Michael Makanika Nyamika vs Tatu Selemani Tulieni & Others (Civil Application No. 674/17 of 2024) [2024] TZCA 1021 (1 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 674/17 OF 2024 MICHAEL MAKANIKA NYAMIKA.................. . ............................ APPLICANT VERSUS TATU SELEMANI TULIENI...................................................1 st RESPONDENT TATU SELEMANI TULIENI (As administrator of the estate of ISMAIL OMARY KAOLE, deceased) ................ 2 nd RESPONDENT AMANDUS KIMARO............................................................ 3 rd RESPONDENT ZERO AUCTION MART & COURT BROKER ................... ....... 4 th RESPONDENT ERICK AUCTION MART & COURT BROKER..........................5™ RESPONDENT NOEL ESTATE COMPANY LIMITED......................................6™ RESPONDENT [Application for Stay of Execution of the Decree of the High Court of Tanzania (Land Division) at Dar es Salaam] fMsafiri. dated the 28thday ofJune, 2024 in Land Case No. 97 of 2022 RULING 21st October & 1st November, 2024 MAKUNGU. J.A.: The applicant has lodged this application seeking an order for stay of execution of the decision of the High Court of Tanzania (Land Division) at Dar es Salaam, in Land Case No. 97 of 2022 (Msafiri, J.) dated 28th June, 2024. The application is brought by way of notice of motion lodged under rules 11 (3), (4), (4A), (5) (a), (b), (6), (7) (a), (b) (c) and (d), 48 (1) and 4 (2) (b) of the Tanzania Court of Appeal Rules [2009] as amended (the "Rules").

The application is supported by an affidavit deponed by Mr. Castor Anthony Rweikiza the applicant's advocate. On the other hand, the 1s t and 2n d respondents did file their joint affidavit in reply to contest the application. The 3rd , 4th , 5th and 6th respondents did not file their affidavits in reply as required by the law. The following brief background facts will serve the purpose of appreciating the essence of the present application. The applicant herein was the plaintiff in Land Case No. 97 of 2022 at the High Court of Tanzania (Land Division) at Dar es Salaam and its judgment and decree were delivered on 28th June, 2024 which was in favour of the 1s t and 2n d respondents. Aggrieved with the said decision, the applicant immediately filed a notice of appeal and applied for copies of proceedings, judgment, decree and certified copies of all exhibits used during trial in the trial court. While preparations to appeal to the Court are underway the applicant was served with notice of summons to appear to the High Court which summons were served and received on 19th August, 2024 and the matter has been set to proceed on 4th September, 2024 in which the 1s t respondent wants to execute the decree by evicting the applicant and requesting the applicant to surrender Certificate of Title in respect of

the disputed plot in Execution Application No. 19893 of 2024. The applicant has accessed the Court seeking for stay of the intended execution. When the application was called on for hearing before me, the applicant was represented by Mr. Castor Rweikiza, learned advocate whereas the 1s t respondent appeared in person, with no legal representation and also represented the 2n d respondent. The 3rd , 4th , 5th and 6th respondents did not feature in Court. At the outset, Mr. Rweikiza prayed to proceed with the hearing of the application in the absence of the 3rd , 4th , 5th and 6th respondents due to the urgency of the matter and also because the 3r d and 4th respondents' advocate Mr. Rabin Muyenjwa was in Court in the last hearing date and he requested the Court to adjourn the matter so as to file affidavit in reply for his clients, but he failed to do so. The 5th respondent is out of country and his office is dosed according to the affidavit filed in the Court. The 6th respondent refused to receive summons for a simple reason that he did not appear in the trial court and therefore was not involved in the case. The 1s t and 2n d respondents had no objection to the prayer. I granted the prayer and ordered to

proceed with the hearing in the absence of the said respondents in terms of rule 63 (2) of the Rules. Submitting in support of the application, Mr. Rweikiza first adopted the affidavit deposed by him and thereafter urged me to grant the application on the ground that the application meets all requirements under rule 11 of the Rules to be granted. He contended that this application has been filed within 14 days from the date of receiving the application for execution. The notice of execution was received on 19th August, 2024 and this application was filed on 30th August, 2024, thus it was filed within 14 days required by the law. Mr. Rweikiza also submitted that copies of the notice of appeal, the judgment, decree and the notice of execution have been annexed in the supporting affidavit in compliance with the legal requirement as per rule 11 (7) of the Rules. He added that the applicant has made an undertaking to furnish security by any way including but not limited to a bank guarantee or any other security if the need arises or any other mode as the Court shall determine and direct. He concluded that, in the event the execution is carried out it will cause irreparable injuries to the applicant and his family, reputation, economic loss and great hardship to the applicant and the entire family. Basing on this account, Mr. Rweikiza

