Jonas Mrema vs Janeth Elly Temu (Civil Application No. 887/01 of 2023) [2024] TZCA 950 (27 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 887/01 OF 2023 JONAS MREMA ................ ........ ....... ........ ........APPLICANT VERSUS JANETH ELLY TEM U.............................................................. RESPONDENT (Application for stay of execution of the Ruling and drawn order of the High Court of Tanzania (District Registry) at Dar es Salaam (Mwakapeie, J / > dated the 14th day of November, 2024 in Revision No. 27 of 2023 RULING 17th & 27th September, 2024 MGONYA. J.A.: This application arises from the Ruling and Drawn Order of the High Court of Tanzania (District Registry) at Dar es Salaam delivered on 14th November, 2023 before Hon. Mwakapeje, J. in Revision No. 27 of 2023; in which the applicant prayed the Court to call for the records and investigate the propriety and legality of the entire proceedings in Execution Cause No. 80/2021. The same is originated from Matrimonial Cause No. 11/2015 of which later turned into Consolidated Civil Appeals No. 98 and 143 of 2017, before Mutungi, J.

In his ruling, Mwakapeje, J. strike out the said Revision and further ordered the District Court of Kinondoni to proceed and finalize the execution in respect of execution Cause No. 80 of 2021. Aggrieved with the said decision, the applicant herein has knocked the doors of this Court praying for an order to stay execution of the Drawn Order originated from Revision No. 27 of 2023. The Notice of Motion in respect of the instant application is supported by an affidavit duly sworn by Jonas Mrema, the applicant herein. From the record, the respondent herein, Janeth Elly Temu filed her affidavit in reply to challenge the applicant's affidavit. Both parties have also filed their respective written submissions for and against the application. When the matter was called for hearing, both the applicant and the respondent appeared in person. From the applicant's written submission, it is his submission that the application at hand is against the Ruling and Drawn Order of the High Court of Tanzania in Revision of No. 27 of 2023 delivered on 14th November, 2023. The same is brought under rules 11 (3), 11 (4), 11 (5),

(a) (b) (c), 11 (6), 11 (7) (a) (b) (c) & (d) and 48 (1) of Tanzania Court of Appeal Rules, 2019, as amended, herein to be referred as the Rules. It is the applicant's prayer that, he is seeking for an Order to stay Drawn Order in Revision No. 27 of 2023. Submitting for the application, the applicant averred that, the respondent has readily filed Execution No. 80 of 2021 before the District Court of Kinondoni. That, if execution of the order of the High Court subject of this application is not stayed, the applicant will suffer substantial loss as the properties subject to the said execution and claimed by the respondent are huge and cannot be easily recovered. Attacking the order of the High Court as erroneous decision, the applicant submitted that he intends to appeal against the said decision where he has already lodged a notice of appeal against the impugned Ruling and Drawn Order and that the intended appeal has great chances of success. Upon compliance of rule 11 (5) (b) of the Rules, the applicant averred to be ready to furnish security for the due performance of the Drawn Order as it may ultimately be binding upon.

From the foregoing submission, the applicant prayed this application for stay of execution be granted. In response, the respondent herein who is the applicant's ex-wife, contested the application. It is the respondent's concern that the appellant has nothing to offer as good reason in order to persuade this Honorable Court to grant his request. The respondent said, after the applicant's failure to claim the matrimonial properties as self-properties, and some to be his father's properties; and particularly after the appeal at the High Court, where adjustments were made to the original Order by Kinondoni District Court on division of matrimonial properties by awarding the respondent 40% (on three commercial houses) and 50% on a matrimonial home at Boko area in Dar es Salaam respectively, the applicant instituted a number of applications challenging the said decision. It is the respondent's concern that, the applicant upon being dissatisfied by the said decision, made the similar application to the Court of Appeal to stay the said execution of which he was granted. However, since it is the applicant's intention to delay execution, he abandoned the said appeal where the notice to the said appeal was struck out by this Court. The respondent further submitted that, after multiple applications to frustrate execution ordered by the Court, the applicant is once again

before this Honorable Court praying to stay execution of the same matrimonial properties. According to the respondent, as for the time being, the applicant is the one benefiting from the said properties. Further, it is respondent's view that, the applicant will never suffer any irreparable loss as he is the one who is going to acquire bigger share when execution come to the effect. Turning to the security for due performance of the Drawn Order, it is the respondent's concern that the applicant has failed to identify the kind of security that he is offering as required by law. The Respondent also invited the Court to make a finding that, the applicant's behavior of instituting voluminous applications to the courts with the intension to delay the execution for five years now since their marriage has been dissolved, is unfair and inhuman as she has no any economic means to sustain herself. Referring to the earlier abandoned appeal for the same execution prayed to be stayed herein, it is the respondent's concern that the application before the Court to stay Hon. Mwakapeje's Order in Revision No. 27 of 2023, is yet another applicant's delaying technique aiming to challenge Hon. Mutungi's main Decree of Consolidated Appeals, that being the reason as to why Hon. Mwakapeje ordered the file in respect of

Execution Cause No. 80 of 2021 be sent back to Kinondoni District Court for finalization of the original execution. The respondent thus prayed the Court to reject the instant application with costs. From the parties' submissions and the record of this matter, I have noted that, the matter before the Court has a checkered history of about 10 years in Court's corridors, and chambers, starting its proceedings in 2014 to this year, 2024. It is for that reason, before I proceed to determine this application, I have decided to outline a short history of the instant matter up to this point, as herein below: This matter is rooted from Matrimonial Cause No. 11 of 2015 at Kinondoni District Court between parties herein where the respondent had petitioned for grant of divorce, division of matrimonial properties and custody of parties' issue. An order for divorce was granted, the same to the division of the matrimonial properties and custody of the issue. From the said decision, both parties were dissatisfied and file their respective appeals to the High Court of which, through Consolidated Appeals Nos. 98 and 143 of 2017, Mutungi, J. reversed with adjustments, the original order by the trial court by awarding the respondent 40% instead of 30% on three commercial houses, and 50% to each party on their matrimonial home located at Boko Area Dar es Salaam. 6

In a process to execute the Decree of the High Court, Execution Cause No. 05/01 of 2019 was initiated by the respondent. It is from that development; the applicant herein lodged a Notice of Appeal to this Court accompanied by an application for stay of the said execution. The said application was duly granted, and Execution Cause No. 05/01 of 2019 was stayed pending hearing and determination of the intended appeal. Further, the applicant was ordered to surrender to the Registrar of the Court documents related to all landed properties in the names of the parties. However, in the process, while granted stay of execution, the applicant never instituted any appeal. His notice of appeal was strike out as the result of the respondent's application to strike out the same following the applicant's failure to take essential steps to institute his appeal. Following an order to struck out the notice of appeal by this Court, the applicant lodged a number of applications on objection proceedings stating that, the declared matrimonial properties by the courts in several decisions, are self and private acquired properties and some belongs to the applicant's father. Due to lack of proof, all applications in that respect were denied.

In a trial to proceed with the execution of the Decree of the consolidated appeals by Hon. Mutungi, J., the respondent reinstituted Execution Cause No. 80 of 2021. However, in another trial to challenge the execution of the division of the parties' matrimonial properties from Decree of the Consolidated Appeals, the applicant filed before the High Court, Revision No. 27 of 2023 praying the court to call for the records and investigate the propriety and legality of the entire proceedings in Execution Cause No. 80 of 2021. Again, the said Revision did not succeed, where the court strike it out with costs and proceeded to order the District Court of Kinondoni to proceed and finalize the execution in application for Execution No. 80 of 2021. Being aggrieved, once again, the applicant filed the instant application praying to stay execution in respect of Execution Cause No. 80 of 2021 of which originated from Execution No. 05/01 of 2019 from the Consolidated Appeals Nos. 98 and 143 of 2017, pending hearing and determination of his intended appeal to challenge the decision in Revision No. 27 of 2023.1 have noted that, despite of two applications for execution bearing two different numbers, that is Execution cause No. 05/01 of 2019 and Execution cause No. 80 of 2021, they are both built with the very same parties' matrimonial properties originating 8

from Consolidated Appeals Nos. 98 and 143 of 2017. In a nutshell, the above is a brief history of the matter before me. Having considered the rival submissions of both parties to this application, I find the main issue for consideration is; whether the instant application has merit. Essentially the power of this Court to make an order to stay execution of the Decree or Order is derived from rule 11(3) of the Rules which provides: "11 (3) In any civil proceedings, where a notice o f appeai has been lodged in accordance with rule 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 reason only o f an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay of execution o f such decree or order . " From the bolded expression it is clear that, it is only upon good cause shown, an order to stay the execution of Decree or Order can be granted. It is the respondent's submission that, this application is not tenable as there is no any further application for execution which has been filed by the respondent. 9

From the above stated history, it is obvious that, Execution Cause No. 80 of 2021 is the same as Execution Cause No. 05/01 of 2019, whose execution was once stayed by this Honorable Court. Moreover, it is in the record of this matter that, the applicant never instituted his appeal after the grant of stay of execution; the act which necessitated the respondent to file in this Court Civil Application No. 52/02 of 2019 praying the Court to struck out the applicant's notice of appeal for failure to take essential steps to institute his appeal. The prayer which was duly granted. Coming back to the present application, the applicant once again is before this Court praying for stay of the execution of the Ruling and Drawn Order of the High Court (District Registry) at Dar es Salaam delivered on 14th November 2023 by Mwakapeje J. from Revision No. 27 of 2023. In that Revision, the learned Judge's Order was very specific. For ease of reference, below is the said Order: "In the upshot, and as clearly stated herein , and in the circumstances, Revision does not stand in this application. I ha ve only one option and that is to strike it out with costs, which I hereby do. I order the District Court of Kinondoni to proceed and finalize the execution in Application No. 80 o f 2021 . " 10

