Zahara Kitindi & Another vs Juma Swalehe & Others (Civil Application 142 of 2018) [2019] TZCA 309 (28 August 2019)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: LILA, l.A., KWARIKO, l.A. And MWANDAMBO, l.A.) CIVIL APPLICATION NO. 142/05 OF 2018

1. ZAHARA KITINDI }
2. DOMINIC B. FRANCIS ••••••••••.•.•••••••.•••.•••.•••••••••••••••••••• APPLICANTS VERSUS lUMA SWALEHE &. 9 OTHERS ••••••••••.•••••.•.•••••••••.•••••••••••••..• RESPONDENTS (Application To vary Terms and Conditions issued by the Court in Civil Application' No. 271/05 for Stay of Execution of the Decree in respect of the decisions of the High Court of Tanzania, at Moshi) (Mwingwa, l.) Dated the 19 th day of February, 2016 in DC. Civil Appeals Nos. 10 &. 11 of 2014 RULING OF THE COURT 19 th & 28 th August, 2019 LILA, lA.: On 2/12/2017, this Court, upon an application for stay of execution by the applicants, issued a conditional order for stay of execution of the decree issued by the High Court of Tanzania (Moshi District Registry) in Civil Appeals Numbers 10 and 11 of 2014, that the applicants should deposit in Court, within thirty (30) days from the date of delivery of the ruling, a bank guarantee in the sum of Tshs. 150,000,OOOf:~::. For reasons indicated in the affidavit sworn by Dominic B. Francis (the second applicant) in support of this application which is 1

predicated under Rule 4(2)(a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicants are seeking this Court's indulgence to vary that condition. This matter has had a protracted background but we propose to confine ourselves only to the facts giving rise to the present application which may be useful in the determination of the issues before us. The facts may be summarized thus. The record bears out that the 1 st and 2 nd respondents who are spouses and the rest of the respondents, who are their children, successfully instituted a suit in the District Court of Moshi against the applicants seeking for an order restraining the attachment and sale of the suit premises described as Plot No.152 Block 'DDD' Karanga area within Moshi Municipality. That was titled Civil Case No. 45 of 1999. At tbe end, it was declared that the attachment and sale was unlawful. That was on 05/09/2014. Aggrieved, the applicants preferred an appeal to the High Court (Moshi District Registry) in DC. Civil Appeals Nos. 10 and 11 of 2014. As it were, in the decision delivered on 19/2/2016, they, again, lost. Undaunted, they lodged a notice of appeal to the Court on 22/2/2016. Conscious of the looming menace that the respondents may proceed to execute the decree and pending the hearing of the intended appeal, the applicants successfully lodged an application for stay of execution before the Court and they were ordered 2

to deposit in Court a bank guarantee in the sum of shs. 150,000,000/= as security within thirty days. It is worth noting that in their respective decisions, both courts below consistently made reference to the premises on Plot No. 152 Block 'DOD' Karanga area within Moshi Municipality (the suit premises). More so, even the Court, in its ruling on the application for stay of execution, maintained that the same property formed the bone of contention between the parties and cannot be used as security. As pointed out earlier, the applicants have shown, in the affidavit in support of the application, their inability to comply with the condition set' by the Court hence the present application to vary the same. At the hearing of this application, the applicants appeared in person, unrepresented. On the other hand, Mr. Peter Shayo, learned advocate, represented the respondents who were also in attendance. In support of the application before us, both applicants first, adopted the averments in the affidavit in support of the application and then, although briefly, strongly argued that the reasons they had advanced in the affidavit warrant the grant of their application for two main reasons. That, being peasants, they are low income earners hence their effort to secure a bank guarantee of the amount ordered was futile on account of their inability to maintain swollen accounts in the bank 3

