Nassor Binzoo vs Asile Ally Said (Civil Application No. 70/17 of 2024) [2024] TZCA 906 (19 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM CIVIL APPLICATION NO. 70/17 OF 2024 NASSOR BINZOO ................... ....................................................... APPLICANT VERSUS ASILE ALLY SAID..... .................................................................... RESPONDENT (Application for stay of execution of the Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Luvanda. J.^ dated the 13d 1day of October, 2023 in Land Case No. 39 of 2023 RULING 13th & 19th September, 2024 LEVIRA. J.A.: This is an application for stay of execution of the decree of the High Court of Tanzania at Dar es Salaam in Land Case No. 39 of 2023 dated 13th October, 2023. It is brought by way of a notice of motion made under Rule 11 (3), (4), (4A), (5) (a) and (b), (6) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), and is supported by the affidavit of one Nassoro Binzoo, the applicant. The application is also supported by the applicant's written submissions. The respondent lodged neither affidavit in reply, nor written submissions in opposition of the application. The background of this application is briefly as follows: The respondent sued the applicant in the High Court vide Land Case No. 39 of 2023 over ownership of Plot No. 47, Block "L" situated at Muhoro Street, i

Kariakoo in Ilala District within Dar es Salaam City. Having heard the parties, the High Court delivered its judgment on 13th October, 2023 in favour of the respondent. The applicant was aggrieved by that decision and on 19th October, 2023, he filed a notice of appeal to the Court against the decision of the High Court. The appeal process did not bar the respondent from continuing with execution processes. Therefore, she instituted Execution No. 27025 of 2023 in the High Court and supplied the applicant with the copy of the notice of execution on 9th October, 2023, hence the present application. At the hearing of the application on 13th September, 2024, the applicant was represented by Mr. Samson Mbamba, teamed advocate, whereas, the respondent had the services of Mr. Abubakar Salim, also learned advocate. Mr. Mbamba adopted the applicant's notice of motion, the supporting affidavit and the written submissions as the only material to support the application before the Court. He added nothing. In reply, Mr. Salim submitted that the application was in full compliance with the requirements of the law, particularly Rule 11 of the Rules such that respondent was not opposing it. He acknowledged and welcomed the applicant's commitment to furnish security as stated in paragraph five (5) of the supporting affidavit. 2

Rejoining, Mr. Mbamba expressed the applicant's willingness to furnish security by way of bank guarantee preferably equivalent to the value of the subject matter which is estimated to be TZS. 900,000,000.00. Having considered the record of application and submissions by the counsel for the parties, the issue for my determination is whether the application meets the requirements of the law, that is, Rule 11 of the Rules. This issue need not detain me much because, as stated by Mr. Salim, the application is in compliance with the said Rule. I shall briefly explain. It is a requirement of the law under Rule 11 (4) of the Rules that applications for stay of execution must be filed within fourteen (14) days of service of the notice of execution on the applicant by the executing officer or from the date he is otherwise made aware of the existence of such an application. In the present matter, the applicant stated at paragraph 7 of the supporting affidavit that on 9th February, 2024 is when he was served with a notice of an application for execution and this application was filed on 21s t February, 2024, well within 14 days prescribed by the law. Other two requirements are stated under Rule 11 (5) (a) and (b) of the Rules in which, the applicant is required to show that he/she will suffer substantial loss if stay of execution order is not granted; and should make a commitment that he/she is willing to furnish security for the due performance of decree or order as may ultimately be binding upon him / 3

her. The applicant has complied with this Rule by stating in the notice of motion and paragraph 6 of the supporting affidavit that: " undue hardship, financial substantial and emotional loss will result to him if the decree is e x e cu te d Apart from that indication, the applicant has undertaken to furnish security under paragraph 5 of the supporting affidavit. It is as well important to note that, in terms of rule 11 (7) (a)-(d) the application for stay of execution is required to be accompanied with a notice of appeal, copy of a decree or order appealed from, judgment or ruling appealed form and a notice of the intended execution. The application at hand has complies with all the above requirements. All the stated documents are attached to the present application. In the circumstances, I am satisfied that the application at hand has cumulatively fulfilled the conditions required for the grant of stay of execution - see: Lomayani Langaramu v. Christopher Pero, Civil Application No. 432/08 of 2018 (unreported). I therefore grant this application. Consequently, I order stay of execution of the decree of the High Court in Land Case No. 39 of 2023 pending hearing and determination of the intended appeal. The order is conditional upon the applicant depositing a bank guarantee of TZS. 900,000,000.00 equivalent to the value of the land in dispute, subject of the decree as security for the due performance of the decree as may ultimately be binding upon him within 30 4

days from the date of this ruling. Costs to abide the outcome of the appeal. DATED at DAR-ES-SALAAM this 18th day of September, 2024. M. C. LEVIRA JUSTICE OF APPEAL The Ruling delivered on 19th day of September, 2024 in the presence of Mr. Samson Mbamba, learned Counsel for the Applicant and also holding brief for Mr. Abubakar Salim, learned Counsel for the Respondent, is hereby certified as a true copy of original. 5