Ms. Farhia Abdullah Nur vs Advatech Office Supplies Limited and Another (Civil Application No. 182/16 of 2021) [2022] TZCA 3107 (31 August 2022)

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 notice of motion under Rules 11(3), (4), (5)(a)-(c), 11(6), (7)(b)-(d), and 45(1) of the Tanzania Court of Appeal Rules, 2009, seeking an order for stay of execution of the decree of the High Court of Tanzania, Commercial Division at Dar es Salaam, in Commercial Case No. 167 of 2014 dated 28th May, 2015. The application was supported by an affidavit and written submissions filed by the applicant. The first respondent initially opposed the application through an affidavit in reply filed on 12th March, 2021. However, at the hearing, her learned counsel, Mr. Daud Ndossi, withdrew that position and supported the application, except for the request to waive the requirement of depositing security for due performance of the decree, as stated in paragraph 30 of the supporting affidavit. The second respondent neither filed an affidavit in reply nor appeared at the hearing, despite being duly served. Consequently, Mr. Deogratias Lyimo Kiritta, learned counsel for the applicant, moved the Court to proceed ex parte against the second respondent under Rule 63(2) of the Rules. The prayer was not opposed by the first respondent and was accordingly granted by the Court.

The Court had to decide on whether the applicant had satisfied the conditions necessary to warrant a stay of execution of the decree of the High Court in Commercial Case No. 167 of 2014, whether the applicant could be exempted from depositing security for the due performance of the decree pending determination of the intended appeal, and whether the Court could proceed with the application in respect of the second respondent who did not file an affidavit in reply or appear at the hearing. Held : (i) The Court held that it was 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 was granted. Statutory Provisions referred to: (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 to: (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.