Samwel Muhoja Lumala vs Maryline Aminiel Minja (Civil Application No. 471/01 of 2023) [2024] TZCA 891 (13 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 471/01 OF 2023 SAMWEL MUHOJA LUMALA ...... ....... ..................... ............... APPLICANT VERSUS MARYLINE AMINIEL M INJA.......... ............................. ........... RESPONDENT (Application for stay of Execution of the Decree of the High Court (Land Division) at Dar es Salaam) fMruma. dated the 15th day of August, 2022 in Civil Appeal No. 324 of 2021 RULING 11th & 13thSeptember, 2024 MAIGE. J.A.: In a matrimonial dispute between the parties herein, the District Court of Mkuranga (the trial court) granted a decree of divorce at the instance of the respondent and ordered for distribution of the matrimonial assets as follows: First, the house at Mwandege Magengeni ("the first property") be of the respondent; Second, the house at Kilunguli area within Mkuranga ("the second property") be of the applicant; and Third, the other houses including business frames ("the third property") be sold

and the proceeds thereof shared between the applicant and respondent at the ratio off 60% : and 40%. On appeal, the High Court, while upholding the decree of divorce, varied the decree of division of matrimonial assets in two ways. In the first place, the first property was excluded from the matrimonial assets and declared to be the property of applicant. In the second place, the second property and the third property, together "the suit properties", were to be sold and the proceeds thereof shared between the applicant and the respondent now at the ratio of 80%: 20%. The applicant is unhappy with the decision and in expression of his desire to further appeal to the Court, has lodged a notice of appeal. The notice of appeal aside, the respondent has commenced an execution proceedings. To avert the continuation of the execution pending the results of the intended appeal, the applicant has, in terms of rule 11 (3), (4), (5), (6) and (7) of the Rules, lodged the above application. The application is supported by the applicant's affidavit. No affidavit in opposition has been filed by the respondent, however. During hearing, the parties appeared in persons without representation. In his submission, the applicant fully adopted the notice of motion and affidavit and contended that, all conditions for grant of a

stay order have been fulfilled. He prayed, therefore that, the application be granted. On her part, the respondent opposed the application insisting that the suit properties be distributed as per the decree of the High Court so that she can enjoy the fruits thereof. She submitted that, she is living in a hard condition because of the delay in execution of the decree. Under rule 11(3) of the Rules, the Court would grant a stay order if three conditions have been cumulatively met. The first condition is necessity of the grant to prevent substantial loss; the second condition is preference of the application without undue delay; and the third condition is making an undertaking to furnish security in due performance of the decree. In the execution proceedings, the respondent has sought an order evicting the applicant from the suit properties and selling the same. The applicant deposes at paragraph 13 of the affidavit that, if his eviction from the suit properties is not stayed, he will suffer substantial loss. He contends further that, the sale of the suit properties will in effect render the intended appeal nugatory. These facts, I have no doubt, suffice to establish the element of substantial loss and I hold so. I proceed with the second condition which is whether the application was brought without undue delay. In accordance with the facts in

paragraph 11 of the affidavit, the application for execution was filed on 13th May, 2023 and served on the applicant on 3r d June, 2023. This application was filed on 16th June, 2023 well within the time limit of 14 days from the date of a notice of execution. The second condition has, therefore, been fulfilled. I wind up with the third condition as to an undertaking to furnish security in due performance of the decree. TTie element, in my reading, is apparent in paragraph 14 of the affidavit where the applicant avers among others that; 7 undertake to furnish a bank guarantee or any such additional security as the court may deem fit to order for the due performance o f the decree. "Without much ado, I am fully satisfied that the quoted statement amounts to a firm undertaking to furnish security in terms of rule 11(3) of the Rules. Therefore, the third condition has also been satisfied. I hold so. Perhaps, the task that remains is what should be the form of security in the circumstances. The decree involved in this case is not a money decree but a decree for sale of matrimonial assets and distribution between the parties. As the affidavit shows, the proposed modes of execution by the respondent at the trial court is eviction order and sale of the respective properties. It follows therefore that; if the applicant fails in

his intended appeal, he will be required to perform the decree by vacating the suit properties to allow the sale of the same. The nature of the security, therefore, does not necessarily be that which requires commitment to pay money. It would suffice, in my view, if there be commitment to maintain the status quo of the suit properties. The Court has taken such an approach in a number of cases. It is may be enough to cite the case of Asha Juma Mansoor and Others v. John Ashery Mbogoni (Civil Application No. 122/03 of 2020) [2021] TZCA 451 (17 September 2021; TANZLII), where it was said: "Having found that the applicants have cumulatively complied with the requisite conditions for grant o f the sought order, the remaining issue is on the nature o f the security. Bearing into consideration the fact that the decree which is sought to be appealed against is not a monetary decree, the nature of the security should obviously be one suiting the particular circumstances of the case. In the case o f Mohamed Masoud Abdallah and 16 Others v. Tanzania Road Haulage (1980) Ltd, Civil application No. 58 of 2017 (unreported) in which the decree sought to be appealed against was, like in the present case, not a monetary decree, the Court required the applicant to furnish security in the form o f commitment to maintain the status quo o f the premises from which the respondent intended to evict them. We

think that is the nature o f the security which is appropriate in the circumstances o f this case." In the event, and for the foregoing reasons, the execution of the decree of the trial court is hereby stayed pending hearing and determination of the intended appeal on the condition that the applicant executes, within 30 days from the date hereof, a bond committing himself to maintain the status quo of the suit properties. Costs to abide the outcome of the intended appeal. DATED at DAR ES SALAAM this 12th day of September, 2024. I. J. MAIGE JUSTICE OF APPEAL The Ruling delivered this 13th day of September, 2024 in the presence of the parties appeared in persons, unrepresented is hereby certified as a true copy of the original. jSj) D. R. LYIMO ^ / DEPUTY REGISTRAR W COURT OF APPEAL 6