Hadija Adamu vs Godbless Tumbo (Civil Application No. 27 of 2015) [2017] TZCA 1213 (12 December 2017)

' IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: MJASIRI, J.A.. MWARIJA. J.A.. And MWANGESI. J.A.} CIVIL APPLICATION NO. 27 OF 2015 HADIJA ADAMU ---------------------------------- APPLICANT VERSUS GODBLESS TUMBO ----------------------------- RESPONDENT .-· (Application from the judgment and decree of the High Court ih & 14 th Dec. 2017 MWANGESI. J. A.: of Tanzania at Arusha) (Mmilla. J.} Dated the 23 rd October, 2008 In (PC} Civil Appeal No. 15 of 2005 RULING OF THE COURT The application at hand is by way of notice. of motion supported by affidavit, which has been sworn by the applicant. The applicant is moving ~ the Court to stay execution of the judgment and decree of the High Court of Tanzania at Arusha, in (PC) Civil Appeal No. 15 of 2005 dated the 23 rd day of October, 2008, which was decided in her disfavor. The notice of motion has been made under the provisions of Rule 11 (2) (b) (c) (d) and (e), and Rule 48 (1) (2) and (4) of the Court of Appeal Rules, 2009 (the ' 1

I r. Rules). Additionally, in terms of the provisions of Rule 106 (1) of the Rules, the applicant did lodge written submissions in support of the notice of motion. The respondent did lodge an affidavit in reply to the notice of motion, which was sworn by one Duncan Oola, who happened to be the learned advocate engaged by the respondent to represent him in defending the application. There was however no written submissions filed in reply to the written submissions by the applicant in terms of the provisions of Rule 106 (8) of the Rules. He was however, permitted by the Court to respond to the written submissions of the applicant orally. On the date when the application was called on for hearing, the applicant did enter appearance in person legally unrepresented and fended for herself whereas, the respondent had the services of Mr. Duncan Oola learned counsel. In prosecuting her application, the applicant being a lay person, requested the Court to adopt her grounds of application as contained in the notice of motion and supported by her sworn affidavit, as well as the written submissions, which were lodged in Court to amplify the 2

I application in terms of Rule 106 (1) of the Rules. She had nothing more to add. On his part, Mr. Oola learned counsel on behalf of the respondent did submit to the effect that, they were resisting the application by the applicant on the reason that, there was no commitment from the applicant in regard to security as required under the provisions of Rule 11 (2) ( d) (iii) of the Court of Appeal Rules. As the requirement for security is a question of law, there was no way in which it could be done away with. The learned counsel for the respondent did submit further that, it has been indicated by the applicant under paragraph 8 of her affidavit in support of notice of motion that, she was ready to give the disputed landed property as security. In his view the same was unacceptable because, she was a mere trespasser on the disputed property as adjudged in the decision which she intends to impugn in her appeal. By way of a rejoinder, the applicant did reiterate what has been stated in her affidavit that, the only property which she could commit for security was the house constructed on the disputed un-surveyed land and 3

t I t ' .,. that she has no other property to give as security. She was therefore insistent that, the said disputed property be taken as her security. What stands for our determination is whether the application by the applicant is plausible. As it has been intimated above by Mr. Oola learned counsel, the grant of a stay order of execution is subject to some conditions being met. The decision of this Court in Joseph Soares @ Goha Vs Hussein Omari, Civil Application No. 6 of 2012 (unreported), did give some guidelines on how the Court has to go about in applications for stay of execution when it stated thus:- "The Court no longer has the luxury of granting an order of stay of execution on such terms as the Court may think just; but it must find that the cumulative conditions enumerated in Rule 11 (2) (b}, (c}, and ( d} exist before granting the order. The conditions which the Court is required to observe under the Rule are: (1) The lodging of a notice of Appeal in accordance with Rule 83 of the Rules; (2) (2) Showing good cause; and 4

t t (3) Complying with the provisions of item (d) of the sub rule. Under item (d), a duty has been imposed on the Court that, before it ·grants the order for stay, it has to be satisfied that: (i) A substantial loss may result to the party applying for stay of execution unless the sought stay order is granted. (ii) That the application by the applicant for stay has been made without unreasonable delay; and (iii) That security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. The Court did further elaborate the requirement for furnishing security in the unreported case of Mantrac Tanzania Limited Vs t Raymond Costa, Civil Application No. 192 of 2014 by stating thus: I "To meet the conditions of security, the law does not strictly demand that the said security must be given prior to the grant of the stay order. To us, a firm undertaking by the applicant to provide security might prove sufficient to move the Court all 5

It It II I, things being equal, to grant the stay order provided the Court sets a reasonable time limit within which the applicant should give the same. " Back to the application before us, the applicant did readily concede to the fact that, she has not committed any property as security for due performance of the decree sought to be stayed. She has indicated in her affidavit that, she is ready to commit the disputed property as her security. On our part, we are in agreement with Mr. Oola that, the disputed property is not the property of the applicant and as such, it cannot be used as a commitment by the applicant as security. And the fact that, the applicant did frankly inform the Court that, she was not in possession of other property, which she could commit as security, the implication is that, she did fail to meet the condition. While we were made to understand and believe that, in stating that she does not have any other property to commit as security the applicant was stating her real position, we are bound by the law to follow on what it dictates. We therefore reject the application for failure to meet the requirement of the law. Until the law is amended to stipulate otherwise, for 6

r the time being our hands are tied. That is what the law is always .about. That said, we hereby dismiss the application with. costs. Order accordingly. DATED at ARUSHA this 12 th day of December, 2017. S. MJASIRI JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL S.S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. A.H. M' UMI DEPUTY REGISTRAR COURT OF APPEAL 7