Denis Kashaija Mushema vs Exim Bank (T) Limited (Civil Application No. 586/01 of 2024) [2024] TZCA 898 (18 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 586/01 OF 2024 DENIS KASHAIJA MUSHEMA.............................................. ..... APPLICANT VERSUS EXIM BANK (T) LIMITED . ......... . ......................................... RESPONDENT (Application for stay of execution of the decision of the High Court of Tanzania, Land Division at Dar es Salaam) fLuvanda, J.) dated the 6th day of March, 2024 in Land Appeal No. 418 of 2023 REASONS FOR THE RULING 4th & 18th September 2024 MASOUD. J.A.: On 4th September, 2024, after hearing the counsel for the respondent and the applicant on the preliminary objection raised against the application, I struck out the application with costs. I reserved my reasons which I am now set to give. The applicant, Denis Kashaija Mushema, by way of notice of motion brought this application under rules 11 (3) (4) (4A) (5) (a) and (b), 6 and 7 (a) (b) (c) (d) of the Tanzania Court of Appeal Rules, 2009 (the Rules). He sought for an order staying execution of the decree of the High Court, Land Division in Land Appeal No. 418 of 2023 dated 6th March, 2024. The

notice of motion was supported by the applicant's affidavit dated 30th July, 2024. The application was hinged on the grounds that, the applicant lodged a notice of appeal in the Court on 3rd April, 2024; that, the applicant would suffer substantial loss and harm if a stay of execution would not be granted and; that, balance of convenience was in favour of ordering a stay of execution of the decree. The application was contested by the respondent who lodged an affidavit in reply. It is evident from the record that, the applicant filed Land Application No. 23 of 2023 before the District Land and Housing Tribunal (the tribunal) which was on 16th May, 2023 dismissed for want of prosecution. Dissatisfied by the dismissal order, the applicant unsuccessfully sought in Misc. Land Application No. 130 of 2023 to restore the dismissed matter. However, the application for restoration was also, on the 11th September, 2024, dismissed for want of good cause. Since the applicant was still aggrieved, he unsuccessfully appealed to the High Court against the tribunal's decision in Misc. Land Application No. 130 of 2023 that refused to set aside the dismissal order. The High court upheld the tribunal's decision, concluding that the appeal was without merit, as the appellant did not substantiate his claim of being present at the tribunal and did not comply with court procedures for non- appearance. The appeal was thus dismissed. As the applicant was

dissatisfied by the decision of the High Court dismissing his appeal, he filed a notice of appeal to the Court on 3rd April, 2024. It would appear from the record that the respondent, in exercise of her right of sale of mortgaged property under the mortgage deed entered between the applicant and the respondent, advertised the sale of the suit property by public auction, Because the applicant was displeased with the intended sale of the mortgaged property as he is still pursuing his right of appeal against the decision of the High Court which upheld the decision of the tribunal that there was no good cause shown for the restoration, he lodged the application for stay of execution. It was his position that there were illegalities and irregularities in the impugned decision sought to be appealed against; he would suffer substantial and irreparable loss if the decree is executed; he has already serviced 70% of the secured loan; he made an undertaking to furnish adequate security by pledging property, located in Dar es Salaam, whose value is over Tshs 400 million. Apart from lodging the affidavit in reply, the respondent also lodged a notice of preliminary objection consisting of three points. However, the first preliminary point of objection was abandoned at the commencement of the hearing. As a result, the respondent was only left with two points of objection which he argued as follows: One, that the application contravened the mandatory provisions of rule 11 (4) and (7) (d) of the

Rules, and principles enunciated in several decisions of this Court as there was no application for execution filed; and two, the application was untenable for the absence an executable decree. At the hearing of the application, the applicant appeared in person, unrepresented. On the other hand, the respondent had the service of Mr. Wilson Mukebezi, learned advocate. When addressing the preliminary points of objection, Mr. Mukebezi stated that the application at hand is incompetent for contravening the provisions of rule 11 (4) and (7)(d) of the Rules. He argued that since there was no application for execution pending before the court, there was no ground upon which the application for stay could stand. Mr. Mukebezi contended that the applicant lodged the application after becoming aware of the respondent's intention to auction the suit property pursuant to her contractual rights of sale under the mortgage deed and hence the advertisement for such sale. He added that the endeavour to auction the property was a result of the applicant's failure to honour the loan agreement that he entered with the respondent. Therefore, he emphasized that the intended sale has nothing to do with any application for execution as none was pending. Mr. Mukebezi concluded that, the applicant's application lacked legs to stand

on, as the prerequisite conditions stipulated under rule 11 (4) and (7) (d) were not adhered to. Submitting on the second point, Mr. Mukebezi argued that the applicant's application was misconceived because the High Court's decision did not determine any rights between the parties that were capable of being executed. He elaborated further that the High Court merely dismissed the appeal for lack of merit. Thus, the orders sought were in the circumstances irrelevant, as the decree sought to be stayed is incapable of being executed. To support his argument, Mr. Mukebezi invited the Court to be guided by the cases of S. M Saeed Limited v. Corporate Security Ltd & Others Civil Application No.621/17 of 2021 [2023] TZCA 17373 (30 June 2023; TANZLII) and Maryam Nassor v. ABLA Estate Developers & Agency Limited & Others Civil Application No. 153/17 of 2022 [2024] TZCA 168 (7 March 2024; TANZLII). Replying, the applicant submitted in relation to the first objection that the respondent should have filed an application for execution to implement the High Court's order before initiating the sale of the suit property. He submitted that he became aware of the respondent's intention to auction the suit property through a letter posted at the local government's office. On the second point of objection, there was nothing

useful from the applicant In the end, he invited the Court to dismiss the points of preliminary objection raised and proceed to grant his application. In his rejoinder, the respondent reiterated the arguments made in his submission in chief. He, however, added that since the applicant had admitted that there was no pending application for execution, the Court ought to find that the applicant conceded to the objection and proceed to dismiss the application with costs. Having heard the rival submissions, the issue for determination was whether the preliminary points of objection raised are meritorious. I join hands with the respondent's counsel argument that, the decree sought to be executed is incapable of being enforced or stayed. It is settled principle of law that, it is only a decree which is capable of being executed, which can be stayed. Looking at the decree accompanying the affidavit in support of the notice of motion, it is evident that it does not state any relief granted other than dismissing the application. This Court has had opportunity to pronounce itself on the position of the law with regard to execution of a decree that is not executable. See for instance, the cases of Athanas Albert and four others v. Tumaini University College [2001] T. L. R. No. 63, S. M. Saeed Limited v. Corporate Security Ltd & Others (supra) and Maryam Nassor v.

ABLA Estate Developers & Agency Limited & Others (supra). In the latter case, this Court said that: "It is common ground that the High Court dismissed the suit which was filed by the applicant That meant that the parties reverted to the status they had before the suit. Such a decree, we have held in a string o f ourprevious decisions, is not executable. Such stance is the hallmark o f our previous decisions the cases o f Athanas Albert v. Tumaini University College Iringa (supra ), Patel Trading Co. (1961) Limited & Another v. Bakari Omary Wema t/a Sisikwa Sisi PaneI Beating Enterprises Ltd., Civil Application No. 19 o f 2014 (unreported), ... In Athanas Albert (supra) a single Justice o f the Court (Kisanga, J.A) was confronted with an akin situation and held at p. 66: ...a stay of execution can properly be asked for where there is a court order granting a right to the respondent or commanding or directing him to do something that affects the applicant. In such a situation, the applicant can meaningfully ask the Court for a stay and to restrain the respondent from executing that order pending the results of an intended appeal” . (Emphasis added) 7

In the light of the above, the impugned decree in this application is non-executable. This rendered the application untenable. It was clear that, the second point of preliminary objection herein canvassed is merited. This outcome sufficed to dispose of the application against the applicant. It was academic exercise to discuss the other point of preliminary objection. In conclusion, therefore, the application at hand was misconceived. Consequently, it is for those reasons that I struck out the application with costs. DATED at DAR ES SALAAM this 17th day of September, 2024. B. S. MASOUD JUSTICE OF APPEAL The reasons for the ruling delivered this 18th day of September, 2024 in the presence of the applicant in person, and in the presence of Mr. Noel Adam Mosha, learned counsel for the respondent, is hereby certified as a true copy of the original.