Kibaha Housing Cooperative Society Limited (KIHOCOSO) vs Judith Yoas and 15 Others (Civil Application No. 936/17 of 2023) [2024] TZCA 953 (27 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 936/17 OF 2023 KIBAHA HOUSING COOPERATIVE SOCIETY LIMITIED (KIH O CO SO ) ................................................. APPLICANT VERSUS JUDITH Y O A S ..... . ........................ . .................................. . 1 s t RESPONDENT YUSUFU S H A M T E .....................................................................2 nd RESPONDENT DAUDI LU K W A LO .................... . .............................................. 3™ RESPONDENT SCOLA FRED . ............................................ . ............... . ........... 4 ™ RESPONDENT FRED M K EN D A ......................................................................... 5 ™ RESPONDENT ABDALLAH R A S H ID .......... . ................. . .......................... . 6 th RESPONDENT SARAH M K EN D A ...................................................................... 7 ™ RESPONDENT GODWIN ELIAKU ND I . ............................................................. 8 ™ RESPONDENT EMANUEL Y O A S ....................................................................... 9™ RESPONDENT PROSPER C H O K A L A ..................................................... . 10 th RESPONDENT JOHN LU G O M ELA ...................................................................11™ RESPONDENT SAID M N U N D U M A ................................................... . ......... 12™ RESPONDENT BEATRICE M W AKALO N G E....................................................13™ RESPONDENT SAULI OMARY C H IW A N G A ................................................................................... ..... 14 th RESP KHATIBU R AM AD H A N I.................................................. . 15™ RESPONDENT BETTY E D W A R D .....................................................................16™ RESPONDENT (Application for stay of Execution of the Decree of the High Court of Tanzania (Land Division) at Dar es Salaam f Matuma. J.^ dated the 20th day o f May, 2019 in Land Appeal No. 129 of 2017 RULING 12th & 27th September, 2024 MGONYA. J.A.: By notice of motion, the applicant Kibaha Housing Cooperative Society Limited (KIHOCOSO) is seeking for an order to stay execution of 1

the decree of the High Court (Land Division) at Dar es Salaam dated 20th May, 2019 in Land Appeal No. 129 of 2017. The application is predicated on the provisions of rule 4 (1) and (2), 11 (3), (4), (4A), (5), (a) (b), (6) (7) (a) (b) (c) and (d) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 as amended (the Rules). The grounds for stay indicated in the notice of motion are as follows, that: -

1. The Judgment and Decree in Land Appeal No. 129 of 2017 is extremely unfair, containing incorrect reasoning and illegal practices and incorrect presumptions to the detriment of the applicant;

2. The substantial and irreparable toss shall result to the applicants if the decree is executed and an order of stay is not issued immediately;

3. In the event the applicants Civil Appeal No. 372 /2022 fails the applicant is able to honor the decree without any difficulty;

4. The applicant has already filed a Notice of Appeal on 18th June, 2019, record and memorandum of appeal on 22n d August, 2022; 2

5. The balance of convenience dictates that the execution be stayed; and

6. The intended appeal will be rendered nugatory. The application is supported by an affidavit duly sworn by Ambonisye Nsajigwa Mwakang'ata, the applicant's principal officer. On the respondents' side, neither an affidavit in reply nor submission in opposing the application was filed. Briefly, the background facts of the application as garnered from the applicant's affidavit goes as follows: The applicant herein was the respondent in Land Appeal No. 129 of 2017 instituted by the respondents in the High Court Land Division at Dar es Salaam, which was entered in favor of the respondents herein. Among other things the appellate court ordered the applicant to pay each of the respondents Tanzania Shillings one million (Tshs.l,000,000/=) being compensation for throwing them into unnecessary litigations and troubles against their peacefully enjoyment in their land. Aggrieved by that decision, the applicant lodged a notice of appeal while on the opposite side, the respondents filed an application for execution before the High Court Land Division which was registered as Execution No. 58 of 2019. It is the said intended execution

which triggered the instant application basing on the grounds demonstrated above. At the hearing of the application, Ms. Gema Mrina assisted by Oscar Millanzi, learned advocates appeared for the applicant. Having adopted the contents in the Notice of Motion, affidavit and written submission in support of the application, Ms. Mrina submitted that; as for the security for the due performance of the Decree, they are ready to deposit the Certificate of Title No. 36556 'Block H' located at Sofu -Kibaha which has 27 plots involving Plot No. 138-149 and 154-191. She stressed further that, from the said security, the applicant pray for an order to stay the intended execution pending hearing and determination of the intended Civil Appeal No. 372 of 2022. On the respondents' side, it was Ms. Judith Yoas who appeared in person. She said, her and all other respondents are enjoying the service of a single counsel who was indisposed. Further, upon consensus, she was representing all the respondents herein. It is her concern that, they do not contest the application, save for the security for the due performance where they object the deposit of the Certificate of Title and prayed for deposition of cash money to a tune of Tshs. 16,000,000/= as security. 4

