Board of Trustees of Cashewnut Industry Development Trust Fund vs Hammers Incorporation Co. Limited (Civil Application No. 156 of 2014) [2014] TZCA 2360 (29 September 2014)
Judgment
..• /. ,, t-'· ,, .... IN THE C:OURT OF APPEAL OF TANZANIA..
| ,.· AT DAR ES SALAAM |
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| (CORAM: MSOFFE, J.A .• MJASIRI. J.A. And MANDIA. J.A.) |
| ·c:tVIL APPLICATION NO. 156 of 2014 |
| BOARD OF TRUSTEES OF CASHEWNUT INDUSTRY |
| DEVE.LOPMENT TRUST FUND ....................... · .......... ~ ..... APPLiCANT |
| VERSUS |
| ... HAMMERS.INCORPO.RATION co. LIMITED .................. RESPONDENT |
| . ('App_lication for stay of.execution from the decision of the High Court |
| · :'.of Tanzania (Commercial Division) at Dar es Salaam) |
| ,/ |
| ·.r |
| . . • J |
| ·· · 25 |
| th |
| & 30 |
| th |
| Sept~mber, 2014 |
| . · MlASIRt J.A.: .. |
| (Nyangarika, J.) |
| dated l1 |
| st |
| July, 2014 |
| in. |
| Commercial·Case No. 108 of 2013 |
| RULING .OF THE COURT |
| By a Noti_c_e of Moti·on filed under Rules 11(2) (b) (c) and (e) of the |
| Tanzania Court· of Appeal Rules 2009, (the Court Rules) the applicant is |
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| . _s |
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| grounds upon -which the Notice of Motion is based are as follows:- |
(1) If the order for stay is not granted the applicant' will suffer
irreparably as most of the cashewnut farmers in Tanzania · will not
get subsidized cashewnut farming inputs supplied by 6nly the
·'
_ applicants in the country.
(2) . The resultant effect will be ceasure of its operations.
The Notice of Motion is supported by the taffidavits affirn1e~ by Mr.
Twaha Taslima; the lea'rned advocate on record for the applicht. The
respondent has also filed an affidavit in reply sworn · by Mr. Haru- ·Maarifa,
. ·its principal officer.
At the hearing of the application the applicants had the services of
, .
.. Mr. Tvvaha Taslima learned advocate who was assisted by: Mr. Joseph
·· __ · Tad_ayo, learned _ advocate. The respondent was represented._ by Mr.
,.
Nduluma Majembe, learned advocate.
Mr: Taslima on his part strongly argued that it is important for the
Court to stay the decree dated July 31, 2014 in order to prevent the
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applicant's business from going under. Mr. Majemb~ on his part s&bmitted
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with_ equal force that the respondent's business will also collapse- if he is
· prevented from executing the decree.
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· We on our ·part,· after: a careful analysis of the. Notice of Motion,
· ·· ffidavits a:nd submissions made. by counsel, we would like to make the
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following observations. The principles_ for granting a stay of execution a-re
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well known- In exercising its unfettered discretion, the Court considers
- -_ various factors to determine whether _to grant the application or otherwise. In taking all the surrounding circumstances of this application, we are ., . of. the cpns,idere~ view that on the balance, we should grant an order for . stay of exect:1tion. ,· We therefore order that the execution of the High Court decree be ·. stayed pending the· determination of the applicant's 'appeal in this Court . . The app.licaQt should furnish security in the sum of Tanzania Shillings Nine · Hundred Fifty Three Millior;i, One Hundred and Forty Two Thousand Seven l , 1! Hundred Ninety Seven and Five cents (Tshs 953,142,797.05). : . ~· ... : . It is sq;" ordered. We make n'o order as to costs. 3
DATED at DAR ES SALAAM this 29 th day of September, 2014. J.H. MSOFFE JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL · I certify that this is a true copy of the original. , F.rfliwE .DEPUTY REGISTRAR COURT OF APPEAL