Usafirishaji Mikoani Union Limited and 5 Others vs Kuringe Real Estate Co. Ltd. (Civil Application No. 1125 of 2024) [2024] TZCA 1134 (19 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1125 OF 2024 USAFIRISHAJI MIKOANI UNION LIMITED ............................. 1 st APPLICANT EMMANUEL SAMWEL MWALIWEULI......................................2 nd APPLICANT FRIDA SAMWEL MWALIWEULI..............................................3 rd APPLICANT FROLA SAMWEL MWALIWEULI.............................................,4™ APPLICANT ELIAS SAMWEL MWALIWEULI ................. . ............................ 5™ APPLICANT ANNA SAMWEL MWALIWEULI . ...................................... . ...... 6™ APPLICANT VERSUS KURINGE REAL ESTATE CO. LIMITED.......................... ........... RESPONDENT (Application for Stay of Execution of the decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Mkeha, J) dated the 14th June, 2024 in Commercial Case No. 82 of 2023 RULING 14th & 19th November, 2024 NGWEMBE. J.A.: The applicants, jointly through their learned advocate Mr. Mashaka Ngole, instituted this application seeking an order to restrain the respondent from realizing the fruits of the judgment and decree of the High Court (Commercial Division) at Dar es Salaam in Commercial Case No. 82 of 2023, which was delivered on 14th June, 2024. It is on record that the applicants were dissatisfied with the judgment and on 1s t July,

2024 they lodged notice of appeal to the Court followed with a letter requesting for certified trial court's records for appeal purposes. The application is premised by notice of motion under rules 11 (3), (4), (5), (6) & (7) of the Tanzania Court of Appeal Rules, 2009, (the Rules) which is supported by a jointly sworn affidavit of the applicants. At the hearing date, the learned advocate adopted the contents of the notice of motion together with averments in the joint affidavit to form part of his submission. On the other side, the respondent, also filed an affidavit in reply, which as well was adopted by Mr. Egbert Millanzi, learned advocate for the respondent to form part of his submission. The basic contention of the applicants as in the notice of motion are that: the building subject of sale is operated for provision of education services to the public at large. Students of the Open University will as well be affected; the application was lodged in compliance to the time limitation provided for by the Rules; and the applicants undertake to give security for the due performance of the decree as may be ordered by the Court. In paragraph 9 of the joint affidavit, they averred that on 25th October, 2024 they were served with a letter from the High Court of Tanzania appointing the court auctioneer for attachment and disposal of plots No. 12 and 13 Block 41 at Sekenke area. Also, a letter from the auctioneer giving fifteen (15) days to settle the decretal sum was issued to the applicants. It is as

well averred in paragraph 13 that the applicants undertake to provide security as per the Court's order. On the other side, the affidavit of the respondent contradicted the grounds of the applicants and in paragraph 14, stated categorically that, the application is intended to delay compliance with the High Court's decree, thereby unfairly prejudicing the respondent's lawful rights and interest. When the application was called for hearing, Mr. Ngole amplified briefly the prayer for stay of execution and that, without an order for stay of execution, the building which is worth four (4) times of the decretal sum may change hands and cause irreparable loss to the applicants. Further, he argued that the building as of now is used by the Open University for provision of education which execution may also disrupt the public education to many innocent students. To bolster his argument, he made reliance to the case of Mohamed Masoud Abdallah & Others vs Tanzania Road Haulage (1980) Ltd (Civil Application No. 58 of 2016) [2019] TZCA 198 (24 June 2019). He thus, beseeched the Court to grant the orders for stay of execution pending final determination of the intended appeal. Mr. Millanzi, stood firm to oppose the application by contradicting the ground related to the Open University, which is a third party or stranger to

