st respondent filed an affidavit in reply together with notice of preliminary objection as alluded to above. In support to the application, the applicant filed written submission on 5th August, 2025 in terms of rule 106 (1) of the Rules, but the respondents did not comply to that rule of the law. On the hearing date of this application, Mr. Richard Madibi, learned advocate entered appearance for the applicant while Mr. Mohamed Majaliwa, learned counsel appeared for the respondents. When the Court 3 invited the applicant to address on its application, Mr. Madibi adopted the grounds in the notice of motion, affidavit in support and the written submissions filed on 5th August, 2025. He briefly clarified that the applicant has complied with all legal requirements enshrined in rule 11 of the Rules. He argued further that, despite the fact that the applicant has already lodged Civil Appeal No. 1554 of 2024 which is pending in the Court, yet if the execution is left to proceed will render the loan taken by the 1st respondent of TZS. 2,100,000,000/= which is not yet paid and the interest accrued therein will remain unsecured. Moreover, he submitted that if the applicant will hand over the said certificate of title to the 2n d respondent there is a possibility that the 2n d respondent may dispose of the property which will make the loan unsecured while the appeal remains pending before the Court. Thus, will cause the applicant's business enter into an irreparable financial crisis. It will also cause damage to the applicant's goodwill and its image. He buttressed by the case of Tanzania Saruji Company v. African Marble Company (Civil Application No. 67 of 1996) [1997] TZCA 88 (23 May 1997). Submitting on security, Mr. Madibi clarified that in paragraph 17 of the affidavit the applicant is committed to furnish security for the due performance of the High Court's decree as may be directed by the Court. He buttressed his argument on security by referring to the Court's decision 4 in Mantrac Tanzania Limited v. Raymond Costa (Civil Application No. 11 of 2010) [2011] TZCA 519 (10 October 2011) and Africhick Hatchers Ltd v. CRDB Bank Pic, (Civil Application No. 98 of 2016) [2019] TZCA 148 (15 March 2019). Mr. Madibi, insisted that the applicant has firm commitment to provide security even by executing a bank guarantee to an amount to be fixed by the Court for security. He rested by imploring the Court to grant the application. In reply, Mr. Majaliwa contented that the conditions provided in rule 11 from subrule 4 to 7 must cumulatively be complied with. However, he challenged the application by failure of the applicant to satisfy the requirement of providing sufficient security as required by rule 11 (5) (b) of the Rules. He referred the Court to the case of DRTC Trading Company Ltd v. Malimi Lubatula Ng'holo & Another (Civil Application No. 89 of 2020) [2022] TZCA 352 (15 June 2022), where the Court held that the applicant in matters of stay of execution, must comply and fulfil with all conditions cumulatively, which is not the case in the instant application. Moreover, Mr. Majaliwa argued strongly that applicant has lodged this application prematurely contrary to rule 11 (7) (d) of the Rules. He emphasised that there is no notice of execution which is subject to stay. What is in record is a notice of date of hearing of the application for execution. He explained that the notice of execution is issued by the executing officer, at that juncture, the applicant now may apply for stay of execution. Hence, he urged the Court to dismiss the application for being premature. In brief rejoinder, Mr. Madibi emphatically urged the Court to disregard the issue of prematurity of the application because it was already decided by the Court on the ruling of preliminary objection raised by the respondents. In regard to security, he reiterated to his submission in chief and to the decision in the Case of Mantrac Tanzania Ltd v. Raymond Costa (supra). Lastly, prayed the application be granted with costs. I have dispassionately considered the material canvassed in respect of this application together with the contents of the supporting affidavit in light of the arguments advanced by the learned advocates for both the applicant, and the respondents. I find the critical question for determination by the Court is whether the applicant has complied with the settled rules of the law. An application for stay of execution is governed by Rule 11 of the Rules, whereby subrule 4 of the Rules requires the application of this nature to be lodged in Court within fourteen (14) days from the service of the notice of execution or from the date the applicant became aware of the existence of the application for execution. In regard to this application, the affidavit of the applicant in paragraph 12, indicates that on 28th May, 2025 the applicant