Tanzania Cotton Marketing Board vs Gogecot Cotton Co.
SA [1997] TLR 63. CAT at Dar. (i) That the applicant had not gone beyond the
mere assertion that it would suffer great loss and that its business would be
brought to a stand still. Unless details and particulars of the loss were
specified there was no basis upon which the court could satisfy itself that
such loss would be incurred. (ii) The applicant had furthermore failed to
indicate, beyond the vague and generalized assertion of substantial loss, that
the loss would be irreparable. Any loss which the applicant was likely to
suffer could be adequetly compensated for by an award of damages. (iii) The
granting of a stay was a matter of discretion which was to be exercised on a
common sense and balance of advantage basis. In the present case there were no
good or sufficient reasons for the grant of a stay even on the basis of common
sense and balance of convenience approach. This is an application for stay of
execution. It arises from the decision of the 16.8.96 by the High Court (Kaji,
J) in Misc. Civil Cause No. 34 of 1996. In a notice of Motion filed under Rule 9(2)
(b) of the Court’s Rules, 1979 the applicant is applying for an order that the
execution of this decision be be stayed pending the determination of an
intended appeal the notice of which was lodged on 22.8.96. The application is
supported by an affidavit deponed by one Ahmad Kilingo, the legal Secretary to
the applicant company. At the outset it must be stated quite clearly that this
being an application for stay of execution filed under Rule 9 (2) (b) of ythe
Court’s Rules, it is discretionary. It’s grant or otherwises would depend on
the individual circumstances of the case at hand. In this case, the decision
turns around the issue whether the applicant would suffer not only substantial
but irreparable loss which cannot be atoned by way of damages. Quoting
Bansidhar vs Pribhu Daya [1954] AIR 41 Raj :- “It is not enough merely to
repeat the words of the Code and state that substantial loss will result, the
kind of loss must be specified, details must be given, and the conscience of
the court must be satisfied that such loss will really ensue”. But what seems
to worry the applicant is the resulting hardship in future business dealings.
Such would in my view, be the normal hazards of any judgment -debtor. This was
further underscored in the case of Bansidhar (supra). There it was furtheer
observed:- “The word “substantial” cannot mean an ordinary loss which every
judgment debtor is necessarily subjected when he losses his case and is
deprived of his property in consequence. That is an elementwhich must occur in
every case and since the Code expressly prohibits stay of execution as an
ordinary rule it is clear the words “substantial loss” must mean something in
addition to and different from that”. -Stay order is not normally granted
unless the court is satisfied that the applicant has suffered an irreparable
loss that cannot be atoned by way of damages. - As to the question whether the
appliacant has shown a prima facie case with the probability of a success in
the appeal pending. It however, to be noted that at this stage it is rather
premature to make any meaningful assessment of chances of success of the appeal
pending, because arguments from both sides have not been heard. Quoting
Simonite vs Sheffield County Council (English case). “……and that there were strong
grounds for an appeal was no reason for granting a stay, for no one ought to
appeal without strong grounds of doing so”.