Edwine Thadeyo Oyor vs Tausi John Oyor (Civil Application No. 652/17 of 2023) [2024] TZCA 919 (20 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 652/17 OF 2023 EDWINE THADEYO OYOR ............................................................ APPLICANT VERSUS TAUSI JOHN OYOR ................................................................... RESPONDENT [Application for stay of execution of the Judgment and Decree of the Resident Magistrates' Court of Dar es Salaam at Kivukoni] fKamuzora, PRM- Ext Juris. 1 dated the 22n d December, 2020 in Land Application No. 121 of 2013 RULING 19th & 20th September, 2024 MWAMPASHI. J.A.: This is an application by way of a notice of motion brought under rules 11(3), (4), (5) and (7) as well as 48 (1) both of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant herein, Edwine Thadeyo Oyor, has filed the instant application for stay of execution of the decree of the Resident Magistrates' Court of Dar es Salaam at Kivukoni, in Land Application No. 121 of 2013, dated 22.12.2020, pending the hearing and final determination of his intended appeal. The application is supported by an affidavit sworn by the applicant on 01.09.2023 and it is resisted by an affidavit in reply sworn by the respondent ON 18.09.2023. Briefly, the background facts relevant to the instant application as gathered from the affidavits filed by the parties are as follows: On

22.12.2020, in Land Appeal No. 05 of 2019, the Resident Magistrate' Court of Dar es Salaam at Kivukoni (Hon. Kamuzora, PRM - Ext. Juris.), confirmed the decision of the District Land and Housing Tribunal for Ilala (the DLHT) which had on 12.04.2019, allowed the respondent's counter claim against the applicant. In its decision, the DLHT did not only declared the respondent the lawful owner of the suit land but it also declared the applicant a trespasser. The decision of the DLHT having been confirmed by the Resident Magistrates' Court (Hon. Kamuzora, PRM - Ext. Juris.) on 22.12.2020, as alluded to above, aggrieved the applicant who desired to appeal against it. He thus, applied for the copy of the proceedings for appeal purposes on 24.12.2020 and on 28.12.2020, for the same purpose, he duly lodged a notice of appeal. As by then leave to appeal to the Court was a prerequisite condition, the applicant did also apply for leave to appeal, the application which was however, refused by the High Court on 05.07.2023. There followed other applications to this Court by the applicant including the application for extension of time to file an appeal (Civil Application No. 632/17 of 2023) which is still pending before the Court. While the applicant's application for extension of time to file appeal is still pending, the respondent filed an application for execution of the decree, notice of which was served on the applicant on 23.08.2023. Having been

served with the said notice, the applicant filed the instant application on 04.09.2023. When the application was called on for hearing, whereas the applicant was represented by Mr. Peter Nyangi, learned advocate, the respondent appeared in person unrepresented. In his brief submissions in support of the application, Mr. Nyangi began by adopting the notice of motion and the supporting affidavit, he then argued that the required conditions for grant of stay of execution have been met by the applicant. He pointed out that after being notified of the application for execution of the decree on 23.08.2023, the applicant timeously filed the instant application on 04.09.2023. Furthermore, Mr. Nyangi referred me to paragraph 9 of the supporting affidavit where it is deposed that if the execution of the decree is not stayed, the applicant will suffer substantial and irreparable loss. He expounded that the loss will be substantial because the suit plot is comprised of shop premises. As on security for the due performance of the decree, it was argued by Mr. Nyangi that, as deposed in paragraph 8 of the supporting affidavit, the applicant is ready and willing to give security as directed by the Court. He thus prayed for the application to be granted but without costs. The respondent adopted her affidavit in reply and expressed her stance that she was opposing the application on the ground that the same 3

is time barred. Without more, she thus, prayed for the application to be dismissed with costs. In his brief rejoinder, Mr. Nyangi reiterated his prayer for the application to be granted insisting that the application is not time barred. Having gone through the notice of motion and considered the affidavits and arguments for and against the application, the issue for my determination is simply whether good cause has been shown to warrant issuance of an order for stay of execution of the decree as sought in the notice of motion. Let me begin by pointing out that the Court derives its powers to order stay of execution of a decree or order from rule 11 (3) of the Rules under which it is provided as follows: ”11(3) In any civil proceedings, where a notice o f appeal has been lodged in accordance with rule 83, an appeal, shall not operate as a stay o f execution o f the decree or order appealed from nor shall execution o f a decree be stayed by reason only o f an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay o f execution o f such decree or order". [Emphasis added] The power of the Court to grant or refuse stay of execution of a decree or order, is discretionary and dependent not only on the circumstances of a 4

particular case but mostly on consideration of three conditions as articulated under rule 11 of the Rules; One, that the relevant application is timeously brought, two, that substantial loss may result to the applicant if the application is refused and three, that security for the due performance of the decree or order as may ultimately be binding upon the applicant should his pending appeal fail, is given. It is also a settled position of the law that for an order of stay of execution to be issued, the applicant is enjoined to cumulatively satisfy the above three conditions. See - National Housing Corporation v. A. C. Gomes (1997) Limited (Civil Application No. 133 of 2009) [2010] TZCA 168 (19 May 2010; TanzLII), Joseph Anthony Soares @ Goha v. Hussein Omary (Civil Application No. 06 of 2012) [2013] TZCA 328 (8 May 2013; TanzLII), Hai District Council & Another v. Kilempu Kinoka Laizer & 15 Others, Civil Application No. 10/ 05 of 2017 (unreported) and Bahati Moshi Masabila t/a Ndono Filling Station v. Hamis Maganga Kilongozi (Civil Application No. 359/08 of 2023) [2024] TZCA 88 (22 February 2014; TanzLII). From the above position of the law the issue that follows is whether the applicant has cumulatively fulfilled the above three conditions. In the instant application, the application is resisted on a single ground that it is time barred. According to rule 11 (4) of the Rules, an application for stay of 5

execution shall be made within fourteen days of service of the notice of execution on the applicant or from the date the applicant is made aware of the existence of an application for execution. According the notice of hearing annexed to the supporting affidavit and as deposed in paragraph 7 of the supporting affidavit, the applicant was made aware of the fact that the respondent has filed an application for execution of the decree on 23.08.2023 when the notice of hearing was served on him. That being the case, the application which was filed on 04.09.2023 cannot be said to have been filed out of time. It was filed within the prescribed period of fourteen days as required by the law. The respondent's complaint that the application is time barred is thus dismissed. As for other two conditions, I am satisfied and I am in agreement with Mr. Nyangi that as deposed in the supporting affidavit, if the execution of the decree is not stayed the applicant will suffer substantial loss. Furthermore, evicting the applicant and demolishing the shop premises is likely to cause more inconveniences to the applicant rather than to the respondent if the execution of the decree is stayed and further if at the end of the day the applicant's intended appeal fails. I also find that for purposes of this application, the undertaking by the applicant under paragraph 8 of the supporting affidavit that he is ready to deposit security for the due 6

performance of the decree as per requirement of the law or order by the Court, is sufficient. In the event, for the above reasons, the application is granted. The execution of the decree of the Resident Magistrates' Court of Dar es Salaam at Kivukoni (Hon. Kamuzora, PRM - Ext. Juris.) in Land Application No. 121 of 2013, dated 22.12.2020, is hereby stayed pending the hearing and final determination of the applicant's intended appeal. The stay order is however, conditional upon execution by the applicant, within thirty (30) days from the delivery of this ruling, of a commitment bond committing himself to maintain the status quo of the suit plot. Costs to abide the outcome of the intended appeal. It is so ordered. DATED at DAR ES SALAAM this 19th day of September, 2024. A. M. MWAMPASHI JUSTICE OF APPEAL The Ruling delivered this 20th day of November, 2024 in the presence of applicant in person unrepresented and the respondent in person unrepresented, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL