Evalyne Mbuna vs Joseph Mshana (Administrator of the Estate of the Late Naginder Singh Matharu) (Civil Application No. 277/17 of 2023) [2024] TZCA 885 (12 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 277/17 OF 2023 EVALYNE M BUNA..........................................................................APPLICANT VERSUS JOSEPH MSHANA (Administrator of the Estate of the Late Naginder Singh Matharu) ........ ....................................... RESPONDENT (Application for stay of Execution of the Decree of the High Court (Land Division) at Dar es Salaam (Mansour, 3.1 dated the 22n d day of August, 2022 in Land Case No. 427 of 2016 RULING 10th & 12th September, 2024 MAIGE, 3.A.: In this application, I am being called upon to stay the execution of the decree of the High Court, Land Division pending hearing and determination of the intended appeal which is expressed in a notice of appeal lodged on 25th August, 2022. The application is essentially preferred under rule 11(3), (4), (5), (6) and (7) of the Tanzania Court of Appeal (the Rules) and it is founded on the applicant's affidavit. The respondent has filed an affidavit in repiy too.

The decree sought to be executed has two aspects namely; vacant possession of a property described as Plot No. 1370, Msasani Peninsular, Dar es Salaam with Certificate of Title No. 13304 ("the suit property") and payment of TZS 1,000,000,000.00. as general damages. The dispute the resolution of which gave rise to the decree in question pertained to the ownership of the suit property. The respondent was claiming to be the rightful owner of the suit property and was accusing the applicant for being in unlawfully occupation of the same. He was therefore, praying for vacant possession of the suit property, payment of USD 360,000 as mesne profit and general damages. In defence, the applicant alleged that she had inherited the suit property from her late husband one Joseph Mbuna who purchased it from the respondent's predecessor in title in 2006. The trial court found the respondent's claim with merit and hence the decree in question. The applicant is not pleased with the decree which is why she has lodged the notice of appeal. To prevent the decree from being executed before determination of the intended appeal, the applicant has initiated the instant application, therefore. 2

At the hearing, the applicant was represented by Mr. Kyariga N. Kyariga, learned advocate while the respondent by Mr. Gabriel Mnyele, learned advocate, assisted by Ms. Raya Nassir, also learned advocate. Under rule 11(3) of the Rules and it is a settled law, a stay of execution cannot be granted if the following conditions are not cumulatively established. First, necessity of the grant in preventing substantial loss on the part of the applicant; Second, presentation of the application without undue delay; and Third, making a firm undertaking to furnish security in due performance of the decree. The fact that the application was made without undue delay is not in dispute but the necessity of the application to prevent substantial loss and the appropriateness of the form of security is that which is debatable. That being the case and indeed it is, I hold as a point of fact that, the second condition has been fulfilled. I will herein after proceed to determine if the first and third conditions have been met. In the paragraph 11 of the affidavit, the applicant pleaded substantial loss in the following words: "11. The amount sought to be executed in the Decree is coiossai therefore if it was ordered to 3

pay that amount this w ill affect my financial position trem endously." Mr. Mnyele contends that the above statement cannot establish substantial loss. With respect, I cannot agree with him. The reason being that, as rightly deposed in the respective paragraph, the money decree awarded which TZS 1,000,000,000.00 is colossal. From the available authorities, that fact is sufficient to establish substantial loss. See for instance, National Bank of Commercial Limited v. Alfred Mwita (Civil Application No. 172 of 2015) [2018] TZCA 270 (5 September 2018; TANZLII), where we observed: 'W e are satisfied that, the decretal sum o f more than Tshs. 50,000,000.00 is colossal sum and if it falls in default as a result o f execution before the appeal is determ ined the loss is irrem ediable. As such, the applicant has on the balance o f probabilities satisfied this requisite condition." Guided by the above authority, I am satisfied that, on balance of probabilities, the applicant has succeeded to establish the element of substantial loss.

This now takes me to the last element as to an undertaking to furnish security in due performance of the decree. In the affidavit, this is expressed in paragraph 15 where it is stated '/ a /77 w illing and make a firm undertaking to provide security for due perform ance o f the decree or order which may ultim ately be binding upon me (sic).' Mr. Mnyele submits that the statement vague as it is, does not amount to an undertaking. To him, the applicant ought to have disclosed the specific type of security. For the applicant, it was submitted that, the undertaking is enough because what should be the form of the security is within the discretion of the Court. With respect, that is the correct position of the law. See for instance, Junior Construction Company Limited and Others v. Mantrac Tanzania Limited (Civil Application No. 396/16 of 2019) [2024] TZCA 258 (12 April 2024), where it was held: "As regard the requirem ent to furnish security in term s o f sub-rule (5) (b) o f Rule 11, we note the applicant's averment as per paragraph 3 o f the supplem entary affidavit undertaking to satisfy the impugned decree as may ultim ately be binding upon them. We take it as a sufficient undertaking to provide security fo r the due perform ance o f the decree in terms o f our 5

sem inal decision in Mantrac Tanzania Lim ited v. Raymond Costa ; C ivii Application No. 11 o f 2010 (unreported)." As to what should be the appropriate form of security, Mr. Kyariga has proposed, in respect of the money decree, a certificate of title with equal value to the sum owed. In respect to the decree of vacant possession, he has proposed, based on the authority in Deus Wilbard Mpapi and Another v. Stanbic Bank and Others (Civil Application No. 658/17 of 2024) t[2024] TZCA 859 (6 September 2024; TANZLII) that, the applicant be ordered to execute a commitment bond to maintain the status quo of the suit property. In rebuttal, Mr. Mnyele proposed, in respect to the money decree, a bank guarantee or in the alternative, an insurance performance bond. These, he submitted, have been the forms of security for money decree. To that effect, he cited the case of National Bank of Commerce v. Mwita (supra). There was no comment as to the proposed form of an undertaking in respect of the decree of vacant possession. Having heard the rival arguments on this point, the question which I have to resolve is what should be the appropriate form of security in respect of the money decree. For the applicant, a certificate of title worth 6

the decretal sum has been proposed. Quite unusually, the description of the proposed certificate of title and whether it is within the possession of the applicant is not in the affidavit. Nor is it in the submissions in support of the application. As that was not enough, the applicant could not dare produce at least a photocopy of the proposed certificate of title. In such a case, therefore, there is not factual materials from which I can infer existence of such property and whether it is within the possession of the applicant. Dealing with more or less a similar issue, the Court held in the case of Paul David Kifaru v. Karim Shahbudin Ally (Civil Application No. 174 of 2017) [2019] TZCA 448 (23 October 2019; TANZLII) as follows: "We wish to stress that the firm undertaking m ust be in respect o f the properties that are within the possession o f the applicant, which is not the case in the instant application . " In view of the foregoing, therefore, I will not accept the proposed form of security by the counsei for the applicant. To the contrary, I find the security in the form of a bank guarantee to be appropriate in the circumstances of 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 following conditions: One, within 14 days from the date hereof, the applicant executes a commitment bond to the effect that, the suit property shall remain in the same condition as it was on the date of pronouncement of the judgment; Two, the applicant furnishes, within sixty days from the date hereof, a bank guarantee amounting TZS 1,000,000,000.00.1 make no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 11th day of September, 2024. I. J. MAIGE JUSTICE OF APPEAL The Ruling delivered this 12th day of September, 2024 in the presence of the Mr. Libent Rwazo, learned counsel for the Applicant, Ms. Salima Habibu Sungiwa and Ms. Maryam Saleh Msigan, both learned counsel for the Respondent is hereby certified as a true copy of the original.