The board of trustees of NSSF v. New kilimanjaro bazaar ltd (Application for stay of execution)

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

                     

MSH. CIVIL APPLICATION NO. 1 OF 2007

THE BOARD OF TRUSTEES OF NATIONAL

SOCIAL SECURITY FUND……………………….…..…..APPLICANT

VERSUS

NEW KILIMANJARO BAZAAR LTD……………….…RESPONDENT

(Application for stay of execution from the decision of the High Court of Tanzania at Moshi)

(Mchome, J.)

dated the 27^th day of January, 2003

in

Civil Case No. 1 of 1999

------

RULING

5 October & 30 November, 2007

KAJI, J.A.

        In a notice of motion made under Rules 9 (2) (b) and 45 (1) and (2) of the Court of Appeal Rules, 1979, the applicant, The Board of Trustees of the National Security Fund, is moving the Court for orders that execution of the judgment and decree of the high Court of Tanzania at Moshi, in Civil Case No. 1 of 1999, delivered on 10.2.2003, be stayed pending hearing and determination of the intended appeal.  The grounds for the order sought are that: -

(a)        The intended appeal raises strong arguable issues in which the appeal itself stands a good chance of success;

(b)        On a balance of convenience there are good and sufficient grounds for the grant of stay of execution as sought by the applicant;

(c)         Common sense and a balance of advantage weigh in favour of granting the orders of stay of execution;

(d)        In the event of the intended appeal being allowed and the judgment and decree being reversed, the amount involved is so enormous that the respondent is unlikely to be able to refund it.

When the application was called on for hearing, Mr. Mwaluko, learned counsel for the respondent, New Kilimanjaro Bazaar Limited, raised a preliminary objection, notice of which he had lodged earlier on in terms of Rule 3 (2) (a) of the Court Rules, 1979.  The preliminary objection consists of two points of objection, namely; -

(1)        The application is hopelessly time barred and should be dismissed with costs.

(2)        The application is incompetent as it is not supported by the judgment of the High Court in Civil Case No. 1 of 1999 which is the subject matter for stay of execution, thus it ought to be struck out with costs.

In arguing the first point of objection the learned counsel contended that, although under Rule 9 (2) (b) there is no specific period within which an application for stay of execution of judgment and decree may be lodged, the Court has fixed the period of sixty (60) days from the date of delivery of the judgment which is sought to be stayed.  He cited the case of Suleman Ally Nyamalegi & 2 Others v. Mwanza Engineering Works Limited – MZA Civil Application No. 9 of 2002 (unreported) in support of his submission on the point.  The learned counsel pointed out that, the judgment and decree which are being sought to be stayed, were delivered on 10.2.2003.  The application was lodged on 28.2.2007 which was 4 years after delivery of the judgment.  The learned counsel held the view that, it was lodged out of time without leave of the Court and should be dismissed.

        In elaboration on the second point of objection, the learned counsel observed that, the applicant did not annex a copy of the judgment which is sought to be stayed, although it annexed a copy of the decree.  It was the learned counsel’s view that, a copy of decree without a copy of judgment is not enough as it does not contain sufficient information to enable the Court to use its discretion judicially.  He cited the decision of the Court in the case of Tanga Cement Company Limited v. Ballast Construction Company Limited – Civil Application No. 2 of 2003 (unreported) in support of his assertion on the point.

        Mr. Rweyongeza, learned counsel, appeared for the applicant, assisted by Mr. Brooke Montgomery, learned counsel from Mkono & Company (Advocates).  Responding to the first point of objection, Mr. Rweyongeza conceded that, the judgment and decree were delivered on 10.2.2003 and the application was filed on 28.2.2007.  However he pointed out that immediately following delivery of the judgment and decree on 10.2.2003, the applicant filed a notice of appeal against the said decision of the High Court.  But the said notice was struck out by the Court on 27.10.2004.  On 17.2.2005 the applicant applied in the High Court in Miscellaneous Civil Application No. 8 of 2005, for extension of time to file a fresh notice of appeal and to serve a copy of the same to the respondent.  The applicant applied also for extension of time to apply for copies of proceedings and the extracted decree.  The High Court granted the sought extensions on 27.2.2007.  On 28.2.2007 the applicant lodged the impugned application.  It is the learned counsel’s view that, period if any, started to run from the day the applicant filed the fresh notice of appeal.  Mr. Rweyongeza pointed out that under Rule 9 (2) (b) it is the notice of appeal which gives a party the right to apply for stay of execution, and that the applicant could not have filed earlier before being granted extension of time to file notice of appeal and before filing the fresh notice of appeal.  In the circumstances, the learned counsel held the view that, the application was lodged in time, and that the first point of objection should be dismissed. 

Responding to the second point of objection, Mr. Rweyongeza contended that, an application for stay of execution does not necessarily require to be accompanied with a copy of judgment but only by a copy of the decree sought to be stayed.  To bolster his argument on the point he cited the decision of the Court in the case of Consolidated Holding Corporation v. Jit Finance Limited & 2 Others – Civil Application No. 120 of 2003 (unreported).

        In a short rejoinder Mr. Mwaluko asserted that, the mere fact that time for filing notice of appeal was extended, did not mean that time for applying for stay of execution was also extended.

        On my part, my view on whether the application is hopelessly time barred as alleged in the first point of objection, is that, as far as I am aware, the Court has not fixed a time limit in which an application for stay of execution may be filed.  Past authorities by the Court suggest that the guiding principle is that of reasonableness, that is, it should not be filed unreasonably late.  What period is reasonable will depend on the circumstances of each particular case.  However in the circumstances of the instant case, I don’t think that the application was lodged out of time without leave and therefore time barred.  There is no doubt that judgment was delivered on 10.2.2003, and the application was lodged on 28.2.07.  But, as correctly observed by Mr. Rweyongeza, under Rule 9 (2) (b) it is the notice of appeal which gives a party the right to apply for stay of execution.  Where a party has not filed a notice of appeal he has no right to apply for stay of execution.  See for example holding (i) in the case of Israel Solomon Kivuyo v. Wayani Langoi and Naishooki Wayani, (1989) TLR 140 where a single judge of the Court held: -

“In the case of an application for stay of execution of a decree pending an appeal where no notice of appeal has been given, the application will not be entertained”.

Also the case of Ignazio Messina and Another v. Willow Investment – Civil Reference No. 8 of 1999 (unreported) where the Court said; -

In our view, the filing of a notice of appeal under rule 9 (2) (b) is a condition which must be satisfied before a party can bring an application for stay of execution.

Since in the instant case the notice of appeal was filed on 17.2.07 after the applicant had been granted extension of time on the same day, my view is that, time started to run from 27.2.07.  Since the application was filed only a day later, that is, on 28.2.07, there was no unreasonable delay.

        As far as the second point of objection is concerned, my view is that, under Rule 9 (2) (b), what may be stayed is the execution of the decree.  It is a decree which is executed and not a judgment.  In the instant case, the notice of motion was accompanied by a copy of the decree sought to be stayed.  It is therefore my view that the application is competent and is properly before the Court.  I am not saying a copy of judgment would have offended anything or anybody.  In fact it would have made the application even better.  I am also mindful of the authorities cited by the respondent’s counsel on the point.  But the position in those cases was different from the position in the instant case.  For example, in the Tanga Cement Company case the application for stay of execution was not accompanied by any document which could enable the learned single judge of the Court to exercise his discretion judicially.  The learned judge held:

I am therefore satisfied that the application for stay of execution before me is incompetent since it is not accompanied by a copy of the judgment, ruling or order, which is the subject matter for stay of execution.

Had the application been accompanied by a copy of the decree sought to be stayed I cannot tell whether the learned judge would have insisted the copy of judgment to be annexed.

        Since the application was filed in time as indicated above, and since it was accompanied with a copy of the decree sought to be stayed, the two points of objection raised in the preliminary objection cannot stand. 

        Consequently the preliminary objection by the respondent is hereby dismissed.  Costs in the cause.

        DATED at DAR ES SALAAM this 12^th day of November, 2007.

S. N. KAJI

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

I.P. KITUSI

DEPUTY REGISTRAR

Delivered under my hand and Court Seal in Open Court/Chambers at

…………………..………….this …………………day of ……………………….2007.

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