Gabriel Mathias Michael & Another vs Halima Ferouz & Others (Civil Application No. 588 of 2019) [2020] TZCA 220 (13 May 2020)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 588/17 OF 2019

1. GABRIEL MATHIAS MICHAEL
2. HAMIS SHEHA R IK O ............................................................. APPLICANTS VERSUS HALIMA FERUZI & 2 O TH ERS................................................RESPONDENTS (Application for extension of time to apply for stay of execution of the decree involving the decision of the High Court of Tanzania (Land Division) at Dar es Salaam) (Kente, J.) Dated the 28th day of April, 2015 in Land Case No. 297 of 2009 RULING 8th & 13th May, 2020 KITUSL J.A.: This is an application for extension of time within which an application for stay of execution may be lodged. The law, Rule 11 (4) of the Tanzania Court of Appeal Rules, 2020 requires:- " (4) An application for stay o f execution shall 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 otherwise made aware o f the existence o f an application for execution." l

The Notice of Motion which has triggered off this application as well as the affidavit of Mr. Samson Mbamba, learned advocate for the applicants, cite one major ground for the delay in fulfilment of the requirement under rule 10 of the Rules, that requires the applicant to show good cause for the delay. There are also written submissions to support the application. The cited main reason for the delay is that service of the application for execution was effected on the applicants on 7th August 2019, but they could not file their application for stay of execution within the stipulated 14 days because they had not filed a Notice of Appeal yet. The genesis of the matter in brief is that the applicants lost in Land Case No. 297 of 2009 which was later numbered as Land Case No. 297 A of 2009, at the High Court, Land Division. Aggrieved by that decision, they preferred an appeal, Civil Appeal No. 23/17 of 2017, which was however, struck out on 18th June, 2019 for being incompetent. Still bent at challenging the decision, the applicants went back to the drawing board and started all over it again by applying for extension of time to lodge a fresh Notice of Appeal, which was granted on 10/12/2019. This application was lodged on 19/12/2019, about nine days later. At the time of hearing of the application on 8th May 2020, the respondents, three of them, had not filed any affidavit in reply, and only 2

two of them entered appearance. These were Halima Feruzi, and Egbert Kalugendo, the first and second respondents respectively. They informed me that they resisted service of notice of hearing, but subsequently collected the documents from the Court Registry. The third respondent, one Nurdin Ally Said did not enter appearance. Mr. Samson Mbamba, learned advocate appeared to prosecute the application on behalf of the applicants, and informed the Court that service on all the respondents was effected, and substantiated that assertion by producing copies of affidavits of service I am satisfied, not only from the contents of the affidavit of service but from the statements of the first and second respondents that service was effected. On that basis I granted Mr. Mbamba's prayer to proceed in the absence of the third respondent, under Rule 63(3) of the Rules. Submitting in support of the application, Mr. Mbamba for the applicant cited the case of Mekefason Mandari & Others v. The Registered Trustees of the Archdiocese of Dar es Salaam, Civil Application No. 397/17 of 2019 (unreported) where it was held that since existence of the application for revision was a precondition for the applicants to file for stay of execution, the pendency of that application for revision constituted good cause. The learned counsel submitted that in the present case Notice of Appeal was a pre-condition for filing an 3

application for stay of execution, therefore the delay caused by pursuing an extension of time to file it constitutes good cause. The two respondents who entered appearance threw in the towel and left the Court to decide on the matter. I am satisfied that the matter presents no unfamiliar tale and should be disposed of with ease. The delay that Mr. Mbamba has referred to and given an account of in the written submissions is one that has over the recent years been called technical delay. See Fortunatus Masha v. William Shija and Another [1997] T.L.R 154, and, Yara Tanzania Limited v. DB Shapriya and Co. Limited, Civil Application No. 498/16 of 2016 (unreported), and many others cited in the case of Ally Ramadhani Kihiyo v. The Commissioner for Customs, Tanzania Revenue Authority and Another, Civil Application No. 29/01 of 2018 (unreported). Since the intended application for stay of execution could only be made by a party who has lodged a notice of appeal, the applicant's pursuit of an order of extension of time to lodge notice and the subsequent filing of the same was a technical delay that could not be avoided. Aware that my powers under rule 10 of the Rules are discretionary, and that I should exercise that discretion judiciously, I am inclined to grant the application. This is because the decision as to what amounts to good cause depends on the relative circumstances of a given case and it is my 4

finding that the applicant has shown good cause. See KABDECO v. WETCU LIMITED, Civil Application No. 526/11 of 2017 (unreported). I am of the view that the length of the delay and the reason for the delay are in favour of my order granting the application. It is also my conclusion that the respondents will not be inconvenienced by a grant of the application than will the applicant if the order is withheld. In the circumstances I grant the application and order that the application for stay of execution should be filed within 14 days of the delivery of this ruling. Costs of this application to be in the main cause. DATED at DAR ES SALAAM this 12th day of May, 2020. Ruling delivered this 13thday of May, 2020 in the presence of l sl applicant in person and 1s t and 2n d respondents in person, is hereby certified as a I. P. KITUSI JUSTICE OF APPEAL 5