The applicant, Murtaza Mohamed Raza Virani, through the services of Mr. Sylvester Shayo, learned advocate, brought the present application
for stay of execution in Commercial Case No. 281 of 2002 wherein Kimaro, J. entered judgement by admission on the 4th September, 2003, in the sum of US $ 85,000.
Mr. Rwebangira, learned advocate, represented the respondent, Mehboob Hassanali Versi.
He opposed the application for stay.
At the hearing Mr. Shayo adopted the affidavit of the applicant in support of the
application. Paragraph five of the said affidavit denies that the applicant admitted the claim implying that judgement by admission
was erroneously entered in favour of the respondent. At paragraph six of the affidavit in support of the application, the applicant
states that his intended appeal has overwhelming chances of success because the judgement and decree were based on documents prepared
by Mr. Kesaria who the judge disqualified. The applicant states at paragraph nine of his affidavit that the claim against him is
interwoven with the claim against his mother so if the two claims proceed separately he gwill suffer irreparable injury that
cannot be compensated by the Respondent or measured in money if execution is carried out now and the appeal turns out to be successful.h
Counsel for the applicant reiterated that the appeal has good chances of succeeding
in view of the dual role of Mr. Kesaria in the matter.
Counsel for the respondent urged the court to dismiss the application for stay of
execution for lack of merit as averred in the Affidavit in Reply by the respondent, Mehboob Hassanali Versi. He further contended
that the applicant made no attempt to expound on the alleged irreparable injuries he would suffer if execution proceeds. On this,
counsel for the applicant cited the case of Unyangara Auction Mart and Court Brokers Ltd. versus Presidential Parastatal Sector Reform Commission and Another, Civil Application No. 65 of 2004 Court of Appeal of Tanzania at Dar es Salaam (unreported) in which the Court held that a party who
alleges that he would suffer irreparable loss if execution is not stayed pending the determination of an appeal, must substantiate
the said allegation and not merely assert it. The Court reiterated the same in the case of National Insurance Corporation & Another versus MECCO UNISYS Ltd. Civil Aplication No. 102 of 2004, Court of Appeal of Tanzania (unreported) when a single judge held:
As for particulars of irreparable loss likely to be suffered by the applicants if stay is not granted, let me say that it is always
expected that such particulars will be given. The point was endorsed by this Court in Tanzania Sewing Machine Co. Ltd. versus CRDB
(1996) and Another, Civil Application No. 9/99 (unreported) thus:
The Court has on a number of occasions held the view that it is not sufficient to
assert in general terms that the Applicant will suffer irreparable loss, particulars have to be shown of the irreparable loss to
be incurred.
In this application the applicant merely stated in his affidavit that he would suffer
irreparable injury if the application is not granted, he did not give any particulars of the irreparable loss or injury he would
suffer.
With regard to the intended appealfs chances of success, the Court has on many
occasions observed that at this early stage, the chances of an intended appeal succeeding cannot be evaluated or ascertained. In
Linus Furaha Shao versus NBC, TBR Civil Application No. 9 of 1999, Court of Appeal of Tanzania (unreported), Kisanga, J.A., held that ?
--- this Court has said on many occasions that the allegation that the intended appeal has overwhelming chances of success is no ground
for stay because among other things, there is often no material on which the Court can at this stage ascertain that allegation ---.
In the light of the above, I am of the considered view that in this application,
no sufficient ground for staying execution has been advanced. I accordingly dismiss the application with costs.
DATED at DAR ES SALAAM this 8th day of September, 2005.
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