Nuran Developers Limited vs Poshh Designs Limited (Civil Application No. 22/16 of 2024) [2024] TZCA 975 (21 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 22/16 OF 2024 NURAN DEVELOPERS LIMITED.................................................. APPLICANT VERSUS POSHH DESIGNS LIMITED .................. .................................. RESPONDENT (Application for stay of execution of the decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam) fMinde. Taxing Officer) dated the 19th day of January, 2023 in Taxation Cause No. 162 of 2022 RULING 30th September & 21s t October, 2024 ISSA, J.A.i By a Notice of Motion filed under rule 11(3), and 11(6) of the Tanzania Court of Appeal Rules, 2009 (the Rules) the applicant had sought to move this Court to order a stay of execution. The application is supported by an affidavit affirmed by Shahazmina Arshid Esmail, the principal officer of the applicant company. The application is resisted by the respondent not only by way of an affidavit in reply, but also by a notice of preliminary objection of which was filed under rule 107(1) and (3) of the Rules, and served on the

applicant. So when the application came up for hearing, I had to start with the preliminary objection. Mr, Erick Mukandara, learned counsel who advocated for the respondent had raised three points of objection, but before the hearing commenced he abandoned the first and second and the remaining objection goes thus: "That the application is not maintainabie for lack of notice of appeal in respect of Commercial Reference No. 1 o f2023." In order to appreciate the essence of the present application, it is opportune to narrate a brief background facts on the dispute between the parties. The respondent instituted Commercial Case No. 86 of 2021 at the High Court (Commercial Division) (the trial court) for a breach of contract. She claimed payment of USD. 69,147.00 which was the balance for the work done by the applicant. The applicant disputed the claim and she lodged a counter claim in which she claimed for general damages for loss of business. The trial court delivered its decision in favour of the respondent on 21s t October, 2022. The counter claim was dismissed. Aggrieved, the applicant lodged a notice of appeal against the whole judgment and decree. On 14th December, 2022 the respondent filed a bill of costs vide Taxation Cause No. 162 of 2022 seeking reimbursement of

TZS. 46,397,196.00 as costs incurred in prosecuting and defending the suit and the counter claim. The taxing officer awarded the respondent TZS. 31,956,435. Dissatisfied, the applicant challenged the award of bill of costs vide Commercial Reference No. 1 of 2023 which was dismissed for lack of merit by the High Court (Mbagwa, J.) on 4th August, 2023. The applicant did not take any measure to challenge the dismissal. Conversely, the respondent initiated execution proceedings of the award in the Taxation Cause No. 162 of 2022. The applicant was served with the application for execution on 3rd January, 2024. In response, he filed this application to stay the execution of the award on 17th January, 2024. Returning to the preliminary objection raised, Mr. Mukandara submitted that the applicant had not lodged a notice of appeal against the decree which he sought to be stayed. The applicant is appealing against a decree in Commercial Case No. 86 of 2021 while the respondent is enforcing the execution of the decree in Taxation Cause No. 162 of 2022 in which there is no notice of appeal which has been filed. He concluded that the instant application cannot stand as it violates rule 11 (3) and 11(7) (a) of the Rules. In response, Mr. Norbert Mlwale, learned advocate for the applicant adopted a written submissions opposing the points of preliminary

objections. He submitted that the point of objection is misplaced because the decree of the trial court is the one which awarded costs to the respondent. Further, the order in Taxation Cause No. 162 of 2022 provided that the execution of the certificate that awarded costs should wait the outcome of the pending appeal. He prayed for the objection to be dismissed with costs. On a brief rejoinder, Mr. Mukandara reiterated his stance that the application is not maintainable and should be dismissed. I shall now proceed to determine the preliminary objection whether the Court has jurisdiction to entertain the application for stay of execution when there is no notice of appeal lodged against the order sought to be executed. In this application the applicant cited rule 11 of the Rules which is particularly dealing with stay of execution. Starting with rule 11(3) it provides: (2) In any civil proceedingswhere a notice of appeai has been lodged in accordance with Rule 83, an appeal shall not operate as a stay of execution of the decree or order appealed from nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree or order; but the Single Justice

may upon good cause shown > order stay execution of such decree or order" This provision is very clear that the power of the Court under this rule is restricted to staying the execution of the decree or order appealed from. That is to say the said power can only be exercised to halt the execution of a decree or order made by the High Court which is the subject of the intended appeal to the Court pursuant to a notice of appeal already lodged (See - Keith Horan and 3 Others v. Zameer Sherali Rashid, Civil Application No. 230/15 of 2019 [2019] TZCA 438 (6 December 2019, TANZLII). In the instant application, the applicant seeks a stay order against the award of bill of costs in Taxation Cause No. 162 of 2022 which she neither appealed against nor lodged a notice of appeal. Therefore, the instant application is misconceived and violates rule 11(3) of the Rules. In the same vein, the application also violates rule 11(7) (a) which provides: "11(7) An application for stay of execution shall be accompanied by copies of the following - (a) a notice of appeal; (b) a decree or order appealed from, (c) a judgment or ruling appealed from and (d) a notice of the intended execution."

In the instant application, there is no notice of appeal lodged to this Court against the decision in Taxation Cause No. 162 of 2022 or Commercial Reference No. 1 of 2023. Therefore, the Court agrees with the learned counsel for the respondent that rule 11(3) and 11(7) of the Rules have been contravened, hence, the instant application is not maintainable. In the circumstances, I find the application not maintainable and I strike it out. The respondent shall have his costs. DATED at DAR ES SALAAM this 21st day of October, 2024. A. A. ISSA JUSTICE OF APPEAL The Ruling delivered this 21st day of October, 2024 in the presence of Mr. Norbert Mlwale, learned counsel for the Applicant and Mr. Erick Mukandara, learned counsel for the Respondent, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL