TRANSPORT EQUIPMENT LIMITED v DEVRAM P. VALAMBHIA 1992 TLR 182 (CA)

TRANSPORT EQUIPMENT LIMITED v DEVRAM P. VALAMBHIA 1992 TLR 182 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Kisanga JJA, Ramadhani JJA

2 July 1992 H

Flynote

Civil Practice and Procedure - Application - Consolidation of applications - Rationale.

Civil Practice and Procedure - Stay of execution - Of only part of the award -

Whether I proper.

1992 TLR p183

MAKAME JJA, KISANGA JJA, RAMADHANI JJA

This concerned two references from the ruling of a single judge of the Court of A

Appeal. In the first the learned judge refused to allow an application to consolidate for

hearing two applications before him. In the second the learned judge ordered only a

partial stay of execution pending determination of an intended appeal. B

Held: (i) To refuse to consolidate will be to fragment the process and delay the

outcome;

(ii) a consideration of the general damages cannot exclude a reflection on the

award refused to be stayed. The two may well have a bearing one on the other if, as in

this case, the award of general damages was ordered to be stayed we think it would

have C been neater to stay the other part of the award.

Case Information

Order accordingly.

Mbuya, for the applicant D

Maira and Marando, for the respondent

[zJDz]Judgment

Makame, Kisanga and Ramadhani, JJ.A.: When these two References, concerning the

same parties, came up for hearing, it was agreed, all round that they should be E

consolidated for hearing. They arise out of the same transaction and share a common

background of five different applications to single judges of this Court. It was clearly

desirable to deal with two References together. Mr. Mbuya, learned advocate,

represented the applicant, Transport Equipment Ltd., while Mr. Maira and Mr. F

Marando learned Counsel, advocated for the respondent, D.P. Valambhia. Both Mr.

Maira and Mr. Marando addressed the Court on behalf of the respondent.

Civil Reference No. 7 of 1991 came to us as a result of Omar, J.A. refusing to

consolidate for hearing two applications before him: Civil Application No. 13 of 1991

G by the present respondent, which sought to prevent the present applicant from

appealing against the decision of Rubama, J. in the main suit, High Court Civil Case

No. 210 of 1989, for failure to take essential steps in instituting an appeal; and Civil

Application No. 29 of 1991 in which the present applicant applied for extension of

time for serving the H Respondent with a copy of the Notice of Appeal. The

application for consolidation was by Mr. Mbuya and, as afore said, it was refused. In

the event Omar, J.A. did not have to go into the merits of the two applications.

The argument in favour of consolidation was that the two applications were

essentially I two sides of the same coin, as it were.

1992 TLR p184

MAKAME JJA, KISANGA JJA, RAMADHANI JJA

That is to say if, for example the single judge decided that the present applicant had

A indeed failed to take essential steps and so strike off the Notice he could not then

turn round in the other application and permit the present applicant to comply with

all the formalities. And vice versa.

Against consolidation it was submitted that for administrative reasons one of the B

applications was not listed for that particular day, in the first place, and that one

application could be determined without affecting the course of the other.

Basically the same arguments were repeated, if with elucidation, before us. C

We are grateful for the inputs by learned Counsel. The destination of these exercises

must be to do justice, and in a conclusive and meaningful manner. We think with

respect to refuse to consolidate will be to fragment the process and delay the

outcome. We are D satisfied that to consolidate would be the better course in the

circumstances, and we so order. The two applications shall therefore go to a single

judge who shall hear them together as consolidated, and determined them. We

respectfully urge an early hearing as the outcome there from will have a close bearing

on other aspects of the dispute between the parties. E

The second Reference we dealt with was No. 10 of 1991 as already indicated. The

application before a single judge, Mapigano, Ag. J.A. was Civil Application No. 15 of

1991. Following certain decisions by Rubama, J. in the High Court, there was an

application for a grant of stay of the execution of the decree. For reasons Mapigano, F

Ag. J.4, lucidly explained, there was ordered only a partial stay. He granted a stay in

respect of only the general damages pending determination of the intended appeal but

declined to grant a stay in respect of the 40% of the contract sum.

Mr. Mbuya urged before us that if they went on appeal they would challenge even

the G award of 45% of the contract sum. Mr. Marando, for the respondent, opposed

the application and submitted that there was no valid ground for faulting Mapigano,

Ag. J.A.'s decision. He further submitted that one of the factors to be taken into

account was the substance of the intended appeal and suggested that there was none

here. H

We have given anxious thought to the matter. We think, with respect, that a

consideration of the general damages cannot exclude a reflection on the award

refused to be stayed. The two may well have a bearing one on the other and if, as in

this case, I the award of general damages was ordered to be stayed we think it would

have

1992 TLR p185

MAKAME JJA, KISANGA JJA, RAMADHANI JJA

been neater to stay the other part of the award. It is not in receivable that the

applicant A would raise arguments on the part of the award stayed which would

impinge on the portion not stayed.

We therefore allow the Reference and accordingly order the whole decree stayed

pending determination of the appeal depending, of course, on the outcome of the

hearing of the consolidated Applications 13 and 29 of 1991 before a single judge. B

Despite the proliferation of applications, as observed, we very much hope that at the

end of the tunnel a truly just and conclusive and of this chequered conflict will have

been achieved.

C Order accordingly.

1992 TLR p185

D