Wasward Wilson Mapande vs Exim Bank Tanzania Limited (Civil Application No. 585 of 2026) [2026] TZCA 628 (2 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 585 OF 2026 WASWARD WILSON MAPANDE .................................................... APPLICANT VERSUS EXIM BANK TANZANIA LIMITED (AS SUCCESSOR IN TITLE OF THE FIRST NATIONAL BANK (TANZANIA) LTD)......................................... RESPONDENT (The application arises from the Ruling and Order of the High Court of Tanzania (Commercial Court) at Dar es Salaam) (Gonzi, J J dated the 13th day of March, 2026 in Execution No. 6817 of 2025 RULING 20th May & 2nd June, 2026 RUMANYIKA. 3.A.: For any successful application for stay of execution of a decree, there is a double-coincidence of wants: One, it is where the Judgment Debtor exercises his right of appeal comfortably, without fear of the intended appeal being pre-empted two, the Decree Holder is assured, in any event of not ending up with an empty decree. The present application arises from the ruling and order of the High Court of Tanzania at Dar es Salaam (the trial court) in execution i

proceedings which emanate from Commercial Case No. 75 of 2014. It involved the applicant, Wasward Wilson Mapande, and the respondent, Exim Bank Tanzania Limited, as successor in title to First National Bank (Tanzania) Limited ("FNB"). On 8th February 2013, FNB extended to the applicant an overdraft facility of TZS. 60,000,000. Similarly, on 23rd March 2013, the applicant secured, yet a separate business loan in the sum of TZS. 100,000,000. As security for the said facilities, the applicant mortgaged two houses situated at Himo Urban Area in Moshi District, Kilimanjaro Region. One on Plot No. 271, Block "B", comprised in Certificate of Title No. 9989, and another one, Plot No. 328, Block "D", comprised in Certificate of Title No. 16433 ("the mortgaged property")- The requisite spousal consents were duly sought and obtained by the respondent, just as the respective mortgage deeds were dully executed and registered. As it appears, the applicant defaulted to repay the loans, prompting FNB to institute Commercial Case No. 75 of 2014 before the trial court. It sought to recover the outstanding amounts together with interest, among others. Judgment was entered in favour of FNB in the sum of TZS. 105,268,999.74 together with interest. Being dissatisfied with the said 2

decision, the applicant approached this Court, vide Civil Appeal No. 20 of 2016. It bore no fruit. Thereafter, FNB was acquired by the respondent Bank. However, the respondent's initial attempts to execute the decree were made in the name of FNB, wrongly, as the former was a non-existent legal entity. Consequently, the execution proceedings were struck out for incompetence. There followed a fresh matter baptized as Execution No. 6817 of 2025, in the name of the present respondent, as successor in title to FNB. In that application, the respondent sought to recover TZS. 189,939,884.51 being the decretal sum and accrued interest. It sought thus, attachment and sale of the said mortgaged property. Initially, on being served with the application for execution and notice to show cause, under Order XXI Rule 22(1 )(b) of the Civil Procedure Code (CPC), the applicant filed an affidavit opposing the execution, bitterly. He principally challenged the respondent's locus standito execute the decree, as was a stranger to the proceedings. Secondly, that the property sought to be attached were residential for his members of household and therefore, exempted from attachment and sale under section 54(1 )(e) of the CPC. In its ruling dated on 13th March 2026 the

High Court (Gonzi, J.) nonetheless granted the application ordering attachment and sale of the mortgaged property. Dissatisfied, the applicant lodged a Notice of Appeal on 26th March 2026 in this Court, against the said decision, simultaneously with the present application. It is by way of Notice of Motion predicated on Rules 11(3), (4), (4A), (5)(a) and (b), (6), (7)(a)-(d), and 48(1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). The application is supported by an affidavit sworn by Warswad Wilson Mapande. It is deposed, inter alia that, unless execution is stayed, the only residential houses for him and members of the family would be auctioned and sold, occasioning irreparable loss to them. He also expressed willingness to furnish security (the mortgaged houses) for due performance of the decree, pending determination of the intended appeal. It is also averred that, the market value of the mortgaged property exceeds the decretal sum. Further, it is deposed that, the intended appeal raises two main arguable points of law; One, whether the executing court possesses power over immovable property outside its territorial jurisdiction and two, whether the attached property is exempt from execution, being residential houses. 4

Mr. Ferdinand Makore, learned counsel who appeared for the applicant began by adopting the contents of the founding affidavit, as part of his oral submission. He contended, in a nutshell, that the application has fulfilled all the condition required, as follows; One, that it was filed within limits of fourteen days prescribed under rule 11(4) of the Rules, two, substantial loss has been demonstrated as the property sought to be attached and sold are solely resided by the applicant and members of his family, likely to become homeless and three, the applicant has firmly undertaken to furnish security, the mortgaged houses in possession and at the respondent's disposal, should the intended appeal be unsuccessful. Being prompted on the reliability of the alleged encumbered property, yet sought to constitute an undertaking to furnish security, in terms of rule ll(5 )(b ) of the Rules, Mr. Makore asserted that, this is not a fit forum and appropriate time for that, because doing is preemptive of the intended appeal. The respondent opposed the application by filing an affidavit in reply. It was sworn by Mr. Innocent Felix Mushi, learned Advocate, having the conduct of the matter, for the respondent. He adopted its contents as part of his oral submission, urging me to dismiss the application outright. It was contended that, the application falls short of the required threshold 5

for disclosing no good cause. That, no substantial loss has been demonstrated and that, only the respondent has suffered loss, being deprived fruits of the decree for ten years as its execution has been dragged by the Judgment debtor/ applicant. Having heard the learned counsel's submission, upon scanning the record, and likewise the applicable law, particularly rule 11 of the Rules, the issue for my determination is relatively straight forward. It is whether the applicant has demonstrated good cause or rather satisfied the mandatory legal requirements for grant of an order for stay of execution, pending appeal. The law is settled that powers of the Court to grant stay of execution under rule 11(3) of the Rules is discretionary exercisable upon the judgment debtor demonstrating good cause. See-Elia Mwamafupa & Others v. The Board of the Trustees of the Baptist Church of Tanzania (Civil Application No. 526/06 of 2024) [2024] TZCA 844. In other words, the bottom line is the conditions precedent stipulated under rules 11(4) and (5) to (7) of the Rules, being met cumulatively. Mainly, the conditions are; one, the application has to be filed within fourteen days of service of notice of the intended execution on the Judgment Debtor, two, the applicant has to demonstrate likelihood of

substantial loss, should the stay not be granted and three, the applicant's firm undertaking to furnish security. This rule has been tested several times and repeatedly, such as in EcoBank Tanzania Ltd v. Double A Co. & Others (Civil Application 178 of 2021) [2022] TZCA 591. With regard to the question of timeliness under Rule 11(4) of the Rules, no doubt, the application was filed within the prescribed fourteen days, as mutually agreed upon by the parties' learned counsel. It is so because the decision allowing execution were handed down in the presence of the parties on 13/03/2026. That one, by itself sufficed service of notice of execution, by necessary implication, much as the application was filed on 30/04/2026.1 am saying so while aware of the legal principle that, omission to append copy of notice of the contested execution to the application may render the application incompetent. See- Hafsa Ally Makundi v. Johnson Amani (Civil Application No. 1029 of 2024) [2024] TZCA 1064. I now turn to the second requirement of showing likelihood of substantial loss, under Rule ll(5 )(a ) of the Rules. Regarding the applicant's claim, that he stands to suffer substantial loss, should the mortgaged property be attached and sold, I am compelled to say a little. Likelihood of a party to suffer substantial loss is so relative that I need to 7

strike balance. The applicant, in the instant case may end up being homeless/displaced hence as an irreparable loss, as alleged. However, it is undeniable fact that the respondent bank has been on cross-road with the decree unchallenged for about a decade. That one by itself constitutes a substantial loss on respondent and probably to her customers. I agree with Mr. Mushi's argument, comparatively, that the respondent may have greatly suffered loss for quite long. On the issue of the mortgaged property, if attached and sold the applicant and members of family being displaced for losing their residential houses, this should not detain me than is necessary. While I am warning myself on the dangers of jumping into merits of the intended appeal, prematurely, as cautioned by Mr. Makore, hard fact remains that the respondent voluntarily mortgaged the alleged residential houses. That, all was done, upon the requisite mutual spousal consent being sought and obtained and those houses had never ever ceased to be residential. Therefore, the applicant is estopped from subsequently relying on the threatened realization of the property, as constituting substantial loss, in terms of rule ll(5 )(a ) of the Rules. With respect, Mr. Makore may wish to know that, even in those days where full determination of applications of this nature was domain of a

full Court, at no given moment was a Single Justice expected to be inactive. None of them was expected to act biindly or rather reduce himself to a free-size conduit pipe for matters on transit to a Full Court. Over all, gone are the days where powers of a Single Justice were limited to issuance of ex-parte orders staying execution of decrees. That said, the follow up pertinent question firm undertaking to furnish security is firm. To answer the question with clarity, at least there are two things that need be considered; Firstly, existence of the pledged property needs be beyond any question. If it is there, that it is free of encumbrances. At least in paragraphs 14 and 15(c) of supporting affidavit, the applicant plainly averred that the said two houses are encumbered, being the sole residential home for the applicant and members of the household. Secondly, whenever validity of a decree stands unchallenged, as is in the present case, stay of its execution has to be made with great reservation. However irregular the intended execution may be, it does not count. It is so, because not all the time that means justify the end. Over all. It is a settled law that no decree holder, in this case, the respondent should be unduly denied of enjoyment of the fruits of his lawfully passed decree. Therefore, in the circumstances of the present 9

case, a stay order being sought has to be approached with utmost diligence, restraint, and caution so as not to occasion any further unwarranted injustice to the respondent. See- our proposition in Mohamed Said Bakram v. Gideon Mhewa (Civil Application 72 of 1996) [1997] T7CA 91. I want to stress that, where a valid mortgage is freely executed but at a later stage suggesting misrepresentation by the defaulter mortgagee, there can be no room for him to take advantage of it during execution of the resultant decree that the mortgaged property is encumbered. In fact, this is a fit case where the double-edged common law principle of sanctity of contract has to cut mercilessly. Turning to the requirement of undertaking to furnish security for the due performance of the decree in terms of rule ll(5 )(b ) of the Rules, the alleged encumbered property apart, the applicant's learned counsel pressed reliance on Africhick Hatchers Ltd v. CRDB Bank PLC (Civil Application No. 98 of 2016) [2019] TZCA 148 and Diana Complex Ltd & Others v. Diamond Trust Bank Tanzania Ltd (Civil Application No. 63/16 of 2022) [2023] TZCA 17760. That, the property already charged in favour of the respondent may sufficiently constitute security, meeting that purpose. With due respect, Mr. Makore may wish to know that that 10

position may no longer represent jurisprudence in our jurisdiction. For instance, in Sinani Building Contractors Ltd & Others v. CRDB, Civil Application No. 662/16 of 2022 [2024] TZCA 196, the Court took a divergent view that, such a property is no longer useful, as it is encumbered. That, it cannot constitute security for the due performance of the decree. This position has recently been followed on different occasions, such as in Mountain Hill Nursery and Primary School Ltd v. International Commercial Bank (Tanzania) Ltd (Civil Application No. 810/16 of 2023) [2024] TZCA 915. Of interest, further, the property cannot fit for being security for the due performance of the decree, as contended by Mr. Makore but the same time being incognito for execution of the decree. Therefore, it cannot constitute firm undertaking envisaged under rule ll(5 )(b ) of the Rules. Be it as it may, the applicant has not made any concrete alternative firm undertaking to furnish security. Not in the supporting affidavit, not in Mr. Makore's submission in chief. It was only during rejoinder submissions when, alternatively, Mr. Makore urged the Court to order the applicant furnish any other security, as the Court may be pleased to, should the mortgaged property not be accepted as security. Therefore, the proposed alternative undertaking is but plain words from the bar which implies no li

firm undertaking at all. The words do not constitute proper evidence upon which the respondent may confidently rely. See-Twaha Michael Gujwile v. Kagera Farmers' Cooperative Bank Ltd (Civil Application No. 541 of 2018) [2019] TZCA 505 and Farm Equipment Company Limited v. Festo Mkuta Mbunzu (Civil Application No. I l l of 2014) [2017] TZCA 209, which I have to follow. It follows, therefore, Mr. Makore's plain words are incapable of firmly furnishing the Court with a reliable basis, upon which to grant a stay order. My firm view is, for any successfully stayed execution of a decree, there is a double-coincidence of wants: One, it is where the Judgment Debtor exercises his right of appeal comfortably, without fear of the intended appeal being pre-empted two, the Decree Holder is assured, in any event of not ending up with an empty decree. I have observed, in the instant application that, the applicant has failed to satisfy the mandatory requirement of firm undertaking to furnish security for the due performance of the decree. This, taken together with the applicant's inability to demonstrate substantial loss as required under the Rules, all is fatal to the application. It is so because the threshold has been that, fulfillment of the requisite conditions need be cumulative, which the applicant has failed. See-Alex Siriamara Machale & Others 12

v. Bryson Nalogwaa Kituly (Civil Application No. 3 of 2016) [2017] TZCA 267. The upshot of it all is that, the application is devoid of merit. In consequence, it is hereby dismissed with costs. DATED at DODOMA this 1st day of June, 2026. Ruling delivered this 2n d day of June, 2026 in the presence of Mr. Ferdinand Makore, learned counsel for the applicant and Mr. Innocent Mushi, learned counsel for the respondent virtually and Ms. Mariam Kivuma, the Court Clerk present in Court, is hereby certified as a true copy o f ................. S. M. RUMANYIKA JUSTICE OF APPEAL R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 13