Africa Energy Limited vs Benson Samson (Civil Application No. 1536 of 2025) [2025] TZCA 1171 (28 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1536 OF 2025 AFRICA ENERGY LIMITED ..................................... . .................APPLICANT VERSUS BENSON SAMSON............................................... . ................RESPONDENT [Application for stay of execution arising from the Judgment and Decree of the High Court of Tanzania (Land Division) at Dar es Salaam] (Manao. J.^ dated the 08th day of June, 2021 in Land Appeal No. 109 of 2020 RULING 2n d& 28th October, 2025 MWAMPASHI. J.A.: This is an application for stay of execution brought under rule 11(3), (4), (4A) (5) (6) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), by way of a notice of motion. It is supported by an affidavit affirmed by the applicant's Principal Officer Edha Abdallah Munif and in opposition, there is an affidavit in reply sworn by the respondent The application seeks for an order of stay of execution of the decree of the District Land and Housing Tribunal for Temeke (the DLHT) in Land Application No. 128 of 2014 dated 01.11.2018 which was confirmed by the High Court of Tanzania (Land Division) at Dar es Salaam, in Land Appeal No. 109 of 2020 dated 08.06.2021. According to the said decree, Benson Samson, the respondent herein, was, inter alia, declared the rightful owner of the land forming part of Plot No. 33 Vijibweni Industrial Area within the Municipality of Kigamboni (the suit Plot). Furthermore, it was ordered that the suit Plot be partitioned in that, the respondent gets three acres under a separate right of occupancy and the remaining part, about an acre and a quarter, be given to African Energy Ltd, the applicant herein. Aggrieved by the decision of the High Court which, as alluded to above, was rendered on 08.06.2021, the applicant duly lodged a notice of appeal to this Court on 06.07.2021. The applicant had also, on 23.06.2021, applied to the Registrar, for a copy of the proceedings for appeal purposes. While the applicant was still waiting for the copy of the proceedings it had applied to be supplied to her and before an intended appeal could be filed and determined, the Registrar of Titles initiated the process of executing the decree by partitioning the suit plot which prompted the applicant to file the instant application. It is also instructive to point it out at this stage that, initially, the competence of the application was put in question. A preliminary objection based on three points of objection one of them being on time bar was raised by the respondent. In the ruling on the said preliminary objection dated 15.09.2025, while two of the points of the objection were found to be meritless, the point on time bar was found unqualified to be raised as a preliminary point of objection. It was found that, the claim by the respondent that, the notice of execution of the decree issued by the Registrar of Tittles, was served on the applicant earlier than 24.07.2025, hence rendering the application which was filed on 07.08.2025, time barred, was a point that required proof by evidence. The preliminary objection was thus, overruled and the date for the hearing of the application on its merit was set. However, before the application could be heard, the respondent, aiming at proving that the applicant was served with the notice of execution of the decree earlier than 24.07.2025 and therefore that, the application is time barred, sought leave under rule 56 (2) of the Rules, to lodge a supplementary affidavit for that purpose. In response, the applicant, on her part, sought and was granted leave to file a supplementary affidavit in terms of rule 49 (2) of the Rules. At the virtual hearing of the application, whereas, the applicant had the services of Mr. James Bwana. learned advocate, the respondent was represented by Mr. Respicius Didace, also learned advocate. Let us begin with the issue on time bar regarding the contention by the respondent that, the applicant was served with the notice of execution of the decree earlier than 24.07.2025 and therefore that, the application which was lodged on 07.08.2025, was so lodged beyond the prescribed period of 14 days as required by ruie 11 (4) of the Rules. According to the respondent's supplementary affidavit which was adopted by Mr. Didace, the notice of execution of the decree which was issued by the Registrar of Titles on 16.11.2024, was served on the applicant on 26.02.2025 and not 24.07.2025 as claimed by the applicant. It was expounded by Mr. Didace that, the notice of execution in the registered parcel No. 102332199 was dispatched to the applicant by the Registrar of Titles on 29.11.2024 through Tanzania Posts Corporation using the applicant's Postal Address, that is, PO Box 22786. It was insisted that, the parcel under Barcode No. RD102332199TZ was tracked by the respondent on the Official Posta Tracking System whereby it was revealed that the parcel was received on 26.02.2025 by the applicant's officer one Shukuru Hamisi who identified himself by producing his Driving Licence No. 4002626518. Based on the above, Mr. Didace urged me to find that, it is now proved that the applicant was served with the notice of execution of the decree on 26.02.2025 rendering the application which was filed on 07.08.2025 time barred and liable for being struck out. Having adopted the applicant's supplementary affidavit, Mr. Bwana insisted that, there is still no evidence disproving the applicant's stance that, the notice of execution of the decree was served on her on 24.07.2025. He contended that, apart from the fact that there is no evidence that, the alleged registered parcel contained the notice of execution in question, there is also no evidence proving that, the said parcel was delivered to the applicant. Mr. Bwana argued that the said Shukuru Hamisi to whom the parcel was allegedly delivered, is not an employee of the applicant. It was also pointed out by him that, an affidavit of the said Shukuru Hamisi proving not only that the parcel was received by him but also that he is an employee of the applicant and that he received it for the applicant, needed to be filed in support of the respondent's claim that the parcel was delivered to the applicant. Mr. Bwana did also wonder why there is no affidavit from the Registrar of Titles to the effect not only that the parcel contained the notice of execution but also that the same was sent by him to the applicant. On this, the decision of the Court in Hi Bro Canvas & Tents Limited and Another v. I & M Bank (T) Limited [2025] TZCA 329, where the Court insisted that, proof of service should be by an affidavit sworn by the process server, was cited. It was thus, concluded by Mr. Bwana that, the notice of execution of the decree was served on the applicant on 24.07.2025 and therefore the application filed on 07.08.2025 was within the prescribed period of 14 days. The issue for my consideration is whether the notice of execution of the decree which was issued by the Registrar of Titles on 16.11.2024, was served on the applicant on 26.02.2025 and not 24.07.2025 as claimed by the applicant. Having scrutinised the evidence presented by the respondent through his supplementary affidavit, I find it not established that, the notice of execution was served on the applicant on 26.02.2025 as claimed by the respondent. Apart from the fact that, it is not certain that, the registered parcel No. 102332199 which was allegedly sent by the Registrar of Titles to the applicant, contained the relevant notice of execution of the decree, there is no evidence that, the said parcel was received by the applicant. One Shukuru Hamisi to whom the parcel was allegedly handed over and who it is alleged is an employee of the applicant, has been disowned by the applicant and there is no evidence at all proving not only that he was an employee of the applicant but also that the parcel was really delivered to him. As rightly argued by Mr. Bwana, to be certain that the registered parcel in question contained the notice of execution and also that, the same was received by the applicant, affidavits of the Registrar of Titles and Shukuru Hamisi ought to have been filed in support of the respondent's position. As the Court held in Hi Bro Canvas & Tents Limited and Another (supra), the issue of service and particularly where it is disputed by the other party, is not something which has to be exhibited casualty. For the above given reasons, I find that the respondent's claim that the notice of execution of the decree issued by the Registrar of Titles on 16.11.2024 was served on the applicant on 26.02.2025, has not been established. As it was earlier ruled in the Ruling dated 15.09.2025, the relevant notice of execution was served on the applicant on 24.07.2025 and the instant application which was filed on 07.08y.2025, is thus, not time barred. Turning to the merits of the application, Mr. Bwana adopted the supporting affidavit and argued that conditions for grant of stay of execution order as provided under rule 11 (5) of the Rules, have been met by the applicant. Making reference to paragraphs 14 and 15 of the supporting affidavit, Mr. Bwana contended that, the suit plot forms part of securities on a loan of TZS. 25 Billion and USD 75,000,000.00 issued by CRDB Bank to Camel Oil Tanzania, to which the applicant as a guarantor has mortgaged the suit plot. He thus, argued that, if the decree is executed, the applicant stands to suffer substantial and irreparable losses. Placing reliance on the decision of the Court in Ongujo Wakibara Nyamarwa v. Batrice Greyson Mmbaga [2022] TZCA 732, it was further contended that, the applicant has been in possession and use of the suit plot for a considerable period of time and also that, on the suit plot there are oil and gas tanks of which their usefulness contribute a lot to the economy of the country. Regarding the issue of furnishing security for the due performance of the decree, Mr. Bwana referred the Court to paragraph 17 of the supporting affidavit and argued that, the applicant is ready to furnish security by way of a commitment bond or alternatively, by depositing a bank guarantee to the tune not exceeding TZS. 50,000,000.00 which is the amount pleaded by the respondent in the original Land Application before the DLHT. On this, Mr. Bwana made reference to the cases of Mohamed Masoud Abdallah & Others v. Tanzania Road Haulage (1980) Ltd [2019] TZCA 198 and Registered Trustees of the Chama Cha Mapinduzi & Others v. Mehboob Ibrahim Alibhai [2021] TZCA 444. The application was strongly opposed by Mr. Didace who after adopting the affidavit in reply, submitted that, the application has to be refused because the applicant is not likely to suffer any substantial or irreparable loss if the execution of the decree is not stayed. He expounded that, the suit plot was mortgaged in bad faith after the DLHT had rendered its judgment against the applicant. It was further argued by Mr. Didace that, the value of the suit plot which was TZS. 50,000,000.00 at the time the suit was filed before the DLHT, is not static. He insisted that, the value keeps appreciating. Mr. Didace made reference to paragraph 10 (e) of the supporting affidavit where it is stated that the value is over TZS. 15 Billion. He contended that, the determination of how much has to be furnished as security has to be in consideration of TZS. 15 Billion. To concretise the point, he referred the Court to the case of Sinani Buildings Contractors Limited & Others v. CRDB [2024] TZCA 196. It was thus argued by Mr. Didace that, if stay of execution has to be ordered then, the applicant be ordered to furnish security by depositing a bank guarantee to the tune of TZS. 15 Billion. Taking into consideration of what is deposed in the affidavits and based on the submissions made for and against the application, the issue for my determination is simply whether good cause has been shown to warrant issuance of an order of stay of execution of the decree as sought in the notice of motion. 9 At the outset, it should be pointed out that, the Court derives its powers to order stay of execution of a decree from rule 11 (3) of the Rules under which it is provided that: "11(3) In any civilproceedings, where a notice of appeal has been lodged in accordance with ruie 83, an appeal, shall not operate as a stay of execution of the decree or order appealed from nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay o f execution o f such decree or order", [Emphasis added] Granting or refusing an order of stay of execution of a decree or order, is discretionary and depends not only on the circumstances of a particular case but mostly on consideration of three conditions as articulated under ruie 11 of the Rules; One, that the relevant application is timeously brought, two, that substantial loss may result to the applicant if the application is refused and three, that security for the due performance of the decree or order as may ultimately be binding upon the applicant should his pending appeal fail, is given. Settled is also the position of the law that, for an order of stay of execution to be issued, the applicant is enjoined to cumulatively satisfy 10 the above three conditions. See - National Housing Corporation v. A. C. Gomes (1997) Limited [2010] TZCA 168, Joseph Anthony Soares @ Goha v. Hussein Omary [2013] TZCA 328 and Bahati Moshi Masabila t/a Ndono Filling Station v. Hamis Maganga Kilongozi [2024] TZCA 88. In determining whether good cause has been shown warranting an issuance of an order of stay of execution of the decree as sought by the applicant, I will be guided by the above restated position of the law. First of all, whether the application is timeously or not is no longer an issue in the instant case. As it has been alluded to earlier, the application was filed within the prescribed period of 14 days in terms of rule 11 (4) of the Ruies. Regarding the condition under rule 11 (5) (a) of the Rules, whether substantial loss may result to the applicant if the application is refused, there is no gainsaying that, if the execution of the decree is not stayed, the applicant will definitely suffer substantial loss. Apart from the fact that it is said that, the suit plot serves as security for the loan guaranteed by the applicant, there is no dispute that, the applicant had been in possession and use of the suit plot for a considerable period of time and upon it, oil and gas tanks have been installed by her. Linder these circumstances, if an order of stay is refused and the execution proceeds by demolishing and removing the tanks from the suit plot and if at the end the applicant's appeal succeeds, it is the applicant who will suffer most not only financially but also for inconveniences. On the other hand, if the execution of the decree is stayed and the applicant's appeal fails, the respondent's loss for being dispossessed of the suit plot and for not utilising it for all the period the applicant has been in possession and use of the same, can easily be atoned. It is for the above reasons that I find that, the condition under rule 11 (5) (a) of the Rules, has been met. Substantial loss may result to the applicant if an order of stay of execution of the decree is refused Finally, on the third condition regarding furnishing security for the due performance of the decree as required under rule 11 (5) (b) of the Rules, while it is averred on paragraph 17 of the supporting affidavit that, the applicant is ready and willing to deposit security to cover for any decretal sum as it shall be assessed by the Court, the counsel for the parties have parted ways on what kind of security should be furnished. To Mr. Bwana, the security should be by way of a commitment bond or by a bank guarantee to the tune not exceeding TZS. 50,000,000.00. However, to Mr. Didace, it should be by depositing a bank guarantee to the tune of TZS. 15 Billion. On this/ it should be restated that, the kind of security to be furnished for the due performance of the decree, is in the discretion of the Court. It is not for the parties to choose what should be furnished as security as a condition for the grant of an order for stay of execution. See- 12 Junior Construction Company Limited & 2 Others v. Mantrac Tanzania Limited [2021] 17CA 416. Further, as it was held by the Court in Mohamed Masoud Abdallah & Others (supra), where the decree is not monetary, the Court may order the applicant to furnish security for the due performance of the decree suiting the circumstances of the case. In the instant case/ the decree is not a monetary one and the decretal obligation which may ultimately be binding upon the applicant, is for her to give vacant possession of the suit plot to the respondent. I am also mindful of the fact that, apart from giving vacant possession to the respondent, the applicant may also be liable for the costs the respondent has incurred in prosecuting the case. Furthermore, the respondent may also be entitled to compensation for not utilizing the suit plot for the whole period the same had been in the applicant's possession and use. Putting all of the above into consideration, I find that the suitable kind of security to be given by the applicant is for her to deposit to the Court a bank guarantee of the sum of TZS. 500,000,000.00. All said and done, the application is thus, hereby granted. The execution of the decree of the District Land and Housing Tribunal for Temeke, in Land Application No. 128 of 2014, dated 01.11.2018, is stayed pending the hearing and final determination of the applicant's intended 13 appeal. The stay order is however, conditional upon a deposit of a bank guarantee of the sum of TZS. 500,000,000.00 to the Court by the applicant within sixty (60) days from the date of the delivery of this ruling. Costs to be in the cause. It is so ordered. DATED at DODOMA this 24th day of October, 2025. A. M. MWAMPASHI JUSTICE OF APPEAL Ruling delivered this 28th day of October, 2025 in the presence of Mr. James Bwana, learned counsel for the applicant, also holding brief for Mr. Respicius Didace, learned counsel for the respondent both through Virtual Court and Mr. Musa Amry, Court Clerk; is hereby certified as a true copy of the original. 14