The lawyer for two Dowans Companies asked the Court of Appeal yesterday to reject the application by Tanzania Electric Company (Tanesco) limited which is seeking stay of execution of a High Court decree over payments of 65,812,630 US dollars (about 105bn/-).
Advocate Kennedy Fungamtama told Justices Edward Rutakangwa, Steven Bwana and Bernard Luanda that the matter was time barred as according to Court of Appeal Rules, it was supposed to be lodged within 60 days from the date of filing the Notice of Appeal.
“The Notice of Appeal to challenge the decision and decree of the High Court was filed on August 4, 2011. This application was filed on September 19, 2012, that is 351 days and there is no extension of time which was sought and granted,” the advocate submitted.
For that matter, the advocate said when advancing reasons for his objection to the hearing of the application that the request seeking to suspend the payments to Dowans Holdings (Costa Rica) and Dowans Tanzania Limited was time barred and ought to have been brought by way of extension of time. In his response to the application,
Advocate Richard Rweyongeza, who appeared for Tanesco alongside three other lawyers, Majura Magafu, Angelo Mapunda and Luagno Mwandambo, asked the judges to dismiss the objection raised by the counsel for the Dowans Companies because it lacked legal merits.
According to him, the interpretation of Rules governing such proceedings has the effect that both Court of Appeal and the High Court have co-current jurisdictions in entertaining applications for stay of execution.
“If that is true, then the application in hand was filed within time. It was first made before the High Court. It has been filed before this court within 30 days since the decision of the High Court was given. Under the circumstances, the objection should be overruled,” he submitted.
After hearing the arguments by the parties, the judges said they would deliver their ruling on the matter at a date to be set later. In its application, Tanesco is asking the Court to stay the execution of the order for payments to Dowans Companies, pending hearing and determination of their appeal case on the matter.
A senior official with Tanesco, Mr Godwin Ngwilimi, opened an affidavit to support the application, stating that having obtained judgment and decree in their favour, the two Dowans Companies filed an application for execution before a High Court in London.
“If execution will be allowed to proceed, the applicant’s (Tanesco) ability to generate, transmit and distribute the much needed electricity to the public will be adversely affected, causing a serious power crisis and damage to the Tanzanian economy,” he stated.
According to him, damages arising from power crises would be substantial and irreparable, not capable of being compensated by any award of damages. He stated that the amount involved in execution was colossal and may not be recovered from the two Dowans Companies if the appeal succeeds.
By FAUSTINE KAPAMA, Tanzania Daily News
