Stanbic Bank Tanzania Limited v. Reginald John Nolan, Commercial no 5 (application for stay of execution)

IN THE HIGH COURT OF TANZANIA

(COMMERCIAL DIVISION)

AT DAR ES SALAM

Commercial Case No. 5 of 2001

STANBIC BANK TANZANIA LIMITED …………… PLAINTIFF/ RESPONDENT

VERSUS

REGINALD JOHN NOLAN……………………………DEFENDANT/ APPLICANT

RULING

LUANDA, J.

        This is an application for stay of execution of a decree of this Court dated 19^th April, 2002. The application is made under O.XXXIX, Rule 5 (2) and (4) and Section 48 (1) (e) of the Civil Procedure Code, Cap. 33. It will be helpful to give a brief background to the application.

        The applicant obtained financial facility from the respondent in favour of companies associated with him. In return the applicant and his wife undertook unlimited guarantees and executed mortgages over buildings, inter alia. The facility was later extended subject to the previous terms. However, the applicant did not sign that extended facility as agreed. But the applicant enjoyed the facility notwithstanding non signing. The applicant did not repay the facility, hence the filing of this suit in this Court. This Court gave judgment in favour of the respondent. And one of the orders made was that in the event the applicant failed to pay the decretal sum, the mortgaged property should be sold.

        The applicant was dissatisfied with the decision of this Court. On 25/4/2002 vide ERV 15366771 he gave notice of appeal to appeal to the Court of Appeal. He also applied for stay of execution in that some Court. The Court of Appeal dismissed the application (See Civil Application No. 36/2003 of Mroso, J.A. dated 23/12/2005). The applicant was dissatisfied with that decision, he filed a reference (See Civil Reference No. 19/2003). Like the application, the Court dismissed the reference.

        On 8/5/2007 the appeal was struck out for failure to accompany with a valid decree. The decree accompaning the appeal was signed by the Registrar instead of the judge as is provided for under O. XX, Rule 7 of the Civil Procedure Code, Cap. 33.

        The applicant still wishes to appeal against the judgment of this Court dated 19/4/2002. He filed an application for an order for extension of time to file notice of appeal. The application was filed on 10/5/2007 vide ERV 28582110.

        While the applicant was pursuing his appeal, the respondent filed an application for execution of the decree by attachment and sale of the mortgaged house vide ERV 28582126 of 15/5/2007. This Court duly ordered the attachment and sale of the said house. The order was made on 6/6/2007. The hearing of the application for extension of time to lodge notice of appeal was to come for hearing on 10/7/2007.

        On 10/7/2007 the date of hearing of the application, the respondent prayed to file her counter affidavit. The prayer was granted. And so the hearing of the application was accordingly rescheduled to 31/7/2007. On 31/7/2007 the date of the hearing, the Court was informed that the applicant has filed yet another application – stay of execution. It was filed under certificate of urgency. In view of this development, the hearing of the application for extension of time to lodge notice of appeal was shelved so as to consider the application for stay of execution. The application for stay of execution was to come for hearing on 10/8/2007. But on 10/8/2007 the hearing couldnot take off- the respondent prayed to file her counter affidavit. The application was to come for hearing on 4/9/2007.

        On 4/9/2007 the Court was informed that there were negotiations going on with the view to settling the matter. The parties prayed for an adjournment and in case negotiations failed then they will proceed to hearing. The Court granted the prayed and also fixed a hearing date in case the negotiations does not bear fruits. The negotiations failed. The Court heard the parties. In this application Mr. Mkatte advocated for the applicant; whereas the respondent was represented by Ms. Makani learned Counsel.

        Mr. Mkatte raised a number of irregulaties in the trial Court’s proceedings which are the basis of the application. For reason which I will explain a few moments to come, save the failure of the Court to notify his client the date of judgment, I will not discuss them. As regards the question of failure to notify the applicant the date of judgment, the Court of Appeal of Tanzania had dealt with it in Civil Application No. 36/2003 cited above. The single judge of the Court of Appeal, observed, I quote:

“As rightly pointed out by Ms. Makani, the other grounds listed, such as related to the applicant not being notified of the date of judgment or that the judgment was not pronounced in the presence of both parties, even if true, will not necessarily lead to the intended  appeal succeeding. Mr. Luguwa, on second thoughts, conceded that those irregularities will not affect the validity of the judgment which is in favour of the respondent.” [Emphasis added]

Since the issue mentioned above had already been dealt with, the same ought not to have been raised in this Court again and again. The reason behind is that there should be an end to a litigation – interest rei publicae ut sit finis litium.

