National Bank of Commerce Limited vs Festo Japhet Mkilana (Civil Application No. 777/01 of 2024) [2024] TZCA 961 (3 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 777/01 OF 2024 NATIONAL BANK OF COMMERCE LIMITED................................APPLICANT VERSUS FESTO JAPHET MKILANA, ................ ................. .................. RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania, at Dar es Salaam) (Mugeta, 1.) Dated the 18th day of August, 2023 in Civil Case No. 121 of 2015 RULING J d October, 2024 KEREFU. J.A.: On 19th September, 2024, the National Bank of Commerce Limited, the applicant herein, lodged a notice of appeal seeking to challenge the decision of the High Court (Mugeta, J.), in Civil Case No. 121 of 2015 dated 18th August, 2023. As the intended appeal is still pending, the applicant has approached this Court by way of notice of motion made under Rules 11 (3), (4), (4A), (5), (6), and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for stay of execution of the decree passed in the said case, pending the final determination of the appeal. The grounds indicated in the notice of motion can conveniently be paraphrased as follows, that:

(i) An appeal has been preferred against the decision of the High Court of Tanzania , at Dar es Saiaam in Civil Case No. 121 of 2015 and the same has high chances of success; (ii) The execution of the decree which is being appealed against will render the applicant's appeal nugatory; (iii) The applicant stands to suffer substantiai loss if the decree is executed, and (iv) The applicant is ready to make a deposit of any security for stay of execution as will be ordered by the Court. The notice of motion is supported by an affidavit duly sworn by one Dickson Ikungura, the applicant's Principal Officer. The great part of the said affidavit narrated the historical background to the application and reiterated the above grounds by way of emphasis including attachment of relevant documents thereto. It is noteworthy that, the respondent, though duly served with the copy of the application, did not file an affidavit in reply to contest and or otherwise support the application. It is on record that, in 2015, the respondent instituted a Civil Case No. 121 of 2015 against the respondent for breach of contract and claimed for the payment of: ( b ) TZS100,000,000.00 for breach of contract;

(b) TZS 12,000,000,00 being the value of the cargo which was in the motor vehicle when it was possessed; (c) TZS 200,000,000.00 specific damages; (d) TZS 150,000,000.00 general damages; and (e) Costs of the suit Having heard both parties, the High Court decided the said case in favour of the respondent and the applicant was ordered to pay the following: (a) TZS 10,000,000.00 being the value of the impounded fertilizer which shall attract the interest at bank rate of 16% from the date of impounding the fertilizer to the date of judgment; (b) TZS 50,000,000.00 genera! damages; (c) Interest rate at court's rate (7%) on the decretal sum from the date of judgment to the date of full settlement of the claim; and (d) Costs of the suit. Aggrieved, the applicant, lodged the notice of appeal, as intimated above, to challenge that decision. Meanwhile, the respondent, approached the High Court vide Execution Application No. 21011 of 2024 seeking execution of the impugned decree. Subsequently, on 19th September, 2024, the applicant was served with the notice to show cause why the decree of the High Court should not be executed against him. The said notice also required the applicant

to appear for hearing of the said application on 30th September, 2024. The notice prompted the applicant to lodge the current application on 27th September, 2024. When the application was placed before me for hearing, the applicant and the respondent were represented by Mr. Joseph Ndazi and Mr. Erasmus Buberwa, both learned counsel, respectively. At the outset, Mr. Buberwa informed the Court that the respondent is not opposing the application but wanted assurance on the applicant's firm undertaking to furnish sufficient security for due performance and satisfaction of the impugned decree sought to be stayed in compliance with Rule 11 (5) of the Rules. Mr. Ndazi welcomed the concession by his learned friend. He thus confirmed the applicant's firm undertaking to furnish in the form of bank guarantee within twenty (20) days and or as will be ordered by the Court. He therefore insisted for the application to be granted pending determination of the appeal. On my part, having examined the notice of motion and the supporting affidavit in the light of the submissions advanced by the learned counsel for the parties, I am satisfied that the applicant has cumulatively complied with all the statutory conditions warranting the grant of the stay order as conceded by the respondent. Accordingly, I

grant the application and order stay of execution of the decree of the High Court of Tanzania, at Dar es Salaam in Civil Case No. 121 of 2015 dated 18th August, 2023 on condition that the applicant should deposit in the Court, within thirty (30) days from the date of this ruling, a bank guarantee at the tune of TZS 86,135,000.00. The said guarantee shall remain in force until full hearing and determination of the pending appeal. In default, the order of stay shall lapse automatically. Costs incidental to this application shall follow the event in the intended appeal. DATED at DAR ES SALAAM this 3rd day of October, 2024. The Ruling delivered this 3r d day of October, 2024 in the presence of Mr. Joseph Ndazi, learned counsel for the Applicant and Mr. Erasmus Buberwa, learned counsel for the Respondent is hereby certified as a true R. J. KEREFU JUSTICE OF APPEAL A. S. CHjUGULU DEPUTY REGISTRAR COURT OF APPEAL