National Bank of Commerce Limited vs Ballast Construction Company Ltd and Another (Civil Application No. 639/12 of 2024) [2024] TZCA 911 (19 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 639/12 OF 2024 NATIONAL BANK OF COMMERCE LIMITED ................... . ............... APPLICANT VERSUS BALLAST CONSTRUCTION COMPANY LT D .............................. 1 st RESPONDENT STEVEN R. K. SHILETIWA........................................................2 nd RESPONDENT (Application for execution of the decree of the High Court of Tanzania at Tanga) (Msuva, J.1 dated 9th day of September, 2015 in Civil Case No. 10 of 2009 RULING 2n d & 19th September, 2024 MLACHA, 3.A.: The Applicant, National Bank of Commerce Limited (the NBC), has preferred this application under Rules 11(3), (4), 4 (A), (5) (a) and (b), (6), (7) (a), (b), (c), (d) and 48(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), seeking stay of execution of the decree of the High Court made in Civil case No. 10 of 2009 pending hearing and final determination of the appeal before the Court. Briefly stated, the facts of the case as could be picked from the affidavit supporting the application sworn by Mr. Dickson Ikingura, the

Principal Officer of the NBC are ss follows: The 1st Respondent, Ballast Construction Company Limited, successfully sued the applicant and the 2n d respondent, Steven R. K. Shiletiwa in the High Court at Tanga for general damages arising out of breach of trust and confidentiality. The High Court awarded the 1st respondent damages Tzs. 300,000,000.00, interest and costs. The applicant was aggrieved, by the decision and has lodged an appeal before the Court. On 16th August 2024, while the appeal is still pending, the applicant was served with a notice of execution wherein, the 1st Respondent sought to attach and sell the applicant's property situated on plot No. 17/3 Central area, Market/Bank Street - Tanga in execution of the decree. This is place where the branch office is located. It was stated that if execution is allowed to proceed, the applicant will suffer substantial and irreparable loss in failing to conduct its business and service the public which will also be affected. The applicant stated in the affidavit supporting the application that all conditions for the grant of orders of stay of execution have been complied with. The 1st respondent filed an affidavit in reply to oppose the application. The 2n d respondent did not file any affidavit in reply. Mr. Sabato Ngongo, learned advocate appeared for the applicant whereas the 1st and 2n d respondents were represented by Mr. Shukuru Mohamed Khalifa and Bakari Juma, learned advocates, respectively.

At the hearing of the application, I was moved to consider a point of preliminary objection raised by the 1st respondent, notice of which was earlier on filed and served to the applicant and the 2n d respondent. The point can be put thus:

1. That the application is incom petent fo r being preferred against a wrong party to wit: the said STEVEN R. SHILETWA who was the applicant's co - defendant and co - judgm ent debtor in the main suit. The preliminary objection and the application were heard together on the understanding that if the preliminary objection will be successful, there will be no finding and decision on the substantive application. On taking the floor, Mr. Khalifa contended that the application is incompetent because it was preferred against a wrong party. Amplifying, he contended that the applicant and the 2n d respondent were defendants in the main suit which was filed by the 1st respondent They filed a joint written statement of defence and participated in the suit jointly. The High Court entered judgment against them jointly in the amount stated above. He went on to contend that when the applicants came to lodge the present application they changed the status of the case and placed Mr. Steven R. K. Shiletiwa as the 2n d respondent. He contended that Mr. Shilatiwa was

wrongly placed as the 2n d respondent making the application incompetent. He urged me to strike it out. In response, Mr, Ngongo submitted that the point raised does not qualify to be a preliminary point of objection because Mr. Khalifa has taken a long process to arrive at it. He added that the counsel for the 1st respondent has not been specific which provision of the law was contravened. Submitting on the application for stay of execution, counsel for the applicant contended that all the conditions for the grant of orders of stay of execution have been complied with. Amplifying, he contended that, the application was filed within 14 days; the notice of execution was served on 16/08/2024 while the application was filed on 26/08/2024 (within 10 days). He contended that the application is accompanied by the necessary documents; the notice of appeal, judgement, decree and notice of execution. He contended further that, the applicant is ready and willing to furnish security for due execution of the decree as can be ordered by the Court. He added that, the applicant will suffer irreparable loss, as stated in paragraphs 6, 7 and 8 (b) of the affidavit supporting the application, if the order is not issued. He submitted that the amount stated in the decree is colossal and cannot be paid back by the decree holder in case the appeal succeeds. He cited to me two decisions of the Court: Enikon (T) Ltd and

