The Court of Appeal has dismissed an application filed by Geita Gold Mining (GGM) Limited, seeking stay of execution of a court's decree involving payment of 125m/- to a small-scale miner, Twalib Ally.Justices Edward Rutakangwa, Semistocles Kaijage and Kipenka Mussa ruled that GGM failed to meet one of the essential conditions of providing security to the court, pending determination of an appeal challenging the payments in question.
"The applicant (GGM) has not eluded this prerequisite condition either in its notice of motion or its submissions before us. For that reason, the law enjoins us not to grant the order sought in the application. We are, therefore, constrained to dismiss the application," they ruled.
In the application, GGM sought stay of execution of the decree issued by High Court Judge Alice Chinguwile at Mwanza Registry on July 13, 2012, on grounds that the intended appeal has overwhelming chances of success and if the decree would be executed the appeal would be rendered nugatory.
"The decree holder (Ally) is financially not capable of paying back the amount if the appeal will be decided in favour of the applicant," reads one of the grounds advanced.
However, after going through the submission presented by the parties in the matter, the justices noted that the thrust of the reasons given by the applicant were reminiscent of the old regime which drew inspiration from the principles governing grant of injunctive orders pending trial.
"Unfortunately, however, the situation has now radically changed with the coming into force of (Court of Appeal) Rules on February 1, 2010," they said.
The Rules provides that no order for stay of execution shall be made unless the court is satisfied that substantial loss may result to the party applying for stay, the application has been made without unfair delay and security has been given by the applicant for the due performance of such a decree.
"We are satisfied that conditions (regarding loss and time of filing the application) have been met. However, we must say more in sorrow there in fear of offending anybody, that the applicant has abysmally failed to satisfy the third condition (on security)," the justices ruled.
Under normal circumstances, they noted, the decree holder was entitled to immediate enjoyment of the fruits of the decree in his favour.
"Since the applicant is a reputable gold mining company with definitely financial muscles to pay the decretal amount, we have found it interesting to note that it has failed to provide full security for the due performance of the ultimate decree," the justices said.
They concluded that GGM failed to provide the security either by depositing the decretal amount in court or by way of a bank guarantee or by a firm undertaking through its notice of motion or application.
Source: Daily News, reported by Faustine Kapama from Dar es Salaam, Tanzania
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