Dal Forwarding (T) Limited vs Sakas International (Z) Limited (Civil Application No. 299/01 of 2023) [2024] TZCA 896 (17 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO 299/01 OF 2023 DAL FOWARDING (T) LIMITED .............................................. APPLICANT VERSUS SAKAS INTERNATIONAL (Z) LIMITED ..................................... RESPONDENT (Application for stay of execution of the Judgment and Decree of the High Court of Tanzania, at Dar es Salaam) (MurukejJJ dated the 20th day of August, 2014 in Civil Case No. 47 of 1998 ORDER LILA.: The parties were before the Court are contesting over whether or not the applicant's application for stay of execution of the decree of the High Court of Tanzania, Dar es Salaam Registry in Civil Case No. 47 of 1998, dated 20/8/2014, should be granted. The application was preferred under Rule 11(3), (4), (4A), (5), (6) and 7(a), (b) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and supported by an affidavit sworn by Rosan Mbwambo, the applicant's advocate. For hearing of the application before me were Mr. John James, learned counsel, representing the applicant and Ms. Dorah Mallaba assisted by Ms. Subira Omary, learned advocates, represented the l

respondent. After a brief discussion with the parties' learned counsel, they were in agreement that the notice of preliminary objection earlier lodged by the respondent that the application is time barred was misconceived because the learned advocate reckoned the date of lodging it from the date the application for execution was lodged and granted by the High Court instead of the date the garnishee order n isi was served on the applicant. Having realized so, Ms. Mallaba opted to withdraw the same and I granted the prayer and marked it withdrawn. It was, further, a common knowledge that the applicant has already lodged a notice of appeal intending to appeal against the decision of the High Court in Civil Case No. 47 of 1998 rendered on 20/8/2014 and that the applicant has undertaken a firm commitment to furnish security for the due performance of the decree in the event it later becomes binding to the applicant. It, however, transpired that the applicant had not attached to the application an order of the High Court sought to be stayed which Ms. Mallaba took it to be necessary under Rule 11(7) of the Rules for determination of whether or not the application was filed within fourteen (14) days of the service of the notice of execution or the date of becoming aware of the execution process. To Mr. James, that was not an issue that may render the application incompetent because the applicant 2

had pleaded its existence and indicated that it formed part of the supporting affidavit in paragraph 22 but, inadvertently, omitted to annex it. Certain of its presence, he sought leave of the Court to produce it in Court. Guided by the need to do justice to both sides and expeditiously, I granted Mr. James's prayer and, after a while he produced the same and hearing of the application continued. The course taken by the Court is not novel as the Court did so when it was faced with an akin situation where a party had pleaded presence of a notice of appeal but did not attach it, in the case of Sudi Seif Ngota (Administrator of the estate of Seif Mohamed Ngota) vs Aloyce John Kazimbaya, Civil Application No. 261/17 of 2019 (unreported) and the Court stated that: - "Adverting to the present application , we are satisfied that the applicant has satisfied the conditions stipulated by the provisions o f ruie 11 (7) o f the Rules enumerated above. We need to make an anecdote here that from what he called an inadvertency, the applicant did not append the relevant notice o f appeal. For the sake o f expediency, and given the fact that the respondent did not resist, we allowed him to avail a copy o f the same to the Court during the hearing, which he did, and we proceeded with the hearing." 3

When Ms. Mallaba and the Court examined the garnishee order nisi produced by Mr. James, it was vividly clear that it was served on the applicant on 3/5/2023 while the application for stay of execution was lodged in Court on 10/5/2023, hence within fourteen (14) days stipulated under Rule 11(4) of the Rules. Having resolved that issue, hearing of the application continued. Ms. Mallaba, then argued that, the applicant was granted the same application by the High Court and was given time within which to comply with the order but failed to deposit the security. She complained that the applicant has, again, filed a similar application before this Court which is a clear abuse of the Court and the application is intended to delay execution of the decree. Seriously examined, Ms. Mallaba's arguments did not amount to a resistance to the grant of the application. We think and it is common knowledge that where a grant of an application is attached with a certain condition including time, failure to comply with the condition set automatically entitles the other party to the proceeding to proceed with actions as if the order was not granted. In the instant case, if what Ms. Mallaba told this Court is truly the habit the respondent exhibited, then it

was upon the respondent to proceed with execution of the decree. As the applicant has filed a notice of appeal before this Court and complied with the requirements set under Rules 3, 4, (4A), 5, and 7 of the Rules and has, under paragraph 25 of the supporting affidavit promised to furnish security in the form of a Bank Guarantee, I have no reason not to grant the application. The application for stay of execution formerly filed and granted by the High became redundant after a ruling was delivered by the High Court. The Court is now dealing with an application for stay of execution of the order made by the High Court after the filing of a notice of appeal to this Court in terms of Rule 11(4) of the Rules which initiated proceedings before this court. There being no other serious objection to the grant of the order sought, I find the conditions set out under Rule 11 of the Rules complied with and, as Ms. Mallaba has insisted, the applicant has to deposit as by law required. In that respect, the applicant's commitment is as stated under paragraphs 25 and 26 of the supporting affidavit that: - "25. That ■ the applicant has managed to meet the bank's requirement to secure the bank guarantee so as to furnish necessary security. It is thus abie and ready to furnish necessary security should this Court order. 5

26. Further that the applicant is able to satisfy the order to be executed at any time should the preferred appeal fail. In the circumstances balance o f convenience, common sense and logic tilts in favour o f granting stay as the applicant stands to suffer more if the order is not stayed." Given this serious commitment and having satisfied myself that there is compliance with all the conditions for the court to exercise its discretion, I hereby order that execution of the decree of the High Court, Dar es Salaam Registry in Civil Case No. 47 of 1998 dated 20/8/2014 is hereby stayed on condition that the applicant deposits security in the form of a Bank Guarantee of the value indicated in the Garnishee Order Nisi, that is, USD 1,716,151.945 and TZS 34,847,123.29 within thirty (30) days of the delivery of this order. Each party to bear its own costs of this application. DATED at DAR ES SALAAM this 17th day of September, 2024. S. A. LILA JUSTICE OF APPEAL I certify that this is a true copy of the original.