Nasor Hamis Nasor vs Regina Ishemwambura (Civil Reference No. 08 of 2024) [2024] TZCA 1087 (12 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA. 3.A., GALEBA. J.A. And ISMAIL. J.A.\ CIVIL REFERENCE NO. 08 OF 2024 NASOR HAMIS NASOR ....... ............................................................APPLICANT VERSUS REGINA ISHEMWAMBURA.............................. ................. ...... RESPONDENT (Application for Reference from the decision of the single Justice of the Court of Appeal of Tanzania at Dar es Salaam) (Mwampashi. J.A.) dated the 9th day of July, 2024 in Civil Application No. 321/17 of 2024 RULING OF THE COURT 1s t & 12th November, 2024 ISMAIL J.A,: This application for reference seeks to reverse the decision of the single Justice of the Court, in an application for stay of execution that fell through. The applicant's quest in the failed application was to stay execution of the decision of High Court (Land Division) in Land Case No. 47 of 2014. In the latter case, the respondent emerged the victor and was declared the lawful owner of a residential house standing on Plot No. 705 Block "F" Msasani Area, within Kinondoni Municipality in Dar es Salaam. Believing that

the decision was fraught with illegalities, the applicant initiated a challenge by way of an appeal to this Court. In the meantime, the applicant filed Civil Application No. 321/17 of 2024, to stay execution of the decree as he awaited the outcome of his pending appeal. In his decision dated 9th July, 2024, the learned single Justice of the Court held the view that the applicant had not met all the conditions set out in rule 11 (5) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). This is the decision that has bred the reference before us. It is also significant to point out that, in the run up to the hearing before us, the respondent, through Mr. Joseph Rutabingwa, her counsel, raised a preliminary point of objection, challenging the competence of the matter on the ground that rule 48 (1) and (2) of the Rules had been contravened as the notice of motion that founded the reference was not supported by an affidavit. When the matter was called on for hearing before us, the applicant was represented by Messrs. Kessy Ngau and Methodius Tarimo, both learned counsel, while Mr. Rutabingwa, learned advocate, had his services, as indicated above, enlisted by the respondent. To expedite a conclusive disposal of the matter, we guided the learned advocates that the preliminary objection be argued alongside the substantive matter. This, we thought,

would allow us to deliver a decision that would carry all the contentions in the matter. In his brief submission on the preliminary objection, Mr. Rutabingwa contended that applications for reference are guided by rule 62 of the Rules which provides that an application for reference should be instituted through a letter to the Registrar of the Court. In the instant matter, the learned advocate argued, the applicant chose to deviate from the known procedure and preferred a notice of motion whose manner of filing is catered for in rule 48 (1) of the Rules. This rule requires that a notice of motion be accompanied by an affidavit. This is, in Mr. Rutabingwa's contention, a missing feature that renders the application incompetent. He urged us to dismiss the matter with costs. M r. Tarimo readily conceded that the notice of motion, a needless preference by the applicant, was not supported by an affidavit. He, nonetheless, argued that, in either of the situations, the intention is always to notify the Registrar of the Court and the respondent's counsel of the applicant's disgruntlement in the matter he intends to challenge. Thus, while the error is quite apparent on the manner in which such intention was executed, the fact remains that, through the discrepant procedure, the applicant did what was required of him.

As both counsel unanimously submitted, references are governed by rule 62 of the Rules which provides in part as follows: "Where any person is dissatisfied with the decision o f a single Justice exercising the powers conferred by Article 123 o f the Constitution, he may apply informally to the Justice at the time when the decision Is given or by-writing > to the Registrar within seven days after the decision of the Justice.../' [Emphasis is added]. The bolded part of the quoted provision confirms what the learned counsel argued in unison that a mere letter to the Registrar is enough to trigger action, and that the aggrieved party does not have to go through any longer route of having to prefer a formal application by way of notice of motion as the applicant tried to do in this application. It is also instructive that, when the applicant chose to prefer a notice of motion, he ought to have known that such preference had the effect of bringing rule 48 (1) into play. This would, as Mr. Rutabingwa correctly argued, require the accompaniment of an affidavit which is missing in the instant matter. Whilst there is no denying that the applicant's action fell short of what the law demands, the pertinent question that we must resolve is whether the infraction is of any fatal effect to the applicant. Mr. Rutabingwa thinks it

is, while Mr. Tarimo is of the view that the objective was met notwithstanding the shortfall. We are inclined to gravitate towards Mr. Tarimo's thinking. We entertain no doubt that, much as the Registrar was wrongly moved through an alien procedure in such cases, the fact that the applicant did that through rule 62 (1) (b) of the Rules means that the content in the notice was enough to inform the Court and the respondent that the challenge was against the single Justice's decision by way of reference. With this message clearly relayed to all, our considered view is that the deficiency noted is one that can be cured by injecting an oxygen principle, known in legal parlance as the Overriding Objective, covered under section 3B (1) of the Appellate Jurisdiction Act, Cap. 141. It is in view thereof, that we find plausibility in the contention raised by M r. Tarimo. We, consequently, overrule the preliminary objection. Turning on to the substance of the reference, Mr. Tarimo argued that, though the applicant fulfilled the requirement of the law in telling the single Justice of the Court that the applicant stood to suffer substantial loss if he was to be forcibly evicted from the house, his prayer for stay of execution was shrugged off. The learned counsel argued that, at the time, the house was occupied by the applicant's family members who stood to suffer were the eviction to be effected. With regard to furnishing security for the due

performance of the decree, M r. Tarimo conceded that the affidavit in support of the application for stay did not depose on that undertaking, and that what the single Justice made a consideration of, was a submission from the bar, made by the counsel in the course of hearing. He felt that the single Justice erred when he declined to accede to the prayer. Mr. Rutabingwa did not spot any error in the decision of the single Justice of Appeal. He argued that the conditions for the grant of stay of execution as set out by the law were not met. He referred us to the affidavit in reply, sworn by the respondent, in which she stated that the house intended to serve as security did not belong to the applicant. He urged us to dismiss the reference with costs. As we alluded to earlier on, the contest in the application for stay of execution was settled in the respondent's favour as the applicant failed to prove that substantial loss would be suffered and, that the security for the due performance of the decree involved the property that was not his. Regarding substantial loss that the applicant stood to suffer, the learned Justice of Appeal held as follows: 7 also find that, under the circumstances o f this matter where the applicant is living abroad and is not in occupation o f the House, it is the respondent who suffers most for being deprived o f her right to occupy

and use the House which has been declared hers by the High Court. The requirement under rule 11 (5) (a) o f the Rules has thus, not been satisfied." While scoffing at the type of security that the applicant offered as security for the due performance of the decree, the single Justice remarked as hereunder: "It should be borne in mind that the House the applicant is offering is the same house that was declared by the High Court to belong to the respondent. The applicant is thus offering the House that does not belong to him as security. This cannot be accepted." As we venture to take stock of the stance taken by the single Justice to shrug off the applicant's quest for stay of execution, it behooves us to state that the settled law is that the discretion enjoyed by a single Justice, especially in matters such as this, is wide and unfettered though he is, in a fitting circumstance, expected to demonstrate some flexibility. Such discretion can only be meddled in, if a misinterpretation of the law is said to exist - see: Amada Batenga v. Francis Kataya, Civil Reference No. 1 of 2006 (unreported). A more lucid position on the principles governing reference were accentuated in Swalehe Mbaraka Said (As the Administrator of the Estate of the late Mahmoud Saidi

Abdulrahman) v. Ahmed Mohamed Mtundu (As the Administrator of the Estate of the late Mohamed Mtundu) & Another, Civil Reference No. 6 of 2022 [2023] TZCA 17869, in which the Court's decision in G.A.B Swale v. Tanzania Zambia Railway Authority, Civil Reference No. 5 of 2021 [2016] TZCA 863 was re-affirmed and the principles were restated as follows: " (i)Only those issues which were raised and considered before the single Justice may be raised in a reference. (See GEM AND ROCK VENTURES CO. LTD VS YONA HAMIS MVUTAH, Civil Reference No. 1 o f2001 (unreported). And if the decision involves exercise o f judicial discretion: (ii) I f the single Justice has taken into account irrelevant factors or; (iii)If the single Justice failed to take into account relevant matters or; (iv)If there is misapprehension or improper appreciation o f the law or facts applicable to that issue or; (v) If, looked at in relation to the available evidence and law, the decision is plainly wrong, (see KENYA CANNERS LTD V TITUS MURIRIDOCTS (1966) LLR 5434, a decision o f the Court o fAppeal o f Kenya,

which we find persuasive) (see aiso MBOGO AND ANOTHER VSHAH [1968]EA 93." From the quoted excerpt, the narrow follow-up question is whether the decision of the single Justice of Appeal falls into any or all of the principles restated in the cited decisions. Nothing could be further from the reality as our scrupulous review of the single Justice's decision shows that he, quite convincingly, delved into the import of rule 11 (5) and came out with a conclusion that left no doubt that (i) no substantial loss would be suffered while the applicant is not resident in the said house; and (ii) the security for the due performance of the decree failed the ownership test when it was revealed that the house in dispute is registered in the respondent's name. This fact has also been confirmed by Mr. Tarimo in the course of his submissions. We take Mr. Tarimo's concession as the clearest indication of how impossible it was for the learned single Justice to arrive at a conclusion that is different from what he ultimately settled on. We are not convinced, one bit, that the reasoning of the learned single Justice was shrouded in any misapprehension or improper appreciation of law or facts as to render his decision plainly wrong or at all. He did not fail to take into account any relevant matter either. It is quite plain that the applicant's failure to convince the learned single Justice to grant a stay order

was based on nothing but failure to comply with the imperative requirement of rule 11 (5) of the Rules, and we find nothing blemished and we see no basis of our intervention through reference. We, in consequence, find that the matter before us is lacking in merit and, accordingly, we dismiss it with costs. DATED at DAR ES SALAAM this 12th day of November, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Ruling delivered this 12th day of November, 2024 in the presence of Mr. Tarimo Methodius Melkior, learned counsel for the Applicant and M r. Petro Frederick Musimwa, learned counsel for the Respondent, is hereby certified as a true copy of the original.