another v. Abeid S. Makai and 15 Others, Civil Application No. 45/18 of 2022 and NMB Bank PLC v. Roika Tours and Safari Ltd, Civil Application No. 85 of 2023 to support his stance. He urged me to grant the application. Mr. Juma who represented the 2n d respondent did not opt to file any affidavit in reply because his client is not contesting the application. He did not find any problem in having his client as a respondent in this application. When Mr. Khalifa was called upon to make his submission on the application, he intimated that the 1st respondent had no objection to the application but suggested a cash deposit as security in due execution of the decree. I will start with the preliminary objection. I have examined the record and considered the submissions of the learned counsel carefully. With respect to Mr. Ngongo, I find the point raised as a pure point of law which qualifies to be considered as a preliminary objection. All what was submitted by Mr. Khalifa was just an elaboration to the point raised and not evidence in support of it. This takes us merits of the preliminary objection. Looking at the judgment and decree of the High Court appearing at pp. 16 - 31 of record of appeal, I could find, as correctly observed by Mr. Khalifa, that the

applicant and 2n d respondents were defendants in the suit and later became judgment debtors. Their liability as expressed in decree is as follows: a) The defendants are ordered to pay the p la in tiff Tshs. 300,000,000/= (three hundred m illion) as general damages fo r breach o f trust, confidentiality and divuigence. b) Interest o f Tshs. 300,000,000/= a t 23% as per com m ercial banking practice from the date o f filin g this su it to the date o f judgm ent. c) Interest on the decretal am ount a t the rate o f 7% from the date o f judgm ent to the date o f fu ll paym ent d) Costs o f the suit. The above excerpt shows a joint liability in the amount stated. Joint liability in a suit entails an obligation to two or more parties to satisfy the decree or award together. It appears that the 1st respondent is executing his decree against the applicant alone. Whether that is correct or not is not an issue for consideration before me. What is before me is whether the 2n d respondent who was a co - defendant and currently a co - judgment debtor was properly placed as a 2n d respondent in this application. I have considered the contending views of learned counsel. I share the views of the counsel for the 2n d respondent that there was no problem in placing the name of Mr. Steven R.K. Shiletiwa as a 2n d respondent in this application. The 2n d respondent who did not opt to appeal and who was

not a party in the execution proceedings had to be placed as a respondent in the application to avoid future legal problems. His absence could frustrate the case in the end. That beside, I think the preliminary objection is misconceived because misjoinder of a party does not render a case untenable in law as suggested by learned counsel. The court can only make an order to strike out the party who was wrongly joined. See our decisions in Abdullatif Mohamed Hamis v. Mehboob Yusuf Osman and another, Civil Revision No.6 of 2017 and Ami Mpungwe v. Abas Sykes, Civil Appeal No. 67 of 2000. It follows that even if we could find that the 2n d respondent was wrongly joined as a respondent, still we could not striking out of the application. The preliminary objection is thus devoid of merits and dismissed. My discussion on the merits of the application will not be long. As intimated above, the 1st respondent is not objecting the application. He is only demanding a cash deposit in the amount stated in the decree. He could not give reasons why the Court should depart from its practice of ordering security by way of a bank guarantee or insurance bond. With respect, I will not follow his course. I think a bank guarantee can meet the justice of the case.

Having examined the requirements of the law as provided under rule 11(4), 11 (a) and (b) and 11 (7) (a), (b), (c) and (d), perused the record and considered the counsel submissions, I accede to the unopposed application and order stay of execution of the decree of the High Court made in Civil Case No. 10 of 2009 in term of rule 11(6) of the Rules, pending hearing and final determination of the appeal. I direct the applicant to furnish security by a bank guarantee in the sum of Tzs. 350,000,000.00 within 60 days from today as a condition for orders of stay of execution. It is ordered so. DATED at DAR ES SALAAM this 19th day of September, 2024. L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 19th day of September, 2024 in the presence of Mr. Bakari Juma, learned counsel for the 2n d Respondent and also holding brief for Mr. Sabato Ngogo, learned counsel for the Applicant and absence of the 1st Respondent, is hereby certified as a true copy of the original. C ] i