Ecobank Tanzania Limited vs Double A Company Limited and 3 Others (Civil Application No. 1056 of 2024) [2024] TZCA 1089 (12 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1056 OF 2024 ECOBANK TANZANIA LIMITED .................. . ................... . ............... APPLICANT VERSUS DOUBLE A COMPANY LIMITED ....................... . ......... . ........... 1 st RESPONDENT A.A TRANS LIMITED............................................................. 2 nd RESPONDENT AKBER BASHIR VERSI ..................... . ................................... 3 rd RESPONDENT ASGHER BASHIIR VERSI . ................................... . ................. 4 th RESPONDENT (Application for Stay of Execution of the decree of the High Court of Tanzania at Dar es Salaam) f Dvansobera, dated the 25th September, 2024 in Civil Reference No. 25916 of 2023 RULING 31st October, 2024 & 12th November, 2024 NGWEMBE, J.A.: The applicant was aggrieved with the decision of the High Court which blessed the taxation of the Taxing Master of TZS. 300,760,000.00 in Taxation Cause No. 131 of 2023. Being aggrieved with that decision, the applicant preferred an appeal to the Court by lodging notice of appeal on 15th October, 2024. At the same time, requested to be supplied with the

certified copies of the ruling, drawn order and proceedings for purposes of appeal. At the same time the respondents lodged before the High Court an application for execution No. 24948 of 2024, thus triggered the instant application to stay the execution of the taxing master's bill of costs until final determination of the intended appeal. In this application, the applicant moved the Court under Rule 11 (3), (4), (4A), (7) & 48 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The grounds provided in the notice of motion is for an exparte and interparte orders for stay of execution. However, in terms of rule 11 (3) of the Rules, I found it prudent to invite both parties to appear on the hearing date before me. At the hearing of the application, Ms. Inviolata Wangoma, learned advocate, represented the applicant and M r. Dismas Raphael, also learned advocate appeared for all respondents. At the outset, Mr. Raphael signified that the respondents do not intend to oppose the application for stay of execution. Therefore, Ms. Wangoma after adopting the affidavit sworn by one Hope Liana, identified as a Principal Officer of the applicant, briefly submitted that the applicant complied with all legal requirements provided

for in rule 11 of the Rules. Further, she argued that the applicant being an ongoing commercial bank is ready and able to provide security as averred in paragraph 14 of the affidavit. Thus, she implored the Court to grant the orders sought in the notice of motion, As indicated above, M r. Raphael was brief in his submission that the application may be granted under condition that the applicant should undertake to furnish bankers guarantee within 30 days from the date of the decision of this Court. Such prayer was not objected by the applicant's counsel and both parties did not press for costs. It is settled in the Court Rules that an application of this nature must be instituted in the Court within 14 days from the date the applicant was served with the notice of execution or otherwise became aware of the execution proceeding. This is provided for under rule 11 (4) of the Rules. In respect of this application, it is averred in paragraph 12 of the affidavit that it was availed with the application for execution on 22n d October, 2024 and the application was lodged in the Court on 23r d October, 2024, just a day after being furnished with the application for execution. Consequently, this application was lodged in this Court timeously.

Another important element to be considered at this juncture is related to compliance of subrule 7 of rule 11, which requires attachment of notice of appeal together with other relevant documents. In the instant application, the applicant has complied with. Moreover, in paragraph 14 of the affidavit, the applicant has averred to provide security as would be ordered by the Court. Equally, in paragraphs 13, and 15 of the affidavit, the applicant has demonstrated the irreparable loss she may suffer if the stay is not granted. That, even the appeal before the Court will be rendered nugatory and the taxation which the applicant seeks to challenge involve colossal amount of money, that is, TZS. 300,760,000.00. See: Tanzania Sewing Machine Co. Ltd v. Njake Enterprises (Civil Application No. 238 of 2014) [2015] T7CA 546 (16 December 2015), Ahmed Mbaraka v. Mwananchi Engineering & Contracting Co. Ltd (Civil Application No. 229 of 2014) [2016] TZCA 747 (15 February 2016) and Chitegetse Monica Migembe v. Akiba Commercial Bank Pic (Civil Application No. 74/18 of 2024) [2024] TZCA 947 (27 September 2024) and Rose Benedict v. Janet Evarist Njau & Others (Misc. Civil Application No. 311/02 of 2024) [2024] TZCA 508 (27 June 2024) are among the decisions of the Court which expounded the conditions to grant stay of execution

under rule 11 of the Rules which are; undue delay; substantial loss; and security for satisfaction of the decree. In the case of Arusha International Conference Center v. Edwin William Shetto [2000] T.L.R 53 and National Bank of Commercial Limited v. Alfred Mwita (Civil Application No. 172 of 2015) [2018] TZCA 270 (5 September 2018), the Court in considering substantial loss among other factors, took into consideration the fact that there was no assurance the respondents would be able to repay the huge amount of money awarded in case the appeal succeeds. In the instant application likewise, the amount awarded involve big amount of money. It is therefore a rule of law which is practiced by this Court that where the applicant has complied with all requirements of the law, the Court will make sure that such execution is halted for a while. Since the applicant has managed to demonstrate a good cause for stay of execution, the application is fit to be granted. In terms of rule 11 (3) of the Rules, the application for execution No. 24948 before the High Court at Dar es Salaam District Registry is stayed pending hearing and final determination of the intended appeal. This order

is conditional upon the applicant depositing a Bank's Guarantee covering the entire amount of money of TZS. 300,760,000.00 as security for the due performance of the decree within a month's time to be reckoned from the date of delivery of this ruling. It is so ordered. DATED at DAR ES SALAAM this 12th day of November, 2024. The Ruling delivered this 12th day of November, 2024 in the presence of M r. Benny Lawrence, learned counsel for the Applicant and also holding brief for Mr. Dismass Raphael, learned counsel for the Respondent is hereby certified as a true copy of the original. P . J. NGWEMBE JUSTICE OF APPEAL