        Ms. Makani submitted, inter alia, that for an application for stay of execution to succeed one has to show that an appeal has already been preferred. In our case there is no appeal. It is Ms. Makani contention that since the applicant has filed an application for extension of time to lodge notice of appeal, he should pursue this application first and after the grant, then he can resort to the application of stay of execution. In term of O.XXXIX, Rule 5 (2) and (4) of the Civil Procedure Code, Cap. 33, she went on, the application is incompetent. She prayed the application should be dismissed with costs.

        With regard to this issue, Mr. Mkatte conceded that there is no appeal pending. But he was quick to point out that they are intending to appeal to the Court of Appeal.

        The question which prompted me not to discus the reasons for the grant of the application, save that of failure to notify date the date of judgment, is whether this Court has jurisdiction at this stage to entertain the matter. The applicant cited sub- Rules 2 and 4 of Rule 5 of O.XXXIX and Section 48 (1) (e) of the Civil Procedure Code, Cap. 33 as the enabling provisions. But Section 48 (1) (e) of the CPC, Cap. 33 does not confers this Court jurisdiction to entertain the application. Rather it it enumerates a number of properties which are not liable for attachment and sale. It terms of paragraph (e) of Sub- Rule Section 1 of Section 48 of the CPC, Cap. 33 one of such property is a residential house or building occupied by the judgment – debtor, his wife and dependant Children. So it is a reason for rescinding the attachment Order issued in respect of such property and not the issue of jurisdiction.

        Sub – Rules 2 and 4 and of Rule 5 of O.XXXIX of the CPC, Cap. 33 read:

5 (2) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the court which passed the decree may on sufficient cause shown Order the execution to be stayed. [Emphasis Mire]

And Sub – rule 4 provides:

5 (4) Notwithstanding anything contained in Sub – rule (3), the Court may make an exparte order for stay of execution pending the hearing of the application.

I prefer to start with Sub – rule 4 of Rule 5 of O.XXXIX of the CPC. Obviously the application for an order envisaged under this Sub – rule ought to have been made and granted before the hearing of the application inter parties. Nothing has been submitted in respect of this sub- rule. I take it that it was abandoned.

        I now move to sub – rule 2. My understanding of this sub – rule is that where the judgment – debtor is dissatisfied with a decision of this court which is appealable to higher Court, he may, on sufficient cause, apply for stay of execution in this very Court provided he does so within the time allowed to appeal. This means the filing of an appeal is not a prerequisite to filing an application for stay of execution as is the case under sub – rule I of the same rule. With due respect to Ms. Makani a judgment – debtor under sub – rule 2 of Rule 5 of O.XXXIX of the CPC, Cap. 33 is entitled to apply for stay of execution in this Court without filing an appeal first. In order to invoke sub – rule 2 of rule 5, the judgment – debtor must satisfy the following conditions, namely:

(i) the decree is appealable

(ii) the application should be made within the appealable time; and

(iii) show sufficient cause.

In our case, there is no dispute that the decree is appealable to the Court of Appeal of Tanzania. As regards the second condition, the record shows that the decision of this Court was delivered on 19/4/2002 and this application was filed on 31/7/2007 a period of more than five years. The question is what is the time allowed for appealing to the Court of Appeal of Tanzania against the decision of this Court? This takes us to the procedural law governing appeals to the Court of Appeal. The procedure law governing appeals from High Court to the Court of Appeal is the Court of Appeal Rules, 1979.

        Rule 76 (1) and (2) of the said Rules provide the procedure for a person who desire to appeal in civil matters. Rule 76 (1) and (2) read.

76 (1) Any person who desires to appeal to the Court shall lodge a written notice in duplicate with the Registrar of the High Court.

      (2) Every notice shall, subject to the provisions of Rules 84 and 96 be so lodged within fourteen days of the date of the decision against which it is desired to appeal. [underscore mire]  

In view of the above quoted Rule, I am of the settled view that the time within which to apply for an order of stay of execution should be made within fourteen days prior to lodging of a notice of appeal because once a notice of appeal has been lodged in the Court of Appeal this Court ceases to have jurisdiction to entertain the application for order of stay of execution. The jurisdiction is vested in the Court of Appeal. This is provided for under Rule 9 (2) (b) of the Rules. The Rule reads:

9 (2) Subject to the provisions of sub – rule (1), the institution of an appeal shall not operate of suspend any sentence or to stay execution, but the Court may –

(a) N/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.

Since the application has been made after a period of more than five years which is beyond the time of limit of fourteen days this Court has no jurisdiction to entertain the matter. The application is dismissed with costs.

        Order accordingly.

LUANDA, J.

JUDGE

22^nd April, 2008

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