Elia Mwamafupa & Others vs The Board of the Trustees of the Baptist Church of Tanzania (Civil Application No. 526/06 of 2024) [2024] TZCA 844 (30 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CIVIL APPLICATION NO 526/06 OF 2024 ELIA MWAMAFUPA..................................................................1st APPLICANT GODSON MWAKIFUMBWA.....................................................2 nd APPLICANT TREZIA S E B A ......................................................................... 3 rd APPLICANT ASUBISYE LUVANDA.............................................................. 4™ APPLICANT DAUD MWAMBALASWA..........................................................5™ APPLICANT UDITH GASTON ............ .................................................................................. .... 6 th APPLI ATUGANILE MW AIJALA.............................................. . ........ 7 th APPLICANT HEZRON MWAN DALI MA ...................... . .................................8™ APPLICANT BRUNO G EO R G E ........... . ..................... . .................................. 9™ APPLICANT TABIA KAFUJE......................................... . ............................10™ APPLICANT TASLIMU MWAKALAGILA ..................................... . ..............11™ APPLICANT DYUKE MWAITENDA.......................... . ................................. 12™ APPLICANT VERSUS THE BOARD OF THE REGISTERED TRUSTEES OF THE BAPTIST CHURCH OF TANZANIA............ . ..................... RESPONDENT (Application for Stay of Execution of the Decree of District Land and Housing Tribunal for Kyela Pending Determination of an Appeal to Challenge the Decision of the High Court of Tanzania, Mbeya Sub Registry at Mbeya) (NongwaJJ dated the 23r d day of March, 2024 in Land Appeal No. 48 of 2023 RULING 2ShJuly & 30hAugust 2024 GALEBA, J.A.: This is an application for stay of execution of the decree of the District Land and Housing Tribunal for Kyela (the DLHT), in Land Application No. 10 of 2020. In that matter the DLHT declared the respondent as the lawful owner of 216.9 acres of land situated at Katela Village in Makware Ward within Kyela District (the land in dispute). The tribunal also declared the i

applicants to be the trespassers on the land. The applicants were aggrieved by that order, so they filed Land Appeal No. 48 of 2023 at the High Court at Mbeya Sub Registry. However, on 28th March, 2024, that appeal was dismissed with costs mainly because, in their written statement of defence, the applicants alleged to be owners of the land in dispute having been allocated to them by one Mafumu. Nonetheless, contrary to their written statement of defence, in their evidence the applicants, confirmed that they were not owners but investors in the land whose owner was the Baptist Convention of Tanzania. Being dissatisfied with the dismissal of their appeal, on 24th April 2024, the applicants lodged a notice of intention to appeal, but as that notice was pending, the respondent, in seeking to enforce the order of the DLHT, filed Application No. 11 of 2024 seeking to evict the applicants from the land in dispute. In efforts to stall that legal process pending their appeal, the applicants filed this application. The grounds upon which the application is predicated are that if execution will not be stayed; one, the applicants will suffer substantial loss that cannot be atoned by payment of money; two that they have filed the application in time and; three that the balance of convenience and common- sense favor granting the order rather than refusing it. In response to the application, the respondent lodged an affidavit in reply disputing all deponed 2

facts but also lodged a notice of preliminary objection that the application was filed out of time. At the hearing of the application I permitted Messrs Chapa Alfred and Kelvin Kuboja Maumba, both learned advocates and appearing for the applicants and respondent, respectively first to submit on the objection raised. As for the learned advocates, one was in Singida and another in Mbeya, so the matter was heard on video conference. Relying on the affidavits of service of one Richard Mwakyusa, a person who effected service of the court process, Mr. Maumba submitted that as the affidavits were attested on 18th May, 2024, this application having been filed on 6th June, 2024, the same was out of the fourteen days provided for under rule 11 (4) of the Tanzania Court of Appeal Rules 2009, (the Rules). When I inquired on whether the date of attestation is equivalent to the date of service of the court process, the learned counsel told the Court that, the process server told him that the applicants were served on that same day. In reply Mr. Alfred submitted that all the respondents were served on 28th May, 2024 when the first respondent was served. So, to him the application documents were served on time. Admittedly, determination of any preliminary objection like the one at hand, which depends on inspecting documents as to their validity, invariably 3

poses challenges particularly where, the documents themselves are photocopies, like the ones before me. But that is not the only problem I have entertained in this matter. The significant issue I have encountered is that, all affidavits of service show that" mpefeka witd’ that is the process server, is the same person as the one who attested " his own signaturd' in his other capacity as " Mwenyekiti wa Kijiji cha Kateia" that is the Katela Village Chairman. Plainly, that is illegal; because a person who executes a document cannot attest his own signature. In fact, as a Village Chairman is not one of the officers mentioned at section 10 (1) and (2) of the Notaries Public and Commissioners for Oaths Act Cap 12 of the laws (the NPCO), that officer, has no mandate or legal capacity in law, to attest a signature or administer oath or affirmation. The officers listed at section 10 (1) and (2) are the following: 10 - (1) Every officer to whom this section applies shaii have the powers and duties o fa notary public in respect o f administering oaths, taking affidavits, attesting signatures and certifying copies of documents and shall also have all the powers and duties o f a commissioner for oaths under this Act (2) This section shall apply to: (a) any person employed by the Government o f the United Republic and who, under the provisions o f section 3 o f the Advocates Act,

is entitled to practise as an advocate o f the High Court; (b) any person employed by the Tanzania Legal Corporation established by the Tanzania Legal Corporation (Establishment) Order, and who, under the provisions o f section 3 o f the Advocates Act, is entitled to practise as an advocate o f the High Court; (c) the Registrar o f the Court o f Appeal, the Registrar o f the High Court and every Deputy Registrar; (d) a magistrate; (e) an Administrative Officer in the service o f the Government o f the Unite Republic. In view of the above provision, I wish to remark that an affidavit of service of a court process onto a party to a legal matter pending in court, is a serious document, it must be handled according to law, and so is its attestation. Because of the anomaly pointed out in all affidavits of service attached with the affidavit in reply, and highlighted above, I am satisfied that the affidavits of service that Mr. Maumba was seeking to rely on in supporting the preliminary objection, are all unlawful, and reliance on them to strike out the application must, equally be illegal. In short, there is no competent proof to show that the applicants were served on 18th May, 2024. In view of that finding, the preliminary objection is hereby overruled.

As the parties argued also the main application after submitting upon the preliminary objection, I will now turn my attention to its determination. In supporting the application, Mr. Alfred, repeated his grounds in the notice of motion. He contended that no quantifiable amount of damages may adequately redress the magnitude of loss that the applicants will suffer, in case the intended execution will be left to proceed. His clarification of that point was that, the applicants have agricultural crops growing on the land and also have homes there, such that evicting them will necessarily disrupt their economic activities, as well as their social settings, for they wili be rendered homeless. He referred the Court to paragraph 8 of his affidavit supporting the notice of motion. He stated that the applicants are ready to execute a bank guarantee or an insurance bond as security in case the Court will so order. In reply, Mr. Maumba submitted that substantial loss alleged by his counterpart was not substantiated, and to him, that left rule 11 (5) (a) unfulfilled. He submitted that the applicants have nothing to suffer because, other than the trespass on the respondent's orphanage in the land, it is the respondent who has ownership and effective control of the land in dispute. In rejoinder, Mr. Alfred stated that substantial loss is explained in paragraph 8 of his affidavit and that the applicants are in the land as owners.

Before I get to the arguments of counsel, there is one point I want to make on the rights of parties after a decision in a civil matter has been rendered. The general rule is that, once a person is declared a winner in a legal matter, he is a decree holder, and has a right to enforce the decree. This right exists irrespective of whether or not the judgment debtor is aggrieved and challenges the decree. On the other hand, the loser, called a judgment debtor in law has a right of appeal, revision, review or reference depending on the nature of the order challenged and the law applicable. The right of the decree holder to enforce it, irrespective of existence of the appeal challenging it, is protected by rule 11 (3) of the Rules which provides that: "(3) In any civilproceedings, where a notice o fappeal has been lodged in accordance with rule 83, an appeal, shall not operate as a stay o f execution o f the decree or order appealed from, nor shall 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." [Emphasis added] My point is that, execution process of a decree is a requirement of the law and an expected consequence after the decree is awarded, but staying that legal process is what is exceptional. That is so because, staying

execution involves delaying a decree holder's enjoyment of his right which has been declared by a court of law in his favour. That delayed or suspended realization of the decree holder's right, amounts to partial denial of it. And that is why, the powers to stay execution under rule 11 (3) of the Rules, are discretional and exercisable in favor of the judgment debtor only if he can demonstrate good cause. What the judgment debtor is entitled as of right, is the right of appeal, according to the law, he has no right to have execution of the decree stayed, except in circumstances where he can show good cause. Part of good cause referred to under rule 11 (3) of the Rules is, of course, demonstration that if execution will not be stalled, substantial loss will ensue as provided for under rule 11 (5) (a) of the Rules. It is important to note that the latter rule forbids staying execution where substantial loss is not shown. That rule states: "(5 ) No order for stay o f execution shall be made under this rule unless the Court is satisfied that- (a) substantial loss may result to the party applying for stay o f execution unless the order is made;" [Emphasis added]

The issue therefore is whether, the applicants have demonstrated good cause in this application. Mr. Alfred, during the hearing sought to convince me that, substantial loss was demonstrated, by referring the Court to clause 8 of his affidavit. That clause reads: "8. That if execution is carried out before the order o f stay is granted, the applicants wifi be affected adversely and [their] operations will be substantially jeopardized and paralysed causing the applicant to suffer loss and living." In this case, although Mr. Alfred stated that there will be substantial loss to the applicants, should execution proceed, the magnitude of the loss to each of the applicants or even to them all, was not specified. For instance, when I asked the learned advocate as to what proportion of the land that the applicants were occupying, Mr. Alfred did not have any clear or precise response. The learned counsel was general on this point that the applicants were staying on the land and had also farms on it. It is inconceivable that 12 families have residencies over the entire 216.9 acres and in case of crops, if the applicants have farms on the whole land, then theirs, cannot be subsistence agriculture, but must be commercial plantations. Both these facts, the fact that the applicants are large scale farmers and that they have homes on the entire land, are nowhere in the affidavit of Mr. Alfred. Clause 8 of his affidavit quoted above, does not state that any applicant has any

farm on the land or has a residential house on it. In other words, issues of having families living on the land or crops growing on it, were submissions from the bar, which arguments are never taken with any seriousness in a court of law. Briefly, in this application, there was no demonstration of any loss, leave alone substantial loss. In law, for the loss under rule 11 (5) (a) of the Rules to be substantial, its particulars must be detailed, and actually specified. In the case of Meis Industries Company Limited v. Exim Bank (Tanzania) Ltd, Civil Application No. 70 of 2014 (unreported), this Court stated that: "Showing substantia / loss to be suffered is a key dement under Ruie 11 of the Ruies. Therefore, unless details and particulars o f loss are specified, there is no basis upon which the Court couid satisfy itself that loss would be incurred. (See Mechmar Corporation (Malaysia) v. Benhard VIP Engineering and Marketing and Another, Civil Application No. 184 o f 2008 (unreported) and Tanzania Cotton Marketing Board Vs COGECOT Cotton Co. SA [1997] T.LR 64/' In view of the above, I agree with Mr. Maumba that, this application fell short of the requirements of rule 11 (3) and (5) (a) of the Rules. 10

With the above discussion, there is no need of getting to issues of procurement of the bank guarantee or an insurance bond, because, in order to consider security for due performance of the decree, substantial loss must be demonstrated first. That said and done, this application has no merit. It is hereby dismissed with costs. DATED at DAR ES SALAAM, the 29th day of August 2024 The Ruling delivered this 30th day of August, 2024 in the presence of Mr. Kelvin Kuboja, learned counsel for the Respondent, also holding brief for Mr. Chapa Alfred, learned counsel for the Applicants, is hereby certified as a true copy of the original. Z. N. GALEBA JUSTICE OF APPEAL n