Tanga Kadala & Others vs Abdul Hillal Ally (Civil Application No. 447/14 of 2023) [2024] TZCA 1065 (6 November 2024)

AT SHINYANGA CIVIL APPLICATION NO. 447/14 OF 2023 TANGA KADALA .. TINYA KADALA ... AMOSI KADALA .. JITALE BUNDALA MWIGULU BUNDALA BUNDALA JITA LE ..... NGH'ANDA LUBONJA . 1 st APPLICANT 2 nd APPLICANT 3 rd APPLICANT 4 th APPLICANT 5 th APPLICANT 6 th APPLICANT 7 th APPLICANT VERSUS ABDUL HILLAL ALLY RESPONDENT (Application for stay of execution of the decree of the Resident Magistrates' Court of Shinyanga at Shinyanga - Extended Jurisdiction in 4th & 6th November, 2024 MWANPAMBO. J.A.: The applicants lost to the respondent before the District Land and Housing Tribunal (DLHT) for Maswa District over a dispute to ownership of land. The DLHT declared the respondent as the owner of the disputed land and that the applicants were trespassers and ordered to vacate from the said land. The applicant's appeal before the High Court which was Land Appeal No. 03 of 2020 (Lukuna, RM- Ext. Jurisdiction^ dated the 10th day of July 2020 in Land Application No. 72 of 2013 RULING l

transferred to and heard by the Resident Magistrates' court of Shinyanga with extended jurisdiction was found to be devoid of merit and dismissed. From that decision, the applicants lodged a notice of appeal to the Court. After the DLHT's decision, the respondent moved it to be allowed to develop the disputed land. The DLHT ordered the applicants to remain in the disputed land until such time they shall have harvested their growing crops and give vacant possession to the respondent who was allowed to make use of the said land. The DLHT's order triggered an application for stay of execution taken by the applicants through Mr. Frank Samwel, learned advocate who had conduct of the matter before the DLHT and first appellate court. His affidavit sworn on behalf of the applicants is, but a narrative of the events from the date of delivery of the impugned decision to the lodging of the application. Directly relevant to the determination of the application are averments in paragraphs 15,16 and 17 alluding to substantial loss likely to be suffered by the applicants if an order for stay is not made as well as their guarantee to ensure that the land in dispute remains undisturbed. They too appear to have undertaken to offer their animals kept in disputed land worth TZS. 135,000,000.00 as security.

The respondent did not lodge an affidavit in reply allegedly because he was not served with a copy of the notice of motion. That notwithstanding, Mr. Joseph Kiyumbi Sungwa, learned advocate representing the respondent at the hearing indicated his readiness to address the Court on points of law which he did. Earlier on, the learned advocate had lodged a notice of preliminary objections challenging the competence of the application which I marked as abandoned before the commencement of hearing. Mr. Samwel appeared for the applicants and urged me to grant the application on the strength of the averments in his affidavit. According to him, the applicants had met the necessary conditions for the grant of the application that is; potential substantial loss and undertaking on security consistent with the provisions of rule 11 (5) of the Tanzania Court of Appeal Rules, 2009 (the Rules). When it was put to him on the efficacy of the proposed security, Mr. Samwel impressed upon me that the commitment bond proposed by the applicants was sufficient and in accord with rule 11(5) (b) of the Rules. Resisting the application, Mr. Sungwa advanced two but related points. The first relates to the non- compliance with rule 11(5) (b) of the Rules by the applicants' failure to furnish security as a condition precedent

for the grant of the application. The second was directed at the alleged defect in the affidavit taken by the applicants' advocate containing averments which he is incompetent to do citing since the averments in paragraphs 15, 16 and 17 allegedly not in his personal knowledge but the applicants themselves. Counsel prayed that the offensive paragraphs be expunged and once that is done, the remaining paragraphs will be meaningless rendering the application unsupported. Mr. Samweli was resolute that a commitment bond was sufficient security on the authority of the Court in Dr. Luis B. Shija v. Kellu Kamo Lucas [2024] TZCA 675 TANZLII. On the other hand, counsel urged that there was nothing wrong for him taking an affidavit as he did in view of the fact that he has all along representing them before the DLHT and the first appellate court hence, conversant with the facts deponed therein. I propose to begin my discussion with the 2n d ground. Although Mr. Sungwa did not cite any authority, I am tempted to guess that he must have in mind the Court's decision in Lalago Cotton Ginnery & Oil Mills Co. Limited v. The Loans & Advances Realization Trust (LART), Civil Application No. 80 of 2002 (unreported), on the restriction against advocates taking affidavits on behalf of their clients except on matters on which they have no personal knowledge on which there is no dispute. In

Lalago's case, a single Justice of the Court was faced with an objection against a counter affidavit deponed to by an advocate for the respondent. The learned Single justice observed: "...An advocate can swear and file an affidavit in proceedings in which he appears for his client, but on m atters which are in the advocate's personal knowledge only. For example, he can swear an affidavit to state that he appeared earlier in the proceedings for his client and that he personally knew what transpired during those proceedings..." Indeed, the learned single Justice expunged some of the paragraphs in the affidavit he found to have been offensive. In the instant application, the learned advocate has deponed that he is conversant with the facts in view of his engagement in the DLHT and first appellate court. While there is no dispute that Mr. Samwel represented the applicant in the DLHT and first appellate court, Mr. Sungwa expressed doubt on the averments in paras 15, 16 and 17 of the affidavit. I find it necessary to reproduce the paragraphs as hereunder: ’75. That the order issued by the Maswa D istrict Land and Housing Tribunal on the 17th February 2023 has the follow ing effects on the applicants: -

i. The applicants won't have the land to use for cultivation and hence the applicants w ill suffer hunger. ii. The anim als o f the applicant w ill starve as well. Hi. The economic activities o f the applicants w ill be impended. 16. That, the applicants are guaranteeing the court that as long as the disputed land is a fixed property which cannot be shifted from one place to another, in case the respondent wins in this court then the applicants w ill vacate the disputed property with no delay. 17. That, the applicants do hereby guarantee that they w ill be able to pay cost in case their appeal fa il with cost and in this case the applicants are giving their anim als kept in that disputed land whose total value is Tshs:

• 135,500,000/-= (one hundred and thirty- five m illion five hundred thousand only." Surely, there can be no doubt that the averments reproduced above have nothing to do with the advocate's representation of the applicants in lower courts. For instance, the claim that the applicants will have no other land for cultivation and thus will suffer hunger and their animals starve cannot be in the advocate's personal knowledge neither could it have been

derived from his legal representation. Apparently, there is no indication that false averments have been deponed on information from the applicants and verified to be true. It can be similarly said of the averments in paragraphs 16 and 17 in which the learned advocate make guarantee for the applicants that they will vacate the disputed land without any delay if the respondent wins his case. So, in the guarantee to pay cost from income derived from animals kept in the disputed land. These matters are, for all intents and purposes extraneous to the deponent in the absence of any indication how he came to know of the existence of the animals. Reverting to Lalago, the Justice of the Court observed that while an advocate is not prohibited from swearing an affidavit on behalf of his client, such affidavit must conform to the requirements of a valid affidavit; it must be confined to facts the deponent is able to prove on his own knowledge except on interlocutory matters on which statements of his belief may be admitted provided that the grounds thereof are stated drawing inspiration from Order XIX rule 3(1) of the Civil Procedure Code. I have already said that the impugned paragraphs could not have been deponed on the advocate's personal knowledge. If anything, they must have been derived from information or belief. However, there is no

indication that the information as derived from the applicants neither the grounds for the belief have been stated. Accordingly, I endorse the submission by Mr. Sungwa and hold that the paragraphs are offensive of a valid affidavit. I accept his invitation and expunge them from the affidavit. Having expunged paragraphs 15, 16 and 17, are the remaining paragraphs sufficient to sustain the application? As submitted by Mr. Sungwa, the answer is in the negative. This is so because, paragraphs 1,2,3,4,5,6,9,10,11,13 and 14 merely provide a background to the application which is hardly contentious. Paragraphs 7 and 8 contain averments on the correctness of the impugned decisions which are irrelevant to the application. As the learned advocate would undoubtedly be aware, for the Court to exercise its discretion to stay execution, it incumbent upon the applicant meeting the conditions under rule 11 (5) of the rules that; (a) he will suffer substantial loss if the order is not made and (b) he has furnished security for the due performance of any decree or order that may ultimately be binding upon. It is significant that the Court has interpreted rule 11(5) (a) of the rules to mean that it is not necessary that security must have been furnished at the time of the application and that, a mere undertaking is sufficient. After expunging

paragraphs 15,16 and 17 from the affidavit, there is nothing left of it in relation to substantial loss as well as undertaking on security. In the upshot, I respectfully agree with Mr. Sungwa that the application has no legs to stand on. In consequence, I dismiss it with costs. DATED at SHINYANGA this 5th day of November, 2024. The Ruling delivered this 6th day of November, 2024 in the presence of Mr. Augustino Michael Ijani, learned counsel who took brief for Mr. Joseph Kiyumbi Sungwa, for the Respondent and in absence of Mr. Frank Samwel, learned counsel for the Applicants though duly notified is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL