Mosses Mollel vs Paschal Arusha (Civil Application No. 682/02 of 2024) [2024] TZCA 928 (24 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 682/02 OF 2024 MOSSES M OLLEL.............................................- ....................... APPLICANT VERSUS PASCHAL ARUSHA............... ............................. . .................. RESPONDENT (Application for Stay of Execution of the Decree/Order of the High Court of Tanzania, Manyara Sub-Registry, at Babati) (Mirindo, 3.) dated the 22n d day of August, 2024 in Land Appeal No. 12890 RULING 19th & 24th September, 2024 MASOUD, J. A.: At the hearing of the application by the applicant for stay of execution of the decree in Land Appeal No. 12890 of 2024 pending hearing and determination of the intended appeal to the Court of Appeal, the applicant was represented by Mr. John Lundu, learned advocate. On the other hand, the respondent appeared in person unrepresented. Both parties adopted their respective affidavit in support and affidavit in reply in a bid to fortify their positions with regard to the i

application. While the learned counsel urged me to grant the application as in his view it has met all the requirements of rule 11 of the Tanzania Court of Appeal Rules, 2009 (the Rules), the respondent was seemingly of the submission that the application should not be granted as it did not comply with rule 11 of the Rules. Looking at the record before me, it is evident that the applicant has already lodged notice of appeal on 28th August, 2024 in his bid to appeal against the decision of the High Court of Tanzania, Sub-Registry of Manyara at Babati in Land Appeal No. 12890 of 2024. The Judgment and decree in respect of such decision were as well accompanied to the affidavit in support. The decree arose from the decision of the appeal that was filed by the respondent challenging the decision of the District Land and Housing Tribunal (DLHT) of Manyara that stayed the execution proceedings before it pending determination of the application for revision that had been lodged by the applicant to the Court of Appeal, against the decision of the High Court in Labour Revision No. 5 of 2023 which quashed execution proceedings before the DLHT and ordered the execution proceedings to be filed a fresh. 2

In its determination, the High Court allowed the appeal and set aside the decision of the DLHT, that stayed the execution proceedings which were initiated by the respondent pursuant to the decision of the High Court in Land Revision No. 5 of 2023. The High Court was satisfied that the stay could not be simply made because there was pending application for revision before the Court or because there was pending application for extension of time to appeal to the Court against the decision of the High Court in Land Revision No. 5 of 2023. In relation to the foregoing, the High Court in Land Appeal No. 12890 of 2024 held thus: "I allow the appeal with costs and set aside the decision o f the Tribunal dated 16/05/2024. The pending o f an application for extension o f time to appeal has nothing to do with execution proceedings. It is hereby ordered that the case file be immediately returned to the Tribunal for execution proceedings to continue and the Tribunal is ordered to continue with execution proceedings within fifteen days from the date o f this Ruling" 3

In the light of the above outcome of the appeal against the decision of the DLHT staying execution pending determination of the revision that was pending before the Court of Appeal, I wondered as to whether the decree, whose execution was stayed by the DLHT and which stay led to the appeal before the High Court challenging the order staying such execution, is the one that the applicant is intending to appeal from if one goes by the notice of appeal lodged by the applicant. I am, in this regard, aware that the Court's power under rule 11 (3), which according to the applicant was in this application complied with, is restricted to staying the execution of the decree or order appealed from. I say so because the said power can only be exercised to halt the execution of a decree or order made by the High Court which is the subject of the intended appeal to the Court pursuant to a notice of appeal already lodged. It is common ground that the instant application seeks to stay the Judgment and the decree of the High Court in Land Appeal No. 12890 of 2024 (as per Mirindo, J.) allowing the respondent's appeal. The said judgment and decree quashed the DLHT's decision that ordered stay of execution pending determination of the revision application (Civil Application No. 948 of 2023) by the Court of Appeal, which application 4

has already, as per the record, been withdrawn pursuant to the Courts order dated 12/07/2024. Although it is evident that by the High Court's Judgment and decree in Land Appeal No. 12890 of 2024, the execution was in effect restored as decided by the High Court in Land Revision No. 5 of 2023; the High Court's decree in the said appeal is in itself non-executable. I say so because such decree gives no rights to any of the parties capable of being executed other than those in the Land Revision No. 5 of 2023, in which the High Court in its determination held thus: "In the end, I find errors in the execution proceedings, that has occasioned failure o f Justice in Misc. Land Application No. 26 o f 2022 and Misc. Land Application No. 27 o f2022 before the DLHT. Consequently, I hereby quash the proceedings, ruling, and nullify the attachment orders so meted in both applications. As to the sale o f Paschal Arusha's property by auction, the sale is nullity ab initio as the records do not depict that the DLHT did issue a proclamation for sale. If, the tribunal broker sold Paschal Arusha's property, he did so without the order o f the DLHT. For that reason, the sale is nullity ab initio. I, therefore, declare the sale o f Paschal Arusha's property who nullity ab initio. 5

Misc. Application No. 26 and Misc. Application No. 27 before the DLHT are dismissed. Consequently, Paschal Arusha reverts to the position before the executions in Misc. Application No. 26 and 27 before the DLHT were instituted and ordered. Mosses Model may, if he so wishes, re-institute fresh application for execution after following the procedure". The applicant has deponed in his affidavit in support to the effect that he has filed Misc. Application No. 17528 of 2024 in the High Court, Manyara Sub-Registry for extension of time within which to lodge a notice of appeal to the Court of Appeal against the above decision (i.e. in Land Revision No. 5 of 2023). That application is, according to the applicant, still pending. With the foregoing in mind, I recalled the position held in Athanas Albert and 4 Others v. Tumaini University College, Iringa [2001] T. L. R. 63 that it is only a decree granting a right that can be stayed. See also, Patel Trading Co. (1961) Ltd and Another v. Bakari Omary Wema t/a Sisi kwa Sisi Panel Beating Enterprises Ltd, Civil Application No. 19 of 2014 among others. It seems, therefore, that the respondent, though a layman, was right when 6

he said that the application is misconceived and thus the order of stay sought should not be granted. In conclusion, I find the application misconceived and proceed to strike it out with costs. DATED at DAR ES SALAAM this 23r d day of September, 2024. The ruling delivered this 24th day of September, 2024 in the presence of Mr. John Lundu, learned counsel for the applicant and in the presence of the respondent in person, both via virtual link from Manyara High Court, is hereby certified as a true copy of the original. B. S. MASOUD JUSTICE OF APPEAL 7