Bock Juma Rungwe vs The Grand Lodge Company Limited & Others (Civil Application No. 510/16 of 2022) [2023] TZCA 17892 (28 November 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 510/16 OF 2022 BOCKJUMA RUNGWE APPLICANT VERSUS THE GRAND LODGE COMPANY LIMITED THE REGISTRAR OF TITTLES ................ THE ATTORNEY GENERAL .... . ............... .1 st RESPONDENT 2 nd RESPONDENT ,3 rd RESPONDENT (Application for extension of time to file application for stay of execution of the Decree of the High Court of Tanzania, (Land Division) at Dar es Salaam) 6th & 28th November, 2023 MDEMU. J.A.: The applicant herein has preferred this application by way of notice of motion premised under the provisions of rules 10, 48 (1) and 49 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), so that time to file application for stay of execution be enlarged. In the notice of motion which is supported by the affidavit affirmed by one Bock Juma Rungwe, the application is based on the following grounds: (Mkwizu. J.^ dated the 5th day of November, 2021 in Land Case No. 137 of 2019 RULING 1

1. That, the 1st respondent has filed an application for execution o f the decree in an Application for Execution No. 91 o f 2021 which is likely to affect the intended appeal.
2. The extension o f time is necessary for the Registrar o f the High Court, Land Division is working on the 1st respondent's application for execution.
3. The delay in filing an application for stay o f execution was out o f the control o f the applicant. As per the depositions in the affidavit, annextures thereto and the applicant's written submissions, the applicant filed a suit registered as Land Case No. 137 of 2019 against the respondents claiming ownership of Plot No. 376 Block 45C Kinondoni Municipality. He lost and instead, the first respondent was declared the lawful owner. This was on 5th November, 2021. On 10th November, 2021 he lodged the notice of appeal and also applied to the Registrar to be supplied with copies of judgement, decree and proceedings for appeal purposes. On 5th November, 2021 the applicant's advocate was supplied with the requested judgment, decree and proceedings. However, as the decree was defective, he requested for a rectified one but did not get it in time such that he reminded the Registrar through a letter dated 21s t June, 2022. He was

informed by the Registrar on 17th August, 2021 that, the documents so requested were ready. At this time, according to the learned counsel, he was already time barred to apply for stay of execution because the notice of the amended application for execution was served to the applicant on 20th May, 2022. As said, this application for extending time was instituted on the grounds sought for in the notice of motion. At the hearing of this application on 6th November, 2023, the applicant, who was in attendance, was represented by Mr. Mohamed Tibanyendela, learned advocate, whereas the first respondent had the services of Mr. Arumando Swenya, learned advocate also. The second and third respondents had the services of Mr. Charles Mtae assisted by Ms. Nkamba Mshuda, both learned State Attorneys. Submitting in support of the application, Mr. Tibanyendela adopted the notice of motion, the supporting affidavit, written submissions together with the filed fist of authorities. He thereafter submitted that, there is consensus among the parties that, given the defects noted in the decree, the applicant would not have made an application for stay of execution. This was his main thrust upon which he based the prayer to extend time. He also contended to have objected on the same basis in the application for execution and as

the said objection was not heard, this application was thus made to that effect. He thus urged me to allow this application particularly on account that, the High Court may, suo motu, amend the decree and proceed with execution proceedings. For the first respondent, Mr. Swenya adopted the affidavit in reply and his written submissions. He thereafter briefly submitted that, the delay relating to failure to collect the proceedings, the judgment and the decree in time is an afterthought, thus urged me to dismiss the entire application with costs on that account. Mr. Mtae for the second and third respondents, as was to Mr. Swenya, adopted the affidavit in reply and his written submissions in resisting the application for enlargement of time to have an application for stay of execution in place. He submitted to be aware of the discretionary power of the Court to extend time, but cautioned that, the said discretion has to be judiciously exercised basing on material substance deposed in the affidavit. It is on this assertion Mr. Mtae did not find any substance on the ground of illegality manifested by the defects in the decree because such illegality is not apparent on the face of the record. In his argument, the court may rectify 4

such errors in a decree without being moved by a party. He thus found the application to lack substance and urged me to dismiss it with costs. In a brief rejoinder, Mr. Tibanyendela insisted the need to have this application allowed because, one, the High Court intends to execute a defective decree, two, the intended appeal has been filed and three, the applicant was not successful in moving the High Court to rectify the decree. I heard the parties in their respective oral submission. I have also considered affidavits, written submissions and case laws cited in the adopted written submissions. This being an application for extension of time, this Court, on many occasions, did pronounce itself on the requirement to establish good cause on the part of the applicant in determining whether or not time should be extended. In Benedict Mumello v. Bank of Tanzania, Civil Appeal No. 12 of 2002 (unreported), just one to mention, the Court observed that, enlargement of time is entirely in the discretion of the court to grant such an application or to refuse it. The Court did not however end there. It went on to state that, in the exercise of that discretion, courts may grant the application where it has been established by the applicant that, the delay was with sufficient reasons. The said sufficient reasons according to the case of Republic v. Yona Kaponda & Nine Others [1985] TLR 84 is 5

not only confined to reasons associated with delay but also on the surrounding circumstances of each particular case, the weight and implications of the issue involved. In the instant application, as alluded to, the sole reason for delay in filing the application for stay of execution is that the decree had defects such that the applicant could not have made any meaningful application in absence of a valid decree. In his written submissions, the applicant's contention rests on one fact that, as rule 11 (7) of the Rules require attachment of a decree in the application, then the decree to be attached must be valid, which is the reason why he requested the High Court to rectify and resupply the decree. Both Mr. Mtae and Swenya were not ready to accept that contention. On my part, I wish to observe that, in terms of rule 11 (7) of the Rules, one of the documents to be accompanied in an application for stay of execution is a decree to be appealed from. See also in MMI Steel Industry Ltd. v. Mohamed Said Katoto, Civil Application No. 392/01 of 2017 (unreported). Thus, one may not attach in the application for execution a decree which is defective. In it therefore, as there was a consensus on defects in the decree, the applicant was thus right to inform the Registrar to 6

supply him with a valid decree. On that stance, and since the decree was not supplied to the expiry of the fourteen (14) days from the receipt of the amended notice of application for execution on 20th May, 2022, then that in itself amounts to good cause. In view thereof, I find substance in this application and it is thus allowed. Time to file an application for stay of execution of the decree in Land Case No. 137 of 2019 dated 5th November, 2021 is extended for fourteen (14) days from the date of delivery of this ruling. It is so ordered. DATED at DAR ES SALAAM this 27th day of November, 2023. The Ruling delivered this 28th day of November, 2023 in the presence of Mr. Bock Juma Rungwe, applicant appear in person, unrepresented while Mr. Armando Swenya, learned counsel appeared for the 1s t Respondent and Ms. Nkamba Mshuda, State Attorney appeared for the 2n d and 3r d Respondents, is hereby certify > yof the original. G. J. MDEMU JUSTICE OF APPEAL N r k DEPUTY REGISTRAR COURT OF APPEAL 7