received a notice of execution from the respondent informing him on the existence of an application for Execution No. 25634 of 2024, and on 12th June, 2025 the instant application was filed in Court. Mathematically, it may be calculated to have been filed within 13 days from the date of his notification. Thus, rule 11 (4) of the Rules was complied with. The other requirements for the stay of execution are provided for under rule 11 (5) of the Rules, for the applicant to satisfy the Court that substantial loss may result to the applicant unless the order is made and commitment to provide security for due performance of such decree in case the appeal fails. Considering the compliance of these requirements, the applicant has expressly stated in both affidavit and written submission that the intended execution to order the applicant to return the certificate of title which was placed by the 1st respondent to secure the overdraft facility loan to the 1st respondent will make the whole loan of TZS. 2,100,000,000/= unsecured. Secondly, Mr. Madibi submitted that the danger is apparent that in return of the said certificate of occupancy to the 2n d respondent may dispose of the property and cause business crisis to the applicant. This requirement is also settled in our laws through various decisions of the Court, including the case of Tanzania Ports Authority v. Pembe Flour Mills Ltd, (Civil Application No. 78 of 2007) [2009] TZCA 284 (1 January 2009), when we observed that: "Irreparable loss must imply, among other things, loss which is irrecoverable in any form or manner, including damages or other monetary recompense". The above excerpt remains the good position of law to date in regard to irreparable loss. In the present application, the applicant has convincingly illustrated the apparent risk of substantial and irreparable loss in the absence of the relief sought. In any event, the applicant has satisfactorily demonstrated irreparable loss in case the execution is not stayed pending final disposal of the pending appeal. Another critical requirement in the application of this nature is firm commitment to provide security in case the pending appeal fails. Rule 11 (5) (b) of the Rules was intended to protect the right of the decree holder in case the intended appeal is unsuccessful. The Court has, in its numerous decisions amplified that legal requirement in clear terms. See inter alia Anord L. Matemba v. Tanzania Breweries Ltd, Civil Application No. 95 of 2012) [2016] TZCA 2274 (26 September 2016) and Mantrac Tanzania Limited v. Raymond Costa (supra). In the latter case, the Court observed as follows: "To m eet this condition, the iaw does not strictly demand that the said security m ust be given prior to the grant o f stay order. To us, a firm undertaking by the applicant to provide security m ightprove sufficient to move the Court, a ll things being equal, to grant stay order provided the Court sets a reasonable time lim it within which the applicant should give the same". The purpose of providing security is to safeguard the interest of the decree holder in the event the judgment or decree appealed against is affirmed by the appellate court. Despite the respondent's advocate questioning the validity of the commitments made by the applicant in providing security, the law is now settled that the applicant is obliged to make a firm undertaking to provide security sufficient to move the Court to grant a stay order. In respect of this application the applicant's affidavit in paragraph 17 has provided a firm commitment to provide security for the due performance of decree. Moreover, Mr. Madibi in his submission suggested that the applicant is ready to provide bank guarantee. I find such commitment is satisfactory to grant the prayer for stay of execution. Having considered wholistically, the circumstances and the nature of this application, together with the above reasons, I find no compelling reasons to refuse the prayer. In the event, I hereby grant the application and order that the execution of the Judgment and decree of the High Court of Tanzania in Civil Case No. 58 of 2022 delivered on 16th May, 2024 (Hon. Dyansobera, J) be stayed pending hearing and determination of the pending appeal. Also, I order that the applicant should execute a bond of maintenance of status quo of the certificate of title within thirty (30) days from the date of the delivery of this Ruling. No order as to costs. DATED at DAR ES SALAAM this 11th day of December, 2025. Ruling delivered this 12th day of December, 2025 in the presence of Mr. Milica Ikengo, learned counsel for the Applicant also holding brief for Mohamed Majaliwa, learned advocate for the Respondent and Julius Kilimba, Court Clerk; is hereby certified as true copy of the original. P. J. NGWEMBE JUSTICE OF APPEAL R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 10