Elidadi Mathew Rushishikala and 9 Others vs Samuel Malecela (Civil Application No. 712/17 of 2024) [2024] TZCA 917 (23 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 712/17 OF 2024 ELIDADI M ATHEW RUSHISH IKALA................................................... I** APPLICANT GIBSON JAM ES M SU KU M A ...................... . ..........................................2 nd APPLICANT FRANCIS ALOYCE M W IG A......... . ........................................................ 3 rd APPLICANT KUDRA NUHU M ASOLI......................................................................... 4 ™ APPLICANT HATIU JUM A SIM BA............................... . .............. . ............................. 5 TH APPLICANT PAUL SIM BA D E D E ...................................................... . ....................... 6 th APPLICANT JUMA ALI N G W AN AE ..... . ............. . ....................................................... 7 th APPLICANT ANTHON MARTIN N Y O T A ..., ............... . ............................................... 8 ™ APPLICANT AMRANI HUSSEIN SEG ILO H ............................................................... 9 TH APPLICANT SAID ISSA KALIK O ................................... . .............. . .......... . ......... 10 th APPLICANT VERSUS SAMUEL M ALECELA ........................ . ....................................................RESPONDENT (Application for stay of execution of the decree o f the High Court o f Tanzania, (Land Division) fHem ed, J .^ > dated 23rd day o f July, 2024 in Land Case No. 271 o f 2023 RULING 17th & 23rd September, 2024 NGW EMBE. J. A.: This application is premised on the provisions of rule 4 (2)(a)(b) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicants jointly pray that this Court may issue a stop order against the respondent in respect of his intention to dispose of the suit land located at Mji Mpya Mabwepande Ward, Kinondoni District in the Region and City of Dar es 1

Salaam. The notice of motion is supported by applicants' joint affidavit which in short states that, the applicants are owners of the respective suit land, which the first, second, third, fourth and eighth applicants bought from different persons who alleged to have allocated by the Village Allocation Committee of Mabwepande. The fifth, sixth, seventh, ninth and tenth claimed to have been allocated their respective pieces of land by the Village Allocating Committee of Mabwepande in diverse dates of March, 2013. That the cause of action arose on 10th April, 2023 when the respondent trespassed to the said land claiming that the same belonged to his father Hon. John Samwel Malecela. It is on that cause, the applicants on 25th August, 2023 preferred a Land Case No. 271 of 2023 before the High Court (Land Division) against the respondent. In that suit the applicants sought for declaratory order that the respondent had trespassed into their land, eviction order and vacant possession as well as damages for the loss they had suffered. It happened that the respondent flouted the procedure, his Written Statement of Defence and Counter Claim were expunged, consequently the applicants were invited to prove their case ex parte. However, the applicants after being heard by the High Court (Hemed, J) found that they failed to prove their claims, hence the suit was dismissed on 23/07/2024. Being dissatisfied with that decision, they preferred an appeal by lodging

notice of appeal to the Court on 20th August, 2024. Also, they filed the instant application. In their joint affidavit, the applicants averred that, while they were still following up the necessary documents from the High Court for the purpose of instituting the appeal, the respondent invaded the suit land and started to dispose to unknown persons. Thus, they were forced to institute the instant application with a purpose to restrain the respondent's action of selling the suit land subject of the intended appeal. Further they averred that even the decree which the respondent purports to execute is inexecutable and cannot be stayed. The last two paragraphs of their affidavit, (18 and 19) averred that they have already suffered substantial loss for their properties are being destroyed by the respondent and that, it is for the interest of justice the action of the respondent should be stopped, lest the appeal will be rendered nugatory. At the hearing of this application, Mr. Martin Rwehumbiza, learned advocate appeared for the applicants and Mr. Peter Shapa also learned advocate entered appearance for the respondent In addressing the Court, Mr. Rwehumbiza reiterated the above background of the matter and that the respondent had started disposing of the suit land. He exhibited his awareness on the gist of rule 11 of the Rules, and submitted that since the

respondent has not filed any execution proceedings in any court of law and due to the nature of the judgment of the trial court, rule 11 would not be applicable, save only rule 4 (2)(a)(b) & (c) of the Rules may apply. He added that the circumstances of this application is similar to the case of Stephen Mafimbo Madwary v. Udugu Hamidu Mgezi & Another, Civil Application No. 71 of 2011 (unreported). Therefore, he urged the Court to invoke rule 4 (2) to issue restraint order against the respondent with a view to safeguard the suit land which is subject to the intended appeal. He buttressed his submission by yet another case of Mekefason Mandali & 8 others v. The Registered Trustees of the Archdiocese of Dar es Salaam, Civil Application No. 491/17 of 2019, where the Court employed rule 4 (2) of the Rules and issued the orders of the same nature as sought in this application. In response therein, Mr. Shapa submitting for the respondent objected strongly the application by contending that the route cause adopted by the applicants to institute this application is irregular and unacceptable. To him, rule 4 (2) of the Rules applies only where there is no specific rule for a given matter. The instant application is regulated by rule 11 of the Rules, which mandatorily applies in stay of execution. To him, this application is incompetent.

Submitting further, Mr. Shapa argued that the notice of motion and supporting affidavit offends rule 11 (7) of the Rules as it is not accompanied with an executable decree and notice or application for execution which is pending before any court of law. As such the applicants invites the Court to order stay of execution in a non-existing execution. Moreover, Mr. Shapa denied any attempt of the respondent to sale the suit land as alleged and that the respondent does not intend to do so. The learned advocate conceded to the submission of the applicants' that the decree of the trial court is not executable and he added that it is also premature to make an application of this nature. Lastly, Mr. Shapa distinguished all cases cited by the applicants' counsel. Thus, he implored the Court to dismiss the application with costs. In rejoinder, Mr. Rwehumbiza maintained what he submitted in chief and insisted that rule 11 was not applicable in the circumstances of this application. Having considered the parties' arguments in all aspects and having reviewed the contents of the notice of motion and supporting affidavit, I find that the priority issue to be considered is on competence of the application itself. The learned counsels have vigorously struggled on which provision of the law is applicable to the application, considering its nature,

the question is whether or not this application is competent. While the applicants' counsel vehemently argued that rule 4 (2) of the Rules is the relevant provision in the nature of the matter, the respondent's counsel pressed hard to its opposition that rule 4 (2) is applicable only where the Rules do not provide for the matter in issue. In the contrary, the current application has specific provision of rule 11 of the Rules which is inevitably must be complied with. That, stay of execution is not an issue not envisaged by rules, rather it is fully covered under rule 11 of the Rules. Such tag of war between the opposing learned counsels have trigged this Court to, first determine it before I may proceed with merits of the matter. It is interesting that the above cited decisions of this Court preferred by the applicants' learned counsel had similar predicaments between the two rules, that is, rule 4 (2) and 11 of the Rules. I prefer to reproduce hereunder the whole of rule 4 (2): Rule 4 (2) "Where it is necessary to make an order for the purposes of- (a) d e a iin g w ith a n y m a tte r fo r w h ich no p ro v isio n is m ade b y th ese R u le s o r a n y o th e r w ritte n la w ; (b) better m eeting the ends o fju stice; or (c) preventing an abuse o f the process o f the Court, th e C o u rt m ay, on a p p lica tio n o r on its ow n m o tio n , g iv e d ire ctio n s a s to th e p ro ce d u re to be 6

a d o p te d o r m ake a n y o th e r o rd e r w hich it co n sid e rs n e ce ssa ry. " ( Em phasis is added) It is crystal clear that where there is a new instance which was not envisaged in the rules, the Court may give directions as to the procedure to be adopted or make any other order to preserve the interest of justice. The proper interpretation dictates a conclusion from the basic prerequisite which is absence o f a provision in the rules or any other written law. At the onset, I am confident that rule 4 (2) comes into piay in situation where there is no provision dealing with a given matter. Even in such cases, the applicant must meet other conditions like those provided for under rule 11 (5) of the Rules in respect of substantial loss and giving security for satisfaction of the decree. Among the situations where rule 4 (2) may apply, includes stay of execution pending revision. A similar situation occurred and was decided by the Court in the case of Mekefason Mandali & 8 Others v. The Registered Trustees of the Archdiocese of Dar es Salaam (supra). Demonstrating on the circumstances which rule 4 (2) may apply, the Court observed as follows: "Rule 11 (3) o f the Rules cannot be invoked to apply fo r stay o f execution o f a decree pending determ ination o f an application fo r revision because in order fo r that provision to be a p p lie d a notice o f appeal m ust have been lodged. It is fo r this reason

that the applicants have predicated their application under Rule 4 (2) (a) and (b) o f the Rules. This is because, filin g o f an application fo r revision does not require p rio r lodgm ent o f a notice o f appeal." The above gives a clear rationale that where there is no provision, like the matter of stay of execution pending revision, then rule 11 cannot apply. The Court went further to observe as follows: "Although the above stated conditions are provided fo r under Rule 11 o f the Rules which apply to applications fo r stay o f execution o f a decree pending appeal, we are certain that the conditions should apply generally thus covering applications made under Rule 4 (2) (a) and (b) o f the Rules." Therefore, even in application for stay of execution pending revision, the other conditions prescribed under rule 11 (5) must be complied with. The conditions which are incompatible with the nature of the application are like absence of notice in filing revision vis a vis requirement of attaching notice of appeal under rule ll(7)(a) of the Rules. The Court repeated the same position in the case of Stephen Mafimbo Madwary v. Udugu Hamidu Mgezi & Another (supra) In that case, the applicant had sought for prohibitory order pending revision proceedings. Such an application was premised under rule 4 (2)(a) and (b)

of the Rules. In that application, the applicants submitted that they preferred the application under rule 4 (2) because the rules are silent on which provision should be used in case of injunctive orders pending revision before the Court. The Court observed that it was a unique application, since a common practice was to find applications for stay of execution pending appeals but not injunctive orders pending revision and that there was no provision prescribing for such matter. The Court observed as follows: "There is no sim ilar provision in a situation where revision is applied before the Court. We think, such like provision ought to have been included in the Court o f Appeal Rules to cover such situation. In th e absence o f su ch p ro v isio n in th e C o u rt o f A p p e a i R u les, h e re in above sta te d , w e a re o f th e co n sid e re d o p in io n th a t th e a p p lic a n t w as rig h t to in v o k e R u le 4 (2 ) (a ) a n d (b ) o f th e R u le s in m o vin g the C o u rt a s it a p p e a rs in h is n o tice o f m otion. However, we are inclined to use the term stay o f execution instead o f injunctive order, because we are o f the considered opinion that, it is more appropriate to use the term stay o f execution sim ilarly used in the Court o f Appeal R ules." (Em phasis is added)

There is no other decision of this Court where a different interpretation was given to suggest that rule 4 (2) can apply in a case where the rules or other written laws have already prescribed. I can safely say that the position is now settled as there is no different position suggested by any decision of this Court. In the instant application, the applicants seek injunctive order which is mainly stay of execution pending appeal. The notice of motion and the supporting affidavit are direct and clear that the applicants seek for stay of execution pending hearing and determination of appeal pending in the Court. For clarity ground 1 of the notice of motion states as follows: "That this Hon. Court be pleased to issue a stop order to the respondent from disposing o ff p lo ts o f land located at M ji Mpya Mabwepande Ward Kinondoni belonging to the applicants pending hearing and determ ination o f appeal currently pending in this Hon. Court." Similar contents are repeated in paragraph 17 of the joint affidavit that they are seeking order to stay the respondent's action of selling the suit land pending final determination of the appeal. Following the above discussion and the cited decisions of the Court, what is envisaged by applicant is stay of execution as provided for under rule 11 of the Rules 10

and not rule 4 (2) as the applicant's counsel endeavoured to submit. That being the case, then the prerequisites of rule 11 must be met, including, compliance of time limitation as provided for under subrule 4 of rule 11, whether there will be substantial loss and security as provided for under rule 11 (5), and attachment of judgment and decree appealed from, and finally, notice of execution as per rule 11 (7) of the Rules. I therefore agree with the contention of Mr. Shapa that the route adopted by the applicants to this Court was wrong. In the circumstances the Court cannot be moved to invoke its powers under rule 4 (2) while there is specific rule 11 of the Rules. Given the circumstances, I find substance in Mr. Shapa's submission in regard to the competence of this application. In the contrary I failed to see merit in the submissions of Mr. Rwehumbiza, in maintaining rule 4 (2) of the Rules while there is no lacuna in the Rules in respect of the instant application. Since the law is now settled that rule 4 (2) is reserved only for matters whose provision is not given in the Rules, I am satisfied this application is misplaced and thus incompetent. This ground alone disposes of the whole case without considering other grounds raised and argued by both parties. Even if I would consider them, yet the position already ii

reached cannot change, rather will be fit for academic purposes which I am not ready to venture therein. Therefore, at the end, this application deserves no other remedy than being dismissed with costs. It is so ordered. DATED at DAR ES SALAAM this 20th day of September, 2024. The Ruling delivered this 23rd day of September, 2024 in the presence of Mr. Martin Rwehumbiza, learned counsel for the Applicant and Mr. Peter Shapa, learned counsel for the respondent is hereby certified as a true copy of the original. P. J. NGWEMBE JUSTICE OF APPEAL 12