Bank of Africa Tanzania Limited and another vs Adam Mohamed Said and another (Civil Application No. 485/15 of 2024) [2024] TZCA 877 (11 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 485/15 OF 2024 BANK OF AFRICA TANZANIA LIMITED............... ..............1 st APPLICANT ALI AHMED A LI ........................................... .................... 2 nd APPLICANT VERSUS ADAM MOHAMED SAID.......................................................... 1 st RESPONDENT WORLD TRAVEL ADVENTURE LTD............................. ....... 2 nd RESPONDENT (Application for stay of execution of the Decree of the High Court of Zanzibar) (Mahmoud, 3.1 dated the 22n d day of February, 2024 in Civil Case No. 32 of 2021 RULING 29th August & 11th September 2024. MWAMPASHI. J.A.: On 22.02.2024, in Civil Case No. 32 of 2021, the High Court of Zanzibar (the High Court), nullified the sale of the respondents' house on Plot No. 248 located at Mbweni area in Zanzibar. The house had been sold by public auction to the 2n d applicant following the respondents' failure to service the loan that had been advanced to them by the 1st applicant. Apart from nullifying the sale of the house to which the 2n d applicant had taken vacant possession, the High Court did also order the respondents to settle the outstanding balance within eight months.

Aggrieved by the High Court decision, the applicants applied for the copy of the proceedings for appeal purposes on 26.02.2024 and a notice of appeal was duly lodged on 14.03.2024. On the other side, desiring to have repossession of their house, the respondents filed Civil Application for Execution No. 06 of 2024 seeking an eviction order against the 2n d applicant. Having been served with a notice of hearing of the application on 28.06.2024, the applicants did on 10.07.2024, file the instant application for an order of stay of execution of the decree pending the hearing and final determination of their appeal. The application is by way of a notice of motion predicated upon rule 11(3), (4), (4A), (5) and (6) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by two affidavits, one sworn by Mr. Shadrack Manyama who is the Principal Officer of the 1st applicant and the other affirmed by the 2n d applicant, Mr. Ali Ahmed AN. In opposition, there is an affidavit in reply affirmed by the 1st respondent, Adam Mohamed Said. According to the notice of motion, an order of stay of the execution of the decree is being sought on the following grounds: (l) That the Respondents have filed an application for execution (registered as C ivil Application for Execution No. 06 o f2024) seeking to execute the Judgm ent and Decree o f the High Court o f Zanzibar

in C ivil Case No. 32 o f2021 delivered on 22nd February, 2024 despite Applicants' notice o f appeal being lodged to challenge the said decision; (2) That the application for execution file d by the Respondents as a result o f the Judgm ent and Decree o f the High Court o f Zanzibar in C ivii Case No. 32 o f2021 delivered on 22nd February, 2024 moving the High Court o f Zanzibar fo r an order to eject/rem ove the Second Applicant from a property located a t Plot No. 248, Mbweni Area, Zanzibar, a property law fully purchased by the Second Applicant in a public auction; (3) That the Judgem ent and decree com plained o f are legally problem atic and patently unjust; ( 4 ) That the High Court o f Zanzibar has already issued summons to appear for the said execution on 01st June,2024. It was served on the Counsel fo r the Applicants on 2&h June, 2024 scheduled fo r orders on 01st July, 2024. Upon appearance on the said 01st July, 2024, it was fixed fo r hearing on 17th July, 2024 which is ju s t next week; (5) The Respondents have moved the High Court o f Zanzibar for an order to eject/rem ove the Second Applicant from a property located a t Plot No. 248, Mbweni Area, Zanzibar, a property law fully purchased by the Second Applicant in a public auction; (6) That in the event the application for stay o f execution is not heard and determ ined urgently, the High Court o f Zanzibar w ill proceed to issue execution and the pending application fo r stay o f execution w ill be rendered nugatory leading to irreparable loss on the part o f the Applicants.

( 7 ) Substantiai irreparable ioss may resuit to the Applicants if execution is not stayed. (8) W e application fo r stay o f execution has been filed without delay. The judgm ent and decree were pronounced on 22nd February, 2024f the summons for execution was served on the Applicants'counsel on 28 bJune, 2024and there is good cause shown for the orders sought ( 9 ) The applicants are able, ready and w illing to issue security for the perform ance o f the decree. When the application was called on for hearing, Messrs. Godwin Nyaisa and Abdulkhaliq M. Aley, both learned advocates, represented the applicants and respondents respectively. The application was confronted by a preliminary objection notice of which had earlier been filed on 23.08.2024 by the respondents. The competency of the application was challenged on, essentially, three grounds of objection: one, paragraph 8 of both two supporting affidavits is not verified and contain a conclusion; two, wrong source of information is given in regard to facts stated in paragraph 5 of the affidavits and three, the verification clauses in both two supporting affidavits are defective for failure to state grounds of beliefs. For convenience and in order to expedite the determination of the application, the counsel for the parties addressed me on both the preliminary objection and the application.

Submitting in support of ground 1 of the objection, it was argued by Mr. Aley that paragraph 8 in each of the two supporting affidavits is not verified and contain a conclusion. He expounded that, the averment that, if the Court does not intervene by issuing a stay of execution order, the intended appeal will be rendered nugatory, is a conclusion. Mr. Aley contended that, by making such a conclusion the deponents have offended the rules of practice on affidavits rendering not only the two affidavits defective but also the application incompetent. In cementing the point, Mr. Aley referred me to the cases of Uganda v. Commissioner of Prisons Exparte Matovu [1966] E. A. 514, Augustine Lyatonga Mrema and Others v. Attorney General and Others [1996] T.L.R. 273, Salima Vuai Foum v. The Registrar of Cooperative Societies [1995] T.L.R. 75 and Order VI rule 15 (1) and (2) of the Civil Procedure Rules as well as section 119 of the Civil Procedure Decree, both of the Laws of Zanzibar. Mr. Nyaisa did not agree with Mr, Aley that paragraphs 8 of the two supporting affidavits contain a conclusion. Citing the decision of the Court in Fatuma Mohamed v. Chausiku Selema (Civil Application No. 228/08 of 2022) [2022] TZCA 802 (7 December 2022; TanzLII), he argued that even if the said paragraphs contain a conclusion as complained by the respondents, the ailment has occasioned no miscarriage of justice. He contended that the ailment is tolerable. Notwithstanding the above stance, 5

Mr, Nyaisa did however, concede that the paragraphs in question are not verified and they are therefore, for that reason, liable for expunction. Since it is clear, as also submitted by the counsel for the parties, that paragraphs 8 of both two supporting affidavits have not been verified, there is, then, no need of belabouring the point on whether the said paragraphs contain a conclusion or not. The issue is on what should be the remedy where a paragraph in an affidavit is not verified. It is on that aspect where the counsel for the parties have parted ways. While to Mr. Aley, the omission is serious and fatal rendering the affidavits defective in their entirety, to Mr. Nyaisa, it is only the two paragraphs which have been vitiated by the infraction and which can thus, not be relied upon. For that reason, Mr, Nyaisa implored me to expunge the two paragraphs leaving the rest of the paragraphs of the affidavits intact and valid. As alluded to above, it is evident that the verification clauses in both two affidavits have omitted to verify what is asserted in paragraphs 8 of both two affidavits. Verification of what is deposed in an affidavit is imperative as it enables the court to test the genuineness and authenticity of what is alleged by the deponent. It is also by verification that the responsibility for the allegations made in the affidavit is placed on the deponent. See- Director of Public Prosecutions v. Dodoli Kapufi and Another (Criminal Application No. 11 of 2008) [2011] TZCA 46 (6 May 6