the case. He argued that, the applicants have failed to comply with rule 11 (5) of the Rules because they have failed to disclose any loss or suffering which may occur in case the suit land is sold to a third party. Since the sale is related to the commercial transactions, then whatever amount will be accrued, the balance of it will revert back to the applicants. On security, Mr. Millanzi insisted that the applicants have failed to provide any security than making reliance to the trial court's order. Therefore, he implored the Court to dismiss the application forthwith. In brief rejoinder, Mr. Ngole rejoined that, substantial loss will occur when the property changes hands to a third party by way of sale, On security, he rejoined that, security is a discretionary power of the Court. He thus, reiterated to the prayer he made in his submission in chief that the intended appeal will be rendered nugatory and the innocent students of the Open University of Tanzania will as well be affected. Upon critical review of the contents of the notice of motion, the supporting affidavit and the affidavit in reply together with the arguments of both learned counsel, I find, it is settled in the Court Rules that an application of this nature must be instituted in the Court within 14 days from the date the applicants were served with the notice of execution or otherwise became aware of the execution proceeding. This is provided for under rule 11 (4) of the Rules.

In respect of this application, it is averred in paragraph 9 of the joint affidavit that the applicants became aware on the move for execution on 25th October, 2024 and the application was lodged in this Court on 31s t October, 2024, thus, complied with subrule 4 of rule 11 of the Rules. Consequently, the application was filed in this Court timely. Another important element to be considered at this juncture is related to compliance of subrule 7 of rule 11, which requires attachment of notice of appeal together with other relevant documents. In the instant application, the applicant has complied with. Moreover, in paragraph 3 of the notice of motion together with paragraph 13 of the affidavit, the applicants have categorically averred to provide security for the due performance of the decree. It is also, averred in paragraph 1 of the notice of motion and in paragraph 11 of the affidavit supported by the argument from the bar that the applicants are doomed to suffer substantial loss as well as the third party (Open University). In the circumstances I find no better words than what we stated in the cases of Clara Kimoka v. Surumbu Axweso [2002] T.LR. 255 at page 257 and Deusdedit Kisisiwe v. Protaz B. Bilauri (Civil Appeal 13 of 2001) [2003] TZCA 16 (24 February 2003), in the latter decision, the Court observed as follows:

" The attachment and sale o f immovable property will, invariably, cause irreparable injury. Admittedly compensation could be ordered should the appeal succeed but money substitute is not the same as the physical house. The difference between the physical house and the money equivalent ; in my opinion• , constitute irreparable injury." It is settled that sale of immovable property to an innocent purchaser means the property will change ownership from the original owner to the purchaser. In any way the original owner will suffer irreparable injury as prescribed in subrule 5 of rule 11 of the Rules. As regards to the requirement to furnish security for the due performance of the decree, the applicants have categorically averred in paragraph 13 of the joint affidavit willingness to furnish it. I need not to reproduce the contents of that paragraph hereto, but I am satisfied that the applicants have made an undertaking towards furnishing of security which is an essential requirement for an order for stay of execution to be granted. For clarity the key elements to be shown vividly in the application of this nature are: compliance to time limitation; substantial loss; and security for satisfaction of the court decree. It is therefore a rule of law which is practiced by this Court that where the applicants have complied with all the requisites of the law, the Court will make sure that such

execution is halted for a while. Since the applicants have managed to demonstrate a good cause for stay of execution, the application is fit to be granted. In terms of rule 11 (3) of the Rules, any application for execution of the High Court (Commercial Division) decree issued in Commercial case No. 82 of 2023 is hereby stayed pending hearing and final determination of the intended appeal to this Court. This order is conditional upon every applicant committing himself/herself to maintain the status quo of the premises/plots which are subject of the decree within thirty (30) days from the date of delivery of this ruling. Costs to be in the cause. It is so ordered. DATED at DAR ES SALAAM this 18th day of November, 2024. P . J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 19th day of November, 2024 in the presence of Ms. Farida Ibrahim, holding brief for Mr. Mashaka Ngole, learned counsel for the Applicants and Ms. Farida Ibrahim holding brief for Mr. Francis Makota, learned counsel for the respondent is hereby certified as a true copy