which might have entitled them grant of the said bank guarantee. And, in the alternative, they contended that they own and are ready to surrender their title in respect of a property on Plot No. 157 Block 'DOD' Karanga area within Moshi Municipality valued at shs. 160,000,000/= in substitution of a bank guarantee. They annexed a valuation report to the affidavit. For the respondents, it was contended by Mr. Shayo that the application should not be granted because, first, that the property sought to be deposited as security is the very property the subject of the , intended appeal in this Court and as this Court had stated in its ruling in respect of the application for stay of execution, it cannot be used as security. Second, that the applicants have made no efforts to find another security other than the suit property. Third, that with regard to the Certificate of Occupancy sought to be deposited, the same bears the names of the respondents as owners but had been transferred to the z= respondent fr:audulently. When prompted by the Court, he conceded that Plot No. 152 Block 'DOD' Karanga area within Moshi Municipality and Plot No. 157 Block 'DOD' Karanga area within Moshi Municipality, legally speaking, refer to two different properties and he was of the view that if there is another house on Plot No. 157 Block 'DOD' Karanga area within Moshi Municipality, he had no objection for the same being used 4

as security in lieu of a bank guarantee. But he was quick to insist that all along from the District Court to the High Court, reference to the suit property was 'directed to the very same property sought to be deposited as security by the applicants. In rejoinder, the 1 st applicant reiterated his earlier submissions and urged the Court to grant the application so as to pave way for their appeal to be heard. Apart from reiterating his earlier submissions, the 2 nd applicant stressed that the two plots really exist, they are distinct from one another and that there is a house on Plot No. 157 Block 'DDD' Karanga area within Moshi Municipality which they sought to deposit as security. He stressed that the property on Plot No. 157 Block 'DOD' Karanga area within Moshi Municipality has ever not been a subject of any case before any court. To start with, the present application has been predicated under Rule 4(2)(a) and (b) of the Rules. It is an application to vary the terms and conditions set by the Court that the applicants should deposit in Court a bank guarantee of shs. 150,000,000/= as security. We are alive that an application for stay of execution is preferred in terms of Rule 11 of the Rules 'and the conditions for the grant are expressly provided under sub-rule Sea), (b) and (c) one of which is the requirement that the applicant must furnish or make a serious undertaking to furnish security 5

for the due performance of the decree (see Mantrac Tanzania Ltd vs. Raymond Costa, Civil Application No. 11 of 2010 and Abel Doto vs. Modesta J. Magonji, Civil Application No.1S/08 of 2016 (both unreported). However, there is no corresponding provision providing for variation of the nature and form of security once the order to furnish a certain form of security is made in the application for stay of execution. In that situation, there is, therefore, no express provision in the Rules which would be invoked under which to make an application for varying , the terms of security given by the Court. Consequently, the provisions of Rule 4(2)(a) and (b) of the Rules were properly invoked. That Rule empowers the Court to give directions or make any order it considers necessary for- better meeting the ends of justice to the parties where there is no specific provision of the Rules providing for that matter or such an occurrence [see Thomson Lyambalo Bony vs. Republic, MBY. Criminal Application No.2 of 2012 (unreported)]. Rule 4(2)(a)(b) of the Rules under which the application has been preferred states:- "(2) Where it is necessary to make an order for purposes of- (a) Dealing with any matter for which no provision is made by these Rules or any other written law' r (b) Better meeting the ends of justice; or 6

(c) Preventing an abuse of the process of the 'Court, the Court may, on application or on its own motion, give directions as to the procedure to be adopted or make any other order which it considers necessary. // With regard to the merits of the application, we propose to first deal with the issue raised by Mr. Shayo regarding the suit premises. The issue raised was that the property sought to be used as security in substitution of the ordered bank guarantee in the sum of Tshs. 150,000,000/= is the one subject of the intended appeal hence cannot be used as security. He relied on the Court's ruling in Civil Application No.271/05 of)017. The applicants, on the other hand, contended that the property sought to be used as security, as opposed to the suit property which is on Plot No. 152 Block 'DOD' Karanga area within Moshi Municipality, is on Plot No. 157 Block 'DOD' Karanga area within Moshi Municipality and has ever not been subject of any litigation between the parties. From our reading of the record, with respect, we find nothing supporting Mr. Shayo's contention. It is plainly clear that since the proceedings were commenced in the District Court up to the High Court and even before this Court in the application for stay of execution, there was no mention of Plot No. 157 Block 'DOD' Karanga area within Moshi 7