In her brief rejoinder, Ms. Mrina reiterated that, they undertake to furnish security be depositing Certificate of Title instead of cash money. Having considered the parties' submissions and after perusing the record of the application as well as the written submission filed by the applicant, I find the main issue for determination is whether the applicants have satisfied the conditions for grant of an order for stay of execution. It is settled that, for an order to stay the execution to be granted, the applicant is enjoined to comply with all the conditions set out under rule 11 (4) (5) (a)-(b) and (7) (a)-(d) of the Rules. The Court would decline to grant the application for stay of execution where the applicant fails to cumulatively meet all the conditions. See- National Housing Corporation v. AC Gomes (1997) Ltd, Civil Application No. 133 of 2009; Joseph Soares @ Goha v. Hussein Omary, Civil Application No. 12 of 2012; Ahmed Abdallah v. Maulid Athuman, Civil Application No. 16 of 2012; and Hai District Council & Another v. Kilempu Kinoka Laizer & 15 Others, Civil Application No. 10/05 of 2017 (all unreported). In the instant application, the respondent did not contest the application, rather she beseeched me to order deposition of cash money and not Certificate of Title as security as prayed by the applicant. 5

As far as the issue of security for the due performance is concerned, it now established that, a firm undertaking to furnish security is enough and what should be the form of the security is within the discretion of the Court. See; Evalyne Mbuna v. Joseph Mshana (Administrator of the Estate of the Late Naginder Singh Matharu), Civil Application No. 277/17 of 2023 (unreported). This Court in Tanzania Petroleum Development Corporation v. Mussa Yusuph Namwao and 30 Others, Civil Application No. 602 of 2007 (unreported), defined a firm undertaking as a promise or agreement or an unequivocal declaration or stipulation of intention to someone who reasonably places reliance on it. In the instant application, the award subject to execution as demonstrated in the Execution form is Tshs. 16,000,000/= a decretal sum, ordered as compensation to the respondents. In paragraph 9 of the affidavit, it is deponed that, the applicant is capable to pay the decretal amount after the appeal and is willing to furnish security. It was the applicant's counsel submission that as the security for the due performance of a decree, the applicant is willing to deposit Certificate of Title No. 36556 Block 'H' located at Sofu Kibaha which has 27 plots. 6

In that regard, I am of the firm view that, the declaration made by the applicant to deposit the mentioned Certificated of Title is sufficient firm undertaking. Likewise, I find the security is adequate and the respondents' right to enjoy the fruit of the decree is protected. See - Africhick Hatchers Limited v. CRDB Bank Pic, Civil Application No. 98 of 2016 (unreported), which was referred in the case of The Registered Trustees of the Chama cha Mapinduzi & Others v. Mehboob Ibrahim Alibhai (As legal Representative of the late Ibrahim Gulamhussein Alibhai, Civil Application No. 117/17 of 2018 (unreported). Having satisfied myself that there is compliance with all other conditions stipulated under rule 11 (4), 5 and 7 of the Rules, for the Court to exercise its discretion; Consequently, I hereby grant an application and proceed to order that, execution of the decree of the High Court of Tanzania in Land Appeal No. 129 of 2017 is hereby stayed pending the hearing and final determination of the appeal. This order is conditional upon the applicant depositing Certificate of Title No. 36556 'Block H' located at Sofu - Kibaha which has 27 plots involving Plot No. 138-149 and 7

154-191, as security for the due performance of the decree within 30 days of the delivery of this ruling. Each party to bear its own costs. DATED at DAR ES SALAAM this 25th day of September, 2024. L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 27th day of September, 2024 in the presence of Ms. Gema Mrina, learned counsel for the Applicant, 7th respondent appeared in person and the absence of 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th and 16th Respondents, is hereby certified as a true copy of the original. 8