Jassie & Company Limited vs Gulf Aggregates T. Limited & Another (Civil Application No. 579/16 of 2024) [2024] TZCA 778 (20 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 579/16 OF 2024 JASSIE AND COMPANY LIMITED..................................................APPLICANT VERSUS GULF AGGREGATES (T) LIMITED............................... ....... 1 st RESPONDENT JJ AUCTIONEERS & DEBT COLLECTORS LTD ...................... 2 nd RESPONDENT (Application for Stay of Execution from the decision of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Nanaela. dated the 6th day of July, 2023 in Misc, Commercial Application No. 79 of 2022 RULING 15th & 20th August, 2024 KIHWELO. JA. Ahead of hearing of the application for stay of execution arising from the Judgment and Decree in Commercial Case No. 79 of 2022, the respondents through the services of Davos Attorneys, raised a preliminary point of objection notice of which was lodged in Court on 14th August, 2024 under rule 107 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) to the effect that: i

(a) The application is incompetent in law as the same is supported by defective notice of appeal, one of the mandatory requirements under rule 11 (7) (a) of the Tanzania Court o f Appeal Rules, 2009 for grant of stay o f execution on the grounds that: (i) The notice of appeal is arising from the ruling and drawn order of the High Court of Tanzania (Commercial Division) in Miscellaneous Commercial Application No. 119 o f2023 dated 12th December, 2023, the date of ruling which differs from the ruling which was delivered in the High Court in Misc. Commercial Application No. 119 o f2023, that is 7th December, 2023. (ii) The application is incompetent in law as the date of the ruling in the High Court Misc. Commercial Application No. 119 of 2023 is dated 7th December, 2023 which differs from the date o f the drawn order which is dated 12th December, 2023 in breach of the mandatory provisions of rule 11 (7) (c) of the Tanzania Court o f Appeal Rules, 2009 on the ground that: The ruling of the High Court in Misc. Commercial Application No. 119 of 2023 intended to be appealed, is one o f the mandatory requirements under rule 11 (7) (c) of the Tanzania Court of Appeal Rules, 2009 to be attached for consideration of grant o f stay o f execution.

As it is a customary practice of this Court that, where there is a notice of preliminary of objection raised in an appeal or application, the Court has to determine the preliminary objection first before allowing the appeal or application to be heard on merit. Hence, I allowed the preliminary objection to be argued first, before the hearing of the application. At the hearing of the instant application, Mr. Leonard Sylvanus Joseph, learned counsel appeared for the applicant, whereas the respondents had the services of Mr. Jerome Joseph Msemwa, learned counsel. Arguing in support of the preliminary point of objection, Mr. Msemo was brief and to the point. He contended that, the application for stay of execution was defective for violating rule 11 (7) (a) and (c) of the Rules, in that, the notice of appeal as well as the drawn order are defective since the dates do not match. Elaborating, the learned counsel stated that, while the notice of appeal refers to a ruling and drawn order in Misc. Commercial Application No. 119 of 2023 dated 12th December, 2023, that date in the ruling differs with the ruling which was delivered in the Misc. Commercial Application No. 119 of 2023 dated 7th December, 2023. He was of the view that, this offends the mandatory provisions of rule 11 (7) (a) of the Rules, 3

which requires that an application for stay of execution has to be accompanied with a proper notice of appeal. Mr. Msemo further argued that, the application was incompetent since it was accompanied with the ruling in Misc. Commercial Application No. 119 of 2023 dated 7th December, 2023 but the drawn order of the very ruling is dated 12th December, 2023 in total contravention of rule 11 (7) (c) of the Rules, which requires an application for stay of execution to be accompanied with a proper judgment or ruling appealed from. To fortify his argument, he referred to the previous decision of this Court in Uniafrico Limited and Others v. Exim Bank (T) Limited, Civil Appeal No. 30 of 2006 (unreported) for the proposition that the date of the judgment or ruling and that of the decree or drawn order has to be the same. In consequence, Mr. Msemo invited me to strike out the application with costs. On the adversary side, Mr. Joseph, unreservedly disagreed with Mr. Msemo's argument that the application offended the provisions of rule 11 (7) of the Rules. In his view, the application was proper since it seeks to challenge the ruling and drawn order of the High Court of Tanzania, Commercial Division which was delivered on 12th December, 2023. Mr. Joseph admittedly argued that, there is in record another identical ruling dated 7th December, 2023 bearing similar contents meaning that, 4