Above was the decision of the High Court, I have carefully gone through the entire application before me and I have observed the following: That, the execution which is prayed to be stayed is the same which was once granted by this Court, and upon grant, the applicant neglected the appeal where the notice of appeal was truck out for failure to take essential steps. It is from this history, I have learned from the applicant's multiple applications that; the applicant is not serious with any appeal that originated from the High Court decisions particularly from the Consolidated Appeals Nos. 98 and 143 of 2017 of which is the root of the Execution Causes in this matter. For him to come at this Court at this particular time with the same prayer to stay Execution Cause No. 80 of 2021, is a gross abuse of court process. This Court in East African Development Bank v. Blue Line Enterprises Ltd, Civil Appeal No. 101 of 2009 (unreported), observed that: " There is another aspect o f the m atter before us which we think we should address. Prof. Fimbo contended that what happened in this case was an abuse o f courtprocess. ...Although Prof. Fimbo did not elaborate on the pointf we are nonetheless li

satisfied that there was an abuse o f court process in the foiiowing sense. As aiready stated, the appellant filed an application for extension o f time to file a petition for an order to set aside the award. Instead o f pursuing this application, the appellant sought to withdraw it on 14/9/2006 before Mandia , 3. Having done so, the appellant went to the same court and filed the petition to set aside the award which was eventually dismissed by Mandiar, J. on 22/6/2007 for being time barred. After the dismissal the appellant went back to the same court (Sheikh , J.) and fifed an application for extension o f time similar to the one which was earlier marked withdrawni Surely-r by the above sequence o f events the appellant exhibited what we may safely term as "forum shopping". This was; no doubt, an abuse o f court process. The above is more or less similar to what transpired in the instant application, where I am satisfied that the applicant is still in the forum shopping for decision that will suit his desires. As seen the records the applicant was once granted the stay of execution and abandoned his appeal. If at all the applicant was serious with an order to stay execution, he could have concentrated with his appeal to its finality so as this matter 12

could be determined and come to an end. It is trite that, where the applicant feels that he has a right to stay execution of the Decree or Order. Similarly, the respondent has the right to enjoy the fruits of the decree, unless there is a good cause to stay the execution. In Eiia Mwamafupa & Others v. The Board o f the Registered Trustees o f the Baptist Church o f Tanzania, Civil Application No. 526/06 of 2024, it was held that: "My point is that, execution process o f a decree is a requirement o f the law and an expected consequence after the decree is awarded, but staying that legal process is what is exceptional. That is so because, staying execution involves delaying a decree holder's enjoyment o f his right which has been declared by a court o f law in his favor. That delayed or suspended realization o f the decree holder's right, amounts to partial denial o fit. And that is why, the powers to stay execution under rule 11 (3) o f the Rules, are discretional and exercisable in favor of thejudgment debtor only if he can demonstrate good cause. What the judgment debtor is entitled as o f right, is the right o f appeal, according to the law, he has no right to have execution o f the decree stayed, except in circumstances where he can show good cause" 13

Regarding the demonstration of good cause by the applicant under the circumstances, I have failed to find any trace of good cause to stay execution of the Drawn Order sought by the applicant; neither the narration as to how he will suffer substantial loss if the application is denied. It is trite that, for the Court to grant this kind of the application, it has to take into account that, prudence demands the Court to exercise its discretion in a manner that opts for the lower rather than the higher risk of injustice. The general rule is that, the Court ought not to deny a successful litigant the fruits of his judgment save in exceptional circumstances where to decline the said right may amount to stifling the right of the unsuccessful party to challenge the decision of the High Court. From the record of this matter, the number of decisions has been rendered. The same decisions going round and round endlessly. It is unfortunate that the applicant in this application is still in search of the decision which will suit his desire, taking into consideration the ruling in respect of Revision No. 27 of 2023 of which Hon. Judge denied the application and gave specific orders for Execution Cause No. 80 of 2021 the same as Execution Cause No. 05/01 of 2019. Being cognizant with the settled principle that there must be an end to litigations, the principle which is rooted in public policy and parameters 14

to various aspects of the system of adjudication of cases in legal fraternity, this matter too has to observe this principle and come to an end. The same cannot be on adjudication in eternity. If parties were to be allowed to file cases or applications infinitely, trials would never end. In this iight, parties to litigations have to respect Courts' decisions and also to be serious-minded with their cases. Delaying tactics are not allowed in courts of law. It is not common to see cases roaming around the courts' corridors for years endlessly. I am aware of the parties' rights to appeal, but that right have to be exercised judiciously and with the discipline of the highest degree. Obtaining an order for the stay of execution shouldn't be taken as the right to a single party. But the same should also observe the right of the adverse party respectively. The Courts need to observe that multiple applications though are not expressly prohibited by the rules, have to be instituted judiciously without offending anyone's rights. In upshot, weighing the scale in this matter of which I have ruled that the applicant herein has exercised a gross abuse of courts process, I am satisfied that, no sufficient and justified good cause has been shown by the applicant in terms of rule 11 (3) of the Rules for me to grant the instant application. 15

In the event therefore, I proceed to dismiss the application in its entirety for lack of merits, with costs. Ordered accordingly. DATED at DAR ES SALAAM 27th day of September, 2024. L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 27th day of September, 2024 in the presence of the applicant and the respondent appeared in person, is hereby certified as a true copy of the original. 16