Jubilate Benjamin Ulomi vs Mako Mining Co. Ltd (Arusha Civil Application No. 5 of 2013) [2014] TZCA 2306 (18 March 2014)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: BWANA, J.A; MANDIA, J.A; And ORIYO, J.A.) ARUSHA CIVIL APPLICATION NO. 5 OF 2013 JUBILATE BENJAMIN ULOMI ............................................. APPLICANT VERSUS MAKO MINING CO. LTD................................................ RESPONDENT (Application for stay of execution of the decree from the decision of the High Court of Tanzania at Arusha) (Masenqi, J.) Dated the 16 th day of January, 2013 in Civil Appeal No. 24 of 2012 RULING OF THE COURT Date 12 th &20 th March, 2014 ORIYO, J.A.: The parties in this application are at loggerheads over mining contracts. The proceedings commenced in the Resident Magistrates Court at Babati which found in favour of the respondent. The learned trial resident magistrate ordered the appellant to pay the respondent Shs 100 million as compensation for breach of contract and Shs 60 million as general damages together with interest thereon. The appellant was aggrieved and unsuccessfully appealed to the High Court. This prompted the appellant to institute an appeal to this Court. In

'· the meanwhile, the appellant has lodged in this Court a Notice of Motion supported by an affidavit of the applicant, for an order to stay the execution of the decree of the High Court dated 16/1/2013, in Civil Appeal No. 24 of 2012 pending determination of the intended appeal. The notice of motion has been instituted under Rule 11(2) (b) of the Court of Appeal Rules 2009, (the Rules). The grounds upon which the Notice of Motion is based are:-

1. The intended appeal stands overwhelming chances of success going by the grounds of appeal raised in the draft Memorandum of Appeal.
2. That the applicant will suffer irreparable loss if execution of the huge decretal sum (over Shs 160 million) is allowed to proceed because it is highly improbable for the respondent company to repay the money in the event the intended appeal succeeds due to its failure to reveal its financial status by continuously omitting to file annual returns with the Registrar of Companies since 2005 to date. The affidavit of Jubilate Benjamin Ulomi repeats what is stated in the notice of motion. Paragraph 6 of the affidavit states that the intended appeal stands overwhelming chances of success. By paragraph 7 thereof the applicant repeats the contents of ground 2 in that he stands to suffer 2

·· irreparable loss if execution is to proceed. In paragraph 8, the applicant endeavours to show that the application was made without delay. The parties have retained the same counsel services in the High Court and in this Court. The applicant had the services of Mr. Kimomogoro, learned counsel of M/s Imboru Chambers, Advocates. The respondent was advocated for by Mr. Duncan Joel Oola, learned counsel. We have taken note that the respondent did not file an affidavit in Reply, in terms of rule 56(1) of the Court Rules, which provides:- " 56(1) Any person served with a notice of motion under Rule 54 may lodge one or more affidavits in reply and shall as soon as practicable, serve a copy or copies of the affidavit or affidavits on the applicant'' [Emphasis ours]. The averments in the affidavit of Jubilate Benjamini Ulomi remain uncontroverted. Mr. Method Kimomogoro and Mr. Duncan Oola learned counsel appeared for the respective parties at the hearing. Each had filed written submissions in compliance with Rule 106(1) and (8) respectively, in 3

' support of their respective positions. Each learned counsel adopted their written submissions at the hearing. The thrust of Mr. Kimomogoro's arguments are based on the Court's decision in the case of Tanzania Electric Supply Company (Tanesco) Vs Independent Power Tanzania Limited (IPTL ) and 2 Others, [2000] TLR 324. Relying on the TANESCO v IPTL decision, the learned counsel submitted that in determining whether or not to order a stay of execution, the Court has to take three factors into consideration, namely :- "a) Whether the appeal has, prima facie, likelihood of success. b) Whether its refusal is likely to cause substantial and irreparable injury to the applicant. c) Balance of commence. " Before we proceed further, we wish to make some observations here. One, the decision in the case of TANESCO VS IPTL was made under Rule 9(2) of the Court of Appeal Rules, 1979, (the old rules). Those rules were repealed and replaced by the Court of Appeal Rules, 2009, (the new rules). Two, the criteria which the Court applied in the case of TANESCO was the 4

then law as provided under Rule 9 (2)(b) of the old rules; which was perfectly in order as the pertaining legal position. Rule 9 of the old Rules provided:- "9(1) not applicable (2)(a). " (b) in any civil proceedings where a notice of appeal has been lodged in accordance with Rule 76, order a stay of execution on such terms as the Court may think just" However, with the advent of the new Court Rules in 2009, there has been a shift in scope. Rule 11(2) of the new rules provides:- "11. -2 (a) (not relevant) (b) In any civil proceedings, when a Notice of Appeal has been lodged in accordance with Rule 83, an appeal, shall not operate as a stay of execution of the decree or order appealed from except so far as the High Court or tribunal may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree or order; but 5

\ / the Court, may upon good cause shown, order stay of execution of such decree or order. (c) (not relevant) {d} no order for stay of execution shall be made under this rule unless the Court is satisfied- (i) that substantial loss may result to the party applying for stay of execution unless the order is made; (ii)that the application has been made without unreasonable delay; and (iii) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him." [Emphasis ours]. The conditions stipulated in Rule 11(2)(b),( c) and ( d) of the new Rules is the criteria applicable in the application under consideration. In the case of Joseph Anthony Soares@ Goha VS Hussein Omary, Civil Application No. 6 of 2012,( unreported), the situation was identical to this one and the Court had this observation to make:- "The Court no longer has the luxury of granting an order of stay of execution ''on such terms as the Court may think Just'; but it must find that the 6

cumulative conditions enumerated in Rule {2}{b},{c} and {d} exist before granting the order." See also, Mantrac Tanzania Ltd Vs Raymond Costa, Civil Application No. 11 of 2010, Laurent Kavishe vs Enely Hezron, Civil Application No.5 of 2012, Anthony Ngoo and Another Vs Kitunda Kimaro, Civil Application No. 12 of 2012, (all unreported). The present application, as already shown, is made under Rule 11(2)(b) only, of the Court Rules. The rest of subrule (2) of rule 11, that is (c) and (d) are not cited. The remaining conditions in subrule 2, that (c) and (d) have to be complied with before an applicant can be granted an order of stay. Rule 11(2) ( c), requires the applicant to lodge an application for stay of execution before the expiration of the period of appeal. There is uncontroverted evidence on record that the application was filed on 12/2/2013 which was well within the limitation period of sixty days in terms of Rule 90(1) of the Rules. As for sub-rule 2(d),(i), the applicant has satisfied the requirement through the facts deponed in his affidavit in support of the application, in that the decretal sum of shillings 160 million \ is a collosal, substantial loss to him in the event the application is not granted. 7

• V Regarding subrule (2)( d) (iii), it is evident on record that the applicant has neither furnished security nor made any undertaking that he would do so in the event the intended appeal ends in favour of the respondent. The applicant has failed to comply with the mandatory provisions of Rule 11(2) ( d)(iii) of the Court Rules. Therefore, we find the application for stay of execution lacking in merit and it is accordingly dismissed. Each party to bear own costs. DATED at ARUSHA this 18 th day of March, 2014. S. J. BWANA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL 8