Tema Enterprises Limited vs Tanzania Cigarette Public Company Limited and Another (Civil Application No. 194/16 of 2024) [2024] TZCA 871 (10 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 194/16 OF 2024 TEMA ENTERPRISES LIMITED ............................... . ..............APPLICANT VERSUS TANZANIA CIGARETTE PUBLIC COMPANY LIMITED .... 1C T RESPONDENT FOSTER AND COMPANY LIMITED................................. 2 nd RESPONDENT [Application for stay of Execution of the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam] fMbaowa. J.^ dated the 2n d day of June, 2023 in Commercial Case No. 17 of 2022 RULING 29thAugust & K fl1 September 2024 KAIRO. J.A.: In this application, the applicant is seeking to stay the execution of the decree passed on 2n d June, 2023 in Commercial Case No. 17 of 2022 pending the determination of the intended appeal. The application is by way of notice of motion under rule 11(3) (4), 4 (A), 5(a) (b) (6) and (7) (a), (c), (d) and rule 48 (1) and (2) of the Tanzania Court of Appeal Rules, 2009 (The Rules). It is supported by an affidavit sworn by Elizabeth Paul Massawe, the Principal Officer of the applicant. i

The affidavital evidence on record displays that, the respondent successfully instituted Commercial Case no. 17 of 2022 at the High Court of Tanzania, Commercial Division at Dar es Salaam against the applicant claiming among others, to be paid TZS 147,214,273.08 for breaching dealership agreement they entered. The applicant was aggrieved by the said decision and lodged a notice of appeal on 16th June, 2023. He further requested to be supplied with the relevant documents from the Registrar on the same date for the purpose of appeal. She went on to depose that, while waiting for the requested documents, the respondent applied for the execution of the decree, the subject of the intended appeal, and as a resuit, the registrar issued a prohibition and a warrant of attachment orders. Hence, this application which is premised on the following grounds among others: a) That the Applicant has lodged a Notice o f Appeal on 16th June, 2023 intending to challenge the judgment and decree o f the High Court Commercial Division at Dar es Salaam b) That the respondent intends to attach and sell the leased properties to wit; liquor store and Office situate at Keko Magurumbasi area, Plot No. 25/9, a shop at Tegeta Wazo Hill and a house at Makongo to satisfy the decree sought to be challenged. c) That, if the execution is allowed to proceed and in the event the applicants appeal succeed, it will be rendered nugatory and the applicant shall suffer an irreparable loss.

d) That, Applicant is ready and willing to give security for the due performance o f the decree by issuing a Bank guarantee or any other as to be ordered by this honourable Court. At the hearing, the applicant was represented by Mr. Mussa Kiobya, learned counsel who started by praying to adopt the contents of the notice of motion and the supporting affidavit to form part of his oral submission. The learned counsel stated that, the application has met the cumulative threshold of the requirements stipulated under rule 11 of the Rules. Elaborating, he averred that, the application has been filed within the time allowable under rule 11(4) and that all of the documents required to accompany the application as per rule 11 (7) of the Rules have been attached to the application. Mr. Kiobya insisted that, if the intended execution is allowed to proceed, the applicant will suffer an irreparable loss as the attached properties will be sold and the intended appeal will be rendered nugatory. As regards the security for the due performance of the decree, Mr. Kiobya submitted that, the applicant is ready and willing to furnish the same in a manner to be directed by the Court. In support of his submission, the learned counsel relied on the decisions of Serengeti Breweries Limited vs Siken Real Estate Developes Limited, Civil

Application No. 552/16 of 2022, The Arab Contractor (Osman Ahmed Osman & Co. and Another vs Acclaim Constructions Supplies Ltd, Civil Application No. 262/16 of 2023 (both unreported). He thus prayed the Court to grant the application. On the other hand, the respondent was represented by Mr. Michael Mahende, learned counsel who filed affidavit in reply on 9th April, 2003 opposing the application. In his oral submission, he stated that, the centre of his contention is contained in paragraph 3, 4 and 6 of the affidavit in reply which is hereunder recapitulated to ease the discussion to follow:- 3. That the Contents o f paragraph 3 o f the affidavit are noted to the extent that, the Applicant fifed a notice o f appeal on I6 h June 2023 but he did not file in the High Court, and served the Respondent, any letter applying to be supplied with the necessary records for appeal purposes. 4. That contents o f paragraph 4 o f the affidavit are noted to the extent that the 1st Respondent filed for an execution o f the Decree in the Commercial Case No. 17 o f2022. The 1st Respondent further states that since the filing o f the Notice o f Appeal, the Applicant has not filed the appeal and has failed to take an essential step towards filing o f the same, and as a resuit, time for lodging an appeal has since expired. 4

6. In Response to the contents o f Paragraph 6 o f the Affidavit, the 1st Respondent reiterates what is stated in paragraph 3 and 4 herein above. With regards to the Appiicant's chance o f success on her envisioned Appeai, the 1st Respondent state that time to iodge an appeal has expired and the Applicant did not seek and neither was she granted extension o f time within which to file her appeal out o f time. In elaboration, the learned counsel submitted that, in paragraph 3 of the affidavit, the applicant has stated that, she had also sent a letter to the Registrar requesting for relevant copies of appeal purpose, but he did not attach the said letter. According to him, the omission which has the effect of requiring the applicant to lodge the intended appeal within 60 days. He contended that, since the time within which to lodge the said appeal has expired, the notice of appeal lodged is deemed to have been withdrawn under rule 91 of the Rules. It was his further argument that, with the absence of the notice of appeal, it goes that, rule 11 (3) of the Rules has not been complied with, and according to him, the said non-compliance is sufficient ground to disallow the application at hand. Winding up, he implored the Court to decline the grant of the application lest it sets a bad precedent in future. To back up his argument, he cited the case of Joseph Antony Soares @ Goha vs Hussein s/o Omary, Civil Application No. 6 of 2012 (unreported). He

also distinguished the cases cited by Mr. Kiobya arguing that, they both presupposes the presence of a proper notice of appeal while is the case at hand, there is none. In his rejoinder, Mr. Kiobya averred that, Mr. Mahende's submission is based on misconception. He elaborated that, the application of this nature is governed by rule 11 of the Rules and the invocation of rule 91 in this application is out of context and cannot support his submission. He contended that the requirement to attach the copy of the letter sent to the Registrar does not feature in rule 11(7) of the Rules, as such the argument that the notice of appeal is deemed to have been withdrawn is misplaced as there is neither Court Order to that effect nor an order striking out the notice of appeal. He argued that, in the absence of the said orders, the notice of appeal remains intact and supports the application. Regarding the cited case of Joseph Antony Soares (supra), Mr. Kiobya insisted that since the notice in the case at hand is proper, the cited case of is irrelevant in the circumstances of this case. He reiterated his prayer to have this application granted as all the requirement have been met. I have dispassionately scrutinized the notice of motion, affidavit supporting the notice of motion together with the attached documents, 6

the affidavit in reply and also the contending oral submissions by the applicant and the respondents taking into account the authorities cited. It is a settled legal stance that the application for stay of execution is governed by rule 11 (3), (4), (5) and (7) of the Rules. In the said provisions, the Court has stipulated the conditions to be fulfilled by the applicant to warrant the grant of the said application. In Mtakuja Kondo & Others vs Wendo Maliki, [2013] T.R. 383, the Court observed as follows in this regard: ' ..the conditions which applicants have to satisfy so as to be granted the order for stay o f the execution are iaid out in rule 11 o f the Rules. AH conditions must be satisfied. The applicant must show the following:a notice o f appeal was given; they have sufficient cause o f praying for the order for stay; the application was filed within time; they will suffer substantial loss if the order is not granted; and they have furnished security. It is noteworthy that all of the stated conditional requirements must be satisfied cumulatively. [See: Airtel Tanzania Limited vs Ose Power Solution (2017) T.L.R. 20]. Going through the records and the rival arguments of the counsel for the parties, there is no dispute that the applicant in this matter has complied with rule 11 (3), (4), (5), but the contention lies on the non

attachment of the letter the applicant deposed to have written to the Registrar requesting for the relevant documents for appeal purpose. It is the position of Mr. Mahende that, the attachment of the said letter is also a mandatory condition in the application for stay. On the other hand, Mr. Kiobya is of the view that, sub rule 7 of rule 11 does not so stipulates as it is not among the documents listed therein. The issue for the Court's determination is therefore narrow, that is whether or not the said letter is mandatorily required to be attached when applying for stay of execution. The starting point therefore is rule 11(7) of the Rules which spells out the documents to be attached. It provides: (7) An application for stay o f execution shall be accompanied by copies o f the following: (a) a notice o f appeal' (b) a decree or order appealed from; (c) a judgment or ruling appealed from; and (d) a notice o f the intended execution . " Deducing from the quoted provision, the letter to the Registrar requesting for relevant copies for appeal purpose is not among the document required to be attached when applying for stay of execution. In the circumstance therefore, Mr. Mahende's argument is a misconception as correctly argued by Mr. Kiobya. Likewise, the argument that the notice of appeal is deemed to have been withdrawn

for the stated omission is in my view misplaced and out of context since there is no court order to that effect, nor an order striking out the said notice. Further to that, the learned counsel's deposed in paragraphs 3, 4 and 6 of his affidavit in reply as above quoted that, the non-attachment of the said letter by the applicant denotes that he did not write it to the Registrar, and therefore, he was supposed to lodge the appeal within 60 days since the notice of appeal was lodged, short of it the appeal is out of time. Suffice to state that the argument is again, a misconception and not applicable in the application of this nature. In the same vein, the cited case of Joseph Antony Soares @ Goha is irrelevant in the circumstance of this matter. Considering that all of the required factors stipulated under rule 11 of the Rules have been met by the appellant, and in order not to render the intended appeal nugatory, I am inclined to grant the application for say of execution as prayed. Accordingly, I hereby allow the application and grant the order for stay of execution of the judgment and decree of the High Court of Tanzania, Commercial Division in Commercial Case No. 17 of 2022, dated 2n d June, 2023, pending the hearing and determination of the intended appeal. In terms of rule 11 (5) (b) of the Rules, we order that

the applicant shall deposit with the Registrar of the Court within sixty days of the date hereof, an irrevocable bank guarantee in the sum of TZS. 172,240,699.50 valid for twenty-four months but renewable to cover the whole period until the intended appeal is conclusively determined. Costs shall abide the outcome of the appeal. It is so ordered. DATED at DAR ES SALAAM this 5th day of September, 2024. L. G. KAIRO JUSTICE OF APPEAL This Ruling delivered on 10th day of September, 2024 in the presence of Mr. Dickson Misana, learned Counsel for the 1s t Respondent and in the absence of the Applicant and the 2n d Respondent, is hereby certified as a true copy of original. 10