Bock Juma Rungwe vs The Grand Lodge Company Limited and 2 others (Civil Application No. 925/17 of 2023) [2024] TZCA 890 (13 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 925/17 OF 2023 BOCK JUMA RUNGWE APPLICANT VERSUS THE GRAND LODGE COMPANY LIMITED THE REGISTRAR OF TITLES ................. THE ATTORNEY GENERAL ................. . 1 st RESPONDENT 2 nd RESPONDENT 3 rd RESPONDENT (Application for stay of execution of a judgment and decree of the High Court of Tanzania (Land Division) at Dar es Salaam) 10th & 13th September, 2024 MGONYA. 3.A.: This is an application made under rule 11 (3),11(4),11(4A), ll(5)(a) and (b), 11(6), 11(7) (a) (b) (c) and (d) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 as amended (the Rules), for an order to stay execution. The grounds on which the application is based are contained in the Notice of Motion itself. In a nutshell, the ground for this application as paraphrased from the Notice of Motion is, to avoid substantial and irreparable loss which will not be atoned by way of monetary (Mkwizu. J.1 dated the 2n d day of September, 2022 in Labour Revision No. 137 of 2019 RULING

compensation as the 1s t respondent applied for eviction of the applicant from the disputed property. Hence, the execution should be stayed pending the disposal of the appeal. Briefly, the applicant unsuccessful sued the respondent in the High Court, in Land Case No. 137 of 2019, claiming to be a lawful owner of a suit property described as Plot No. 376 Block 45C registered under a Certificate of Title No. 48721 situated at Kinondoni Municipality. Upon hearing of the parties, the trial court's judgment was in favor of the 1s t respondent, where it was inter alia declared that, the 1s t respondent is the owner of the suit property. Being aggrieved with the High Court's decision, the applicant has filed a Notice of Appeal and the instant application, to stay the execution of the impugned Decree. When the application is placed before me for hearing, Mr. Mohamed Tibanyendera appeared for the applicant, whereas, Mr. Armando Swenya, and Ms. Jesca Shengena, Principal State Attorney, assisted by Mr. Allen Mbuya, State Attorney appeared for the 2n d and 3r d respondents, respectively.

When given the floor, Mr. Tibanyendera commenced by adopting the affidavit in support of the application and the written submission filed earlier and went on to state; on 20th May, 2022 the applicant was served with court's summons in respect of Execution No. 91 of 2021 arising from Land Case No. 137 of 2019, which the applicant seeks an order to stay pending hearing of the appeal. He went on to state that, the applicant is willing to furnish security in due performance. That taking into consideration that, the subject matter is the land, which is intact and undisturbed, they pray the Court to use the same as security. In reply Mr. Swenya stated that, they are not objecting the application save for the security. He submitted that; they object the prayer for the disputed property to be used as security for the following reasons. First, it is the fact that, the said land is not appearing in the applicant's affidavit so as they can know the status of the said property. Second, the disputed land cannot be taken as security under the circumstances, as the same is the subject matter to the controversy between the parties herein. On her side, Ms. Shengena who did not lodge an affidavit in reply, was brief that, they don't oppose the application. However, she prayed the Court when making the decision, to consider rule 11 (4) (5) and (7) of the Rules.

In his rejoinder, Mr. Tibanyendera argued that, what amounts to security is the discretion of the Court to order. Therefore, what should be the security should remain in the Court's discretion. Having keenly examine the submissions of the counsel for both sides, I found that, the respondents did not dispute on the application. Nevertheless, they alerted this Court on the applicant's fulfilment of the conditions stipulated by the law. From their submissions, they lock horns on the suit property to be used as security for the due performance of the decree, as prayed by the applicant. It is trite that, the determination of the appropriate security is in the discretion of the Court, keeping in view all facts and circumstances of the case. However, the discretion is to be exercised prudently, depending on the facts and manner in which the trial of the suit was conducted and the impugned decree was passed. See- Exim Bank Tanzania Limited v. El Nasr Export and Import Co. Limited & Others, Civil Application No. 258/1/2024 and African Banking Corporation (T) LTD v. Mussa Masembo, Civil Application No. 591/18/2021 (both unreported). As we have demonstrated above, the subject matter of the litigation between parties herein, is the landed property identified as Plot No. 376 Block 45C with Certificate of Title No. 48721, which was declared by the

trial court to belong to the 1s t respondent. Hence, from the impugned decision, the disputed property is lawfully owned by the 1s t respondent. That being the case, the question which arose is, whether the applicant can offer a property which he is not possessing as security for the due performance of the decree. This Court, when facing with akin situation, where the applicant offered to furnish the property which was the subject matter to the litigation between the parties in L. W. Ladwa (1997) Limited v. Bansons Enterprises Limited, Civil Application No. 566/17/2019 (unreported) held that: "It is trite position o f the law that a property in dispute does not suffice to be furnished as a security for the due performance o f a decree or order.” See also Juma Hamis v. Mwanamkasi Ramadhani, Civil Application No. 34 of 2014 (unreported). I subscribe to the above stated position of the law and hold that, the property under dispute as mentioned herein, is not sufficient to serve as security for the due performance of the decree, on two reasons; One, that the High Court decree declared the suit property to belong to the 1s t

respondent. Therefore, by granting the applicant's prayer to offer the suit property as security, will amount to reversing the impugned decree. Two, it is gathered from the record of this application that, the property offered as security had been subject of litigation since 1997 in Civil Case No. 55 of 1997, where at the end, the same was attached by the court's Order and the same was sold by auction whereby the 1s t respondent was a successful bidder. It is also on record from the High Court Judgment that, while the suit property was attached by the court in the execution of decree of Civil Case No. 55 of 1997 at the Resident Magistrate's Court at Tabora, the original owner disposed it illegally to the applicant herein. Therefore, having considered the circumstances of this application, I concur with Mr. Swenya that, the suit property cannot be used as a security without there being enough averment by the applicant in his affidavit in support of the application on the current status of the said property. In the light of the above reasons, I find that, the applicant failed to satisfy the condition set out under rule 1l(5)(b) of the Rules. As it is the requirement of the law that, for an application to stay the execution to succeed, the applicant must comply with the conditions listed under the law cumulatively. I therefore, decline to grant the application sought. 6

Consequently, this application is dismissed accordingly. Costs should be in the cause. DATED at DAR ES SALAAM this 12th day of September, 2024 L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 13th day of September, 2024 in the presence of Mr. Mohamed Tibanyendera, learned counsel for the Applicant also holding brief for Mr. Armando Swenya, learned counsel for the 1s t Respondent, and is the absence of the 2n d and 3rd respondents, is hereby certified as a true copy of the original. 7