prayed that the application be granted as prayed for in the notice of motion. He also prayed that, the applicant to be allowed to furnish as security the Title deed of his house. In reply to the submissions of the applicant's advocate, the 1s t respondent who is also representing the 2n d respondent opposed the application arguing that the applicant is not residing in the disputed premises but is residing in another house at Savana Street, therefore the respondent is the one who is suffering. In respect of the security proposed by the applicant's -advocate, her argument was that the applicant should not be allowed to deposit a title deed of the disputed premises. She prayed the application to be dismissed with costs. In rejoinder, the applicant's advocate replied that the disputed premises is not the subject of the security in this application. The house intended for security is valued at 300,000,000/=. He prayed the application to be granted. With the above arguments in mind, I will start with the law applicable in terms of the requirements necessary for application like this one to be granted. I will address my mind on the law in the context of the requirements of rule 11 (4), (5) (a) and (b) and (7) of the Rules.

Legally for the Court to grant the orders sought, as highlighted above, the applicant needs to satisfy the following legal requirements, among others; one, the applicant must lodge the application within 14 days from the date that he becomes aware of the execution proceedings. This is in terms of rule 11 (4) of the Rules. Two, the applicant must also attach to the application copies of the documents in terms of rule 11 (7) of the Rules. Three, the applicant will face substantial loss if the decision is executed and four, the applicant must make a firm undertaking and confirm of the hearing that he shall furnish security of the due performance of the decree. In the instant application, it is not disputed that the application was filed within 14 days, thus the requirement stated in sub-rule 4 of rule 11 of the Rules has been complied with. Equally, the applicant's act to annex in the supporting affidavit, the notice of appeal, judgment, decree and the notice of intended execution is evidence of compliance of the requirement stated in rule 11 (7) of the Rules. The only controversy between the parties is in respect of the requirement of rule 11 (5) (b) regarding furnishing security which the respondent opposed the disputed premises being the subject of the security, and the applicant has not stated the amount of security to be deposited as a bank guarantee. On

this argument, the Court in Kibo Corridor Ltd. v. Ravji Investment Co. Ltd., Civil Application No. 473/05 of 2019 (unreported) stated that: "It is established iaw that ■ a firm undertaking by the applicant to provide security might be sufficient proof to move the Court to grant the order o f stay o f execution. See for instance, Mantrac Tanzania Ltd. v. Raymond Costa, Civil Application No. 11 o f 2010 (unreported )." According to the above cited authority, a mere firm undertaking to furnish the security suffices. No particular form of the security is required. In my view, the applicant has given a firm undertaking to furnish it in the manner and to the extent as the Court may determine. Therefore, on the basis of the above authority, I am satisfied that the applicant has sufficiently undertaken to furnish the security. Regarding the issue of substantial loss, the applicant asserted that he will suffer undue hardship and irreparable injury because he is residing in the disputed premises. It is notable that in item vi of the notice of motion the applicant has stated that undue hardship and substantial loss are likely to result to him and his beloved family unless the order for stay of execution is made. On the other hand, the 1s t respondent refuted that the applicant is not residing in the disputed

premises, and that he has not shown how the loss would be occasioned. She was of the view that, no substantial loss would be occasioned to the applicant in the circumstances the decree is executed. To the contrary it is her and other beneficiaries of the estate of their late father who are suffering by not enjoying fruits of the decree. On the issue whether or not the applicant resides in the disputed premises, I agree with Mr. Rweikiza's line of argument that the applicant is residing in the disputed premises as averred at paragraph 17 of an affidavit in support of the application. Therefore, anything leading to the execution of the decree may result into undue hardship. Having satisfied that the mandatory requirements of rules 11 (3), (4), (5) and (7) of the Ruies, the required conditions have been met, I grant the application as prayed in the notice of motion. Accordingly, I stay the execution of the decree of the High Court of Tanzania (Land Division) at Dar es Salaam in Land Case No. 97 of 2022 dated 28th June, 2024 pending hearing and determination of the intended appeal. In terms of rule 11 (5) (b) of the Rules I further order as follows: one, that the applicant shall desist from disposing of or alienating in any manner whatsoever the property in dispute, namely, Plot No. 431 Block

'G' situated at Tabata area, Ilala District, Dar es Salaam with Certificate of Title No. 42356. Two, that the applicant shall deposit with the Registrar of the Court within sixty days of the date hereof, in a form of bank guarantee in the sum of 100,000,000/= or Certificate of Title in another house valued not less than 100,000,000/= as security. Costs shall be in the intended appeal. Each party shall bear its own costs. It is so ordered. DATED at DAR ES SALAAM this 31s t day of October, 2024. The Ruling delivered this 1s t day of November, 2024 in the presence of the Mr. Castor Anthony Rweikiza, learned counsel for the applicant and Mr. Emmanuel Temba, Legal Officer for the 6th respondent, O. O. MAKUNGU JUSTICE OF APPEAL in the absence of the l* 2"d ,3* 4 th# a n d 5 th respondents; is hereby certified as a true copy of the original.