Jimmy Peter Mushi vs Esther Fredrick Sumaye (Civil Application No. 902 of 2024) [2024] TZCA 1037 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 902 OF 2024 JIMMY PETER MUSHI ............ ..... ................................................. APPLICANT VERSUS ESTHER FREDRICK SUMAYE ............ .................................... RESPONDENT [Application for Stay of Execution of the Decree of the High Court of Tanzania Land Division, at Dar es Salaam] (Luvanda 3 ,^ dated the 25th day of April, 2024 in Land Case No. 99 of 2023 RULING f f i' October, & November, 2024 GALEBA. 3.A.: This is an application for stay of execution of the decree which was passed by the High Court of Tanzania, Land Division at Dar es Salaam (the trial court), against Jimmy Peter Mushi, the applicant The decree is in favour of one Esther Fredrick Sumaye, the respondent. The application is substantially not contested; except for two intriguing issues, which are whether in an eviction decree like the one sought to be stayed in this application, a bank guarantee may be an appropriate security to order, and if so, what should be a fit figure or quantum for that guarantee. The very brief background of the matter material to this application is that, by a decree passed in Land Case No. 99 of 2023, the respondent was 1

declared by the trial court as the lawful owner of farm No. 25 Madale Wazo Hill Area, containing 1.690 hectors with certificate of title No. 53085. The applicant was aggrieved by that decision, such that he lodged a notice of appeal to challenge it. Nonetheless, as the notice was pending, the respondent initiated execution proceedings in order to achieve vacant possession. This application is seeking to stall those proceedings, pending determination of the intended appeal. Before me, the applicant was represented by Mr. Mashaka Edgar Mfala learned advocate, whereas the respondent was represented by Messrs. Emmanuel Saghan and Elly Mkwawa, both learned advocates. As highlighted above, Mr. Mfala submitted that the application met all threshold requirements as per rule 11 (4), (5) and (7) of the Tanzania Court of Appeal Rules 2009 (the Rules). As for rule 11 (5) (b) of the Rules, the learned advocate submitted that his client has committed himself to provide security in the nature of a bank guarantee in the sum of T7S. 60,000,000.00 which is the approximate value of the house and the proportion of the land he occupies. On his part, Mr. Saghan did not contest Mr. Mfala's submission, save that the bank guarantee to be provided by the applicant, should be at least TZS. 500,000,000.00 which, he said, was the last known value of the entire property covered by the decree.

In view of the above, I raised two issues with counsel at the hearing; one, considering the nature of the decree which is non-monetary, whether, it was appropriate to order giving of a bank guarantee as security for such a decree; and two, what was their respective credible basis of arriving at the amounts they mentioned, that is TZS. 500,000,000.00 and TZS. 60,000,000.00. I will start with the first issue of giving a bank guarantee to secure a non-monetary decree. On this aspect despite the maximum attention with which I listened to both learned advocates, neither of them made any credible arguments that a bank guarantee was a fit security, to secure performance of an eviction decree. In this application, the relevant part of the decree whose execution process is sought to be stayed, reads: "THIS COURT DOTH HEREBY ORDER THAT:

1. The plaintiffis declared to be a lawful owner o f the landed property described as farm No. 25 measuring 1.690 hectors with certificated o f title No. 53085 situated at Madale Wazo H ill Area, Kinondoni Municipality within Dar es Saiaam Region.
2. The plaintiffis entitled to costs." Clearly therefore, the right of the decree holder pronounced in the above decree is vacant possession of the real property, which may only be achieved

by an eviction order and not payment of any money. The decree holder is not entitled, as per the decree, to any money from the judgement debtor in which case, upon losing the appeal, the respondent would go to the bank and liquidate the guarantee in order to appropriate the proceeds. In this decree, the money part is the costs, in respect of which there was no evidence that the same were already taxed. The above reasoning, the point that a bank guarantee is not an appropriate security to give in eviction decrees, is based on the manner rule 11 (5) (b) of the Rules is couched. That rule provides that: "(5) No order for stay o f execution shall be made under this rule unless the Court is satisfied that- (a) N/A (b) security has been given by the applicant for the due performance o f such decree or order as may ultimately be binding upon him . " [Emphasis added] Thus, in terms of the above provision, the security to be ordered must be "for due performance o f the decree as it might ultimately bind upon the judgment debtor" In my view, the above quoted decree cannot be duly performed by payment of money or by realization of a bank guarantee. So, I do not have any basis to order the applicant to process a bank guarantee, in the circumstances of this case. I would have easily done so, if due performance of the decree would have been payment of money. It therefore

follows that, a discussion seeking to determine the quantum of the bank guarantee, that is whether it should be TZS. 500,000,000.00 and TZS. 60,000,000.00, loses relevance automatically. So, I will not discuss it. The above notwithstanding, this Court still has powers under rule 11 (3) of the Rules, to stay execution of the impugned decree, by setting appropriate conditions to be fulfilled by the applicant, in a quest to, as much as possible, protect and preserve the rights of the respondent, who has a valid judgment in her favor. In view of the above discussion, particularly considering the nature of the decree, which entitles the respondent an order for eviction, I make the following orders:

1. All execution processes of the decree dated 25th April, 2024 in Land Appeal No. 99 of 2023 between the parties in this application, is hereby stayed pending determination of the intended appeal, subject to the following terms to be strictly observed by the applicant at all times.
2. The applicant shall not part with occupation of the land subject of the decree, and if the applicant shall at any time, wish to part with occupation of the property, he shall hand it over to the respondent.
3. The applicant shall not offer the disputed property for any kind of disposition; that is to say, the applicant shall not sell, assign, lease, 5

enter into a partnership, mortgage, bequeath, or do anything or act to the property which may create any third-party interest in the land. 4. If the property shall fall vacant such that the applicant is apparently absent from the land in the decree for a prolonged period of time of over ninety days, the respondent shall assume occupation of the disputed property and occupy it. 5. At all time, the applicant shall pay all Government or Local Government taxes in respect of the disputed property, and to do so in the name of the respondent. It is so ordered. DATED at DAR ES SALAAM, the 4th day of November 2024 Z. N. GALEBA JUSTICE OF APPEAL The Ruling delivered on this 5th day of November, 2024 in the presence of Ms. Yustina Odilo Myala, learned counsel for the Applicant and Mr. Aaron Eiias Tenga, learned counsel for the Respondent, is hereby certified as a true