Kibo Hotel Kilimanjaro Limited v. Consolidated Holding Corporation and another (application for stay of execution)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 105 OF 2008

KIBO HOTEL KILIMANJARO LIMITED ………………….…………APPLICANT

VERSUS

CONSOLIDATED HOLDING CORPORATION ..……..…… 1^st  RESPONDENT

IMPALA HOTEL ……………………………………………….. 2^nd  RESPONDENT

(Application for stay of execution from the Decision of the High Court of Tanzania (Land Division)  at Dar es Salaam)

(Mziray, J.)

dated  the 18^th day of June, 2008

in

Land Case  No.  198  of  2007

________

RULING

24  September & 16 December,  2008

MJASIRI, J.A,

This is an application for stay of execution under Rules 9(2) (b) 45(1) and 46(b) of the Court of Appeal Rules, 1979.  By a Notice of motion lodged on August 1, 2008 the Applicant is seeking a stay of execution from the decision of the High Court of Tanzania, Land Division dated June 18, 2008 in Land Case No. 198 of 2007 setting aside the order of the status quo and dismissing the suit with costs.  The Notice of Motion is supported by the affidavit of Frank Marealle, a principal officer of the Applicant.

The Applicant in this case is represented by Mr. Maira learned Advocate, the first Respondent is represented by Mr. Rweyongeza learned advocate and the second Respondent is represented by Mr. Kamara learned Advocate.

        When the application was called on for hearing, Mr. Rweyongeza and Mr. Kamara raised a preliminary objection, the notice of which was lodged earlier in terms of Rule 100 of the Court of Appeal Rules 1979, The preliminary objection raised by Mr. Rweyongeza and Mr. Kamara was similar in nature.  The said objection was as under;

“The Decree which is the subject matter of the pending appeal, being a decree not capable of execution, the application for stay of execution is grossly misconceived in law.”

Mr. Rweyongeza argued with great force that the application for stay of execution is grossly misconceived.  According to Mr. Rweyongeza there are two aspects to be considered, the dismissal of the suit and the setting aside of the status quo.

        In relation to the dismissal of the suit, Mr. Rweyongeza stated that the suit before the Land Division was for declaratory orders.  However the suit was dismissed and the order for the maintenance of the status quo was set aside.  He further argued that a dismissal order is not capable of being executed and therefore an application for stay of execution cannot be filed.  The order sought following a dismissal order would amount to an injunction which is not similar to a stay of execution.

        In relation to the setting aside of the status quo, Mr. Rweyongeza submitted that this resulted from the temporary injunction granted by the court.  Once the suit was dismissed there was no status quo to be maintained. 

        Mr. Rweyongeza made reference to the case of Athanas Albert & Others versus Tumaini University, Iringa University College, Civil Application No. 50 of 1999, (unreported). In the said case it was stated by Kisanga J.A. that a stay of execution can properly be granted where there is a court order granting a right to the Respondent.  Mr. Rweyongeza argued that a dismissal order is not an order granting a right.  Therefore there is nothing to be stayed by the court.

        Mr. Kamara associated himself with the submissions made by Mr.  Rweyongeza.  Mr. Kamara further submitted that it is trite law that an order dismissing the suit or setting aside another order cannot be stayed.  Mr. Kamara made reference to the case of D.B. Shapriya & Co. Ltd. versus Bish International B.V., Civil Application No. 67 of 2002 (unreported). 

In relation to the issue of the status quo Mr. Kamara, making reference to paragraph 5 of the applicant’s affidavit stated that, from March 15, 2007 to present, it is the second Respondent who is in possession of the hotel, the subject of this suit.  The dismissal order as well as the order setting aside the maintenance of the status quo did not change anything as far as the possession of the hotel is concerned.  Mr Kamara argued that there is nothing to stay.  According to Mr. Kamara, the order for stay if granted would be ridiculous.  The dismissal order would have no effect.  Mr. Kamara brought to the attention of the court the case of John Lukuwi (as Administrator of the Estate of the late Tito John Lukuwi) versus Halima Kasita & Another, Civil Application No. 33 of 2003 (unreported) in support of his argument.  Mr. Kamara asked the court to dismiss the application with costs.

        Mr. Maira submitted that the preliminary point raised by the Respondents missed the point on the law governing stay of execution.  According to Mr. Maira the Appellant and the second Respondent are claiming ownership of the Moshi hotel.  These are competing interests and this is subject to a properly instituted appeal.  The applicant has stated on oath that he was aggrieved by the two orders namely, the dismissal order striking out or removal of the status quo, and is awaiting the decision of the Court of Appeal.  Mr. Maira further submitted that if at the end of the appeal a 40 storey building is erected at the site the whole appeal process would be rendered nugatory.  He stated that it may take up to 5 years to have the appeal heard.  According to him, the dismissal order does not mean that the Respondents were granted rights.

        Mr. Maira made reference to the following cases in support of his application.  Dar es Salaam Education and Office Stationery v. National Bank of Commerce Limited, Civil Application No. 4 of 1996 (unreported) and Deusdedit Kisisiwe v. Protaz B. Bilauri,  Civil Application No. 13 of 2001 (unreported).  According to Mr. Maira, the above cases emphasized that the court is sitting as an equitable court with full discretion.   He further submitted that the preliminary objection raised is to derail justice.  The preliminary objection therefore ought to be refused with costs so that the applicant may address the court on the merits of the application.

