M & Five B. Hotel & Tours Ltd & Others vs Exim Bank Tanzania Ltd. (Civil Application No. 1019 of 2024) [2024] TZCA 1130 (19 November 2024)

AT PAR ES SALAAM CIVIL APPLICATION NO. 1019 OF 2024 THE M & FIVE B. HOTEL & TOURS LT D ..... . ........ BAKHITA MATHIAS MANGA (The Administratrix of the Estate of the late Mathias Manga) .......... . BELINDA MATHIAS MANGA ............ . ................... 1 st APPLICANT 2ND APPLICANT 3 rd APPLICANT VERSUS EXIM BANK TANZANIA LTD. RESPONDENT (Application for Stay of Execution of the decree of the High Court Tanzania 8th & 19th November, 2024 NGWEMBE. J.A.: The applicants, after being dissatisfied with the decision of the Court in Civil Appeal No. 193 of 2023 which decision was delivered on 31st July, 2024, determined as they are, ventured back to the Court by way of an application for review. Pending the hearing of the alleged application, they also preferred this application for stay of execution under certificate of urgency. The applicants moved the Court by notice of motion supported by (Commercial Division) which was upheld by the Court of Appeal at Dar es Salaam) (Maqoiqa, J) dated the 10th June, 2022 in Commercial Case No. 109 of 2016 RULING

an affidavit of the 2n d applicant alleged as an administratrix of the estate of the late Mathias Erasto Manga who was the managing director of 1st applicant. On the hearing date, the applicants through their advocate, Mr. Emmanuel Saghan prayed for leave of the Court to file a supplementary affidavit. The prayer was unopposed by Ms. Miriam Bachuba, learned advocate for the respondent. Consequently, leave was granted and the supplementary affidavit of the 1st applicant was lodged in Court on 4th November, 2024. However, other applicants did not append their affidavits in support of the notice of motion. In unprecedented way, despite the pendency of the application for stay of execution, the applicants yet lodged in Court another application titled Notice o f intention to depart from the previous decision o f the Court - Hon. Justice Mugasha J.A made in C ivii Appiication No. 307/18 o f 2024\ whereby at the hearing date, both counsels preferred to argue both applications beginning with an appiication to depart from the decision of the Court. At the hearing date of 8th November, 2024, the respondent was represented by Mr. Libent Rwazo, learned advocate and Mr. Saghan represented the applicants. In arguing both applications, the parties agreed to begin with the application for departure from the previous decision of the Court in the 2

case of Director Tanga Cement Company Limited v. Ephraim Joram (Civil Application No. 307/18 of 2024) [2024] TZCA 907 (19 September 2024), which was delivered by the Court on 19th September, 2024. Mr. Saghan also referred the Court to the decision in Registered Trustees of St. Anita's Greenland Schools (T) and 6 Others v. Azania Bank Limited (Civil Application No. 660/16 of 2023) [2024] TZCA 940 (26 September 2024). He submitted that in both decisions, the Court ruled that it had no jurisdiction to entertain an application for stay of execution pending determination of an application for review of the Court's decision. Insisted that the Court under rule 4 (2) of the Tanzania Court of Appeal Rules 2009, (the Rules) the Court has unlimited powers in matters where the rules have not provided for. He further argued that, the Court is seized with powers to order stay of execution pending final determination of an application for review under rules 4 (2) of the Rules. That the rule provides general powers to the Court to preserve justice and ensure justice is done in any how. Based on the above submission, Mr. Saghan implored the Court to exercise its powers under rule 4 (2) of the Rules to depart from the two previous decisions which declared that the Court lacked jurisdiction contrary to rule 4 (2) of the Rules and grant the application for stay of execution pending review.

Submitting on the main application, Mr. Saghan argued forcefully, that the essence of the application is to stay the execution of the High Court's decree which was blessed by the Court. The reasons and grounds for stay of execution are disclosed in both the notice of motion and the supporting affidavit. That, in executing the High Court's decree, the respondent has attached a residential house contrary to section 48 of (1) (e) of the Civil Procedure Code as was so decided in the case of Ongujo Wakibara Nyamarwa v. Beatrice Greyson Mmbaga (Civil Application NO. 200 of 2021) [2022] TZCA 732 (21 November 2022). Therefore, he urged the Court to grant the orders sought as the applicants have promised to undertake to furnish security as would be ordered by the Court. On the other side, Mr. Libent opposed both applications. Submitting on the prayer to depart from the previous decisions, he argued that the Court may only depart when the decision was reached p er incur/am. He bolstered his argument by citing the case of Jumuiya ya Wafanyakazi Tanzania v. Kiwanda cha Uchapishaji cha Taifa [1988] T.LR 146 at page 155. That, since the decision of the Court sought to be departed were not reached p er incuriam , then the Court cannot depart therefrom and rule 4 (2) does not apply in the circumstances of the matter at hand.

Mr. Libent conceded on the powers of the Court are derived from statutes and the Court may grant what is provided for by statute. Therefore, the Court cannot assume jurisdiction which it does not have. He buttressed by referring the Court in rule 11 of the Rules which provide powers to grant orders for stay of execution pending determination of an appeal or revision not otherwise. Thus, he implored the Court to dismiss both applications for lack of merits. In the main application, Mr. Libent was brief that, rule 11 does not confer jurisdiction to the Court to determine application of this nature and section 48 of Civil Procedure Code does not apply to the circumstances of the matter at hand. Hence, implored the Court to dismiss the application with costs. In brief rejoinder, Mr. Saghan insisted that rule 4 (2) of the Rules is applicable to the circumstances of this matter and urged the Court to depart from the previous decisions of the Court and proceed to grant the application for stay of execution. Having considered the submissions of the learned counsel for either side, the issue for determination is whether the Court is mandated with jurisdiction to depart from previous decisions and grant stay orders pending the determination of an application for review after having determined the judgment appealed from.

Before determining the said issue, I accede to the arguments of both counsel that jurisdiction of the Court is a creature of statute including the Constitution of the United Republic of Tanzania. The Court will always use every statutory powers it has to protect justice, but it cannot assume jurisdiction which does not have. It is well established that the Court is seized with jurisdiction to depart from its previous decisions/ but the departure is a serious Court business, which cannot be lightly invoked. Rule 106 (4) of the Rules provide as follows: (4) "Where the parties intend to invite the Court to depart from one o f its own decisions, this sh aii be cieariy stated in a separate paragraph o f the subm issions, to which special attention sh aii be drawn; and the intention sh aii aiso be restated as one o f the reasons /' The application to depart has been done by the applicants in a separate application praying to depart from the previous decision of the Court - Hon. Justice Mugasha as alluded to above. Also, both learned counsels have endevoured to submit on it. However, they forgot to underscore the settled position of law in application of this nature that, departing from a previous decision cannot be undertaken by an ordinary court, rather may be done by a full bench empaneled by five or more justices, which may entail overruling the previous decision if the Court sees

it just and compelling to depart from its previous decision. This position has been repeated in many decisions including the cases of Freeman Aikaeli Mbowe v. Alex Lema & Another [2004] T.LR 85; Abually Alibhai Aziz v. Bhatia Brothers Ltd [2000] T.LR. 288; National Microfinance Bank Ltd v. Commissioner General TRA (Civil Appeal No. 168 of 2018) [2019] TZCA 672 (1 Juiy 2019) and Ophir Tanzania (block 1) Limited v. Commissioner Genera Tanzania Revenue Authority (Civil Appeal No. 58 of 2020) [2021] TZCA 350 (6 August 2021 ). In all the above cases, the Court was firm that departure from previous decision cannot be done by neither a single justice nor by a panel of three justices, rather may be done by a full bench. In the case of Jumuiya ya Wafanyakazi Tanzania (supra), the Court was seated by five justices as opposed to a single justice in this application. As it stands now, departure from the Court's decision cannot be done by a single Justice of Appeal. In the final analysis therefore, the application to depart from the previous decision of the Director Tanga Cement Company Limited (supra) is unmerited same cannot be entertained hereto. Consequently, it is entirely dismissed.

Having determined on the application to depart, it follows that, the application for stay of execution which squarely depended on the outcome of the application to depart, equally this application cannot stand. The position of law in respect of an application for stay of execution pending final determination of an application for review remain unfettered as was so decided in the case of Director Tanga Cement Company Limited (supra). It was so decided that the Court lacks jurisdiction to entertain application for stay of execution pending review of the Court's decision. I find no compelling reason to consider other grounds raised and argued by the applicants. In the upshot and for the reasons so stated, the application is untenable in law and is hereby dismissed with costs. DATED at DAR ES SALAAM this 18th day of November, 2024. P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 19th day of November, 2024 in the presence of Mr. Gervatis Masaga, holding brief for Mr. Saghan, learned counsel for the Applicants and Mr. Libent Rwazo, learned counsel for the respondent is