Equity Bank Tanzania Limited vs Iddi Ally Msumagilo (Suing as Administrator of the Estate of the late Lydia Elisali Mushi @Lydiya Mushi) and 2 Others (Civil Application No. 892/17 of 2024) [2024] TZCA 925 (23 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 892/17 OF 2024 EQUITY BANK TANZANIA LIMITED ............. VERUS APPLICANT IDDI ALLY MSUMAGILO (suing as Administrator of the Estate o f the late LYDIA ELISALIMUSHI @ LYDIYA MUSHI) ......................................... TIB DEVELOPMENT BANK. ............................... NORBERT DONATUS KAYUGWA ....................... 1s t RESPONDENT 2n d RESPONDENT .3r d RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania, Land Division at Dar es Salaam) 13th & 23rd September, 2024. FIKIRINI. 3.A.: This application for stay of execution by the applicant, Equity Bank (Tanzania) Limited is instigated by a notice of motion preferred under rules 11 (3), (4), (4A), (5) (a) & (b), (6) and (7) (a), (b), (c) and (d) of the Tanzania Court of Appeal Rules, 2009 (the Rules). An affidavit from Mgisha Kasano Mboneko, the applicant's principal officer, and written ( Manvanda, J.^ dated 9thday of October, 2020 in Land Case No. 161 of 2016 RULING l

submissions supported the application. The first respondent, Iddi Ally Msumagilo ( suing as Administrator o f the estate o f the late Lydia Eiisaii Mushi @ Lydia Mushi), filed an affidavit affirming contesting the application. The second and third respondents filed nothing. The genesis of the application stemmed from Land Case No. 161 of 2016, in which the late Lydia Elisali Mushi @ Lydia Mushi, owner of the landed property known as Plot No. 368 Block "D" Kigogo Area, Kinondoni Municipality, Dar es Salaam registered under a Certificate of Title No. 26596 (the disputed property) found herself in a strange and complicated situation after in September, 2014 learning that the disputed property has been used as a security in respect of a loan facility worth TZS. 80,000,000/= by the applicant to the third respondent. The second respondents explanation exonerating itself from liability denied being in possession of the first respondent's Certificate of Title as that was not among the customers handed over from the defunct Tanzania Housing Bank (THB) liquidators. After the trial, the High Court entered judgment in favour of the first respondent. Aggrieved by the decision, the applicant lodged a notice of appeal on 15th October, 2020. On the contrary, seized with judgment and

decree in his favour, the first respondent, on 3r d November, 2023, lodged Application for Execution No. 104 of 2023. The applicant was served on 14th November, 2023, prompting the present application lodged on 28th November, 2023. At the hearing of the application on 13th September, 2024, Messers. Karoli Tarimo, Lutete Haji and Mluge Karoli Fabian, all learned advocates, appeared for their respective parties. The second respondent, though duly served on 5th September, 2024, did not bother to enter appearance. The hearing of the application proceeded in the absence in terms of rule 63 (2) of the Rules. At the outset, Mr. Mluge informed the Court that the third respondent did not contest the application. As for Mr. Tarimo submitting in favour of the application, start by adopting the notice of motion, the affidavit in support, the written submissions filed on 23r d January, 2024 and the list of authorities that followed on 3rd September, 2024. Based on his filings, he contended that the applicant had fulfilled all the requirements and prayed to be given forty five (45) days within which to deposit a bank guarantee as security for the due performance of the

decree. Therefore, he prayed for the grant of the stay of execution pending the hearing of the intended appeal. Mr. Haji, on his part, contested the application focusing on non- compliance to rule 11(5) (b) related to furnishing security for the due performance. He contended that the security to be furnished should be for the whole decree and not part of it. The applicant has shown willingness to fulfil the first part. So far, nothing has been indicated on the second part, which involves a copy of the Certificate of Title, which had been changing hands and, therefore, under a precarious situation. Under the circumstances, he prayed for the said Certificate of Title to be surrendered to the Court. Briefly rejoining, Mr. Tarimo submitted that the Certificate of Title complained about was not in the applicant's custody as it was tendered as an exhibit during the trial. Suggesting a firm undertaking as a way forward as the Court ordered in its previous decisions. What I am invited to determine is whether this application is meritorious or not. It is trite law that, for the Court to grant the application for stay of execution, all the conditions stipulated under rules 11 (3), 11 (4) (4A), 11 (5) (a) & (b) and 11 (7) (a), (b), (c) & (d) must 4

be cumulatively fulfilled. See: National Housing Corporation v. AC Gomes Ltd.(Civil Application No. 133 of 2009) [2010] TZCA 168 (19th May, 2010; TANZLii); Africhick Hatchers Limited v. CRBD Bank PLC, (Civil Application No. 98 of 2016) [2019] TZCA 148 (15th March, 2019), UAP Insurance Tanzania Limited v. Noble Motors Limited, (Civil Application No. 260/01 of 2016) [2017] TZCA 199 (5th June, 2017; TANZLii) and Joruma Biswalo v. Hamis Richard, Civil Application No. 11 of 2013 (unreported) referred in the applicant's list of authorities. The emphasis in all the above cases is that the requirements must be complied with cumulatively, which are: one, that the application should be filed within fourteen days, two, that applicant should show that substantial and irreparable loss would be suffered, unless the stay of execution order is made and three, willingness and undertaking to furnish security. I have examined the notice of motion, affidavits of the applicant and first respondent, the applicant's written submission and rival oral arguments by Mr. Tarimo and Mr. Haji. I will thus determine this application in light of what is on record.

After being served with a notice of execution on 14th November, 2023, the present application was lodged on 28th November, 2023. This was within fourteen days prescribed under rules 11 (3) and (4) of the Rules. The application complied with the requirements listed under rule 11 (7) (a), (b), (c) and (d) of the Rules, which are copies of a notice of appeal, decree and judgment appealed against and notice of execution. This condition is met. Another condition is that under rule 11 (5) (a) and (b) of the Rules. Under paragraph (5) (a), the applicant has to illustrate the substantial and irreparable loss to be suffered. The answer is found under paragraph 9 (a) (b) (c) and (d) of the affidavit in support. The applicant has in that paragraph stated the substantial and irreparable loss that would be suffered if this application is declined. This assertion is contradicted in paragraph 5 of the affidavit in reply. It was the first respondent's averment that, first, the applicant had never requested his address and refused. Second, if there was anyone to suffer, it was him and not the applicant, as the applicant and the 3r d respondent misused his Certificate of Title fraudulently, creating illegal mortgages to his family's detriment.

I have carefully examined the said paragraph 9 and paragraph 5 contesting the averment in paragraph 9; I am of the view the applicant has been able to elaborate on the substantial loss that would be suffered. While it is correct that the first respondent's address has not been inquired about or refused to be shared, that is not the sole reason to determine the stay of execution prayed, one way or the other. The whereabouts and the address of the decree-holder is important to be known, but the most critical thing is how can the amount paid to execute the decree be recovered if the applicant's appeal succeeds. This is a concern which should not be underrated. As stated in the National Housing Corporation case (supra), there has to be certainty of how the decretal sum should be paid back if the appeal succeeds. This has not been answered either in the affidavit in reply nor Mr. Haji's submission, even though I am alive to the fact that submission is not evidence but expounding of what has been deponed in the affidavit. From what has been averred by the applicant in paragraph 9 of the affidavit in support of the application, I find that the applicant has articulated well the substantial and irreparable loss to be suffered if the application is declined. Also considered is that the applicant, being a 7

financial institution, whose address is known, could be easily reached if the appeal fails. Moreover, the applicant has shown readiness to furnish security in the form of a bank guarantee or any other security ordered by the Court. In the case of UAP Insurance Tanzania Limited (supra), the like position was affirmatively considered. Guided by the decision, I believe that the first respondent would be well protected and that the chances he will suffer are remote. This condition is met. The last condition is security for the due performance. This falls under rule 11 (5) (b) of the Rules. Under paragraph 7, the applicant has shown willingness to furnish security for the due performance of the decree by executing a bank guarantee to cover the entire decretal amount. The first respondent essentially does not oppose the furnishing of the security. However, he is mindful that the Court should not only be blinded by the fact that the applicant is a well established institution since the decree also involves a Certificate of Title. Therefore, I should also consider that the security to be furnished should be for the whole decree and not part of the decree, urging me to also order a deposit of the Certificate of Title subject of the case in Land Case No. 161 of 2016.

Mr. Tarimo essentially did not contest this. His only concern was that the Certificate of Title was tendered in evidence during the trial. I do not doubt that the applicant is a well established institution; thus, it cannot fail to meet the decretal obligation if it loses the appeal. However, the essence of security for due performance is ensuring that each party is protected to the extent required. In the present application, the decree in the first respondent's favour should not be difficult to be realized. To make this occur without much difficulty, as decided in the case of CRDB Bank Ltd. V. Issack Mwamasika & Others, Civil Application No. 103/01 of 2017, a bank guarantee from any other banks in the jurisdiction would be more convenient rather than a guarantee from its own bank. As for the burning issue over the Certificate of Title fraudulently obtained and used to establish an illegal mortgage that was ordered to be handed to the first respondent, I find that being part of the evidence before the trial court in Land Case No. 161 of 2016, the assertion not disputed by the first respondent, the Certificate of Title should remain in the court's custody pending determination of the intended appeal. 9

In conclusion, I find the applicant has been able to comply with all the requirements. I thus grant the stay of execution in Land Case No. 161 of 2016, pending hearing and determination of the pending appeal after the applicant has furnished security in the form of a bank guarantee from any other banks in the jurisdiction apart from the applicant's bank to be deposited with the Court within forty five (45) days in a sum equal to TZS. 38,707,000/= without interest as of the date of delivering this ruling, plus the order that the Certificate of Title remains in the Court's custody until the appeal is finally determined. DATED at DAR ES SALAAM this 20th day of September, 2024. P. S. FIKIRINI JUSTICE OF APPEAL The Ruling delivered this 23rd day of September, 2024 in the presence of Mr. Litete Haji Ndungo, learned counsel for the 1s t respondent and in the absence of the counsel for the applicant, 2n d and 3r d respondents; is hereby certified as a true copy of the original. R. W. CHAUNGU ij DEPUTY REGISTRAR COURT OF APPEAL