2011; TanzLII) and Lisa E. Peter v. Al-Hushoom Investment (Civil Application No. 147 of 2016) [2016] TZCA 902 (20 September 2016; TanzLII). On what should be the remedy, I respectfully, differ with Mr. Aley that the omission to verify what is stated in paragraphs 8 of the two supporting affidavits renders the entire affidavits defective. To my considered view, the omission has spoiled only the respective paragraphs. As rightly argued by Mr. Nyaisa, paragraphs 8 of both two supporting affidavits are liable for expunction, which I hereby do. On ground 2 of the objection, it was submitted by Mr. Aley that what is deposed in paragraph 5 of both two supporting affidavits cannot have its source from the judgment of the High Court in Civil Case No. 32 of 2021, as stated in the verification clauses. It was his argument that the infraction renders the two supporting affidavits defective. The infarction complained of by Mr. Aley was conceded by Mr, Nyaisa who admitted that the facts that on 01.07.2024, the counsel for the applicants appeared before the Deputy Registrar of the High Court and that the applicants were directed to file their counter affidavit and show cause why the execution of the decree should not be ordered, averred in paragraph 5 of both two affidavits, are statements of facts which cannot be found in the judgment of the High Court as stated in the verification clauses. He, however, contended that the

infraction does not render the two affidavits defective in their entirety. He maintained that it is only the offensive paragraphs which have been vitiated and which have to be expunged leaving other paragraphs intact. Having examined what is stated in paragraph 5 of both two supporting affidavits, I agree with the counsel for the parties that what is averred therein, that the counsel for the applicants appeared before the Deputy Registrar on 01.07.2024 and that it was directed that the counter affidavit be filed, are statements of facts not based on information obtained from the High Court judgment in Civil Case No. 32 of 2021 as stated in the verification clause. However, the infraction, to my considered view, does not render the affidavits defective in their entirety as argued by Mr. Aley. It is only paragraphs 5 which is affected. I thus, agree with Mr. Nyaisa that the remedy is for paragraph 5 of both two affidavits to be expunged, which I hereby do. Regarding ground 3, it was submitted by Mr. Aley that the verification clauses of both two supporting affidavits are defective. He expounded that the grounds for the deponents' beliefs are not stated in the verification clauses contrary to the rules of practice on affidavits that require for a deponent to state why he/she believes a fact to be true. He thus argued that the defective verification clauses render the affidavits defective which in turn makes the application incompetent. 8

Mr, Nyaisa responded to ground 3 by arguing that it is only those facts stated in paragraphs 5, 6 and 7 of both two affidavits which are based on information believed by the deponents to be true. He pointed out that what is stated in the remaining 12 paragraphs is based on the deponents' own best knowledge. It was thus, argued by Mr. Nyaisa that, should the Court find paragraphs 5, 6 and 7 offensive, the right course is for the same to be expunged. He insisted that the infraction on the said offensive paragraphs is consequential and cannot adversely impact the remaining paragraphs of the two affidavits. On ground 3, I again agree with Mr. Nyaisa that, according to the verification clauses of both two supporting affidavits, it is only statements of facts stated in paragraphs 5, 6 and 7 of the two affidavits, which are based on information believed to be true by the deponents. Admittedly, the complaint that no grounds for the beliefs have been given is also only on the said three paragraphs. That being the case, the infraction is thus, consequential with no impact to the remaining paragraphs containing statements of facts based on the deponents' own best knowledge. In the case of Standard Chartered Bank & 3 Others v. VIP Engineering & Marketing Limited and Standard Chartered Bank (T) Ltd & Another (Consolidated Civil Applications Nos. 76 and 90 of 2016) [2022] TZCA 302

(7 March 2022; TanzLII), when confronted with a similar issue, the Court stated that: "We, however, fin d that the rest o f the paragraphs contain statem ents o f facts based on the deponents knowledge and some, are based on the inform ation and/or advice he received from his counsel. As such, we equally agree with Mr. Nyika that the said offensive paragraphs could be safely expunged from the record, as we hereby do, without affecting the substance o f the affid avit..However, having expunged the said offensive paragraphs, it is our settled view that the verification clause was properly verified. As such, the fourth and fifth points o f objection are partly sustained" For the above given reasons and based on the above authority, paragraphs 6 and 7 of the two supporting affidavits are hereby expunged. See also- Phantom Modern Transport (1985) Limited v. D.T. Dobie (Tanzania) Limited (Civil Reference Nos. 15 of 2001 and 3 of 2002) [2002] TZCA 6 (10 December 2002; TanzLII). Essentially, the cumulative effect of the above findings on the three points of objection renders the preliminary objection partly sustained. Paragraphs 5, 6, 7 and 8 of both two supporting affidavits having been expunged the rest of the paragraphs of the two supporting affidavits are left intact. That being the case, since it is my considered view that, for purposes 10

of the instant application, the remaining paragraphs of both two supporting affidavits contain sufficient material facts relevant to the application, then the application has to be determined in its merit, to which I now turn. In his submissions in support of the application, Mr. Nyaisa began by adopting the notice of motion and the two supporting affidavits. He then argued that the application is brought within the prescribed period of fourteen days and further that under paragraph 12 of the supporting affidavits, it is demonstrated how the applicants will suffer substantial loss if the execution of the decree is not stayed due to the colossal amount involved. Mr, Nyaisa did also contend that the applicants are ready and willing to furnish security for the due performance of the decree. As to the kind of security to be given, Mr. Nyaisa argued that considering the nature of the decree which is not monetary, the security should be by way of the applicants executing a bond committing themselves to maintain the status quo of the house. He also prayed for an order that the commitment bond should be furnished within thirty days and for the costs to be in the cause. To bolster his argument on the kind of the security, Mr. Nyaisa cited the cases of Asha Juma Mansoor & 9 Others v. John Ashery Mbogoni (Civil Application No.122/03 of 2020) [2021] TZCA 252 (11 June 2021; TanzLII) and Mohamed Masoud Abdallah & 16 Others v. Tanzania ii

Road Haulage (1980) Ltd (Civil Application No. 58/17 of 2016) [2019] T7CA 198 (24 June 2019; TanzLII). The application was opposed by Mr. Aley who argued that rule 11 (5) (b) of the Rules has not been complied with by the applicants. He contended that the applicants have not furnished security and further that the undertaking to give security under paragraphs 10 of both two supporting affidavits, is insufficient. It was also argued by him that the applicants ought to have produced their current financial audit reports for the Court to determine their liquidity. Mr. Aley argued further that rule 11 (7) of the Rules has also not been complied with because the notice of motion is not accompanied by the notice of the application for execution of the decree. Moreover, it was contended by Mr. Aley that there is no proof that the notice of hearing served on the applicants related to the application for execution of the decree passed in Civil Case No. 32 of 2021. He thus implored me to dismiss the application with costs. In his brief rejoinder, Mr. Nyaisa insisted that the prerequisite conditions for grant of stay of execution of the decree have been cumulatively fulfilled. He argued that security could not have been given at the stage of filing the application without such an order having been made by the Court first. Mr. Nyaisa did also maintain that given the nature of the decree, there was no need of filing the financial audit reports. 12

In consideration of the notice of motion, the two supporting affidavits and the affidavit in reply filed for and against the application and having pondered the submissions made by the counsel for the parties, the issue for my determination is simply whether the prerequisite conditions warranting grant of stay of execution of the decree have been fulfilled by the applicant. According to rule 11 (3) of the Rules, the Court can order stay of execution of a decree only upon good cause having been shown. It is provided under rule 11 (3) of the Rules, that: "11(3) In any civ il proceedings, where a notice o f appeal has been lodged in accordance with rule 83, an appeal, sh all not operate as a stay o f execution o f the decree or order appealed from nor sh all execution o f a decree be stayed by reason only o f an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay o f execution o f such decree or order" The power of the Court to grant or refuse stay of execution of a decree or order, is discretionary and dependent not only on the circumstances of a particular case but mostly on consideration of three conditions as articulated under rule 11 of the Rules; One, that the relevant application is timeously brought, two, that substantial loss may result to the applicant if the appiication is refused and three, that security for the due performance of

the decree or order as may ultimately be binding upon the applicant should his pending appeal fail, is given. It is also a settled position of the law that for an order of stay of execution to be issued, the applicant is enjoined to cumulatively satisfy the above three conditions. See - National Housing Corporation v. A. C. Gomes (1997) Limited (Civil Application No. 133 of 2009) [2010] TZCA 168 (19 May 2010; TanzLII), Joseph Anthony Soares @ Goha v. Hussein Omary (Civil Application No. 06 of 2012) [2013] TZCA 328 (8 May 2013; TanzLII), Hai District Council & Another v. Kilempu Kinoka Laizer & 15 Others, Civil Application No. 10/ 05 of 2017 (unreported) and Bahati Moshi Masabila t/a Ndono Filling Station v. Hamis Maganga Kilongozi (Civil Application No. 359/08 of 2023) [2024] TZCA 88 (22 February 2014; TanzLII). Guided by the above stated position of the law, I am satisfied that the applicants in the instant application have cumulatively fulfilled all the three prerequisite conditions for grant of the order for stay of execution of the decree as sought in the notice of motion. First of all, the applicants having been served on 28.06.2024 with summonses to appear before the Deputy Registrar with a view to showing cause why the decree should not be executed, they timeously filed the instant application on 10.07.2024. The application was filed thus, within fourteen days as required by rule 11 (4) of 14

the Rules. Secondly, under paragraphs 12 of both two supporting affidavits, the magnitude of the loss the applicants who are in possession of the house, will suffer, if the decree is executed by evicting the 2n d applicant as sought by the respondents has been set forth. I also observe that the amount of TZS. 226,000,000.00 being the purchase price of the house paid by the 2n d applicant is not small but colossal. Regarding security for the due performance of the decree, Mr. Aley has complained that the applicants have given no sufficient and firm undertaking to furnish security. However, in paragraphs 10 of both two supporting affidavits, it is stated that the applicants are ready, able and willing to provide an undertaking/security for performance of the decree and to comply with all conditions that this Court will impose being conditions for grant of stay. This, to my considered view, is a sufficient firm commitment made by the applicants to furnish security in terms of the decision of the Court in Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 (unreported) where it was stated that: "To m eet this condition, the law does not strictly demand that the said security m ust be given p rio r to the grant o f the stay order. To us, a fi rm undertaking by the applicant to provide security m ight prove sufficient to move the Court, a il things being equal, to grant stay order provided the court sets a 15

reasonable tim e lim it within which the applicant should give the same " I also agree with Mr. Nyaisa that from the nature of the decree and the mode the respondents intend the decree to be executed, that is, by the eviction of the 2n d applicant from the house, the need for the applicants to present their current financial audit reports to prove their respective liquidity does not arise. Further, the complaint by Mr. Aley that rule 11 (7) of the Rules has not been complied with as no notice of the intended execution is accompanying the application, is baseless. It is my considered view that, under the circumstances of this matter, the hearing notice of the application for execution annexed to the two supporting affidavits as "fiCM-J^and n AH- 5 " suffices. With regard to the nature of the security to be given by the applicants, it goes without saying that, based on the fact that the decree sought to be executed is not monetary and as the intended mode of the execution is by eviction, then, as rightly argued by Mr. Nyaisa, security should be in form of commitment by the applicants to maintain the status quo of the house from which the respondents intended to evict the 2n d applicant. See- Suleiman Yussuf Ali v. Sultanali Abdalla Gulamhussein (Civil Application No. 421/15 of 2018) [2019] TZCA 452 (17 October 2019; TanzLII), Asha Juma 16

Nassor & 9 Others (supra) and Mohamed Masoud Abdallah & 16 Others (supra). In the event, for the reasons given above, I find the application meritorious and grant it. The execution of the decree of the High Court of Zanzibar (Mahmoud, J) in Civil Case No. 32 of 2021 dated 22.02.2024, is hereby stayed pending the hearing and final determination of the applicants' appeal. The stay order is, however, conditional upon the applicants executing a bond committing themselves to maintain the status quo of the house within thirty (30) days from the date of delivery of the ruling. Costs to be in the main cause. It is so ordered. DATED at DAR ES SALAAM this 6th day of September, 2024. A. M. MWAMPASHI JUSTICE OF APPEAL The Judgment delivered on this 11th day of September, 2024 in the presence of Mr. Philip Irungu, learned counsel for the Applicants also holding brief for Mr. Salim Mnkonje, learned counsels for the Respondents, is hereby certified as a true copy of the original. f ^ R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL