Mohamed Saleh Abri & Another vs Fatuma Shabani Said Dololo & Another (Civil Application No. 71/17 of 2024) [2024] TZCA 1305 (27 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 71/17 OF 2024 MOHAMED SALEH ABRI . ABDALLAH SAID MGAZA 1st APPLICANT 2 n d APPLICANT VERSUS FATUMA SHABANI SAID DOLOLO (Legal representative of the late SHABANI SAID DOLOLO ....... . ..................... FATUMA SALUMU SAID DOLOLO (Legal representative of the late SALUM SAID DOLOLO................................. 2 nd RESPONDENT 1 st RESPONDENT (Application for an order for stay of execution of the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es salaam) 23rd September & 27th December, 2024 WAMBALI. J.A.: Mohamed Saleh Abri and Abdallah Said Mgaza, the respondents, were the first and second applicants respectively in Land Application No. 85 of 2021 before the District Land and Housing Tribunal for Temeke (the DLHT) at Temeke Dar es Salaam Region. They sued the applicants who were the first and second respondents respectively, over the ownership of the landed property claimed to be the family land. The DLHT held in favour of the respondents. (Luvanda. Dated the 30th day of August, 2020 in Land Appeal No. 249 of 2023 RULING l

The applicants were dissatisfied with the decision of the DLHT. Nonetheless, the applicants unsuccessfully appealed to the High Court, Land Division in Land Appeal No. 249 of 2023 which was dismissed for want of merit on 30th August, 2023. Still discontented with that decision, the applicants filed the notice of appeal to the Court, requested for a certified copy of proceedings from the Registrar of the High Court and filed Miscellaneous Land Application No. 642 of 2023 for leave to appeal. Despite the efforts taken by the applicants to initiate the process appeal, they were served by the respondents with an application for execution of the decree on 10th February, 2024. The application for execution of the contested decree of the High Court prompted the applicants to file the instant application for stay of execution pending the hearing and determination of the intended appeal. The application has been preferred through a notice of motion supported by an affidavit deposed by Mathew Benard Kabunga, the applicants7advocate. The application is predicated on the following grounds:

1. The respondents have already filed an application for execution o f the decree which was issued on the 29h day o f May 2023 by the District Land and Housing Tribunal for Temeke at Temeke which was

confirmed by the High Court in the above-named land appeal. 2. The respondents have made application requesting the trial tribunal to demolish the disputed property before the final determination o f the applicants' appeal. 3. That substantial and irreparable loss may be occasioned against the applicants if an order for stay o f execution is not made because the disputed property involve more than Tanzanian Shillings Two Hundred Million (200,000,000/=) and in case the applicants appeal succeeds the respondents will be incapable o f refunding and/or compensating the first applicant who is the buyer o f the disputed property. 4. This application has been made without unreasonable delay. 5. The applicants are ready and willing to deposit in Court security for the due performance o f the decree which will be determined by this Court pending the final determination o f the appeal. At the hearing of the application, the applicants were represented by M r. Majura Magafu, (earned counsel while the respondents appeared in person without legal representation. Submitting in support of the application, Mr. Magafu, adopted the affidavit in support of the applicants' notice of motion and argued that,

soon after the judgment of the High Court was delivered on 30th August, 2023, the applicants lodged a notice of appeal to contest the decision. He added that the applicants have also obtained leave of the High Court to appeal against the judgment and decree to the Court. The learned counsel pointed out that, the dispute between the parties concerns the sale of the house between the first applicant and the second applicant and that it is on the record of the application that on 5th February, 2024 the respondents lodged an application for execution and served it on the applicants, hence the current application. Mr. Magafu stated further that, the market value of the disputed property as stated in paragraph 7 of the supporting affidavit is TZS. 200,000,000.00. Therefore, in his submission, the applicants will suffer great loss if an order for stay of execution is not granted because the respondents intends to demolish the disputed house. On the other hand, Mr. Magafu submitted that, it is a requirement of the law that for the applicants to deserve an order for stay of execution, they have to give security for due performance of the decree pending the hearing of the appeal. In this regard, he submitted that, the applicants have explicitly undertaken to comply with the respective requirement and heed to the direction which will be given by the Court as shown in the notice of motion and paragraph 10 of the affidavit in support of the

application. He also submitted that the applicants have also demonstrated through paragraph 7 of the affidavit that they will greatly suffer irreparable loss if an order for stay of execution is not granted by the Court as the respondents will not be in a position compensate them in case the intended appeal succeeds. He concluded his submission by urging the Court to consider the applicants' notice of motion, the affidavit and oral submissions and grant the application as the respondents are unlikely to suffer loss compared to the applicants. He also prayed that costs be determined by the outcome of the appeal. In reply, the first respondent, being a lay person, simply urged the Court to refuse the application and stated that the first applicant should contact the respondents to settle the matter. Similarly, the second respondent declared her stance of not supporting the application and prayed for it to be dismissed with costs on the basis of their joint affidavit in reply lodged in the Court. Rejoining, Mr. Magafu stated that the respondents have not disclosed any reason to support their stance on why the application should not be granted and reiterated his earlier submission that the Court should be pleased to determine the application in favour of the applicants based on the parties' materials on the record. 5

Having carefully considered the arguments for and against the application, at the outset, I have no hesitation to point out that the applicants have complied with the provisions of rule 11 (4) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) regarding the filling of the application within the prescribed time and attachment of the relevant documents respectively. The pertinent issue for determination therefore, is whether the applicants have cumulatively complied with requirements stipulated under rule 11 (5) (a) and (b) of the Rules. For clarity, the respective rule provides that: "11 (5) - No order for stay o f execution shail be made under this ruie uniess the Court is satisfied that- a. substantiai ioss may resuit to the party applying for stay o f execution uniess the order is made; b. security has been given by the applicant for the due performance o f such decree or order as may uitimateiy be binding upon him " It is trite law that in order for the Court to grant an application for stay of execution, all the two conditions stated under rule 11 (5) (a) and (b) of the Rules must be cumulatively fulfilled. For this stance, see for instance the pronouncements of the Court in David Mahende v. Salum 6

