Court name
Court of Appeal of Tanzania

Nicholas Nere Lekule vs Independent Power (T) Ltd & Another () [1997] TZCA 3 (24 February 1997);

Law report citations
1997 TLR 58 (TZCA)
Media neutral citation
[1997] TZCA 3
Coram
Lubuva, J.A.

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

  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

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

  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