Hafsa Ally Makundi vs Johnson Amani (Civil Application No. 1029 of 2024) [2024] TZCA 1064 (7 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1029 OF 2024 HAFSA ALLY MAKUNDI ..................................... ......... .................APPLICANT VERSUS JOHNSON AMANI......................................................... ..............RESPONDENT (Application for stay of execution of the order of the Primary Court at Tunduma) fKiwanqo, RM.^ dated the 15.thday of August, 2023 in Probate Case No. 16 of 2019 RULING 29th October & 7th November, 2024 MAKUNGU. J.A.: The applicant is moving the Court by notice of motion for stay of execution of a decree in the decision of the Primary Court of Tunduma in Probate Case No. 16 of 2019 dated 15th August, 2023 pending final determination of the Misc. Civil Application No. 22984 of 2024 for certificate of points of law and the final determination of the appeal subsequent upon the successful determination and grant certificate of points of law to the applicant. The application is brought under rules 11 (3), (4), (4A) (5) (a) and (b), (6) and (7) of the Tanzania Court of Appeal Rules, 2009 as amended

("the Rules"). The application is supported by the affidavit of the applicant. The background to the case is set out in the affidavit of the applicant and it may briefly be stated as follows: the applicant was the objector in Tunduma Primary Court decision dated 15th August, 2023 in Probate Cause No. 16 of 2019. The applicant was objecting against the respondent who is an administrator of the estate of the late Ally Makundi. On that objection, she objected to include the houses located at Plot No. 10 and 23 Block 'K' Tunduma Urban area in the estate of the late Ally Makundi which the applicant claimed to be her personal property. The said objection was ruled in favour of the respondent. Aggrieved by such a decision, the applicant filed Probate Appeal No. 4 of 2023 to the District Court of Momba, which was also pronounced in favour of the respondent. Again, aggrieved with such a decision, she filed another Civil Appeal No. 4978 of 2024 to the High Court of Tanzania, at Mbeya which was also decided in favour of the respondent. Still, aggrieved with the High Court decision, the applicant filed a notice of appeal against that decision to this Court on 18th September,

2024 and then she filed a Misc. Civil Application No. 22984 of 2024 for certificate of point of law, which is pending before the High Court. While there is such pending application, on 25th September, 2024, the applicant received a notice from the respondent informing all the tenants of the said house to vacate within 30 days, for the respondent to perform his administration duty. The notice prompted the applicant to file this application for an order to stay that intended execution. The application was, however, greeted by a preliminary objection raised by the respondent, notice of which was filed on 28th October, 2024, the subject of this ruling. The objection is based on a single point which is to the effect that the application is incompetent as the execution sought to be stayed is not executable. Whereas, Ms. Neema Saruni, learned advocate, represented the applicant when the application was called on for hearing, the respondent had the services of Mr. Luka Ngogo, learned advocate who appeared through video link from Mbeya. In his brief but focused submission in support of the preliminary objection, Mr. Ngogo argued that the application is incompetent because no notice of intended execution was attached with the affidavit as

required under rule 11 (7) (d) of the Rules. He pointed out that the notice of intended execution attached with the affidavit was not issued by the court and this Court cannot deal with it. Therefore, if there is no valid notice of intended execution, the respondent has nothing to execute. He argued further that in this application there is no right which was granted by the Court to be executed. The notice given by the respondent cannot be executed therefore the applicant failed to meet the required conditions under rule 11 of the Rules. He cited cases of Yasmine Haji v. Amin Haji, Civil Application No. 416/01 of 2024 and Ally Omar Abdi v. The Registrar of Titles Arusha Registry and 2 Others, Civil Application No. 107/02 of 2024 (both unreported). He thus, prayed for the application to be struck out with costs. On the other part, Ms. Saruni did not agree that the application did not meet the conditions under rule 11 (7) of the Rules. She adamantly argued that the notice given by the respondent as an administrator is executable because he was given 14 days by the Primary Court to close the Probate Cause. She argued further that, the respondent was bound by the directives given by the Primary Court and he was required to comply with it. Therefore, the notice of intended execution is executable.

Fortifying her submission, she cited the case of Athanas Alberty and 4 Others v. Tumaini University College, Iringa [2001] T.L.R. 63. The learned counsel submitted that the respondent's counsel submission that the application did not meet the conditions prescribed under the law is not correct and the cases cited by the respondent's counsel are distinguishable from the present matter. She thus urged me to overrule the objection and find that the application is competent before the Court. In his rejoinder, Mr. Ngogo submitted that, in principle, the preliminary objection that the notice of execution given by the respondent is not executable is not contested because a mere duty of an administrator cannot be taken as an eviction order to the applicant. He thus, reiterated his prayer for the application to be struck out with costs for being incompetent. The only issue for my determination is whether the instant application for stay of execution is competent before the Court. The respondent's counsel contends that there is no order of the Primary Court of Tunduma to be stayed. His argument was that there is no order of the Primary Court which gives right to any party and therefore no

order of eviction given to the respondent to execute. On the other hand, the applicant vigorously contends that the respondent has the power to evict the applicant and that if the application is not granted, she stands to suffer irreparable loss, and that the intended appeal to this Court stands good chance of success. I am of the view that, there is nothing in the Primary Court order the execution of which is capable of being stayed. All that the Primary Court did was to direct the respondent to close the proceeding of probate within 14 days. It seems to me that a stay of execution can properly be asked for where there is a court order granting a right to the respondent or commanding or directing him to do something that effects the applicant. In such a situation, the applicant can meaningfully ask the Court for a stay and to restrain the respondent from executing that order pending the results of an intended appeal. In this application, then the question is: whether the application meets the requirement under rule 11 (7) (d) of the Rules? That provision makes it mandatory for the applicant of the order for stay of execution to attach with the application, a notice of execution. In my view the notice of the respondent referred to by the applicant's counsel is not executable. This is because it was not issued by the court and the

directives of the Primary Court did not grant to the respondent any right the enjoyment or enforcement of which could be stayed through a court order pending the result of the intended appeal by the applicant. The notice of the respondent referred to by the applicant's counsel as "Annexture F" does not amount to a notice of execution in terms of rule 11 (7) (d) of the Rules. For the above reasons, I sustain the preliminary objection raised and find the application before me is incompetent and accordingly is hereby struck out with costs. It is so ordered. DATED at DAR ES SALAAM this 6th day of November, 2024. 0. 0. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 7th day of November, 2024 in the presence of Ms. Neema Saruni, learned counsel for the applicants and Mr. Luka Ngogo, learned counsel for the respondent vide video link from Mbeya; is hereby certified as a true copy of the original.