Nassor Mattar & Another (Civil Application No. 160/17 of 2017) [2018] TZCA 459 (6 June 2018, TANZLII), Mohamed Enterprises T. Ltd v. Mussa Shaban Chekechea (Civil Application 394 of 2019) [2019] TZCA 449 (24 October 2019, TANZLII), Aidan George Nyongo v. Magese Machena and Three Others (Civil Application No. 237/17 of 2016) [2020] TZCA 1832 (30 October 2020, TANZLII) and Pristine Properties Limited & Others v. ECO Bank Tanzania Limited (Civil Application 580 of 2021) [2023] TZCA 17267 (22 May 2023, TANZLII), among many decisions . It is noted that with regard to the issue of substantial loss, the applicants have substantially relied on paragraph 7 of the supporting affidavit in which it is averred that: "7. That I verily believe that the applicants will suffer substantiai and irreparable loss may be occasioned against the applicants if an order for stay o f execution is not made because the disputed property involves more than Tanzanian Shillings Two Hundred Million (Tshs. 200,000,000/=) and in case the applicants appeal succeeds, the respondent will be incapable of refunding and/or compensating the first applicant who is the buyer o f the disputed property."

Considering the applicants averment reproduced above, the response of the respondents through a joint affidavit in reply and the materials in the record of the application, I entertain no doubt that in view of the nature of the mode of execution sought by the respondents, that is, demolition of the disputed house as a satisfaction of the impugned decree, the applicants will likely suffer substantial loss if an order for stay of execution is not granted. I therefore hold that the first condition for the grant of an order for stay of execution has been met by the applicants. On the other hand, I am satisfied that having regard to the applicants' averment in paragraph 10 of the affidavit in support of the application and the lack of response from the respondents in the joint affidavit in reply, a firm undertaking by the applicants to furnish security for the due performance of the decree if the order is granted has been shown. The undertaking is consistent with the pronouncements of the Court in its several decisions on the matter. Instructively, in Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported), the Court emphasised that a firm undertaking by the applicant to furnish security for due performance of a decree is sufficient to constitute compliance with the second condition for granting an order for stay of execution. Particularly, the Court stated as follows: 8

"... To meet this condition, the law does not strictly demand that the said security must be given prior to the grant o f the stay order. To us, a firm undertaking by the applicant to provide security might prove sufficient to move the Court, ail things being equal, to grant stay orderprovided the Court sets a reasonable time limit within which the applicant should give the same." In the circumstances, I hold that the applicants have fulfilled the second condition enumerated under rule 11 (5) (b) of the Rules. I therefore have no hesitation to conclude that the applicants have cumulatively fulfilled the conditions stipulated by the provisions of rule 11(5) (a) and (b) of the Rules to deserve an order for stay of execution. At this juncture, the issue is on the nature of the security for due performance of the decree which must be issued by the applicants in the circumstances of the case at hand. I am alive to applicants' averment through paragraph 7 of the affidavit that the estimated value of the disputed property isTZS. 200,000,000.00. However, it is uncontested that the impugned decree sought to be stayed is not monetary. Dealing with a situation which is more or less similar with the current matter, the Court in Suleiman Yusuf Ali v. Sultanali Abdalla Gulamhussein (Civil Application No. 421/15 of 2018) [2019] TZCA 452 (17 October 2019, TANZLII), expressed the view that a firm undertaking to execute a

commitment bond that the suit property would remain in the same condition as it was at the time when the decree was passed, was a sufficient security for the purpose of compliance with the condition under rule 11(5) (b) of the Rules. Moreover, a similar stance was expressed by the Court in Mohamed Masoud Abdallah and 16 Others v. Tanzania Road Haulage (1980) Ltd (Civil Application No. 58/17 of 2016) [2019] TZCA 198 (17 June 2019, TANZLII) in the following terms: "After having considered the circumstances o f this case where the impugned decree is not monetary, we have in the end found it appropriate to order the appiicants to furnish security for the due performance o f the decree suiting the particuiar circumstances o f the case. As security for due performance o f the decree we order that each appiicant shaif execute a bond committing himself/herseif to maintain the status quo o f the premises which are subjects o f the decree within fourteen (14) days from the date of deiivery o f this ruiing . " To this end, considering the circumstances of the application at hand, the nature of the impugned decree sought to be stayed and the proposed mode of execution, that is, demolition of the disputed house, 10

the interest of justice will be served if the security for due performance wil! be in a form of executing a commitment bond by the applicants to maintain the status quo of the disputed house pending the hearing and determination of the intended appeal. In the event and for the foregoing reasons, I find the application meritorious and grant it. Consequently, I make an order for stay of execution of the decree of the High Court in Land Appeal No. 249 of 2023 pending the hearing and determination of the intended appeal. The order is, however, conditional upon the applicants executing a bond within twenty (20) days from the date of delivery of the ruling committing themselves to satisfy the decree in case the appeal fails. I further order that costs shall abide the outcome of the intended appeal. DATED at DAR ES SALAAM this 23r d day of December, 2024. The Ruling delivered this 27th day of December, 2024 in the presence of Mr. Majura Magafu, learned counsel for the applicants and 1s t and 2n d Respondents present in person, is hereby certified as a true copy of the F. L. K. WAM BALI JUSTICE OF APPEAL A. S. CHUGULU DEPUTY REGISTRAR COURT OF APPEAL