NICHOLAS NERE LEKULE v INDEPENDENT POWER (T) LTD AND ANOTHER 1997 TLR 58 (CA) D

 

NICHOLAS NERE LEKULE v INDEPENDENT POWER (T) LTD AND ANOTHER 1997 TLR 58 (CA) D

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Lubuva JA

CIVIL APPLICATION 70 OF 1996 E

24 February 1997

Flynote

F Civil Practice and Procedure - Appeals - Stay - Of execution of decree of High

Court pending appeal - One of essential conditions for stay is that irreparable loss

would result which could not be adequately compensated by damages.

-Headnote

G In a notice of motion the applicant applied for an order for the stay of execution

of a decree of the High Court pending the determination of an intended appeal

against the decision. The dispute arose from the first respondent's proposal to build a

power station on property owned by the applicant and on which the applicant

conducted farming operations.

Held: H

(i) One of the essential conditions for granting a stay of execution pending

the determination of an intended appeal was the loss or injury that an applicant

would be subjected to. The loss had to be of an irreparable nature which could not be

adequately compensated by way of damages;

(ii) As money had been set aside for compensation for the applicant and I

1997 TLR p59

as the applicant did not have any permanent structure on the land A

apart from perennial crops, this requirement had not been met.

Case Information

Application refused.

No cases referred to

Maira for the applicant. B

Dr Tenga and Salula for the respondents.

[zJDz]Judgment

Lubuva JA:

In a notice of motion under Rule 9(2)(b) of the Court's rules, the applicant is moving

this Court for an order that the execution of the decree of the High Court (Kaji, J) in

Miscellaneous Cause No 117 of 1996 be stayed pending the C determination of the

intended appeal. The applicant is represented by Mr Maira, learned Counsel. Dr

Tenga, learned Counsel appeared for the first respondent while Mr Salula, learned

Senior State Attorney represented the second respondent, the honourable the

Attorney-General. D

In support of the application, Nicholas Nere Lekule, the applicant has filed an

affidavit. In that affidavit it is stated inter alia:

1. That on 12 September 1996, an application for an interim injunction

was E filed in the High Court to restrain the respondent from entering into farm No

1331 Tegeta Sala-sala. The application was dismissed on 18 October 1996.

2. That if the stay order is not granted, the intended appeal would be

rendered useless and of mere academic interest. F

At the hearing of this application, Mr Maira, learned Counsel for the applicant with

characteristic vigour and industry briefly set out the historical background to the case

that led to this application. He stated that the matter arose from High Court

Miscellaneous Cause No 117 of 1996 and not Civil Case No 117 of 1996 which G

was, through typing error, indicated in the notice of motion. According to Mr Maira

in that Miscellaneous Cause the applicant had applied before the High Court for a

temporary order of injunction to restrain the first respondent, the Independent Power

(T) Ltd from entering into the land at Farm No 1331 Tegeta Sala-sala. This H order

was sought Mr Maira stated, pending the determination of a suit which was then yet

to be instituted. Incidentally from the bar the Court was informed that the suit is now

instituted before the High Court as Civil Case No 15 of 1997, it is pending a hearing

date to be fixed. A copy of the plaint in that case was, with the concur- I

1997 TLR p60

LUBUVA JA

A rence of both counsel, availed to me. On 18 October 1996, the High Court

dismissed the application for the temporary injunction sought. The applicant was

dissatisfied with that decision, and has thus filed the notice of appeal on 22 October

1996. He is now as stated earlier seeking an order of stay pending the determination

of the intended appeal. B

In essence, Mr Maira's submission was that the applicant was seeking to have the

decision/ruling of the High Court of 18 October 1996 stayed pending the

determination of the intended appeal for two reasons. First, he stated, the applicant

who owned land on Farm No 1331 Tegeta Sala-sala was carrying out C farming

activities on that land which had been acquired by the Government on whose behalf

of the second respondent was appearing. As stated in para 5 of the affidavit Mr Maira

vehemently submitted that if the execution of the decision/ruling of the High Court

of 18 October 1996 is not stayed, the intended appeal would be rendered useless and

of a mere academic interest. Elaborating further on this D point he said the

execution of the decision/ruling of the High Court would result in the farm plot being

turned into a power station which would, in his view destroy the stratum of the

intended appeal. Responding to para 6 and 7 of the affidavit in reply E by one James

R Rugemalila, a director of first respondent company, Mr Maira countered that in the

intended appeal the crux of the matter for challenge on appeal is not the money but

the principles involved in the acquisition of the land. It was however not denied by

Mr Maira that the first respondent had deposited money ie Shs 23.4 million for

compensation in respect of the suit plot. He prayed F that in order to minimize the

loss on the part of the applicant, the status quo ie the position before the parties went

to the court, should be maintained until the pending appeal against Kaji, J's

decision/ruling is determined.

G Dr Tenga, learned counsel for the first respondent argued three substantive

grounds. Firstly, it was Dr Tenga's submission that the order or ruling of the High

Court of 17 October 1996 is a declaratory order which is not capable of execution. For

that reason, Dr Tenga maintained, a stay order cannot be issued. At this juncture, it is

to be observed that Mr Salula, learned Senior State Attorney who H appeared for

the second respondent, the Attorney-General was in agreement with most of the

points argued by Dr Tenga. He however added a few more points which I will deal

with later. On this submission it is relevant to note that the application before the

High Court was seeking an interim injunction to restrain the first respondent from

entering Farm No 1331 Tegeta Sala-sala. That is, the I

1997 TLR p61

LUBUVA JA

application which was dismissed by Mr Justice Kaji on 18 October 1996. It is that A

order in respect of which in this application as shown in the notice of motion and

confirmed by Mr Maira, in his submission before me a stay order is sought. In my

understanding, with the dismissal of the application in High Court Miscellaneous

Cause No 117 of 1996 there was nothing, so to speak to be stayed. It was merely B a

declaratory order that the application had been refused and so, the position on the

ground as regards Farm No 1331 Tegeta Sala-sala remained as before, much the same

as if nothing effectual had taken place legally. With an order which is incapable of

execution, as I hold, that would be sufficient to dispose this application. But then

there are other points of substance which were raised that need to be considered as

well. C

Secondly, Dr Tenga argued that the stay order even if granted would not serve any

useful purpose. This is because he stated, as of now when this application is being

heard, the first respondent has gone quite a long way towards the D constructing of

a power station. It was Dr Tenga's further submission that with the Government

acquisition of the land on farm 1331 Tegeta Sala-sala and the same land having been

allocated to the first respondent, there was no legal basis upon which the first

respondent could be restrained from carrying out development on the suit land. If as

found by the learned Trial Judge that at the time when the suit E plot was acquired,

the applicant had no house on the land except for crops which have been uprooted

and the land there is under construction, I agree with Dr Tenga, that the order sought

would not serve any useful purpose. That is, the F matter having been overtaken by

events, the stay order sought would not achieve the purpose it was intended ie

maintaining a status quo. Thirdly, it was also the submission of Dr Tenga, learned

counsel that there was no ground for the grant of a stay order. The reason he

advanced was that in the circumstances of the case G the applicant is not subjected

to an irreparable loss which would not adequately be compensated by an award of

damages. He went on in his submission that the first respondent has deposited Shs 2.3

million with the government for compensation in respect of the suit plot at the farm.

In that case, Dr Tenga H submitted, as seen from the plaint filed in the substantive

suit -- Civil Case No 15 of 1997, the issue being one of compensation, it is a matter

which does not warrant the granting of a stay as the applicant could equally be

compensated.

On the question whether or not to grant a stay, it is common ground that one of the

essential conditions for granting a stay of I

1997 TLR p62

LUBUVA JA

A execution pending the determination of an intended appeal is the loss or injury to

which an applicant is subjected. It should not be any ordinary loss, it must be an

irreparable loss which cannot adequately be compensated by way of damages. In the

instant case, as found by the trial judge, the issue is a narrow one namely that B of

compensation in which case, the damage or loss that the applicant has suffered is

capable of being qualified and paid for by way of damages. At the hearing of this

application, Mr Maira, learned counsel accepted as truthful that C money in an

amount of Shs 23.4 million has been deposited by the first respondent with the

government for purposes of effecting compensation to claims such as the applicants.

As a matter of fact, it was brought to my attention that except for the applicant and

one other person, the rest of the occupiers of the land in the area under dispute have

moved out of the area after compromising on compensation. Additionally, it is also an

undisputed fact that the applicant did not D have any permanent structure on the

land apart from perennial crops. In that situation, I am of the settled view that the

applicant does not qualify for the grant of a stay. The loss involved is not irreparable,

it is capable of being adequately compensated by an award of damages.

E In view of the position I have taken of the matter, it is not necessary to go into the

details of the other points which were raised by Mr Salula, learned Senior State

Attorney. In passing perhaps I should touch on one thing. He had taken issue with

the affidavit in support of the notice of motion. That it was defective in terms of Ord

F 19 Rule 3 of the Civil Procedure Code. Needless to go into the details of the matter

especially on whether the affidavit was defective or otherwise. Suffice it at this stage

to observe that it is common knowledge that the Civil Procedure Code is applicable

before the High Court and the courts below. In this Court, the procedure is governed

by the Court's Rules, 1979.

For the foregoing reasons, the application is dismissed with costs. G

1997 TLR p63