Muharami Ally and 5 Others vs Focus Cosmas Chuwa and 4 Others (Civil Application No. 673/17 of 2023) [2024] TZCA 949 (27 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 673/17 OF 2023 MUHARAMI A L L Y ............................................... . ..................... 1 st APPLICANT JEREMIA CHAULA................................. . .................................. 2 nd APPLICANT EDWIN GABRIEL ................... .................................................3 rd APPLICANT GODFREY NG'UM BU................................................................. 4 th APPLICANT EDWARD A. NG'UMBU ................................. . ........................... 5 th APPLICANT RAMADHANI KABAVULA ................................................... . 6 th APPLICANT VERSUS FOCUS COSMAS CH U W A ..................................................... 1 st RESPONDENT KITUNDU SHIILA CHARLES .............................. . ................ 2 nd RESPONDENT KONSTANTINO EGINO M BONDE.........................................3 rd RESPONDENT KHAMIS SAID H A M IS ....................... ..................................4™ RESPONDENT LUPIANA MICHAEL LUPIANA (Administrator of the Estates of the late MICHAEL SIMON LUPIANA .... . ............. . 5™ RESPONDENT (Application for stay of execution of the decree of the High Court of Tanzania (Land Division) at Dar es Salaam) (ArufanLJ.) dated the 23r d day of February, 2023 in Land Case No. 84 of 2021 In the High Court of Tanzania, Land Division (the trial court) the respondents sued the applicants together with 95 others, who are not in this application, with respect to the land measuring 200 acres (the land) RULING 25th & 27th September, 2024 ISSA. J.A.: i

situated at Vikawe Shuie Street in Kibaha Town Council. The respondents claimed to be the owners of the land. The trial court delivered its judgment on 23rd February, 2023 in favour of the respondents who were declared the lawful owners of the land and the applicants (including those 95) were permanently restrained from interfering with the land. They were also ordered to give vacant possession of the land and demolish whatever structures they have erected on the land. Aggrieved with the said decision, on 27th February, 2023 the applicants lodged a notice of appeal. The respondents, on the other hand, filed Execution No. 68 of 2023 and served the applicants with the notice of intended execution on 4th September, 2023. In response, the applicants on 13th September, 2023 lodged the instant application seeking a stay of the execution of the High Court decree pending the hearing and determination of the intended appeal. The application is by way of Notice of Motion filed under rule 11(3), 11(4), 11(4A), ll(5)(a),(b), 11(6), 11(7) (a),(b),(c),(d) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by a joint affidavit sworn by the applicants. In addition, the applicants have lodged a written submissions in support of their quest for stay of execution. The application is, however, resisted through a joint affidavit in reply which was sworn by the respondents.

When the application was called on for hearing, the applicants were represented by Mr. Angros Jeston Ntahondi, learned advocate while the respondents had the services of Ms. Martha Mwita, also learned advocate. On behalf of the applicants, Mr. Ntahondi adopted the Notice of Motion as well as its accompanying affidavit and the written submissions. The respondents, on the other hand, resisted the application by fully adopting the affidavit in reply. Although they did not file the written submissions in reply, in their oral submission Ms. Mwita pointed out two issues. One, that the Court should consider the issue of substantial loss which was not clearly substantiated by the applicants and two, that they have worries on the security for the due performance of the decree. In his brief rejoinder, Mr. Ntahondi submitted that the issue of substantial loss has been explained on paragraph 8 of the affidavit. The order of the trial court was to the affect that the applicants will be evicted from the land they are currently occupying. This will occasion a substantial loss to them as everything erected on that land will be demolished. On the issue of security, he submitted that on paragraph 9 of the affidavit the applicants have undertaken to maintain the status quo and they will vacate the land to satisfy the decree of the trial court.

In the instant application, the Court has been called to determine the grant of stay of execution in general and there are two issues in contention. One, whether substantial loss has been established, and two, whether, the applicants have provided the security for due performance of the decree that ultimately will become binding on the applicants. Before embarking on that task, it is prudent to state the law with respect to the application for stay of execution. Rule 11 of the Rules deals specifically with the stay of execution and the applicant is required to comply with sub-rule (3), (4), (5) and (7). Rule 11(3) of the Rules provides: (3) In any civil proceedings, where a notice of appeal has been lodged in accordance with Rule 83, an appeal shall not operate as a stay of execution of the decree or order appealed from nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree or order; but the Single Justice may upon good cause shown, order stay execution of such decree or order" In numerous decisions of the Court it has been held that, for the Court to exercise its powers under rule 11 (3) there must be a valid notice of appeal which clothes the Court with jurisdiction to entertain the application. Further, rule 11(7) also provides that in the application for

stay the application must be accompanied by a notice of appeal, a decree or order appealed from, a judgment or ruling appealed from, and a notice of the intended execution. In the absence of a valid notice of appeal and the decree or order sought to be appealed against, the application becomes incompetent and liable to be struck out. (See - Awinia Mushi v. Tropical Pesticides Research Institute, Civil Application No. 2 of 2006 and National Housing Corporation v. Ettienes Hotel, Civil Application No. 175 of 2004 (both unreported). In the present application, the applicant has complied with the above sub-rules. The application was accompanied by a notice of appeal, a decree, a judgment appealed from and a notice of the intended execution. Further, the notice of the intended execution was served on the applicant on 4th September, 2023 and the instant application was filed on 13th September, 2023 within 14 days as required by rule 11(4) of the Rules. Lastly, the applicant was required to comply with rule 11(5) of the Rules which provides: "No order for stay of execution shall be made under this rule unless the Court is satisfied that (a) substantial loss may result to the party applying for stay of execution unless the order is made;

(b) security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him." The Court in Joseph Antony Soares @ Goha v. Hussein Omary, Civil Application No. 6 of 2012 [2013] TZCA 328 (8 May 2013, TANZLII) and Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported) has stressed that these conditions must be complied with cumulatively. In the present application, the applicants have demonstrated that they stand to suffer substantial loss if the order for stay of execution will not be granted because they may end being evicted from their homes and those homes being demolished. With respect to the issue of security for due performance of the decree which will ultimately be binding on the applicants, they undertook to maintain the status quo, and also undertook to vacate the land to satisfy the decree. Considering that this is a land matter and not a monetary decree, and taking into account that the mode of execution preferred is that of eviction and demolition of the building structures in the suit property, I find the undertaking that the status quo will be maintained and that they will vacate the land to satisfy the decree would suffice in the circumstances of the present case.

All factors considered, I am satisfied that the applicants have met all the conditions for the grant of a stay and accordingly the application is granted as prayed. The costs should abide by the results of the intended appeal. It is so ordered. DATED at DAR ES SALAAM this 26th day of September, 2024. The Ruling delivered this 27th day of September, 2024 in the presence of Mr. Angros Jeston Ntahondi, learned counsel for the Applicants and Ms. Martha Mwita, learned counsel for the Respondents, is hereby certified as a true copy of the original. A. A. ISSA JUSTICE OF APPEAL