Rehema Said vs The Registered Trustees of Eemar Charitable Trust (Civil Application No. 623/17 of 2023) [2024] TZCA 876 (12 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 623/17 OF 2023 REHEMA SAID........................................................................... APPLICANT VERSUS THE REGISTERED TRUSTEES OF EEMAR CHARITABLE TRUST ........... .. ................................................ RESPONDENT (Application for Stay of Execution pf the Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Tigangg, J.) Dated the 29th day of November, 2021 in Land Case No. 93 of 2019 RULING 9t h and 12th September, 2024 KEREFU. J.A.: The applicant,Rehema Said, on 8thDecember, 2021 lodged a notice of appeal seekingto challenge the decision of the High Court (Tiganga, J.), in Land Case No. 93 of 2019 dated 29th November, 2021. As the intended appeal is still pending, the applicant has approached this Court by way of notice of motion made under Rules 11 (3), (4), (4A), (5), (6), and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for stay of execution of the decree passed in the said case, pending the final determination of the appeal. The grounds indicated in the notice of motion can conveniently be paraphrased as follows, that; 1

(i) the respondent has filed Execution No. 59 o f2023 to execute the decree o f the High Court in Land Case No, 93 o f 2019 and the High Court has already issued a notice to show cause why execution should not proceed against the applicant; (ii) the pending appeal stands good and overwhelming chances o f success as the jurisdiction o f the High Court was ousted by the plaint for being presented out o f time; (iH) if the execution o f the impugned decree is not stayed, the applicant stands to suffer irreparable loss as the disputed property is used as a residential house. That, the respondent stands to suffer nothing if the order for stay is granted as prayed; (iv) the applicant is willing to furnish security by depositing a certificate o f title or a performance bond on the decree sought to be stayed; and (v) the balance o f convenience and in the interest o f justice the granting o f stay order is appropriate than refusing the same . The notice of motion is supported by an affidavit duly sworn by one Robert R. Rutaihwa, learned counsel for the applicant. The great part of the said affidavit narrated the historical background to the application and reiterated the above grounds by way of emphasis including attachment of relevant documents thereto. 2

On the other hand, the respondent filed an affidavit in reply opposing the application. It is the respondent's contention that the application was filed hopelessly out of time. However, other paragraphs of the said affidavit raised some issues related to the appeal itself, such as, follow up of appeal documents, collection of rents on the disputed property, time limitation and joinder or non-joinder of parties. All these issues are expected to be considered during the hearing of the appeal and not at this stage. As for the current application, I find it appropriate to state a brief background giving rise to the impugned decree sought to be stayed. That, in 2019, the respondent instituted a Land Case No. 93 of 2019 in the High Court of Tanzania, Land Division at Dar es Salaam against the applicant praying for the following reliefs: (a) To be declared the lawful owner o f the disputed property located on Plot. No. 6 Block "D" Masasi Street, Kariakoo area, Dar es Salaam with Certificate o f Title No. 83476; (b) The applicant to be ordered to give vacant possession o f the suit property; and (c) Costs o f the suit Having heard that parties, the High Court decided the said case in favour of the respondent as she was declared the lawful owner of the 3

suit property and the applicant was ordered to give vacant possession of the same. Aggrieved, the applicant, on 08th December, 2021, lodged the notice of appeal to challenge the decision of the High Court. Meanwhile, the respondent, approached the High Court, Land Division at Dar es Salaam vide Execution Application No. 59 of 2023 seeking execution of the impugned decree. Subsequently, on 9th August, 2023, the applicant was served with the notice to show cause why the decree of the High Court should not be executed against her. The said notice also required the applicant to appear for hearing of the said application on 10th August, 2023. The notice prompted the applicant to lodge the current application on 23r d August, 2023. It is the applicant's averments that, unless an order for stay of execution is issued, she is likely to suffer substantial loss as the disputed property, subject of the execution, is used as a residential house. The applicant contend further that the application was made without undue delay and she firmly undertakes to offer security for the due performance of the decree sought to be stayed by depositing a certificate of title and or issuing a performance bond. On the other hand, the respondent opposed the application that it was lodged out of time prescribed by the law. 4

When the application was placed before me for hearing, the applicant and the respondent were represented by Mr. Robert Rutaihwa and Mr. Juma Nassoro, both learned advocates, respectively. In support of the application, Mr. Rutaihwa adopted the notice of motion as well as its accompanying affidavit. He then submitted that the applicant has fulfilled the mandatory requirements for grant of an application of this nature. To clarify, the learned counsel referred me to Rule 11(4) of the Rules and argued that the application was lodged timely, as the applicant was served with the notice of execution on 9th August, 2023 and lodged this application on 23r d August, 2023. He also referred me to paragraphs 2, 3 and 5 of his affidavit and argued that the applicant has attached all the necessary documents prescribed under Rule 11 (7) of the Rules. He further referred me to paragraph 6 of the same affidavit and submitted that the applicant has also complied with the condition stipulated under Rule 11 (5) (a) of the Rules as she had clearly indicated that, if the execution of the impugned decree is not stayed, she will be rendered homeless as she resides in the disputed property together with her family since 1990's. On the firm undertaking to furnish security, Mr. Rutaihwa referred me to paragraph 8 of the same affidavit and submitted that the

applicant has undertaken to furnish security by depositing a certificate of title and or issuing a performance bond for the due performance of the decree sought to be stayed if the appeal is unsuccessful. Finally, Mr. Rutaihwa submitted that, since the applicant has complied with all the conditions and had already lodged the notice of appeal, this application should be granted pending the hearing and determination of the appeal. In his response, Mr. Nassoro vehemently opposed the application by arguing that it was lodged out of time. He specifically, referred me to the notice to show cause (Annexture RS4 to the affidavit in support of the application) and argued that it was served to the applicant's counsel on 9th August, 2023 while there was an initial notice which was served directly on the applicant herself. Upon being probed by the Court as to whether the affidavit in support of the application contains a specific paragraph to substantiate his argument, Mr. Nassoro conceded that the affidavit is silent on that aspect and he equally does not have the alleged notice. He, however maintained that the application was filed hopelessly out of time. On the issue of security, Mr. Nassoro opposed the mode proposed by the applicant. That, although she opted to deposit a certificate of title, she did not disclose particulars of the said property and its ownership. He equally challenged the issuance of a performance bond. 6

In the alternative, Mr. Nassoro proposed the issuance of a bank guarantee, although he failed to mention the specific amount of money to be deposited as the decree in question is a non-monetary decree. In a brief rejoinder, Mr. Rutaihwa challenged the submission made by his learned friend for failure to provide evidence to support his argument. He argued that, the assertion that there was initial notice served directly on the applicant is not supported by evidence and it is only a statement from the Bar. He as well challenged the mode of security of bank guarantee proposed by Mr. Nassoro by arguing that the decree involved is a non-monetary decree. He finally reiterated his previous submission and urged me to grant the application. On my part, having considered the submissions advanced by the learned counsel for the parties in the light of the application before me, I wish to start by stating that, with profound respect, I find the submission made by Mr. Nassoro to be misconceived and not supported by the record. The same were merely counsel's statements from the Bar, as they were not specified in the affidavit in reply lodged by the respondent on 6th September, 2023. In the cases of Fweda Mwanajoma & Another v. Republic, Criminal Appeal No. 174 of 2008 [2010] TZCA 96: [23 March 2010: TanzLII] and Farm Equipment Company Limited v. Festo Mkuta Mbuzu, Civil Application No. I l l 7

of 2014 [2017] TZCA 209: [27 October 2017: TanzLII], this Court declined to consider statements made by the counsel from the Bar. In the same vein, I am unable to evaluate the submission made by Mr. Nassor in this application on those aspects. On the other hand and having carefully examined the record of the application and the submission made, I am satisfied that the applicant has cumulatively complied with all the statutory conditions warranting the grant of the stay order. It is evident from the record of the application that the applicant lodged this application on 23r d August, 2023 well within the prescribed period of fourteen (14) days in terms of sub-rule (4) of Rule 11, as it was filed on the fourteenth (14) day after being served with the notice of execution on 9th August, 2023. It is also noticeable that sub-rule (7) of Rule 11 was fully complied with since the application is accompanied by mandatory copies of the notice of appeal, the High Court's judgment and decree appealed against and the notice of execution. It is also evident that, to meet the requirement of sub-rule (5) (a) of Rule 11, the applicant had indicated under paragraph 6 of the affidavit that, if the execution of the impugned decree is not stayed, she 8

will be rendered homeless as she resides in the disputed property together with her family since 1990's. As for the requirement to furnish security in terms of sub-rule (5) (b) of Rule 11, it is trite position that a firm undertaking to do so is sufficient compliance. The principle was aptly stated in the case of Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported) that: " To meet this condition the iaw does not strictly demand that the said security must be given prior to the grant o f the stay order. To us, a firm undertaking by the appiicant to provide security might prove sufficient to move the Court, all things being equal, to grant stay order provided the court sets a reasonable time limit within which the applicant should give the same ." See also the cases of Joseph Antony Soares @ Goha v. Hussein Omary, Civil Application No, 6 of 2012 [2013] TZCA 328 and The Registered Trustees of the Chama cha Mapinduzi & 3 Others v. Mehboob Ibrahim Alibhai, Civil Application No. 117/17 of 2018 [2021] TZCA 444. In this application, and as eloquently submitted by Mr. Rutaihwa, under paragraph 8 of the affidavit in support of the application the 9

applicant has clearly stated that, she is willing to give security for the due performance of the decree sought to be stayed by depositing a certificate of title and or issuing a performance bond. Being guided by the above authorities, I take it as a sufficient undertaking to provide security for the due performance of the decree. I am mindful of the fact that, in his submission, Mr. Nassoro has proposed a bank guarantee instead of performance and or commitment bond. However, and taking into account that the impugned decree sought to be executed is not a monetary decree, I find the said proposal not appropriate in the circumstances of this application. It is my considered view that, the nature of the security should be one suiting the particular circumstances of the application. In the case of Mohamed Masoud Abdallah and 16 Others v. Tanzania Road Haulage (1980) Ltd, Civil Application No. 58 of 2016 [2019] TZCA 198 in which the decree sought to be appealed against was, like in the present case, not a momentary decree, the Court required the applicants to furnish security in the form of performance and or commitment to maintain the status quo of the premises from which the respondent intended to evict them. Likewise, in the instant application, I find the form of performance bond indicated by the applicant under paragraph 8 of the affidavit in 10

support of the application to be appropriate in the circumstances of this case. Accordingly, I grant the application and order stay of execution of the decree of the High Court of Tanzania, Land Division at Dar es Salaam in Land Case No. 93 of 2019 dated 29th November, 2021. The stay order is conditional upon execution by the applicant, within thirty (30) days of this order, a bond committing herself to maintain the status quo of the disputed property. In default, the order of stay shall lapse automatically. Costs incidental to this application shall follow the event in the intended appeal. DATED at DAR ES SALAAM this 11th day of September, 2024. The Ruling delivered this 12th day of September, 2024 in the presence of Ms. Rehema Samwel, learned counsel for the Applicant and Ms. Fauzia M. Kajoki, learned counsel for the respondent is hereby certified as a true copy of the original. R. J. KEREFU JUSTICE OF APPEAL A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 11