8/11/2019 Mza Civil Application No. 11 of 2013 (1)

1/8

ST*{

oFBcq.rrTtuN

.*SE'rr4R

riy _A

fltLts

IN

THE

COURT

OF

APPFAT

OF

TANZANIA

\

ATM ryANzA

(CORAM:

MZA

CIWL

AFPLICATION

NO.

11

OF

2013

J O R A M U

B r s w A L O . . . i , r , r . r r r *r r f , , . . r , , , r . f r r r t , r * . . r r . . . r , r ' r , r . i* . r r r r . f . , r : , r . , . . , A p p L r c A N T

HAMISRICHARD, , , , , , , , r , , , , . r , r , , , , ,

VERSUS

r . . . r . r . r r . r r * r r , r . t : r : f

f

r , . r . : r r f

, r i r . r , r r f

R E S p o N D E N T

(Appricafion

for

stay

of

execution

rom

the

Judgment

and

Decree

of

the

High

Court

of

Tanzania

at

Mwanza)

OjtuanresiJ)

Dated

ZTth

day

of

June,

A013

RULING

OF

THE

COURT

13'n

& 15th

May,2014

KAIJAG.E.

.A.:

Thls

s

an

application

or

stay

of

execution

f

the

decree

f

the

High

court

of

Tanzania

itting

t

Mwanza

n

(pc)

civir

Appear

o.

27

af2010.

The

udgment

nappeal asdeliveredn z7h une, 013 n favour f the

respondent'

ggrieved

y

that

decision,

he

applicant

imeously

odged

notice

f

appeal

o

this

court

on

Bth

ri;

zu:3,Anticipating

arly

atLempts

to'execute

he^decree

efore

he

institution

nd/or

determination

f

the

of

27

8/11/2019 Mza Civil Application No. 11 of 2013 (1)

2/8

t t r i

/

, $ d

lntended

appea

I

Argutt,

2013'

l,

the

mppllsant

odged

the

Present

PPlication

n

2$tr'

The

application

s

by

notice

f

motion

nder

ule1t (2) (b) and c)of

theCourtofAppealRules'2009(**?,Rules) 'andissupportedbythe

applicant's

wn

affidavit'

Mr. steven

Magoiga,

earned

counsel,

appeared

before

us

to

prosecute

he

application

n

behalf

f

the

applicant'

he

respondent'

ho

opPosed

t,

aPPeared

n

Person'

Wethinktheonlydecisiveissuecal l ingforourattent ionand

determinationn thisapplicationswhether,

r,

o

the

applicant

as

satisfied

the

hr.ee

umurative

reconditions

or

a

sray

order

stipurated

nder

ule

11

(2)

(d)

of

the

Rules,

hich

provides:-

"R'

11

(2)

Subiect

to

the

provisions

of

sub-rule

J

theinstitut ionofanappea|sha||notoperateto

susryld

any

sentence

r

to

stay

execution

but may-

{a}

"'(not

relevant)

8/11/2019 Mza Civil Application No. 11 of 2013 (1)

3/8

*

W

" ' v

I t I l P w 4 " l ; r "

.g

f

'

a

notice

f

aPPeal

-*" ntsil nflceedlngst

kere

t

drlY

ctvll

prvct

has

heen

odged

n

a#ordanc

appeat

hall

nat

opera{ asa stayof execution

f

thedecreeororderappea|edframexceptsofaras

the

High

Court

or

tribunat

may

order'

nor

shall

execution

f

a

decree

be

stayed

by

reason

only

of

anappeal aving

een

preferred

rom

he

decree

r

order;

but

the

Caurt'

may

upon

good

cause

hown'

order

tay

of

execufion

f

ldch

decree

r

order'

(c)

-.'(not

elevant)

(d)

no

order

or

stay

of

execufion

shalt

be

made

under

this

rule

unless

he Court s satisfiedt'

(i)

that

substantial

loss

nay

result

to

the

party

applying

for

stay

of

execufion

unless

he

order

s

made;

(ii) that the

aPPlica$on

has

been

without

unreasonafrlv

elaY;

and

made

bY

ttre

(iii)

*,,That

security

has

been

given

Dr

appticant

for

the

due

pe#ormance

of

8/11/2019 Mza Civil Application No. 11 of 2013 (1)

4/8

','llF

n

such

a decree

or

order

as rnty ultimately

be binding

apon him?'

fEmphasis

s

ouril.

Going y the notice f motion,he applicantn seekinghe stayof

execution

rder,

s relying

n

the olbrniiAg

hree

grounds:-

"

(i)

Theapplicant

s

aggrieved

by the

udgment

and

decree

n

appeal

of the

High

Court and intends

to

appeal

o

the

Court

of Appeal,

(it)

In the

event

of

an

order

of

stay

of execution

s

not

made,

the respondent

who is

preparing

to

execute

the

decision

of

the High

Court

as

confirmed

by the

Honourable

Judge, the

' t

: i

applicantwill sa#rilmu'ubstantialossbecause he

respondent

s

npt

the right

owner or

benefrciary

of the

disputed

and.

(itil

If

the

decree

n

appeal

wi// be executed,

the

intended

appeal

wi//

be

rendered

nugatory.

'

submitting

support

f the application,

r. Magoiga

mplified n

and adopted

he

grounds

eflectedn

the notice

of

motion

and

in

the

1 .

f \

8/11/2019 Mza Civil Application No. 11 of 2013 (1)

5/8

l r

supporting

ffidavlt

aken

by the

applicant

imself.

He

further

nformally

and

orally

aised

urisdictional

ssue

hich

e

ormulated

s

an

additional

precondition

or

a

grant

of

stay

order,

but

which

s

not

envisaged

nder

item

(d)

of rufe

11

(2)

of

the

Rules.

However,

e

conceded

hat

the

applicant

as

not

fulfilled

re-condition

iii)

of

the

said

tem (d)

by

not

providing

ecurity.

he

respondent,

n

the

other

hand,

appears

o

have

exercised

isdiscretionnder ule56(I) of theRules. edidnot odge n

affidavit

n

reply.

He

simply

leaded

o,

us hat

a stay

order

sought

y he

applicant

e

refused.

on

the

basis

of

the

grounds

tated

n

the

applicant's

otice

of

motion, isaffidavitiled n support hereof nd hesubmission

ade

n

his

behalf

y

Mr'

Magoiga,

e

are

satisfied

hat

he

applicant

as

ulfilled

conditions

i)

and ii)

stipulated

nder

tem

d)

of rule

1t (z)

of

the

Rules.

However,

firm

stance

aken

by

this

Court

on

the

grant

of stay

orders

under

he

said

Rule

s

that

he

three

conditions

tipulated

nder

tem

d)

rnust

be

conjunctively

nd

not

disjunctively

atisfied.

See,

or

instance,

THEROD

REDdICK

.

ABDUSAMUDU

ALIM,

CiViI

PPIICAI;ON

O.

of

ZOLZ,

GEITA

G0LD

MINING

LIMITED

V.

TWALTB

ALLY,

Civi|

Application

o.

14

0f

20 2,

and

osEpH

ANTHOHY

OARES

@

GOilA

)

8/11/2019 Mza Civil Application No. 11 of 2013 (1)

6/8

v'

HussErfu

la

oMARy,

civir

Application

o.

6

of

?.arz,

{AIl

unreported).

In

Therod

Fredrick

case

supra),

e

held

hat:-

'As is immedntely

d*ceminrc

from

the

above

*xtracf,

Rule

1I

e)

k

more

restrictive

n

scope

han

the

former

Rule

g

e)

of

the

I

g(g

Rufes.

On

the

terms

of

the

present

Ruleq

the

court

no

ronger

has

the

luxu4r

of

granting

an orderof stayof execution

on

such

terms

as

the

Couft

may

think just;

rathe4

the

court

must

be

satisfred,

ust

as

the

applicant

wi//

be

required

to

fu/fi//

the

followng

cum

ula

iJ/e

requiremen

7s

_,,

(1) Lodging

a

Noffce

of

Appeal

n

accordance

wth

Rule

BJ;

Showng

good

cause

and;

Complying

wtth

the

provisions

of

item

(q

0

(ir)

and(iit).-

case/

it

was

imperative

prerequisite

condition

of

(2)

(3)

In

this

fundamental

for

the

giving

appficant

o

fulfill

a

security

,for

the

due

8/11/2019 Mza Civil Application No. 11 of 2013 (1)

7/8

other

under

Costa,

Civil

Application

o.11

of

2010

unreported),hisCourt

eld:-

"One

other

condition

s that

the

applicant

or

a

stay

order

must

give

security or

the

due

performance

f

the decree

against

him.

To

meet

this condition,

he

law does

not

strictly

demand

hat

the

said security

must be givenprior to the grant of the stay order,

To us, a

firm undeftaking

by

the applicant

to

provide

security

might

prove

t to

move

the

Court,

all

things

being

equal,

to

grant

a

stay order,

provided

the Court

sets a

reasonable

ime

lrmit

within

which he

applicant

hould

give

the

same."

The applicant

having

furnished

ecurity

or

made

a

firm

undertaking

or

giving

such

security;

n

his

sworn affidavit

or

in

the

submissionade n hisbehalf y Mr.Magoiga,ettledaw equiressnot

tc

grant

he

ordtsf

ought.

Accordingly,

e hereby

ismiss

his

application

with

costs.

8/11/2019 Mza Civil Application No. 11 of 2013 (1)

8/8

It

i$

s0nrder$d,

trATHn

at MltlfANUA

his 14th

day

of

May,

2014,

B.

M. LUANDA

JUSTTCE

r APPFAL

S. A.

MASSATI

JU$,TtqE

r

Ap_PEAL

S. S, I(AIJAGE

JUSTICF

OF

APPEAL

I

ceftify.that

his

s

a true

copy

of the

original,