TANZANIA COTTON MARKETING BOARD VS GOGECOT COTTON CO. SA [1997] TLR 63.

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”.