Jayendra J. Amarchand and Another vs Latifa Hassan Alibhai and Another (Civil Application No. 425 of 2024) [2024] TZCA 1020 (1 November 2024)

AT PAR ES SALAAM CIVIL APPLICATION NO. 425 OF 2024 RAKHEE JAYENDRA JAGJIWAN JAYENDRA J. AMARCHAND 1 st APPLICANT 2 nd APPLICANT VERSUS LATIFA HASSAN ALIBHAI .............................. REGISTRAR OF TITLES, MINISTRY OF LANDS, HOUSING AND HUMAN SETTLEMENT.............. 1 st RESPONDENT 2 nd RESPONDENT (Application for stay of execution of the decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Nanqela. JO Dated the 30th day of June, 2022 22n d October & 1s t November, 2024 NGWEMBE. 3.A.: This is an application for stay of execution certified by the applicants' counsel to be extremely urgent. It stems from Land Case No. 199 of 2017 in the High Court of Tanzania, Land Division, where the first respondent sued the applicants for declaratory order of ownership, vacant possession and use of the passages, damages and injunctive orders against the applicants. The dispute was in respect of the Right Wing of the Flat in Plot No. 5 Block 36 House No. 1 at Kariakoo area, Ilala District in Dar es Salaam in Land Case No. 199 of 2017 RULING l

Region. The centre of the parties' contention which was the main issue before the High Court was on lawful ownership of the house in dispute. The High Court found that the first respondent had proved her claim, thus was the rightful owner of flat apartment unit comprising house No. 1 on the right wing of Plot No. 5 Block. The amount of TZS. 100,000.00 was awarded as damages and the applicants were ordered to remove their swing and other items from the corridor to allow the first respondent's easy movement in and out of the unit. Further, permanent injunction was issued with costs. The High Court judgement was delivered on 30th June, 2022 and the applicants, duly filed their notice of appeal on the 5th day of July, 2022 . Having noticed what, they term as execution of the decree, the applicants lodged this application on 17th October, 2024 seeking to secure an order for stay of execution of the decree pending hearing and final determination of the Civil Appeal No. 381 of 2024 pending before the Court. Their endeavours to move this court are directed to rule 4 (l)(2)(a)(b), 11 (3), (4), (5)(a)(b), (6), (7)(a)(b) and (c) of the Court of Appeal Rules, 2009 (the Rules). An affidavit affirmed by JAYENDRA J. AMARCHAND, supported the motion.

The affidavit comprises among other things, facts that the applicants who were the first and second defendants at the High Court are husband and wife. That they had filed Civil Appeal No. 381 of 2024 before the Court against the High Court's decision. In paragraphs 10, 11 and 12 of the affidavit, the deponent averred that while Civil Appeal No. 381 of 2024 is still pending in Court, on the 8th October, 2024 they were served with a notice from the second respondent and other correspondences which exhibited the intent of the second respondent to change the ownership of the disputed property from the applicants to the first respondent in satisfaction of the High Court's decree, which will cause irreparable sufferings to the applicants, unless the execution is stayed pending final determination of the pending appeal. At the hearing, Ms. Kause Kilonzo, learned State Attorney entered appearance for the second respondent, Mr. Jamhuri Johnson, learned advocate appeared for both applicants, while the first respondent had the services of Mr. Gulamhussain Yusuf Hassan also learned advocate. In addressing the matter, Mr. Jamhuri argued that the notice issued by the second respondent to the applicants is said to be a transmission of the flat unit by operation of the law, intending to change ownership which to him, is an execution process capable of being stayed by this Court in

terms of rule 11 (5) of the Rules. Thus he implored the Court to grant the stay order pending hearing of the appeal. When Ms. Kilonzo was invited to reply, she explicitly presented the second respondent's objection to the application mainly on matters of competence of the application itself. Her arguments were that, under rule 11 (3) and (7) of the Rules, there must be an execution proceeding in order for this Court to grant stay of execution. The application for stay of execution must be filed within fourteen days. In the contrary, in this application, there is no application for execution as required by the Court Rules. The notice issued by the second respondent as relied by the applicants does not qualify to be a notice of execution under rule 11 (7) of the Rules. She cited the case of Edosana Hardware Ltd v. Amosi, Civil Appeal No. 502 of 2023 where the Court declined to issue stay of execution when there was no execution proceedings to be stayed. She urged the Court to apply above legal position on the case of Edosana Hardware Ltd (supra) as is analogous to the present application. In alternative, Ms. Kilonzo argued that the notice so relied by the applicants was not fit to be notice of execution, even if it would be treated as such, yet the application will be out of time. She justified that apart from the notice issued by the second respondent on 08/10/2024 which is relied upon by the applicants, yet there was a previous notice which was

dated 20/05/2024 and this application was lodged on 17/10/2024. Therefore, the application would be out of 14 days prescribed by law. Thus she implored the Court to dismiss the application with costs. Mr. Hassan, joined hands with the learned State Attorney regarding time limitation and added that whereas in this application there are two applicants, the second applicant Rakhee Jayendra Jagjiwan did not affirm an affidavit in support to the notice of motion. He cited rule 49 of the Rules that affidavits must be filed to support the application. He cited the case of The Registered Trustees of St. Anitas Greenland Schools (T) and 6 other v. Azania Bank Ltd, Civil Application No. 168 of 2020; and Diana Rose v. TRA, Civil Application No. 245 of 2021. Expressing on the affidavit, the learned advocate averred that paragraph 2 and 4 of the first applicant's affidavit are misleading as they mention the second applicant who did not give any affidavit. He cited cases of Sabena Technics Dar Limited v. Michael J. Luwunzu, Civil Application No. 451 of 2020 and NBC Holding Corporation and another v. Agricultural & Industrial Lubricants Supplies Ltd and 2 others, Civil Application No. 42 of 2000. To him, this application is incompetent for lack of crucial affidavit of the second applicant, therefore he urged the Court to strike it out. Replying by way of rejoinder, Mr. Jamhuri addressed the issue of competence of the application and maintained that the application was

proper and competent as it complied with rule 11 (7) of the Rules. He supported his submission with a case of Melchiades John Mwenda v. Gizelle Mbaga & Others (Civil Appeal No. 57 of 2018) [2020] TZCA 1856 (13 November 2020). Regarding the remedy under section 102 of the Land Registration Act, Mr. Jamhuri pointed out that it would not apply under the circumstance as there is a pending appeal before this Court. The applicants' counsel went further that the second applicant's affidavit was not needed as the first applicant who gave the supporting affidavit is the husband of the second applicant. He admitted to be aware of what this Court ruled in case of The Registered Trustees of St. Anitas Greenland Schools (T) and 6 other v. Azania Bank Ltd; Sabena Technics Dar Limited v. Michael J. Luwunzu; and NBC Holding Corporation and another v. Agricultural & Industrial Lubricants Supplies Ltd and 2 others, on the necessity of the applicants' affidavit but all those cases were distinguishable. He therefore, implored the Court to grant the orders sought in the notice of motion. Having considered the rival arguments of the learned counsels, the decisive question to be determined is whether or not the application is competent. Obviously, a matter before any court is competent if it is lodged

in a competent court, within the prescribed time and in the manner prescribed by the law. Admittedly, this Court is vested with the jurisdiction to grant stay of execution upon good cause being shown and the application must be filed within 14 days in terms of rule 11 (3)(4) of the Rules. What puts parties to contest is competence of this application in respect of time limitation and whether the application was filed in the manner prescribed by the law. Applications before this Court are guided by rule 48 and 49 of the Rules as quoted hereunder: "48.- (1) Subject to the provisions o f sub-rule (3) and to any other rule allowing informal application > every application to the Court shall be by notice of motion supported by affidavit and shall cite the specific rule under which it is brought and state the ground for the relief sought" It is mandatory for an application before this Court to be made by notice of motion and the notice of motion must be supported by affidavit. The requirement is indispensable unless the application is an oral one. This application being formally made, is subject to the requirement provided in the above rule. However, where there is more than one applicant, each of the applicant must give an affidavit or applicants may give a joint affidavit or at least one of the applicants can give an affidavit on behalf of other

applicants if he is conversant of the relevant facts. This is in accordance to rule 49 (1) as quoted hereunder: "49, - (1) Every formal application to the Court shall be supported by one or more affidavits of the applicant or of some other person or persons having knowledge of the facts" Where more than one applicant is involved in an application, each applicant must append his affidavit unless the affidavit is jointly made. It is a position of law that failure to file affidavit or affidavits to cover all applicants in support to the notice of motion is fatal. See The Registered Trustees of St. Anitas (supra). The learned advocate for the applicant endeavoured to impress the Court that the above cited decisions of the Court are distinguishable, unfortunately I have failed to see its essence as he did not point any aspect which can be looked at in making such distinction. I do not find any fact which can ground distinction between the instant application with the above cited decisions. Presumably, Mr. Jamhuri had in mind that since the two applicants are husband and wife, then one of them could append an affidavit to satisfy the legal requirement of proper application before the Court. Unfortunately I am not aware of any law which state that where applicants are spouses then only one affidavit would suffice. In the circumstances, the affidavit of the second applicant is missing and the first applicant, did not affirm that affidavit on behalf of the

second applicant. See; N.B.C. Holding Corporation & Another v. Agricultural & Industrial Lubricants Supplies Ltd (Civil Application No. 42 of 2000) [2001] TZCA 5 (9 April, 2001). In that decision the Court stressed that where there are two or more applicants in the application, the notice of motion must be supported by all applicants. The omission was held to have rendered the application incompetent before the Court. Apart from that, this application is flocked by other ailments. Except on the issue on propriety of the parties, all what the learned State Attorney observed in respect to rule 11 (7) and 11 (4) in my view are correct and the learned counsel for the applicants did not bring any material submission to the contrary. It is correct that the notices issued to the applicants were their invitation to file an objection. That notice could not qualify as notice of execution and there was no pending application for execution as required by rule 11 (7) of the Rules. Alternatively, even if the notice would be treated as notice of execution or assuming that there was pending execution proceedings, the application would still be caught by time limitation reckoned from 20/05/2024 when the first notice was issued to them. When this application was lodged on 17/10/2024 it was more than four months contrary to rule 11 (4) of the Rules which require only 14 days from service of the notice of execution on the applicant by the

executing officer or from the date he is otherwise made aware of the existence of an application for execution. It would follow therefore, that with the ailments observed, the application is incompetent in many aspects. Accordingly, the application is struck out. Each party to bear his own costs. DATED at DAR ES SALAAM this 31st day of October, 2024. The Ruling delivered this 1st day of November, 2024 in the presence of Mr. Benson Forex, learned counsel holding brief for Mr. Jamhuri John, learned counsel for the applicants and in the absence of the respondent, is hereby certified as a true copy of the original. P. 1 NGWEMBE JUSTICE OF APPEAL