BYBLOCK Contractors Ltd vs Salum Said Hamad & Another (Civil Application No. 713/17 of 2023) [2024] TZCA 810 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION No. 713/17 OF 2023 BYBLOCK CONTRACTORS LTD . ..........................................APPLICANT VERSUS SALUM SAID HAM AD .................................. ............. 1 st RESPONDENT CROWN AUCTION MART & COURT BROKER ............. 2 nd RESPONDENT (Application for Stay of Execution from the decree of the High Court of Tanzania (Land Division) at Dar es salaam) (MsafirLJ.) dated the 25th day of August, 2023 in Land Appeal No. 234 of 2023 RULING 16th & 22n d August, 2024 MASOUD, J. A.: The applicant seeks to challenge the decision of the High Court (Land Division) at Dar es salaam in Land Appeal No. 234 of 2023 which was handed down on 25th August, 2023 in the favour of the respondents. The decision was in relation to a five-year lease agreement that the parties had entered and whether the same had been renewed. In relation to the said dispute, the respondent's claim a

was that the applicant has continued to occupy the leased premises notwithstanding the expiry of the lease on 31s t May, 2021. Aggrieved with the decision of the High Court, the applicant lodged a notice of appeal on 29thAugust, 2023 in the Court of Appeal. She applied for leave to appeal to this Court on 15th September, 2023. It is gathered from the record that when the application for leave was pending before the High Court, the respondent filed before the District Land and Housing Tribunal (DLHT) an application for execution seeking to execute the High Court decree in Land Appeal No. 234 of 2023. Thus, the applicant was on 22n d September, 2023 served with summons for hearing of the application for execution. After being served with the said summons, the applicant decided to lodge the instant application for stay of the execution. The application was lodged under rules 11 (3), (4), (5) (a) & (b), (7) (a), (b), (c), and (d) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and was supported by an affidavit of one, Salih Akgun, a principal officer of the applicant. It was opposed by the respondents. It was however only the first respondent who lodged an affidavit in reply in opposition.

When the application was called on for hearing, the applicant appeared through Mr. Charles Mutakyahwa, learned advocate. On the other hand, the first respondent was represented by Mr. George Mwalali, also learned advocate and the second respondent appeared in person unrepresented. After adopting the affidavit in support of the applicant's principal officer, the learned advocate for the applicant expounded on the averments of the affidavit demonstrating how the application has complied with the relevant requirements of rule 11 of the Rules. For that reason, he urged me to consider granting the sought order of stay. It was, in particular, the submission of the learned advocate for the applicant that the application was preferred by way of notice of motion, accompanied by the affidavit of the applicant's principal officer, and lodged on 27th September, 2023, within 14 days of the applicant being served with the notice of execution on 22n d September, 2023. It was, likewise, his submission that the application is not only accompanied by a copy of the notice of execution, but also copies of the notice of appeal, the impugned judgment and the decree. 3

In addition, it was shown that the application is in compliance with the conditions under rule 11(5) of the Rules. It has thus demonstrated under paragraph 8 of the affidavit in support the substantial loss that the applicant is likely to suffer if the execution is not stayed, and given a firm undertaking under paragraph 10 of the affidavit in support to furnish security for the due performance of the court decree. Conversely, Mr. George Mwalali, adopted the affidavit in reply and vehemently submitted against the application, which submission was concurred by the second respondent. Despite his lengthy submission, all what the learned advocate was saying is in a nutshell that the application should not be granted as the execution has already been carried out and completed. Upon being asked as to whether the applicant has already been evicted from the premises and the properties of the applicant sold, the learned advocate's response to the question was in the negative. With the foregoing in mind, I have closely looked at the application in relation to the rival oral arguments by the learned advocates and the relevant provisions of rule 11 of the Rules. Contrary to the argument by the advocate for the first respondent, it

is clear to me that despite the execution proceedings that were commenced, the applicant is still on the premise as there was an ex- parte order of stay granted by Kwariko, J.A. on 3rd October, 2023. Having, further, looked at the rival submissions and the affidavits on the record, I am satisfied that the application was indeed lodged within fourteen (14) days of the service of notice of execution on the applicant pursuant to rule 11 (4), it was accompanied by copies of all relevant documents as required by rule 11 (7), and the substantial loss which is likely to be suffered by the applicant if the execution is not stayed and the undertaking to furnish security for the due performance of the decree have equally been shown and made by the applicant as provided for under rule 11 (5) (a) and (b). With the above finding, I am persuaded that the threshold for the granting of the order of stay of execution pending hearing and determination of the intended appeal has in the instant application been met. See, Gilbert Zebedayo Mrema v. Mohamed Issa Makongoro (Civil Application No. 369/17 of 2019) [2022] TZCA 813 (13 December 2022, TANZLII) and Ongujo Wakibara Nyamarwa v. Beatrace Grayson Mmbaga (Civil Application No. 200/17 of 2021) [2022] TZCA 732 (21 November 2022, TANZLII).

The only question to be considered now is the form of security which is in the circumstances appropriate. In so far as the applicant is concerned, his affidavit at paragraph 10 has it that she .. undertakes to furnish security for the due performance o f the Court decree as provided by the taw.' On the other hand, the first respondent's affidavit in reply has it that '...the High Court ordered the applicant to pay the rent for the whole time she had been in occupation o f the ...premises after December, 2022 until the date she would vacate the said premises.' Indeed, the second respondent's response is consistent with what was decided by the High Court which decision the applicant is aggrieved with and is intending to challenge. I think the security to be furnished by the applicant for the due performance of the impugned decree has to bear in mind what was decided by the High Court on the payment of rents after December, 2022. I have in that respect closely considered the decision. For the reasons stated above, the application has merit and is hereby granted. Accordingly, the execution of the decree of the High Court dated 25th August, 2023 in Land Appeal No. 234 of 2023 is hereby stayed pending hearing and determination of the intended 6

appeal. The said stay is, however, subject to the applicant depositing in the Court within thirty days of the delivery of this ruling a bank guarantee for the sum of TZS. 191,664,000.00. Accordingly, the said guarantee shall remain in force until full hearing and determination of the intended appeal by this Court. In default, the order of stay shall lapse automatically. In the circumstances, costs shall follow events. DATED at DAR ES SALAAM this 20th day of August, 2024. The Ruling delivered this 22n d day of August, 2024 in the presence of Mr. Charles Mutakyahwa, learned counsel for the applicant and Mr. George Mwalali assisted by Mr. Malenga, both learned counsel for the 1s t respondent also holding brief for the 2n d respondent, is hereby certified as a true copy of the original. B. S. MASOUD JUSTICE OF APPEAL