somehow somewhere the High Court made an error which is one of the basis the applicant seeks to challenge before this Court through the intended appeal. He distinguished the cited case of Uniafrico Limited and Others v. Exim Bank (T) Limited (supra) on the basis that while in that case there was an appeal and the judgment differed with the decree but the matter before me is a mere application for stay of execution whose essence is to include among others the notice of appeal and the judgment or drawn order in terms of rule 11 (7) (a) and (c) of the Rules, and that the cumulative requirements of rule 11 (7) of the Rules have been complied with. In all, he was of the considered opinion that, the notice of preliminary objection is misconceived and therefore should be dismissed and the application for stay be heard on merits. In rejoinder submission, Mr. Msemo reiterated his earlier submission that the appiication was incompetent. He contended that, having admitted the anomaly in the two rulings, the learned counsel ought to have gently requested to go back to the High Court so that the same could be rectified before the application for stay of execution proceeds to hearing. I have carefully and thoroughly listened to the rival submission by the learned trained minds and the vexing issue that requires my deliberation is whether the application before me is incompetent as argued by Mr. Msemo.

It bears reaffirming that, an application of this nature has to comply with rule 11 (4) of the Rules, in that it has to be made within fourteen days of the service of the notice of execution on the applicant or from the date he is made aware of the notice of execution. Furthermore, the applicant has to demonstrate that substantial loss will occasion if the order of stay is not granted and that the applicant is ready and willing to furnish security for the due performance of decree in terms of rule 11 (5) of the Rules. Crucially, the application has to be accompanied with notice of appeal, a decree or order appealed from, a judgment or ruling appealed from and a notice of intended execution in terms of rule 11 (7) (a), (b), (c) and (d) of the Rules. The question I have grappled with, is at which stage one has to consider whether the applicant has complied with the requirements for the grant of order for stay of execution or not. I am compelled to raise this question at this juncture since the preliminary objection by Ms. Msemo hinges on contravention of rule 11 (7) (a) and (c) of the Rules, which essentially is among the conditions that one has to fulfil in order to be granted an order for stay for execution. Considering the requirements of rule 11 (4), (5) and (7) of the Rules, I find considerable merit in Mr. Joseph's submission that, the preliminary objection by Mr. Msemo is misconceived and the reason is not far-fetched. 6

Looking at the Notice of Motion which is the basis of the application before me, the applicant is seeking to move the Court to stay the execution of the impugned judgment and decree. The application has been predicated on rules 4 (1), (2) (b), 11 (3), 11 (4), 11 (5) (a) and (c), 11 (6) and (7) (b) (c) and (d) as well as 48 of the Rules. That being the circumstances, it defies logic and common sense to deliberate on the compliance or otherwise by the applicant with rule 11 (7) (a) and (c) of the Rules, as part and parcel of the preliminary objection while those are the mandatory conditions to be determined at the stage of the deliberation of the application for stay of execution. Doing otherwise, will be pretentious and an amount to determine the application prematurely. In other words, the preliminary objection falls short of the criteria of preliminary objection as long set by the erstwhile Court of Appeal for East Africa in the landmark decision in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696 which this Court time without number has sought inspiration. Once again, we urge parties to refrain from improper raising of points of preliminary objection which does nothing but unnecessarily increase costs and occasionally confuse issues. We held similar position in the case of Karata Ernest & Others v. The Attorney General, Civil Revision No. 10 of 2010 and Hammers Incorporation Co. Ltd v. The Board of Trustees of the Cashew nut Industry 7

Development Trust Fund, Civil Application No. 93 of 2015 (both unreported). In the result, I dismiss the preliminary objection with costs. In the meantime, I order stay of execution of the decree in Commercial Case No. 79 of 2022, pending hearing and determination of the application. It is so ordered. DATED at DAR ES SALAAM this 19th day of August, 2024. The Ruling delivered this 20th day of August, 2024 via teleconferencing in the presence of Mr. Leonard Slyvanus Joseph, learned counsel for the Applicant and Mr. Jerome Joseph Msemwa, learned counsel for the Respondents; is hereby certified as a true copy of the P. F. KIHWELO JUSTICE OF APPEAL original J. J. KAMALA

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