Municipality as being the property subject of litigation between the parties. Only Plot No. 152 Block 'DDD' Karanga area within Moshi Municipality has consistently been a subject of discussion by both courts below and this Court in the said application for stay of execution. Had , Mr. Shayo exercised due diligence by seriously examining the record, he would have definitely gleaned from therein that the property sought to be used as security is, substantially, neither the one which is subject of the intended appeal nor the one that was disqualified from being used as security by the Court. Consequent to that, with respect, this aspect, if at all it had any substance, was not brought to the attention of both courts below and this Court when the application for stay of execution was heard and determined. Mr. Shayo, in any event, cannot therefore be heard raising such an issue in the present application. There is another point raised by Mr. Shayo and vehemently disputed by the z= applicant. That is, that the Certificate of Occupancy in respect of the property sought to be used as security bears the names of the respondents as lawful owners and that the 2 nd applicant fraudulently fransferred the same into his name. Conversely, the 2 nd applicant was emphatic that the property subject to be used as security is situated on a completely another location that is on Plot No. 157 Block 8

'DDD' Karanqa area within Moshi Municipality and is unrelated to the subsisting cases. We have seriously considered the parties' contentions and upon our thorough perusal of the copy of the said Certificate of Occupancy, it is apparent that the same was initially issued to one Juma 5walehe, the 1 st respondent, and it was later transmitted to the 2 nd applicant by operation of law on 4/7/2002. So, as the matter stands, currently the Certificate of Occupancy shows the 2 nd applicant as the owner of that property. We, however, hasten to state, with great respect to Mr. 5hayo, that the issue whether Plot No. 157 Block 'DDD' Karanga area within Moshi Municipality is the one which is subject of the intended appeal and is the same as Plot No. 152 Block 'DDD' Karanga within Moshi Municipality as well as whether the Certificate of Occupancy fell into the hands of the 2 nd applicant fraudulently is not an issue before us. This being an application to vary the nature and form of security, we are not seized with the requisite mandate to adjudicate on those issues. We are reinforced in that position by the Court's pronouncement in the case of , Regional Manager - TANROADS Lindi vs. D.P. Shapriya and Company Ltd, Civil Application No. 29 of 2012 (unreported) cited with subscription in the case of Victoria Real Estate Development Limited vs. Tanzania Investment Bank and Three Others, Civil 9

Application No. 225 of 2014 (unreported) in which the Court cautioned that:- ".. .it is now settled that a Court hearing an eppncstton should refrain from considering substantiveissues that are to be dealt with by the appellate Court This is so in order to avoid making decisions on substantive issues before the appeal itself is heard. .. " We, instead, in the circumstances, think that it is the exclusive prerogative of any person aggrieved by the transfer to take appropriate steps in a proper forum and according to law. On our part, we take it that currently, the Certificate of Occupancy in respect of Plot No. 157 Block 'DOD' Karanga area within Moshi Municipality belongs to the 2 nd applicant and there is a house as evidenced by the valuation report annexed to the affidavit. All in all therefore, given that Mr. Shayo did not seriously contest the applicants' inability to secure a bank guarantee as well as on the sufficiency, i~ terms of value as presented by the applicants and evidenced by the valuation report, of the property on Plot No. 157 Block 'DOD' Karanga area within Moshi Municipality which is intended to be used as security in substitution of a bank guarantee and based on the applicants' averments in the affidavit and their arguments before us, we 10

are satisfied that the applicants are unable to secure a bank guarantee hence we see no reason and it will, actually, be unjust to disallow the application. , For the foregoing reasons, we grant the application. In substitution to the deposit of a bank guarantee in the sum of Tshs. 150,000,000/= that was earher on ordered by the Court, the applicants are hereby ordered to deposit in Court as security, within thirty (30) days from the date of this order, a Certificate of Occupancy in respect of Plot No. 157 Block 'DOD' Karanga area within Moshi Municipality. Each party shall bear his own costs. DATED at ARUSHA this 26 th day of August, 2019. S. A. LILA JUSTICE OF APPEAL M. A. KWARIKO JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL The Ruling delivered this 28 th day of August, 2019 in the presence of the Applicants in person and Mr. Jeremiah Siay holding brief for Mr. Peter Shayo for the Respondents, Is hereby certified as a true copy of the original. A.H.MS ,I DEPUTY REGISTRAR COURT OF APPEAL 11