Godfrey M. Mzowa vs Seleman Kova & Others (Civil Application No. 147/02 of 2024) [2024] TZCA 794 (21 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 147/02 OF 2024 GODFREY M. NZOWA .................................. ........................... APPLICANT VERSUS SELEMAN KOVA.............................................................. 1 st RESPONDENT PERMANENT SECRETARY MINISTRY OF WORKS ............. 2 nd RESPONDENT THE ATTORNEY GENERAL............................................... 3 rd RESPONDENT (Application for Stay of Execution from the decision of the High Court of Tanzania at Arusha) (Gwae, 3.1 dated 17th day of March, 2023 in Land Case No. 12 of 2008 RULING 20th 8121 st August, 2024 MGEYEKWA. J.A.: By notice of motion, the applicant is moving the Court for an order of stay of execution of the decree of the High Court at Arusha dated 17th March, 2023 in Land Case No. 12 of 2008. The application is predicated on the provisions of rule 11 (3), (4) of the Tanzania Court of Appeal Rules, 2009 (the Rules). A brief background leading to the present application can be summarized as follows: the applicant lodged a suit at the High Court at Arusha in Land Case No. 12 of 2008 against the respondents over ownership of a residential house No. 203 or house No. 140 on Plot No. 40 Block '3' Sekei area at Arusha Municipality. At the height of the trial, the case was decided in favour of the respondents.

Aggrieved, the applicant lodged a notice of appeal, and it was served to respondents and on 22n d December, 2023 by way of notice of motion lodged the instant application supported by an affidavit deponed by Godfrey Nzowa, the applicant. The applicant also filed a written submission. The motion is challenged by the second and third respondents through the affidavits in reply of Hance Mmbando, learned State Attorney. The first respondent did not oppose the application. At the hearing of the application, the applicant had the service of Dr. Ronilick Mchami, learned counsel while the first respondent was represented by Ms. Monica Mushy, learned counsel and Mr. Mkama Musalama accompanied by Mr. Hance Mmbando, both learned State Attorney represented the second and third respondents. The applicant's counsel adopted the notice of motion, the accompanying affidavit, and the written submissions in support of the application which hinges on major ground which is two-limbed; that the applicant will suffer substantial loss if stay of execution is not granted and he is ready to give security for the due performance of the decree. Upon being probed by the Court on whether he has fulfilled the prescribed conditions, on substantial loss to be suffered if the stay order is not granted and firm undertaking to furnish security for the due performance of the decree as may be ultimately be binding on the

applicant. The applicant's counsel submitted that the applicant in paragraph 6 of the affidavit has explained that loss may result if a stay order is not granted. Dr. Mchami referred me to rule 11 (5) (b) of the rules and submitted that the applicant is ready to give security in terms of money and the order of the Court ultimately be binding upon him. He urged the Court to estimate the required amount and order the applicant to deposit the same within one month as security for due performance of the decree. On the other hand, the learned State Attorney conceded that the applicant has complied with the requirements stipulated under rules 11 (7) and (5) (a) of the Rules. On furnishing, security for due performance of the decree, the learned State Attorney contended that, in the affidavit accompanying the application, the applicant has made a general statement that he is ready to give security for the due performance of such decree. He cemented that, there is no firm undertaking whatsoever by the applicant to furnish security for the due performance of the decree as may ultimately be binding on him. To buttress his submission, he cited the case of Aidan George Nyongo v. Magese Machenja and Others, Civil Application No. 237/17 of 2016 [2020] TZCA 1832 (30 October 2020 TanzLII). However, he conceded to the prayer by Dr. Mchami and urged 3

the Court to estimate the amount of money to be deposited by the applicant as a security. In the application at hand, the counsel for the parties are at one that the applicants have fully satisfied the demands of rule 11 (4), (b) and (7) of the Rules. The application was preferred within 14 days, this is discerned from the fact that it was on 18th December, 2023 when the applicant became aware of the intended execution proceedings upon being served with the notice of hearing of the initiated execution proceedings and from this, he then lodged the current application on the 22n d December, 2023. Likewise, there is no dispute that the applicant complied with the requirements stipulated under Rule 11 (5) (a), (7) (a), (b), (c), and (d) of the Rules. The record shows that the application revealed that the applicant has attached to the affidavit in support of the application a notice of appeal, a decree and a judgment appealed from, and a notice of the intended execution. In paragraph 6 of the affidavit, the applicant stated that in case execution is not granted, he will suffer substantial loss because he and his family will be evicted from the residential House No. 203 of House No. 140, Plot No. 40 Block '3' Sekei area within Arusha. In that respect, I find that the applicant has fully complied with all conditions enumerated under rule 11 (5) (a) and (7) of the Rules.

The contentious issue is on one condition stipulated under Rule 11 (5) (b) of the Rules that provides: "No order for stay of execution shall be made under this rule unless the Court is satisfied that: (b) security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him." In the affidavit supporting the application and the oral submission by the applicant's counsel, there is an undertaking by the applicant to furnish security for the due performance of the decree. The issue for determination is whether the applicant has complied with the condition of furnishing security for the due performance of the decree as may ultimately binding upon him. In paragraph 7 of the affidavit; the applicant has deposed that, he is ready to give security for the due performance of the decree or comply with the order by the Court which may ultimately be binding upon him. I am settled in mind that the declaration made by the applicant that, he is ready to give security for the due performance of the decree against him, and moved the Court to estimate the amount that he shall deposit as security for due performance of the decree are sufficient to move the Court to grant the order of stay for execution. 5

For the foregoing, I am of firm view that, the applicant has complied with the requisite conditions outlined for a stay of execution order to be granted as stipulated under rule 11 of the Rules. In view of the circumstances of the matter at hand, the application is allowed, and it is hereby ordered that execution of the decree in Land Case No. 12 of 2008 dated 17th March, 2023 is stayed pending the hearing and final determination of the appeal. This order is conditional upon the applicants depositing a bank's guarantee of US$ 14,400 as a security for the due performance of the decree within a month to be reckoned from the date of delivery of this ruling. I make no order as to costs. Order accordingly. DATED at ARUSHA this date 20th August, 2024. The Ruling delivered this 21s t day of August, 2024 in the presence of Dr. Ronilick E. K. Mchami, learned counsel for the applicants, Ms. Monica Denis Mushy, learned counsel appeared for the 1s t respondent and Ms. Christabela Madembwe, learned State Attorney appeared for the 2n d and 3r d respondents is hereby certified as a true copy of the original. A. Z. MGEYEKWA JUSTICE OF APPEAL