Godfrey Essau Ng'adu vs Mchomvu Daudi Manya @ Gisos Manya (Civil Application No. 1243 of 2024) [2024] TZCA 1184 (3 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 1243 OF 2024 GODFREY ESSAU NG'ADU..........................................................APPLICANT VERSUS MCHOMVU DAUDI MANYA @ GISOS MANYA...........................RESPONDENT (Application for stay of execution of the decree of the High Court of Tanzania, at Babati) fKamuzora. J.1 dated the 18th day of April, 2024 in Land Appeal No. 1135 of 2024 RULING 26th November &. 3rd December, 2024 MDEMU.J.A.: The applicant Godfrey Essau Ng'adu has preferred this application so that, execution of a decree in Land Application No. 13 of 2023 of Mbulu District Land and Housing Tribunal (The DLHT), as confirmed by the High Court of Tanzania at Babati, in Land Appeal No. 1135 of 2024, be stayed pending the hearing of Civil Appeal No. 403 of 2024 before the Court of Appeal. The application is by way of notice of motion premised under the provisions of rule 11 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The supporting affidavit deposed by the applicant is in place to support the application thereof.

According to the supporting affidavit, the applicant was not successful in a claim for ownership of Plot No. 11 Block "D" filed in Mbulu DLHT. Equally, the decision of the High Court on appeal was also not in his favour. He finally moved the Court of Appeal as stated above for the same declaration that he is the lawful owner of the suit land. On that account, his mind dictated him to have execution of the decree stayed while waiting for the disposition of the filed appeal by the Court. On the other hand, the respondent resisted the grant of the stay order in an affidavit in reply filed on 22n d November, 2024. At the hearing of this application via virtual court on 26th November, 2024, the applicant, who was also present, was represented by Mr. John J. Lundu, learned advocate, whereas the respondent had the services of Mr. Richard Evans Manyota, also learned advocate. Parties were at Babati, in Manyara High Court Sub-registry. In support of the application, Mr. Lundu stood by the contents of the supporting affidavit and amplified generally to have complied with the requirement of rule 11 of the Rules. First, by filing this application within fourteen (14) days from 5th November, 2024 after the DLHT had failed to heed to his concern that the decree should not be executed. Second, by attaching the judgment, decree, notice of execution and the notice of appeal

and further the memorandum of appeal filed to the Court. Third, by indicating loss to be suffered in case a stay order is not granted because the applicant had developed the suit premises by constructing a two-room foundation. Forth, by the firm undertaking to furnish security for the due performance of the decree. On that basis, it was his submission that, the application be granted on the prayers sought for in the notice of motion. As stated earlier on, the respondent resisted this application. The depositions in an affidavit in reply is a revelation to this fact. Standing by the contents thereof, Mr. Manyota submitted that, rule 11 of the Rules has not been cumulatively met. He fronted the following reasons: one, that the application is time barred because it was filed on 20th November, 2024 from 5th May, 2024 when he was served with the notice to show cause why execution of the decree should not proceed. Two, notice of execution has not been annexed to the application. Three, the application for stay of execution has been overtaken by event because, as deposed in paragraph 7 of the affidavit in reply, the decree has already been executed. He added in this regard that, the applicant was aware of such undertakings but declined to cooperate. In the end of it all, he concluded by citing the case of Ifindu Agribusiness Limited v. Tanzania Commercial Bank Pic Limited &Two Others (Civil Application No. 753/06 of 2024) [2024] TZCA 971 (9 October 2024; TanzLII) arguing that, this application should not be

granted because rule 11 of the Rules has not been cumulatively met by the applicant. He also pressed for costs. In a brief rejoinder, Mr. Lundu submitted that, unlike what was submitted by Mr. Manyota, the decree is yet to be executed. He thus reiterated that, the application was made within fourteen (14) days. In determining this application for a stay order, I think, I should begin with the contentious facts relating to time limitation within which an application for stay of execution may be premised. The legal position is under rule 11 (4) of the Rules, that: . . . i- i . ' , i • * "An application for stay o f execution shall be made within fourteen days o fservice 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." In my considered view, subrule (4) of rule 11 as reproduced above, essentially prescribes two requirements regarding time limitation as to when the application for stay of execution has to be filed to the Court. First, it is that, such an application for a stay order has to be made within fourteen days following service of the notice of execution on the applicant and second, the application may be instituted from the date the applicant became aware of the existence of the application for execution. 4

In the first place, it is noted that, in the instant application for stay of execution, .the applicant did not attach a notice of execution. What was attached is a fourteen days' eviction notice from a court broker one Diamond Credit Recovery Co. Ltd. dated 6th November, 2024. This is the date which the applicant argued to be aware of the existence of the application for execution of the decree. This notice, as deposed in; paragraph 7 of the supporting affidavit; followed the conclusion of the Execution Application No. 19 of 2024 on 5th November, 2024 in the DLHT. This line of argument was resisted strongly by the respondent in an affidavit in reply, so was in the counsel's oral submission at the hearing. I am in all fours with Mr. Manyota that, the applicant became aware of the existence of the application for execution at the time he appeared before the DLHT to show cause as to why execution of the decree should not proceed. . Conceding to this argument, which, in my view, was self-defeating, the applicant made the following depositions in the supporting affidavit: "6. That, while I was in the process o f completing an appeal to the CourtofAppeal o f Tanzania, I wasserved with the notice o f hearing o f execution by the respondent in respect o f Miscellaneous Application No.19 o f2024 o f which I did enter appearance for hearing, whereby during the hearing, I objected the application for execution ora/iy that the execution be stayed pending determination

o f Civil Appeal No. 403 o f2024 to the Court o f Appeal o f Tanzania but the trial tribunal overruled my objection." [emphasis supplied] In the foregoing depositions by the applicant, it is clear that, he became aware of the existence of the application for execution at the time he was served with that application for execution. As deposed in paragraph 6 of the affidavit in reply, the application for execution was servedon the applicant as from May, 2024.1 reproduce the said paragraph of theaffidavit in reply for ease of reference: "6. That the contents o f paragraph 6 o f the applicant application are noted to the extent that, the applicant was successful served,with an application for execution by the respondentsince May, 2024and he did not bother to file any formal application for stay o f execution. The rest o f the averment are disputed." What is therefore clear in both affidavits is that, the application for execution was served on the applicant since May, 2024.1 also note that, the applicant appeared iri the DLHT in response to that service of the application for execution. For that matter therefore, in terms of rule 11 (4) of the Rules, the applicant was aware of the existence of the application for execution. He was therefore supposed to file the instant application for stay of execution within fourteen ; days from that, date and not from the date he

received the broker's notice, as he did. I therefore agree with Mr. Manyota, in his argument, while making reference to the case of Ifindu Agribusiness Limited v. Tanzania Commercial Bank Pic Limited & Two Others (supra) that, this application for stay of execution was filed out of the prescribed limit of fourteen (14) days. For that reason, the application is incompetent, accordingly, it stands to be struck out. Parties to bear own costs of this application. DATED at DODOMA this 3r d day of December, 2024. G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 3r d day of December, 2024 in the presence of John Lundu, learned counsel for the applicant andRichard Manyota, learned counsel for the respondent via visual court, ishereby certified as a true copy of the original.