Deus Wilbard Mpapi & Another vs STANBIC Bank & Others (Civil Application No. 658/17 of 2024) [2024] TZCA 859 (6 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 658/17 OF 2024 DEUS WILBARD M PAPI ..................... ..................................,1 st APPLICANT LEGRAM A.N.G. LIM ITED.........................................................2 nd APPLICANT VERSUS STANBIC B A N K .......................................................................1 st RESPONDENT MAJEMBE AUCTION MART LTD .................. . ............... . 2 nd RESPONDENT ROBERT MZENA . ................ . ..... . .......................................... 3 rd RESPONDENT (Application for stay of Execution of the Judgment of the High Court (Land Division) at Dar es Salaam) (Luvanda^JJ dated the 19th day of July, 2016 in Land Case No. 2 of 2024 RULING 3rd h &. 6th September, 2024 MAIGE. J.A.: In 2015, the second applicant procured a loan of TZS 150,000,00.00 from the first respondent which was secured by, among others, mortgage over the first applicant's house at Plot No. 7 Block B, Kinondoni Hananasif with Certificate of Title No. 86331 (the suit property). In 2020, the first applicant was charged with an economic offence and, while under prosecution, the suit property was sold to the third respondent in realization of the mortgage. When the first applicant was released on in 2021, the applicants commenced a suit at the District Land and Housing Tribunal for Kinondoni (the trial court) i

challenging the sale of the suit property. In his written statement of defence, the third respondent raised a counterclaim for vacant possession of the suit property. At the end of the trial, the applicants' suit was dismissed and the counterclaim granted. Consequently, the first applicant was ordered to yield vacant possession of the suit property to the third respondent. The applicants appealed to the High Court of Tanzania, Land Division (the High Court) but in no avail. Still aggrieved, they have lodged a notice of appeal pending which, they are now moving the Court under rule 11(1), (4), (5) and (6) for stay of execution of the decree. At the hearing, the first applicant appeared in person. In his capacity as the director, he was also representing the second applicant. On their part, the respondents enjoyed the services of Mr. Paschal Kihamba and Benson Mphatso, both learned advocates. Right from the outset, Mr. Kihamba informed me that the respondents are conceding to the application provided that the applicants furnishes a security for due performance of the decree in the form of a bank guarantee of TZS 97,000,000.00 being the value of the suit property. The first applicant had a different view. To him, since the decree sought to be stayed is vacant possession, the suit property itself can suffice as a security. I have examined the notice of motion, affidavits both in support and in reply and I agree with Mr. Kihamba that all the three conditions for grant of 2

stay of execution including, an undertaking to furnish security in due performance of the decree have been fulfilled. The debate, it would appear, is on what should be the appropriate form of security. While for the respondents it is insisted that it be in the form of bank guarantee, for the respondent the suit property itself can serve as a security. As I said above, the decree involved in this matter is for vacant possession of the suit property which is refutably in the possession of the applicants although title thereon has already been changed into the name of the third respondent. It is a fact that, if the intended appeal turns out to be against the applicants, the performance of the decree on the part of the first applicant will obviously be by yielding vacant possession of the suit property to the third respondent. Therefore, in so long as the suit property remain as it is, the performance of the decree can be made without requesting the applicants to pay the value of the same. That being the case, the performance of the decree can be secured if there be commitment on the part of the applicants that, the suit property shall remain in the same position as it was. The Court took a similar position in among others, the cases of Mohamed Masoud Abdallah and Others v. Tanzania Road Haulage (1980) Ltd (Civil Application No. 58/17 of 2016) [2019] TZCA 198 (24 June 2019; TANZLII) and Mapius Otieno v. Machimu Mayara (Civil Application No. 279/8 of 2024 [2024] TZCA 515 (2 July 2024;TANZLII), Rose Benedict v. Janet Evarist Njau and Others (Misc. Civil Application No. 311/02 of 2024) 3

[2024] TZCA 508 (27 June 2024; TANZLII) and Dr Luis B. Shija v. Kellu Kamo Lukas (Civil Application No. 2009/14 of 2024 In the event, and for the foregoing reasons, I find the application with merit and it is granted. Accordingly, the execution of the decree of the trial tribunal is stayed pending hearing and determination of the intended appeal on condition that each of the applicants furnish a commitment bond, within 14 days from the date hereof that, the suit property shall remain in the same condition as it was on the date of pronouncement of the judgment, the decree of which is the subject of the execution at the executing court. No order as to costs in the circumstances. DATED at DAR ES SALAAM this 6th day of September, 2024. I. J. MAIGE JUSTICE OF APPEAL The Ruling delivered this 6th day of September, 2024 in the presence of Applicant in person and in the absence of the Respondent, is hereby certified as a true copy of the original. 4