Duncan Shilly Nkya vs Oysterbay Hospital Co. Ltd and another (Civil Application No. 627/17 of 2023) [2023] TZCA 18026 (13 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 627/17 OF 2023 DUNCAN SHILLY NKYA APPLICANT VERSUS OYSTERBAY HOSPITAL CO. LTD KIWANGO SECURITY CO. LTD... ,1 st RESPONDENT 2 nd RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania, Land Division at Dar es Salaam) 13th September, 2024 KEREFU. J.A.: The applicant, Duncan Shiily Nkya together with Kiwango Security Co. Ltd, the second respondent herein, were the defendants in Land Case No. 37 of 2017 which was heard and determined ex parte by the High Court of Tanzania, Land Division at Dar es Salaam (Mgonya, 1 as she then was). In that case, the first respondent was the plaintiff who sued the applicant and the second respondent claiming for the following reliefs: (a) To be declared the law ful owner o f the su it property m easured 1997 square m eters and described as Plot. No. 257 'A 'M bezi Beach area in Kinondoni Dar es Salaam ; (Mgonya, J.) Dated the 12th day of December, 2018 in Land Case No. 37 of 2017 RULING

(b) An order fo r perm anent and perpertua! injunction restraining the applicant and the second respondent from interfering whatsoever with the first respondent's rights to peaceful enjoym ent with the possession o f the su it property; and (c) Paym ent o f general damages and costs o f the su it In its ex parte decision dated 12th December, 2018, the High Court decided the case in favour of the first respondent as she was declared the lawful owner of the suit property and the applicant together with the second respondent were restrained from interfering with her peaceful enjoyment of possession of the suit property and were ordered to pay to her general damages at the tune of TZS 350,000,000.00. Aggrieved, the applicant, on 04th August, 2023, lodged the notice of appeal to challenge the decision of the High Court. Meanwhile, the first respondent, approached the High Court, Land Division at Dar es Salaam vide Execution Application No. 32 of 2023 seeking execution of the impugned decree. Subsequently, on 15th August, 2023, the applicant was served with the notice to show cause why the decree of the High Court should not be executed against him. The said notice also required the applicant to appear for hearing of the said application on 22n d August, 2023. The

notice prompted the applicant to lodge the current application on 25th August, 2023 by way of notice of motion made under Rules 11 (3), (4), (4A), (5), (6), and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for stay of execution of the decree passed in the said case, pending the final determination of the appeal. The grounds indicated in the notice of motion can conveniently be paraphrased as follows, that; (i) the respondent has already started the process fo r execution o f the decree o f the High Court in respect o f Land Case No. 37 o f 2017 vide Execution Application No. 32 o f2023; (ii) the pending appeal stands greater chances o f success as the judgm ent was pronounced ex-parte against the applicant as he was denied rig h t to be heard and the su it was file d without Board resolution , am ongst other irregularities in the tria l court's proceedings; (Hi) if the execution o f the im pugned decree is not stayed, the applicant stands to suffer irreparable loss in term s o f both, pecuniary and em otional loss as the disputed property is used as a residential house. That, the respondent stands to suffer nothing if the order fo r stay is granted as prayed; and (iv) the applicant is w illing to furnish security as m ay be ordered by the Court. 3

The notice of motion is supported by an affidavit duly sworn by the applicant. The great part of the said affidavit narrated the historical background to the application as reiterated above by way of emphasis including attachment of relevant documents thereto. It is the applicant's averments that, unless an order for stay of execution is issued, he is likely to suffer substantial loss as the disputed property, subject of the execution, is used as a residential house for about twenty (20) years. That, the first respondent will unfairly enrich herself as she is likely to enforce payment of general damages at the tune of TZS 350,000,000.00. The applicant contend further that the application was made without undue delay and he firmly undertakes to offer security for the due performance of the decree sought to be stayed as will be ordered by the Court. On the other hand, the first respondent has filed an affidavit in reply opposing the application. It is the first respondent's contention that the application was filed hopelessly out of time because the applicant became aware with the said execution proceedings since 2021 as the first respondent's initial application for execution was lodged in the High Court on 29th March, 2019 vide Execution No. 16 of 2019 and the applicant was served with the same on 1st September, 2021.

Subsequently, the applicant and the second respondent lodged an application for stay of execution i.e Civil Application No. 395/17 of 2021 in this Court. However, the said application was struck out for being incompetent. The first respondent also disputed the applicant's claim that, if the stay order is not issued, he will suffer irreparable loss by arguing that, it is the first respondent who has been subjected to inconvenience and loss of the suit property from the time when the applicant and the second respondent unjustifiably encroached over it and unlawful continued to occupy the same. As such the first respondent prayed for the application to be dismissed in its entirety. When the application was placed before me for hearing, the applicant was represented by Nickson Ludovick, learned counsel. On the other side, the first respondent was represented by Mr. Ashiru Lugwisa, learned counsel and the second respondent, though, duly served on 12th September, 2024, did not enter appearance. On that basis, Mr. Ludovick prayed for the hearing of the application to proceed under Rule 63 (2) of the Rules in her absence. Since the prayer by Mr. Ludovick was not opposed by Mr. Lugwisa, the hearing of the application proceeded under Rule 63 (2) of the Rules in the absence of the second respondent. 5

In support of the application, Mr. Ludovick adopted the notice of motion as well as its accompanying affidavit. He then submitted that the applicant has fulfilled the mandatory requirements for grant of an application of this nature. To clarify, the learned counsel referred me to Rule 11(4) of the Rules and argued that the application was lodged timely, as the applicant was served with the notice of execution on 15th August, 2023 and lodged this application on 25th August, 2023. He also referred me to paragraphs 2, 3, 4 and 5 of the applicants affidavit and argued that the applicant has attached all the necessary documents prescribed under Rule 11 (7) of the Rules. He further referred me to paragraph 6 of the same affidavit and submitted that the applicant has also complied with the condition stipulated under Rule 11 (5) (a) of the Rules as he had clearly indicated that, if the execution of the impugned decree is not stayed, he will be rendered homeless as he has been occupying the disputed property and lived there together with his family for more than twenty (20) years. That, the first respondent is seeking to unfairly enrich herself as she is likely to enforce payment of general damages at the tune of TZS 350,000,000.00. 6

On the firm undertaking to furnish security, Mr. Ludovick referred me to paragraph 8 of the same affidavit and confirmed the applicant's firm undertaking to furnish security for the due performance of the decree sought to be stayed in the form of bank guarantee within thirty (30) days and or as will be ordered by the Court. Finally, Mr. Ludovick submitted that, since the applicant has complied with all the conditions and had already lodged the notice of appeal, this application should be granted pending the hearing and determination of the appeal. The first respondent strenuously resisted the application with some force. Speaking through Mr. Lugwisa, and having adopted the contents of affidavit in reply to form part of his oral arguments, he argued that the application was filed hopelessly out of time because the applicant became aware with the execution proceedings since 2021. That, the first respondent's initial application for execution was lodged in the High Court on 29th March, 2019 vide Execution No. 16 of 2019 and the applicant was served with the same on 1st September, 2021. So according to him, this application was lodged contrary to Rule 11 (4) of the Rules. Upon being probed by the Court on the outcome of the said initial Execution Application No. 16 of 2019 and the reasons for the first

respondent to lodge Execution Application No. 32 of 2023, subject of this application, Mr. Lugwisa contended that the said application was instituted only against the second respondent though he failed to substantiate his argument with documentation, as the reply affidavit is silent on that aspect. Mr. Lugwisa also challenged the submission made by his learned friend that, if the stay order is not issued, the applicant will suffer irreparable loss. He argued that, it is the first respondent who is suffering substantial loss as she has been subjected to inconvenience loss of the suit property from the time when the applicant and the second respondent unjustifiably trespassed over it and unlawful continued to occupy the same to date. That, the act of the applicant lodging this application is delaying the first respondent to enjoy the fruit of her decree. On the issue of security, Mr. Lugwisa opposed the mode of bank guarantee proposed by Mr. Ludovick. In the alternative, he proposed the deposit of cash money in the Court at the tune of TZS. 350,000,000.00 within two (2) weeks from the date of issuance of the stay order. In a brief rejoinder, although, Mr. Ludovick, readily conceded that the applicant was aware with the Execution Application No. 16 of 2019 8

and he filed Civil Application No. 395/17 of 2021, he was quick to argue that the said application was struck out for being incompetent and in 2023 the first respondent filed Execution Application No. 32 of 2023 and served the notice to the applicant on 15th August, 2023. He thus argued that, the assertion by Mr. Lugwisa that the said application was only lodged against the second respondent is not supported by the record and it is only a statement from the Bar. He as well challenged the mode of security of availing cash money to the Court. He thus reiterated his previous submission and urged me to grant the application. On my part, having examined the notice of motion, the supporting affidavit and reply affidavit in the light of the submissions advanced by the learned counsel for the parties, my main task is to determine as to whether the applicant has cumulatively complied with the conditions stipulated under Rule 11 of the Rules. For the sake of clarity, Rule 11 provides that: "11.- (1) to (3) [NA] (4) An application fo r stay o f execution sh all be made within fourteen days o f service o f the notice o f execution on the applicant by the executing officer or from the date he is

otherw ise made aware o f the existence o f an application fo r execution; (4A)[NA]; (5) No order fo r stay o f execution sh aii be made under this ruie unless the Court is satisfied that- (a) substantiai ioss m ay result to the party applying for stay o f execution unless the order is made; (b) security has been given by the applicant fo r the due perform ance o f such decree or order as m ay ultim ately be binding upon him. (6) [NA] (7) An application fo r stay o f execution sh all be accom panied by copies o f the follow ing- (a)a notice o f appeal; (b) a decree or order appealed from ; (c) a judgm ent or ruling appealed from; (d) a notice o f the intended execution . " It is evident from the record of the application that the applicant lodged this application on 25th August, 2023 within the prescribed period of fourteen (14) days in terms of sub-rule (4) of Rule 11, as he was served with the notice of execution on 15th August, 2023. I thus find the submission made by Mr. Lugwisa in respect of the initial application i.e 10

Execution No. 16 of 2019 to be misconceived. Likewise, his argument that the Execution Application No. 32 of 2023 was only instituted against the second respondent is not supported by the record. As correctly argued by Mr. Ludovick such narration were merely counsel's statements from the Bar, as they were not specified in the affidavit in reply lodged by the first respondent on 10th September, 2024. In the cases of Fweda Mwanajoma & Another v. Republic, Criminal Appeal No. 174 of 2008 [2010] TZCA 96: [23 March 2010: TanzLII] and Farm Equipment Company Limited v. Festo Mkuta Mbuzu, Civil Application No. I l l of 2014 [2017] TZCA 209: [27 October 2017: TanzLII], this Court declined to consider statements made by the counsel from the Bar. In the same vein, I am unable to evaluate the submission made by Mr. Lugwisa on that aspect. It is also noticeable that sub-rule (7) of Rule 11 was fully complied with since the application is accompanied by mandatory copies of the notice of appeal, the High Court's judgment and decree appealed against and the notice of execution. It is also evident that, to meet the requirement of sub-rule (5) (a) of Rule 11, the applicant had indicated under paragraph 6 of the applicant's affidavit that, substantial loss shall l i

result to him if the order of stay is not granted as he will be rendered homeless and compelled to pay TZS 350,000,000.00 which is colossal. As for the requirement to furnish security in terms of sub-rule (5) (b) of Rule 11, I note the applicant's firm undertaking, under paragraph 8 of the same affidavit, to satisfy the impugned decree if the appeal is decided in favour of the first respondent. I take it as a sufficient undertaking to provide security for the due performance of the decree. See for instance our previous decisions in Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported); Joseph Antony Soares @ Goha v. Hussein Omary, Civil Application No. 6 of 2012 [2013] TZCA 328 and Junior Construction Company Limited & 2 Others v. Mantrac Tanzania Limited, Civil Application No. 24/16 Of 2021 [2021] TZCA 417. In the final analysis, I am satisfied that the applicant has cumulatively complied with all the statutory conditions warranting the grant of the stay order. Accordingly, I grant the application and order stay of execution of the decree of the High Court of Tanzania, Land Division, at Dar es Salaam in Land Case No. 37 of 2017 dated 12th December, 2018 on condition that the applicant deposit in the Court, within thirty (30) days from the date of delivery of this ruling, a bank 12

guarantee for the decreed sum of TZS 350,000,000.00. The said guarantee shall remain in force until full hearing and determination of the intended appeal. In default, the order of stay shall lapse automatically. Costs incidental to this application shall follow the event in the intended appeal. DATED at DAR ES SALAAM this 13th day of September, 2024. The Ruling delivered this 13th day of September, 2024 in the presence of Mr. Fabian Seif holding brief for Mr. Nickson Ludovick and Mr. Ashiru Hussein Lugwisa, learned counsel for the applicant and 1st respondent but in the absence of the 2n d respondent duly informed is hereby certified as a true copy of the original. R. J. KEREFU JUSTICE OF APPEAL

• J. J. KAMALA f £ )j DEPUTY REGISTRAR 7 / COURT OF APPEAL 13