       

In reply Mr. Rweyongeza submitted that the authorities cited by

by the applicant are not applicable in this case as the facts are different.  Mr. Rweyongeza further stated that where there is substantive law, equity cannot apply.  The court cannot grant injunctive orders as it has not been properly moved.  Mr.  Kamara submitted that injunctive relief cannot be granted as there is no application for injunction before the court.

        After reviewing the application, the arguments raised by both Counsel and the authorities cited, what needs to be determined is whether a stay of execution can be granted where there was a dismissal order; that is whether or not the High Court Order in question was one which was capable of stay.

Black’s law dictionary (Eighth Edition) defines dismissal and stay as under:

“Dismissal is defined as termination of an action or claim without further hearing, especially before the trial of the issues involved.”

“Stay is defined as the postponement or halting of a proceeding or judgment, or the like.”

        In Intertec East Africa A/S Ltd v. B & S International, Civil Application No. 16 of 1997 (unreported) a stay of execution was sought in respect of a decision of the High Court dismissing a suit.  In that situation the Court was of the settled view that there was no decree that was capable of execution which the Court would order to be stayed. 

This position was reiterated by Lubuva J.A., in Consolidated Holding Corporation v. Chani Auto Garage, Civil Application No 61 of 2001, (unreported).  

        In Athanas Albert the issue to be determined was whether the High Court Order in question was capable of being stayed.  The High Court Order was an order setting aside the order of the District Court which had granted temporary injunction to the applicants.  In other words the applicants were asking this court to set aside the order of the High Court and thereby restore that of the District Court.  Kisanga J.A., stated as under:

“I am increasingly of the view that there is nothing in the High Court Order the execution of which is capable of being stayed.  All that the High Court did was to set aside the order of the District Court which had restrained the Respondent from terminating the Applicant’s studies.  It seems to me that a stay of execution can properly be asked for where there is a Court order granting a right to the Respondent or commanding or directing him to do same thing that affects the application.”

There is no definition of the word ‘execution’ either in the Court Rules, 1979 or in the Civil Procedure Code 1966.  Nsekela J.A. in East African Development Bank v. Blue Line Enterprises, Civil Application No. 57 of 2004, cited Re Overseas Aviation Engineering (G.B) Ltd (1969) 3 All ER 12 where Denning, MR. at page 16 stated as follows:

“Execution means, quite simply the process for enforcing or giving effect to the judgment of the Court, and it is completed when the judgment creditor gets the money or other thing awarded to him by the judgment. “

In view of the above definition Justice Nsekela J.A. made the following observations.

“Thus before one can talk of staying execution of an Order of the Court, There must be a judgment or decision of the Court.  The decision of the High Court dated 11.5.2004 did not give any rights to the Respondent which could trigger the process for enforcing or giving effect to the decision of the Court.  It follows therefore that the Court cannot grant a stay when in fact there is no Order to stay.”

Nsekela J.A. further stated that since the High Court struck out the Petition as incompetent, it means that the petition never had any existence and consequently no Order of Decree. 

In D.B. Shapriya & Co. Ltd., Lubuva J.A. stated as under:

“It is common ground that the purpose of seeking stay of execution is to maintain the status quo obtaining at the time when the judgment and decree, subject of the application for stay was delivered.  The High Court order of dismissal of 6.5.2002 merely declared that the application to set aside the award was refused.  There is no decree pertaining to the dismissal order which could be executed against the Applicant.  This is because the decision of 6.5.2002 does not confer any right which the Respondent could enforce against the Application.” 

Hon. Lubuva J.A. concluded as under:

“In these circumstances, I am settled in my mind that as the application for stay was based on the decision of 6.5.2002 which was not capable of execution, is not capable of stay.”

In Hassan Transport Limited versus Karibu Forwarding & Clearing Co. Ltd, Civil Application No. 37 of 1999, (unreported) Lubuva J.A. stated as under:

“The central issue in this application is whether the grant of a stay of execution is warranted in the circumstances of the case.   It is relevant to consider the principal objective of seeking a stay of execution.  It is common ground that stay of execution is granted in order to maintain the status quo as it obtains at the date of the judgment; the subject matter of execution was delivered”.

In John Lukuwi, Mroso J.A. in considering whether or not the dismissal order dismissing the application for enlargement of time was capable of being stayed stated as under:

“It seems to me that if I granted the application the effect would be that the order of dismissal should be taken as if it had not been made, at least for the time being. Then what would follow? It cannot be assumed that then extension of time to apply for review would be granted.  I cannot envisage such a ludicrous conclusion.  I am decidedly of the view that the substantive order of the High Court dated 28/3/2003 cannot be stayed.”   

I have reviewed both cases cited by Mr. Maira, Dar es Salaam Education and Office Stationery and Deusdedit Kisisiwe and I entirely agree with Mr. Rweyongeza that the circumstances of the said cases are not similar to the present case and therefore not applicable to this case. 

Like wise in the instant case I am inclined to agree with the submissions made by Counsel for the Respondents that the decision of the High Court was not capable of execution, it simply dismissed the suit filed by the Applicant.  With the dismissal of the Suit by Mziray J., the parties’ position reverted to the same status quo  before filing the suit.  There is no decree that is capable of being executed which this court could order to be stayed.

In the event the application for stay of execution is hereby struck out with costs.  It is so ordered.

View other posts for your benefit...