Emmanuel Gitigan Cherabaster vs Said Nassor Said (Civil Application No. 376/17 of 2024) [2024] TZCA 957 (2 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 376/17 OF 2024 EMMANUEL GITIGAN CHERABASTER .............. .........................APPLICANT VERSUS SAID NASSOR SAID ................ ......... ....... ..........................RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (MsafirLJ.) Dated the 18th day of October, 2021 in Land Case No. 190 of 2021 RULING I8 hJune & 2n dOctober, 2024 MAKUNGU. J.A.: The applicant, Emmanuel Gitigan Cherabaster, was the defendant on a counter claim in Land Case No. 190 of 2021 of which its judgment and decree was entered on 8th November, 2021, in favour of the respondent declaring him to be the lawful owner of the suit property, comprised under the Certificate of Title No. 46914 Plot No. 245 Block "I" L.O. No. 164077, and the Certificate of Title No. 46915 Plot No. 243 Block "I" L.O. No. 1640022, both located atTemeke Municipality, Dar es Salaam. The applicant, immediately after delivery of the said judgment, instructed his former advocate Mr. Kassim Nyangarika to appeal against the said judgment and in compliance thereof, filed a notice of appeal on

2n d November, 2022. However, for reasons not known or disclosed to him by his former advocate, failed to take essential steps to prosecute the appeal and on 12th April, 2024 this Court did strike out the said notice of appeal. The applicant, on 14th May, 2024 filed a Civil Application No 356/17 of 2024 in the Court for extension of time to file revision against the decision of the High Court of Tanzania Land Division at Dar es Salaam, in Land Case No. 190 of 2021 which is still pending before the Court. Meanwhile, on 20th May, 2024 the respondent served the applicant with a notice of execution of the decree arising from the impugned decision seeking to forcefully evict him from the suit land. It is that move which triggered institution by the applicant, of this application for stay of execution. The application which was taken under Rule 4 (2) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (as amended) (the Rules), is supported by an affidavit sworn by the applicant. The grounds on which the application has been based are stated in the notice of motion as follows: (a) [ThatI the applicant is at the varge o f being rendered homeless with his family from his residential houses CT No. 46914 Plot No. 254 Block T L.O. No. 164077 and CT No.

46915 Plot No. 243 Block 7 " L.O. No. 1640022 both located at Temeke Municipality, Dar es Salaam and stands to suffer irreparable financial loss and emotional distress as a result o f the execution o f the High Court decision tainted with illegalities, unless the order for stay of execution is granted. (b) That, those exist serious illegalities in the proceedings, Judgment and decree o f the High Court o f Tanzania in Land Case No. 190 o f2021, sought to be challenged and to be examine by this Court in the application for extension o f time to file revision out o f time o f the said proceedings, judgment and decree and the intended application for revision o f the same. (c) The applicant is willing to furnish such security as may be ordered by the Court for the due performance o f the Decree sought to be stayed. (d) And for an order that costs o f and incidental to this application abide by the result o f the said application. At the hearing of the application, the applicant was represented by Mr. Derick Kahigi, learned counsel while Mr. Mlyambelele Ng'weli, learned counsel, appeared for the respondent. 3

In support of the application, Mr. Kahigi started by stating that, although the power of the Court to stay execution of a decree is governed by Rule 11 (3) of the Rules whose application is conditional upon existence of a notice of appeal, the Court may exercise such power even where, like in this case, no notice of appeal has been filed. He went on to argue that, since in this case, the applicant has sought a stay order pending determination of the pending application for extension of time to file revision, the Court may invoke Rule 4 (2) (a) and (b) of the Rules relied upon by the applicant in his notice of motion, to entertain the application. Citing the case of Mekefason Mandali and 8 Others v. The Registered Trustees of the Archdiocese of Dar es Salaam, Civil Application No. 491/17 of 2019 (unreported), Mr. Kahigi submitted that, in order to preserve the substance of the pending application for extension of time to file revision, the applicant has moved the Court under the above stated provisions of the Rules to seek a stay order. On the substance of the application, the learned counsel argued in essence, that the conditions for grant of an order of stay of execution have been complied with. He submitted, first that as deponed by the applicant in paragraph 10 of his affidavit, the subject of the execution proceedings initiated by the respondent involve the houses in which the applicant and his entire family reside, and that CRDB Bank account No. 4

01J1007295900 is the only applicant's saving daily basic needs and their day to day survival and thus if execution is not stayed, they will suffer substantial loss. Referring to paragraph 11 of the applicant's affidavit, Mr. Kahigi went on to argue that the applicant has undertaken to furnish security for the due performance of the decree thus complying with the requisite conditions for grant of the sought order. Responding to the submission made by the applicant's counsel, Mr. Ng'weli argued in his oral submission that the application is untenable because of the nature of the proceedings from which a stay order has been sought. He stressed that, since the governing provision is Rule 11 of the Rules which makes it a condition that, for execution of a decree to be stayed, a notice of appeal must have been instituted. In the absence of that notice, the learned counsel argued Rule 4 (2) (a) and (b) of the Rules cannot be invoked to issue a stay order. It was his submission therefore, that since there is no specific provision empowering the Court to issue a stay order pending determination of an application for extension of time to file revision, this application is incompetent. On the substance of the application, the respondent's counsel argued that the same is devoid of merit. He adopted the contents of his reply affidavit in which he countered the assertion made by the applicant in his affidavit, that he has met the requisite conditions for grant of the s

sought order, which are requirements of substantial loss and furnishing security for the due performance of the decree. It was Mr. Ng'weli's submission that the application has been preferred with the intention of delaying execution of the decree and denying the respondent to enjoy the fruits of his decree. He argued that the respondent failed to enjoy his land since 2013 when he bought it for residential purposes a now is using his money to rent other houses which cannot afford to do it and the applicant is enjoying the use of those houses for more than 10 years. He argued further however, that in the event the Court finds it appropriate to grant the application, it should order the applicant to deposit in Court amount of 300,000,000/= as security for the performance of decree. It was his submission that the respondent will suffer more pain if that amount was not deposited. He cited the case of Maria Elitetera v. Elisaria Elitetera Lema (As Administrator of the Estate of the late Oida Elitetera Lema), Civil Application No. 331/17 of 2024 (unreported). He prayed the application to be dismissed with costs. Having considered the arguments of the learned counsel of the parties, the first issue for my consideration is whether Rule 4 (2) (a) and (b) of the Rules may be invoked to grant an order staying execution of a decree pending determination of an application for extension of time to file revision. The Court's power to stay execution in civil proceedings is 6

governed by Rule (3) - (7) of the Rules. Institution of such an application is conditional upon existence of a notice of appeal. Rule 11 (3) states as follows" ” 11-...(1) N/A (2).... N/A (3) In any civii proceedings, where notice o f appeal has been lodged in accordance with ruie 83, an appeal, shall not operate as a stay of execution o f the decree or order appealed from nor shall execution o f a decree be stayed by reasons only o f an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay o f execution o fsuch decree or order". In effect therefore, Rule 11 (3) of the Rules cannot be invoked to apply for stay of execution of a decree pending determination of an application for extension of time to file revision because in order for that provision to be applied, a notice of appeal must have been lodged. It is for this reason that the applicant has predicted his application under Rule 4 (2) (a) and (b) of the Rules. This is because, filing of an application like this one does not require prior lodgment of a notice of appeal. My finding on the issue is supported by our previous decision in the case of Stephen Mafimbo Madwary v. Udugu Hamidu Mgeni and

Another, Civil Application No, 71 of 2011 (unreported). In that case where, like in the present matter, the applicant had invoked Rule 4 (2) (a) and (b) to apply for prohibitory order pending determination of an application for revision, the Court held as follows: "There is no similar provisions in a situation where revision is applied before the Court. We think, such like provisions ought to have been included in the Court o f Appeal Rules to cover such situation. In the absence o f such provision in the Court o f Appeal Rules, herein above stated, we are o f the considered opinion that the applicant was right to invoke Rule 4 (2) (a) and (b) o f the Rules in moving the Court as it appears in his notice of motion. However, we are inclined to the term stay o f execution instead o f injunctive order, because we are o f the considered opinion that, it is more appropriate to use the term stay o f execution similarly used in the Court o f Appeal Rules." The second issue is whether the application has merit. Under Rule 11 (5) of the Rules, an application for stay of execution may only be granted when the Court has been satisfied that: " (a) substantial loss may result to the party applying for stay o f execution unless the order is made;

(b) Security has been given by the applicant for the due performance o f such decree or order as may uitimateiy be binding upon him ." Although the above stated conditions are provided for under Rule 11 of the Rules which apply to applications for stay of execution of a decree pending appeal, I am certain that the conditions should apply generally thus covering applications made under Rule 4(2) (a) and (b) of the Rules. To begin with condition (a), I agree with Mr. Kahigi that if execution of the decree is not stayed pending determination of the application for extension of time to file revision, the applicant will suffer substantial loss. From the accompanied copy of the application for execution the mode of execution of the decree sought by the respondent is not only eviction of the applicant from the suit land and to pay TZS. 74,000,000.00 awarded to the respondent as damages but the respondent intends to enforce the garnishee order sought against the applicant's saving account of CRDB Bank. It is obvious therefore, that if that is done and later the applicant succeeds in his application, substantial loss will be caused to him because, even if he may be compensated, he cannot be placed in the same position he would have been had execution not carried out. As for condition (b), I find that the applicant has complied with the requirement of furnishing security for the due performance of the decree 9

as may be ordered by the Court. He has stated as follows in paragraph 11 of his affidavit: "11. That, I am willing to , and make firm undertaking, to furnish security in the manner and to the extend as will deem fit, for the due performance o f a decree." Such undertaking is sufficient compliance with that requirement. In the case of Kibo Corridor Ltd v. Ravji Investment Co. Ltd, Civil Application No. 473/05 of 2019 (unreported) stated that: " It is established law that, a firm undertaking by the applicant to provide security might be sufficient proof to move the Court to grant o f the order o f stay o f execution. See for instance, Mantrac Tanzania td v. Raymond Costa, Civil Application No. 11 o f 2010 (unreported)." In the circumstances, I am satisfied that this condition has also been met. It is sufficient for the applicant to make a firm undertaking to provide security, the nature of which and the time limit within which the same is to be furnished, is then for the Court to determine. On the basis of the reasons stated above, I find merit in this application which is accordingly granted. That said, I order that execution of the decree of the High Court in Land Case No. 190 of 2021 should be stayed pending determination of Civil Application No. 356/17 of 2024.

Mr. Ng'weli has urged me to order the applicant to deposit TZS 300.000.000.00 as security for the due performance of the decree. I am however, with respect, unable to agree with him because that amount is not justifiable. In the event, I give a stay order on condition that the applicant should deposit in Court a bank guarantee in the sum of TZS. 74.000.000.00 as per the decree of the High Court, within the period of one month from the date of delivery of this ruling. Each party to bear its own costs. DATED at DAR ES SALAAM this 2n d day of October, 2024. The Ruling delivered this 2n d day of October, 2024 in the presence of Ms. Lilian Rutaiganwa, learned counsel holding brief for Mr. Derick Kahigi and Mr. Mlyambelele Ng'weli, both learned counsels for the Applicant and Respondents is hereby certified as a true copy of the oric O. O. MAKUNGU JUSTICE OF APPEAL