Nyanza Cooperative Union (1984) Ltd vs Peter Amos Njile & Others (Civil Application No. 1393 of 2025) [2025] TZCA 1002 (10 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CIVIL APPLICATION NO. 1393 OF 2025 NYANZA COOPERATIVE UNION (1984) LTD ........... . ................ APPLICANT VERSUS PETER AMOS NJILE (As Administrator of the Estate of the late AMOS NJILE LILI) ...................................... 1 st RESPONDENT MWANZA CITY COUNCIL ........ . ..... . ......................... . ...... 2 nd RESPONDENT COMMISSIONER FOR LANDS ............................................. 3 rd RESPONDENT REGISTRAR OF TITLES ............... . ...................................... 4™ RESPONDENT HON. ATTORNEY GENERAL .......... ............ . ........................ 5 th RESPONDENT (Application for Stay of Execution of Drawn Order of the High Court of Tanzania at Mwanza) (Musaroche, Deputy Registrar) dated the 3r d July, 2025 in Execution No. 000019665 of 2024 RULING 22n d August & 10th September, 2025 MASHAKA. J.A.: Amos Njile Lili, the deceased had instituted a suit, Land case No. 58 of 2015 at the High Court of Tanzania, Mwanza Registry with claims against the applicant, the 2n d , 3rd , 4th and 5th respondents for a declaration that the purported revocation, and/or cancellation and rectification of the i

title number 45296 from the deceased to his Excellency the President is unlawful and an order to the 3rd respondent for rectification of the land register to read that the 1s t respondent is the registered owner of the properties comprised in the Certificate of Title No. 45296 issued and registered on 9th July 2013. The High Court dismissed the suit but proceed to make declarations under section 7 (2) of the Civil Procedure Code, Cap 33; that, one, the property sold to the late Amos Njile Lili pursuant to exhibits PI and P2 comprises of the Godown facing the Mtwara Shinyanga Main Road, its back space separated by railway line and four meters' space on the right side of the Godown. Two, it declared, under the same provision, that the 3r d and 4 respondents are entitled to proceed with the resurveying of the suit property in accordance with the first declaration. The 1s t respondent being the beneficiary of the decree, on 12th February, 2025 filed Execution No. 000019665 of 2024 (Musachore, DR) against the applicant, 2"*f 3rd , 4th and 5th respondents praying for issuance of certificate containing following particulars:

i. The decree holder suit property comprising o f the godown facing the Mwanza Shinyanga main road, its back space separated by raiiway and four meters'space on the right side o f the godown ii. The Commissioner for Lands, J d Judgement debtor and the Registrar o f Titles, 4 h Judgement debtor to resurvey the suit property, namely, a godown on plot No. 10/41, Igogo Industrial Area Mwanza Municipality, comprised in the Certificate o f Title No. 45296. H i. The Registrar o f Titles to issue a new certificate o f title in respect o f the suit property. iv. Nyanza Cooperative Union (1984) Ltd to yield vacant possession o f the suit property. Upon being served with the summons to show cause why execution should not proceed, Mr. Erick Mutta, the learned counsel for the applicant, filed an affidavit sworn by Priscilla Cosam Chawanga contesting the execution. After hearing of the application, on 3r d July, 2025, the Deputy Registrar granted the application and ordered the issuance of the

certificate containing the particulars prayed for. Aggrieved, the applicant lodged a notice of appeal on 16th July, 2025 and on 17th July, 2025 lodged this application for stay of execution of the drawn order. The application was brought by way of notice of motion made under rules 4 (2) (a), (b), (c), 11 (4), (5) (a) & (b), (6), (7) (a), (b), (c) & (d) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), in which the applicant seeks to move this Court to order stay of execution pending hearing and determination of an intended appeal. The application was supported by an affidavit sworn by Prisilla Cosam Chawanga, the Principal Officer of the applicant. The application was scheduled for hearing through video link and Mr. Erick Martin Mutta, the learned advocate appeared for the applicant, whereas Mr. Benson Florence, the learned advocate appeared for the 1s t respondent and Mr. Lameck Merumba, Principal State Attorney represented the 2n d , 3rd ' 4th and 5th respondents. From the outset, the parties were directed to address the Court first on the competence or otherwise of the application in particular compliance of rule 11 (4) and (7) of the Rules. In his submission, Mr. Mutta stated

that, the application had successfully complied with all requirements as outlined in their notice of motion and the letter requesting for proceedings. He argued that, according to the nature of the application and the delivery of the impugned ruling, the next step was for the Deputy Registrar to issue a certificate containing the order's particulars. The order by the High Court Judge in Land Case No. 58 of 2015 to the 3r d and 4th respondents was pursuant to section 16 (1) of the Government Proceedings Act which the applicant was not bound by the Act as she was not a government entity. Regarding the requirement to attach a notice of intended execution under rule 11 (7) (d) of the Rules, Mr. Mutta conceded that they had not done so. He argued that because they had been issued a notice to show cause and had appeared before the Deputy Registrar for the execution proceedings where all parties were heard and an order was granted, this suffices, He further admitted that the application did not demonstrate compliance with rules 11 (4) of the Rules, contending that the nature of the application and the impugned ruling itself were sufficient to fulfill the legal requirements. Finally, he confirmed that the application was filed within the prescribed time, calculated from the date of delivery of the impugned decision on 3rd July, 2025.

In reply, Mr. Florence submitted that the application before the court was incompetent. He argued that it failed to comply with rules 11 (7) (b) and (d) of the Rules, as it was not accompanied by a drawn order and a notice of intended execution. He emphasized that these legal provisions were mandatory and noted that the applicant's affidavit offered no explanation for the absence of the order they sought to stay. He reiterated that a drawn order, not a ruling, is the proper subject of the stay order sought, and such an order must be issued after a ruling is delivered. Furthermore, Mr. Florence contended that the application's premise that a certificate of particulars had not been issued was incorrect. He made reference to the court records that the certificate was issued on 10th July, 2025, yet it was deliberately not accompanying in the application. He also argued that the application contravened rule 11 (4) of the Rules as the same was filed out of time. He stated that since the execution proceedings began on 12th February, 2025, the applicant was aware of the issue from that date but took no timely action. Finally, Mr. Florence objected to paragraphs 6, 9, and 11 of the supporting affidavit, arguing that they contained legal arguments and 6

conclusions, which is contrary to the principles governing what is permissible in an affidavit. Mr. Merumba agreed with Mr. Mutta’s position, arguing that the application did comply with rule 11 (4) and (7) of the Rules. He stated that the court's ruling itself could be considered to be both the "notice of intended execution and the "drawn order." To prove the application was filed on time, he pointed to the final paragraph of the ruling, which was dated 3r d July, 2025. He argued that the 14-days deadline started from that date and since the application was filed on 17th July, 2025, he concluded it was within the allowed time. However, when asked by the Court specifically the date when the parties first became aware about the execution proceedings, Mr. Merumba could not recall the exact date and instead agreed with Mr. Florence's earlier submission that they became aware on 12th February, 2025. He concluded that the application was filed on time reckoning from the date of the ruling, therefore competent. Thus, he supported the application. The issue for determination at this juncture is whether the application has complied with the requirements of rule 11 (4) and (7) of the Rules. It is worthy to note that the requirements stated under rule 11 of the Rules,

are mandatory in nature and has to be met cumulatively. Thus, for this Court to grant the order of stay of execution, among other requirements, the applicant needs to satisfy the following two legal requirements, one, the applicant must lodge the application within fourteen days from the date that she was served with the notice of execution or from when she became aware of the execution proceedings. This is the dictates of rule 11 (4) of the Rules. Two, the application must be accompanied with the notice of the intended execution in terms of rule 11 (7) (d) of the Rules. For instance, see Lake Oil Limited v. Kherdin Mohamed Shafiq (Civil Application No. 641/8 of 2024) [2024] TZCA 893 (13 September 2024). Rule 11 (4) of the Rules provides that: "11(4) An application for stay o f execution shaii be made within fourteen days o f sen/ice 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 . " The spirit of the above provision is that an application for stay of execution should be filed within 14 days from the service of notice of execution or from the date the applicant becomes aware of the existence of an application for execution. See, Michael Martin Kabengwe v. 8

Farida Yusuf Omari & Another (Civil Application No. 1161 of 2024) [2024] TZCA 1141 (19 November 2024). In the present application, Mr. Mutta concedes that he was aware of the existence of the execution proceedings and the applicant was served with the notice to show cause and they filed an affidavit in reply to contest the grant, more so they entered appearance before the executing court. Even though he was elusive as to the exact date when he became aware of the execution proceedings, it is clear that he became aware of the execution proceedings before 3r d July, 2025. A glance at the ruling by the Deputy Registrar shows that Mr. Mutta was served with summons to show cause why execution should not proceed and filed affidavit sworn by Priscilla Cosam Chawanga opposing the execution proceedings. From the submission by Mr. Florence, the applicant became aware of the execution proceedings on 12th February, 2025 and Mr. Mutta did not refute this fact in his rejoinder submission, The record of the application demonstrates that after pleadings were completed, parties were heard and the Deputy Registrar delivered his ruling on 3r d July, 2025. Thus, counting of the fourteen (14) days pursuant to rule 11 (4) of the Rules cannot be reckoned from 3r d July, 2025. Going by Mr. Florence arguments and counting from

12th February, 2025, the application was lodged out of the prescribed time limit. I, therefore, find the application for stay of execution incompetent because it was filed out of the time prescribed by rule 11 (4) of the Rules. Consequently, I strike it out with costs. As consideration of this aspect of the application has disposed of the application, I find no reason to entertain other points raised by the parties. DATED at DODOMA this 3r d day of September, 2025. Ruling delivered, via virtual Court, this 10th day of September, 2025 in the presence of Mr. Benson Florence, learned counsel for the 1s t Respondent and also holding brief for Mr. Erick Martin Mutta, learned counsel for the Applicant, Mr. Lameck Merumba, learned Principal Senior State Attorney for the 2n d , 3rd , 4th and 5th Respondents and Mr. Oscar Msaki, Court Clerk, is hereby certified as a true copy of the original. L. L. MASHAKA JUSTICE OF APPEAL