Maria Saimon Moshiro and Another vs Yusufu Mzee Ngororo (Civil Application No. 876 of 2024) [2024] TZCA 976 (23 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 876 OF 2024 MARIA SAIMON MOSHIRO.............. MOHAMED KINDAMBA NGWERENJE 1 st APPLICANT 2 nd APPLICANT VERSUS YUSUFU MZEE NGORORO RESPONDENT [Application from the Judgment, Decree and Order of the High Court of Tanzania (Land Division) at Dar es Salaam] fHemed. J.T dated the 10thday of August, 2023 in 18th & 23rd October, 2024 MAKUNGU. J.A.: The applicants are moving the Court by notice of motion for stay of execution of a decree of the High Court of Tanzania at Dar es Salaam in Land Case No. 24 of 2022 dated 10th August, 2023, pending hearing and determination of an intended appeal. The application is brought under Rule 11 (4), (5) (a) (b), (6), (7) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). The applicants and the respondent are tangled in a dispute over a piece of land. The applicants claim ownership of unsurveyed piece of Land Case No. 24 of 2022 RULING

land measuring 36 acres located at Ubafu Village at Bagamoyo District in Coast Region which was unlawfully encroached by the respondent. They prayed to be declared the lawful owners of that land. The respondent disputed the claims of the applicants vide the written statement of defence. He stated that the land mentioned by the applicants at Ubafu Village, Bagamoyo, is completely unknown to him. He pleaded to own a surveyed piece of land at Vikawe Village, Farm No. 1823 with certificate of Title No. 51177. He prayed for dismissal of the suit with costs. In the said judgment the High Court dismissed the suit with costs. The applicants were not happy with that findings of the High Court, thus on 15th August, 2023 lodged the notice of appeal and aiso requested for copies of proceedings, judgment and decree for appeal purposes. While waiting for each documents in order to process the appeal, on 4th September, 2024 the applicants acknowledged the existence of the execution to be executed by the respondent to the disputed land, hence this application for stay of execution.

The notice of motion is supported by a joint affidavit duly affirmed and sworn by the applicants. The respondent filed an affidavit in reply opposing the applicant's affidavit. At the hearing of this application on 18th October, 2024, Mr. Said Hassan Kivuyo and Mr. Josephat Sayi Mabula, both learned counsel represented the applicants and respondent, respectively. The respondent through Mr. Mabula, learned counsel lodged a notice of preliminary objection on 8th October, 2024 to the effect that: "1. The present application No. 876 o f 2024 violates Rule 11 (7) (d) o f the Court o f Appeal Rules [Cap 141 R.E. 2019] which obliges the applicant to ensure the application is accompanied by a copy o f a notice o f the intended execution not been attached to this application. 2. This application is hopelessly time barred for being in violation o f Rule 11 (4) o f the Court o f Appeal Rules [Cap 141 R.E. 2019] which mandatorily requires an application for stay of execution to be filed within fourteen days of service o f the notice o f execution. Instead, the application had been filed sixty days after the

applicants became aware with the notice for execution on 3rdJuiyf 2024." Submitting on the first point, Mr. Mabula while referring to Rule 11 (7) (d) of the Rules, briefly argued that the application before the Court is incompetent as the applicants failed to attach a notice of intended execution as required under Rule 11 (7) (d) of the Rules. He submitted that, the provision makes it mandatory for the applicant of the order for stay of execution to attach with the application, a notice of execution. On the second point of objection, the learned counsel submitted that the application before the Court is out of time as the same was supposed to be filed within a period of fourteen (14) days from the date of receiving the notice of execution or otherwise became aware of the ongoing execution process. To demonstrate that the application was filed out of time, he submitted that this application was filed on 1s t October, 2024 when the time started to run on 3rd July, 2024 when the applicants became aware of the notice of execution. The applicants were required to act from that date, he added. He argued that it is obvious that the application had been filed sixty days after the applicants became aware of the notice of execution on 3r d July, 2024. From that failure of the

applicants to comply with the provisions of Rule 11 (4) and (7) (d) of the Rules, he prayed for this application to be struck out with costs. In response to the foregoing submissions, Mr. Kivuyo opposed the two points of objection. On the first point, briefly replied that the application was attached with the letter of Director of Kibaha Town Council (Halmashauri ya Mji Kibaha) of 21s t August, 2024 which notified the applicants on the execution which was scheduled to take place on 4th September, 2024. Therefore, the first point has no merit. On the second point, the learned counsel relying on paragraph 3 of the affidavit, submitted that the applicants were aware of the execution process on 4th September, 2024 and the application was dated 13th September, 2024, thus the application is within time. He therefore invited me to find that the applicants complied with the requirement of Rule 11 (4) of the Rules. He prayed that this point also has no merit and the preliminary objection raised to be dismissed and the application to proceed on merit. When probed by the Court as to why the application was prepared on 13th September, 2024 but was filed on 1s t October, 2024, after 17

days, the learned counsel did not answer the question and left the matter to the Court to decide. In rejoinder, Mr, Mabula on the first point submitted that the letter referred to by the learned counsel for the applicants cannot be taken as a notice of intended execution in terms of Rule 11 (7) (d) of the Rules because it was not issued by the court. On second point, he insisted that both dates relied by the applicants, that is 21s t August, 2024 and 4th September, 2024 show that the application was filed out of time because the application was filed on 1s t October, 2024 beyond fourteen (14) days. With the above arguments in mind, I will start with the law applicable in terms of requirements necessary for application like this one to be granted. I will start with the law in the context of the requirements of Rule 11 (4) and (7) (d) of the Rules as raised in the notice of preliminary objection. Legally, for this Court to grant the order sought, as highlighted above, among other requirements, the applicant needs to satisfy the following two legal requirements, one, the applicant must lodge the application within fourteen (14) days from the date he was served with

the notice of execution or from when he became 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 the notice of the intended execution in terms of Rule 11 (7) (d) of the Rules. The above two conditions and several others which are not relevant to this application, must be cumulatively met as per this Court's decisions in Mantrac Tanzania Ltd. v. Raymond Costa, Civii Application No. 11 of 2010 and Mohamed Masoud Abdalla and Sixteen Others v. Tanzania Road Haulage [1980] Limited, Civil Application No. 58/17 of 2016 (both unreported) among others. Where the conditions are not met cumulatively, the application is incompetent and liable to fail, see Mabrock Mengele v. Vernon David Law and Another, Civil Application No. 87 of 2004 (unreported). I will now determine whether in this application the applicants met the above two conditions, and I shall start to discuss if the application was filed without undue delay in compliance with Rule 11 (4) of the Rules and then if it was attached with a notice of execution as required by Rule 11 (7) (d) of the Rules. Rule 11 (4) stipulates as follows:

"(4) An application for stay o f execution shall be made within fourteen days o f service o f the notice o f execution on the appellant by the executing officer or from the date he is otherwise made aware o f the existence o f an application for execution" Whereas Rule 11 (7) (d) provides that: "An application for stay o f execution shall be accompanied by copies o f the foliowing- (a) to (c) N/A, (d) A notice o f the intended execution". The applicants' counsel argued that the applicants became aware of execution on 4th September, 2024 as indicated in paragraphs 3 and 7 of the affidavit. This application having been filed on 1s t October, 2024 the same was filed 26 days from the date they became aware of the execution proceedings they are seeking to stay. This would be in violation of Rule 11 (4) of the Rules. The application in the circumstance is time barred. The other aspect I focused on, related to compliance with 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 this application, I thoroughly reviewed the documents but I have not been able to locate such notice. The letter of Director of Kibaha Town Council referred to by the applicants' counsel does not amount to a notice of execution in terms of Rule 11 (7) (d) of the Rules. That is in contravention of Rule 11 (7) (d) of the Rules. For the above reasons, I sustain the preliminary objection raised and find the applicants have failed to cumulatively fulfil the conditions stated under Rule 11 (4) and (7) (d) of the Rules. Accordingly, the application is struck out with costs. DATED at DAR ES SALAAM this 23r d day of October, 2024. 0. 0. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 23r d day of October, 2024 in the presence of Mr. Saidi Hassan Kivuyo, learned counsel for the applicants and Mr. Josephat Sayi Mabula, learned counsel for the respondent; is hereby certified as a true copy of the original. ^ — 111 R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL