Helen Chanua Sawere vs David John Adams & Another (Civil Application No. 333/01 of 2024) [2024] TZCA 934 (25 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 333/01 OF 2024 HELEN CHANUA SAWERE ....................................................... APPLICANT VERSUS DAVID JOHN ADAM S.........................................................lST RESPONDENT DANIEL MBUGA, COURT BROKER .................................... 2 nd RESPONDENT (Application for stay of execution of the Decree of the District Court of Kinondoni at Kinondoni) (Lihamwike, RM} dated the 16th day of August, 2024 in Civil Appeal No. 1 of 2023 RULING 19th & 25th September, 2024 MURUKE. J.A: The applicant, Hellen Chanua Sawere, moved the Court under Rule 11 (3), (4), (4A), (5) (a) and (b), (6) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking to have the judgment and decree of the High Court Dar es Salaam Sub Registry at Dar es Salaam in Civil Appeal 1 of 2023 (Mwanga J.) stayed pending the determination of an intended appeal. The application is supported by two affidavits deponed by Jamhuri Johnson, the applicant's counsel, explaining the reasons why the application should be granted. The respondent filed two reply affidavit sworn by Mr. Florance Tesha leaned counsel to oppose the application.

Initially, the applicant was a petitioner while the first respondent was the respondent in the Matrimonial Cause No. 103 of 2014 in the District Court of Kinondoni at Kinondoni which judgment was delivered on the 16th day of August 2017, Hon. Lihamwike, RM. That after delivery of the judgment the applicant appealed to the High Court of Tanzania, Dar es Salaam District Registry at Dar es Salaam, vide, Civil Appeal No. 1 of 2023 in which Judgment was delivered on the 1s t December 2023, Hon. Mwanga, J, by dismissing the appeal. Being dissatisfied with the said decision the applicant has now lodged a notice of appeal to the Court of Appeal. While waiting to be supplied with necessary documents for appeal purposes, on the 3r d of May 2024 applicant was served with a notice of date of hearing, of execution proceedings in matrimonial cause No. 103 of 2014 scheduled for hearing of 7th May 2024 at Kinondoni District Court. The notice is what prompted the applicant to file present application. At the hearing of the application, Madam Rwechungura and Mr. Jamhuri Johnson both learned counsels, entered appearance to represent the applicant, whereas the respondent was represented by Mr. Florance Tesha learned counsel. When invited to amplify the grounds for the application, Mr. Jamhuri Johnson sought to adopt Notice of Motion and affidavit in support of 2

motion to form part of his submission. Essentially, in the notice of motion, affidavit as well as the written submissions, the applicant has explained the grounds for this application being one, that the respondent has already filed an application for execution at the trial Court. This application was lodged on 14th May, 2024 after having been served with the notice of application for execution on 3r d May 2024. Two, that unless the order for stay of execution is made, the applicant is likely to suffer undue hardship and substantial loss as the applicant resides in the disputed property and her family. Since the subject of execution involves a residential house, the Court should grant an order for stay of execution to avoid hardship to the applicant and her family. Three, that the applicant is willing to furnish such security as may be ordered by the Court for the due performance of the decree. Mr. Jamhuri then pressed for stay to be granted. On the other hand, Mr. Tesha apart from adopting affidavits in reply, vigorously contested on the following reasons. (1) it was said by applicant counsel that his client will suffer irreparable loss but that is a two way traffic, more so respondent is the one suffering more because the applicant is the one collecting rent from the servant quarters for.1.4 years 3

without shearing with the respondent. By being granted stay of execution of decree, the applicant want to continue depriving the respondent rent she has been receiving since then as clearly contested at paragraph 13 of affidavit in reply. Apart from the rent applicant has been harassing respondent to the extent of reporting him to immigration department on his status as foreigner while he has all the documentation required, just to make his life miserable. (2) it was submitted that applicant is ready to furnish security by maintaining status quo as averred at paragraph 4 of affidavit in Support of Motion, while at paragraph 7 of supplementary affidavit applicant is saying that they are ready to deposit security as may be ordered by the Court, so the ground for stay contradict each other insisted Mr. Tesha. It was further submitted that while granting stay Court has to look also the right of respondent, which are in jeopody. In case Court decide to grant stay, then security be in the form of monetary form basing on value of property in 2016 which was one billion as reflected in copy of trial court judgment. Since the sale is for realization of 50% value of the matrimonial property, the applicant should deposit half of the value of the property. Respondent counsel was of the view that since no irreparable loss and no 4

firm undertaking by the applicant has been proved to have been undertaken then stay order should not be granted. In rejoinder, Mr. Jamhuri insisted that all the three conditions were satisfied. He stressed that, although the respondent claims that the applicant is harassing the respondent, there is no evidence at all, and if any, then, respondent has to take necessary action with the relevant authority. The issue of rent being.taken by the applicant is out of context, it is not an issue here in the application for stay of execution. The applicant's counsel insisted that, since the suit property is an immovable property the same is sufficient to show that the applicant will suffer ioss because the execution of the decree is by selling of the matrimonial home then eviction will follow by the buyer of the property citing to the Court the case of Stephen Ndimangwa v. Angelica Steven Chacha (Civil Application No. 309/01 of 2022) [2023] TZCA 17847 (17 November 2023 TANZLII) to support his argument. On the contradiction alleged by the respondent counsel Mr. Jamhuri was quick to respond that supplementary affidavit supplemented the main affidavit, there is nothing like contradiction as alleged. In the end the two applicant's counsel insisted that the Court should find that all conditions were met and grant the application as prayed. 5

I have examined and considered the rival submissions, Notice of Motion and affidavits for and against, the issue for determination is whether the applicant has satisfied all the conditions for the grant of the application. In an application for stay of execution is governed by Rule 11 of the Rules. Sub-rule (4) of the said Rule requires the application of this nature to be filed within fourteen days of service of notice of execution on the applicant or from the date he became aware of the existence of the application for execution. The other conditions for the stay of execution are provided for under Rule 11 (5) of the Rules as follows: "No order for stay o f execution shall be made under this rule unless the Court is 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". Regarding the first condition, I wish to state at the outset that it is not disputed that this application was lodged on 14th May 2024 after the applicant was served with the notice of application for execution on 3r d May 2024. By simple calculation, the application was lodged after the 6

lapse of ten (10) days since the applicant was served, indeed, was well within time. On the condition relating to security, the applicant has shown her willingness to furnish security for the due performance of the decree as deposed in terms at paragraph 7 of Mr. Jamhuri's Supplementary Affidavit in support of the motion. In the case of Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported), the Court discussed the mode of giving security and stated as follows: "To meet this condition the law does that strictly demand that the said security must be given prior to the grant o f stay order. To us, a firm undertaking by the applicant to provide security might prove sufficient to move the Court, a thing being equal to grant the stay order provided the Court sets a reasonable time lim it within which the applicant should give the same" According to the above cited authority, a mere firm undertaking to furnish the security suffices. No particular form of the security is required. In my view, the applicant has given a firm undertaking to furnish it in the manner and to the extent as the Court may determine. Therefore, on the 7

basis of the above authority, I am satisfied that the appiicant has sufficiently undertaken to furnish the security. Regarding the issue of substantial loss, the applicant's counsel asserted that the applicant will suffer undue hardship and irreparable injury because he is residing in the suit premises, I have noted in ground two of the notice of motion the applicant has stated that undue hardship and substantial financial and emotional loss are likely to result to her unless the order for stay of execution is made. This is reiterated at paragraph 10 of the affidavit in support of the application. From the records no doubts that the decree is against the landed property which the applicant is residing with the respondent, more so, the respondent is a foreigner and therefore, in case the appeal succeeds, then the respondent will not be traced, Court in a number of cases has insisted that anything leading to execution of the decree on residential houses may result into undue hardship. In the case of Geriod Francis Tairo (As Administrator of the Estate of the Late Francis Kamwesa Tairo) v. Jumanne S. Kitifla (As Administrator of the Estate the Late Fatuma Puza @ Fatuma Pyuza) Civil Application No. 254 of 2019 [2020] TZCA 1843 (11 November,2020-TANZLII) the Court when faced with almost a similar scenario, cited with approval the case of Clara 8

Kimoka v. Surumbu Axweso [2002] TLR 255 at 257 observed as follows where the Court was granting stay of execution. "The applicant is in possession o f the suit land now and has all along been in possession o f it The interruption o f her long occupation o f We suit land would in my view, be justified only after the case is finally determined in the respondent's favour. But in the event the appeal is allowed, it would not make much sense to temporarily interrupt the applicant's long possession now only to restore it to her after the success o f her appeal". Thus, on the basis of the above cited authorities I am prepared to hold that the subject matter, being a residential house used by the applicant and her family together with respondent and that being an immovable property, should it be sold, is likely to cause irreparable injury. Having satisfied that the mandatory requirements of rules 11 (3), (4),(5) and (7) of the Rules, have been met, I grant the application as prayed in the notice of motion. Accordingly, we stay the execution of the decree of the District Court of Kinondoni at Kinondoni dated 16August 2017 in matrimonial cause No. 103 of 2014 pending hearing and determination of the intended appeal. 9

The remaining issue is what should be the form of security in the circumstances. The decree involved in this case is not a money decree but a decree for sale of matrimonial assets and division between the applicant and the respondent. The affidavits in support of motion shows, the proposed modes of execution by the respondent at the trial court is eviction order and sale of the respective properties. It obvious therefore that; if the applicant fails in his intended appeal, he will be required to perform the decree by vacating the suit properties to allow the sale of the same. The nature of the security, therefore, does not necessarily be that which requires commitment to pay money as suggested by Mr. Tesha counsel for the Respondent. It is worth noting that this is a matrimonial dispute involving matrimonial home subject of execution in my considered view, if there be commitment to maintain the status quo of the suit properties will be just and enough. The Court has taken such an approach in a number of cases just to a mention few, Evaiyne Mbuna v. Joseph Mshana (Administrator of the Estate of the Late Naginder Singh Matharu), Civil Application No. 277/17 of 2023 [2024] TZCA 885 (12 September 2024 TANZLII), Jennifer Mkapesa Chuwa v. Farsy Adinani Msuya, Civil Application No. 688/01 of 2022 [2023] TZCA 17863 (16 November 2023 TANZLII) and Asha Juma Mansoor and Others v. 10

John Ashery Mbogoni, Civil Application No. 122/03 of 2020 [2021] TZCA 451 (17 September 202; TANZLII), where it was said: "Having found that the applicants have cumulatively complied with the requisite conditions for grant o f the sought order, the remaining issue is on the nature o f the security. Bearing into consideration the fact that the decree which is sought to be appealed against is not a monetary decree, the nature o f the security should obviously be one suiting the particular circumstances o f the case. In the case o f Mohamed Masoud Abdallah and 16 Others v . Tanzania Road Haulage (1980) Ltd, Civil application No. 58 o f 2017 (unreported) in which the decree sought to be appealed against was, like in the present case, not a monetary decree, the Court required the applicant to furnish security in the form o f commitment to maintain the status quo o f the premises from which the respondent intended to evict them. We think that is the nature o f the security which is appropriate in the circumstances o f this case." In the event, and for the foregoing reasons, the execution of the decree of the trial court is hereby stayed pending hearing and determination of the intended appeal on the condition that the applicant l i

executes, within 30 days from the date hereof, a bond committing herself to maintain the status quo of the suit properties. Costs to abide the outcome of the intended appeal. I have noted that parties have been in Court corridors for 10 years, it is not health for matrimonial cases. Office of Registrar to ensure necessary documentation are supplied for intended appeal to be filed and heard expeditiously. DATED at DAR ES SALAAM this 25th day of September, 2024. Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 25th day of September, 2024 in the presence of Mrs. Crensencia Rwechungura, learned counsel for the applicant and Mr. Florence Tesha, learned counsel for the 1s t and 2n d respondents, is hereby certified a^a true copy of the original. fiimt A. S. CHIKSULU DEPUTY REGISTRAR COURT OF APPEAL 12