NMB Bank PLC vs Fabiola Deogratius Maami t/s Fabiola Curio Shop (Civil Application No. 152/02 of 2024) [2024] TZCA 854 (5 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 152/02 OF 2024 NMB BANK P L C ........... . ...................,..............................................APPLICANT VERSUS FABIOLA DEOGRATIUS MAAMI t/s FA BIO LA CURIO SHOP.... RESPONDENT (Application for stay of execution of the Decree of the District Court of Karatu at Karatu) (KisencTerian. RNH dated the 28th day of January, 2022, in Civil Case No. 01 of 2021 RULING 11th August & 5th September, 2024 RUMANYIKA, J.A.: NMB PLC, the applicant seeks to stay execution of the decree of the District Court of Karatu, at Karatu in Arusha Region ("the trial court") dated 28th January, 2022 in Civil Case No. 01 of 2021. It is by way of notice of motion which is predicated on rule 11(3), (4), (4A), (5)(a) (b), 11(6) and (7)(a) (b), (c) and (d) read together with Rule 48(1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). The application is supported by an affidavit sworn by Edgar Ninga who is the applicant's Principal Officer. The respondent did not file an affidavit in reply thereto.

A brief factual background to the application goes thus; the respondent had instituted Civil Case No. 01 of 2021 in the trial court against the applicant. He claimed TZS 64,908,766.00 for breach of the contract on the use of a POSS machine by the respondent in a shop business. The respondent had sold some shop items to foreign customers for USD 24,958.53 but her bank statement issued by the applicant did not reflect the transaction. Upon the respondent's closure of the case as a plaintiff, the applicant, a defendant then, defaulted to appear. As a result, a default judgment was passed in favour of the respondent. Aggrieved by the said decision, the applicant unsuccessfully appealed to the High Court, vide Civil Appeal No. 05 of 2022 where the trial court's decision was upheld. She initiated an appeal process by taking some essential steps on 17th October 2022. Besides, on 15th December 2022, she was served with the respondent's application for execution of the decree sought to be assailed. The applicant is wondering if the intended execution is not stalled, to suffer irreparable loss because the respondent had no economic means to compensate her, should the intended appeal succeed, hence the instant application.

At the hearing of the application, Messrs Sabato Ngogo and Samwel Welwel, learned counsel appeared for the applicant and respondent respectively. Stressing on the need for the grant of the application, Mr. Ngongo contended that, the impugned decree involved such a colossal sum of money and the house which is intended to be attached accommodates the applicant's offices. He asserted that, in terms of the timing and other conditions, the application has met the threshold. That, since she was served with the notice of execution on 15th December 2022, and, in terms of rule 21(1) of the Electronic Filing Rules, the application filed on 29th December, 2023, it is was within fourteen days as stipulated under rule 11(4) of the Rules. That, the applicant has also demonstrated possible substantial loss as averred at paragraph 11 of the affidavit and that, there is the applicant's firm undertaking to provide security for the due performance of the decree as averred at paragraph 13 of the supporting affidavit. Further, Mr. Ngongo contended that, ail the application has been accompanied with the necessary documents namely; copies of the decree sought to be appealed from, notice of appeal and a notice of the intended execution. Now that all the necessary conditions have been 3

fulfilled, Mr. Ngongo stressed, this application has to be granted without costs. He proposed that, the applicant be ordered to provide a bank's grantee or any other form of security on such terms that the Court would deem to be just and fair. Probed by the Court on the propriety of the notice of motion, Mr. Ngongo contended that, besides, the applicant seeking a stay of the trial court's decree, instead of the one issued by the High Court, the Court has been moved properly. In apply, Mr. Welwel readily conceded to the application as presented by the applicant. On the issue of whether the Court has been properly moved, he contended that, the seemingly wrong citation in the notice of motion of the origin of the decree is immaterial. He argued that, the High Court having dismissed the trial court's decision, automatically its decree prevailed over all. Therefore, he asserted, sought to be stayed is the one issued by the High Court. He did not press for the costs of the application. Having considered the applicant's uncontested application, first of all I note that, in the applicant in corresponding notice of motion seeks to stay execution of the decree of trial court. Apparently, the notice of motion is in contravention of s. 4(1) of the Appellate Jurisdiction Act Cap

141 of the Revised Laws since, iogistically, the Court can only stay execution of a decree issued by the High Court or of the Resident Magistrate's Court with Extended Jurisdiction. However, in the wake of Overriding Objective Principle, the anomaly above is not material in my considered view. It is so, because a copy of the respective decree of the High Court is one of the documents which have been appended on this application. Logically, that copy is treated as the one whose execution is sought to be stayed. Moreover, the look of notice the respective of motion, the affidavit and record of the application is that, it is undisputed that, the applicant was notified of the existence of the application for execution on 15th December 2023. She lodged the instant application on 4th January, 2024 which seems to be about six days far beyond the fourteen days prescribed under rule 11(4) of the Rules. However, in terms of rule 21 of the Judicature and Application of Laws (Electronic Filing) Rules, 2018 the time for the filing accrues from the date that the control number for payment of the necessary fee was generated in the system, in this case on 29th December, 2023 hence the application assigned the number. I agree with Mr. Ngongo's contention that, the application has to be granted for two reasons; one, it was electronically filed within fourteen 5

days' limitation period on 29th December, 2023 from the date of service 15th December, 2024 in terms of rule 11(4) of the Rules, two, the possible substantial loss has been demonstrated at paragraph 11, there is applicants firm undertaking to provide security as averred at paragraph 13 and the application has been accompanied by copies of the necessary documents, as verred at paragraph 6 of the supporting affidavit. All the foregoing considered; therefore, the issue is no longer whether the application is merited. It is so because it is settled law that, for an application for stay of execution to succeed, all the conditions set under rule 11(3) (4)(5) (7) of the Rules have to be fulfilled cumulatively. See a plethora of our decisions including our decision in Ahmed Abdallah v. Maulid Athuman (Civil Application No. 16 of 2012) [2013] TZCA 184 (11 December 2013; TanzLII). It follows therefore, that, the application has met the threshold. Good cause having been demonstrated under rule 11(2) (b) (d) of the Rules. Consequently, it is hereby granted. For avoidance of doubts therefore, execution of the decree of the High Court of Arusha in Civil Appeal No. 05 of 2022 (Phillip, J.) is stayed. The order is upon a condition that the applicant provide a bank's grantee for TZS 6

73,489,606.86 in favour of the respondent within sixty days from the date hereof. In default, the order shall lapse automatically. Each party shall bear their costs. DATED at DAR ES SALAAM this 3rd day of September, 2024. S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 5th day of September, 2024 via video conference in the presence of Mr. Nicholaus Leoni, learned counsel for the Applicant also holding brief for Mr. Samwel Welwel, learned Counsel for the Respondent, is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL