Teresia Sanky Rigoni vs Peter & Others (Civil Application No. 218 of 2024) [2024] TZCA 952 (27 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 218 OF 2024 TERESIA SANKY RIGONI............................................ . .........APPLICANT VERSUS PETER BREUBER ............................. . ............................. l^r RESPONDENT LATIFA KASSIM ALLY (As administrator of the Estate Of the Late) MADINA JUMA MVUMBA ...... . .......2 nd RESPONDENT LATIFA KASSIM ALLY .......... . ...................... . .............. 3 rd RESPONDENT THE COMMISSIONER FOR LANDS ............................... 4™ RESPONDENT THE HON. ATTORNEY GENERAL.................................. 5™ RESPONDENT (Application for stay of execution of the Decree of the High Court of Tanzania (Land Division) at Dar es Salaam) (Mhina, J.1 ) dated the 27th day of September, 2023 in Land Case No. 250 of 2021 RULING 18th & 27th September, 2024 MGONYA. J.A.: The applicant, Teresia Sanky Rigoni seeks a stay of execution of the decree in Execution No. 3201 of 2024 arising out of the judgment of the High Court of Tanzania, Land Division (Mhina, J.) in Land Case No. 250 of 2021 dated 27th September, 2023. The application is supported with an affidavit deponed by Howard Macfarlane Msechu, the applicant's counsel. i

At the hearing of the application Mr. Howard Macfarlane Msechu, learned counsel represented the applicant. On the other side, Messrs Gallus Lupogo, Stanley Mahenge and Feligan Daniel, learned State Attorneys represented the respondents. Given the floor to argue in support of the application, Mr. Msechu adopted the contents of the affidavit and went on to submit that, this application is made under rule 11 (3), (4), (5) and (7) of the Tanzania Court of Appeal Rules, 2009 as amended (the Rules). That, the applicant cumulatively complied with all the conditions stipulated under rule 11 (7) by attaching all the necessary copies. That the applicant and her household are in the disputed premises together with other two families who lives with her. He argued further that, if the application is not granted, the applicant will suffer irreparable loss. Submitting on the issue of security he stated that, as deponed under paragraph 8 of the applicant's affidavit, that the applicant is willing to furnish the security by signing bond as the security for the due performance. In reply, Mr. Lupogo at the outset declared that, they did not object the application save for the security. He contended that, there 2

should be an appropriate security for the due performance of the decree where he rested by leaving it for this Court to decide. Having heard the submissions from both parties, it is clear that, parties are at one on the fact that the applicant has cumulatively fulfilled all the conditions stipulated under rule 11(4)(5) and (7) of the Rules. The perplexing issue is; whether this application is tenable. It is settled law that; it is only the decree which is capable of being executed which can be stayed. See - S.M Saeed Limited v. Corporate Security Ltd & Others, Civil Application No. 621 /17 of 2021, Catherine Honorati v. CRDB Bank PLC, Civil Application No. 42 of 2016, GM Cross Africa Limited v. First National Bank Tanzania Limited & Others, Civil Application No. 284 of 2019 and CMA CGM Tanzania Ltd v. Justine Bruti, Civil Application No. 417 of 2018 (all unreported). Going through the record of this application, particular the impugned judgment and its decree, it is observed that, the applicant herein lost her case in Land Case No. 250 of 2021 in which she sued the respondents seeking among other things, a declaratory order that, she is the lawful owner of the property described as Plot No. 4 and 31

Block "B" Ununio Low Density. However, after hearing of the parties, the trial court dismissing the suit with costs, without any other order in favor of any of the parties herein. From the copy of the decree (annexture HA-1), it is evidenced that, the trial Judge did not grant any relief to the respondent for me to find that the said decree is executable. It has been established by this Court in its various decisions, in Athanas Albert and 4 Others v. Tumaini University College [2001] T.L.R. 63 and Maryam Nassor v. Abla Estate Developers & Agency Limited & Others, Civil Application No. 153/17 of 2022, to mention few, that, once the High Court dismissed the suit, the parties revert to the status they had before the suit. That, the decree which does not express any right rather than an order of dismissal, is not executable. As I have demonstrated earlier, the decree annexed in this application, express only that the suit was dismissed with costs without any right granted to either party. It is obvious that, there is no any right to be enforced vide execution process and eventually the execution to be stayed as prayed by the applicant.

Therefore, it is my firm view that, this application is misconceived and untenable. Consequently, it is for the above reason, I struck out the application with 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. Frida Peter Mol lei, learned state Attorney for the 4th & 5th ' respondents and in the absence of the applicant and 1s t, 2n d & 3r d respondents, is hereby certified as a true copy of the original. — 0. H. KINGWELE DEPUTY REGISTRAR COURT OF APPEAL