Zahara Katindi and Another vs Juma Swalehe and Others (Civil Application No. 271/05 of 2017) [2017] TZCA 1298 (2 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MJASIRI, J.A., MWARIJA, l.A .• And MWANGESI, J.A.) CIVIL APPLICATION NO. 271/05 OF 2017 ZAHARA KATINDI •..•••.••••••..........•...••..•.••••.•.•..•.•.•..••.••••••••...•...•..• 1 ST APPLICANT DOMINIC B. FRANCIS •••••••••••.•.....••••••........•••....•.•••••••••••••••••••...... 2ND APPLICANT VERSUS . ST lUMA SWALEHE ••.•.••••••••••••••.••..•...•.••••••••••.••••••••••••••••••••••••• 1 RESPONDENT RAMLA JUMA SWALEHE ...................................................... 2ND RESPONDENT BARAKA JUMA SWALEHE .................................................... 3RD RESPONDENT ATHUMAN JUMA SWALEHE ................................................. 4TH RESPONDENT BISULA JUMA SWALEHE ..................................................... sTH RESPONDENT SALIM JUMA SWALEHE .......................................... : ............. 6TH RESPONDENT AZIZA JUMA SWALEHE ....................................................... 7TH RESPONDENT RAMADHANI JUMA SWALEHE .............................................. STH RESPONDENT ·. TH RASHID! JUMA SWALEHE ...................................•................ 9 RESPONDENT ASHURA JUMA SWALEHE ..................................................... 10TH RESPQDENT (Notice of Motion for stay of Execution against the decision of the High Court of Tanzania at Moshi) [Mwingwa, l.] Dated 19 th February, 2016 In Civil Appeal 10 &11 of 2014 RULING OF THE COURT 27 th Nov. & ih Dec. 2017 MWARIJA. J.A.: The applicants Zahara Kitindi and Dominic B. Francis are seeking an order staying execution of the decree issued by the High Court of Tanzania (Moshi District Registry) in Civil Appeals Numbers 10 and 11 of 2014. The appeal from which the decree arose originated from Moshi District Court 1

Civil Case No. 45 of 1999. In that case, the respondents challenged attachment and sale of the 1 st respondent's house situated on Plot No. 152 Block "DDD" in Karanga area, within the Municipality of Moshi (hereinafter "the Property''). According to the record of the application and the parties' submissions, upon an agreement for sale of the Property, the 1 st applicant paid shs 3,000,000/= to the 1 st respondent as a. purchase price for the Property. However, following the latter's act of changing the terms of the agreement, the 1 st applicant instituted a suit in the District Court of Moshi, Civil Case No. 111 of 1994 against the 1 st respondent and another person, Athumani Kitindi. She claimed for refund of the paid amount of shs 3,000,000/=. The case was decided ex-parte in her favour. The 1 st respondent unsuccessfully attempted to set aside that judgment. His further efforts, through multiple applications both in the High Court and this Court, to stay execution of the decree and attempts to appeal against that decision ended up in futility. , The Property was finally attached and sold through auction to the 2 nd :applicant. It was that attachment and sale of the property which gave rise to Moshi District Court 2

Civil Case No. 45 of 1999. In that case, the respondents claimed inter alia, for a declaration that the attachment and sale of the Property was unlawful. The District Court gave judgment in their favour and ordered restoration of the Property to the 1 st respondent. On appeal to the High Court, in the decision which is the subject matter of the present application, the High Court (Mwingwa, J, as he then was) upheld the decision of the District Court. He was of the view that the Property was a residential house occupied by the 1 st respondent and his family and that under s. 48(1)(e) of the Civil Procedure Code [Cap 33 R.E. 2002], the same was not liable to attachment or sale in execution of the decree. He agreed with the trial Resident Magistrate that the attachment and sale of the Property was unlawful. The applicants were further aggrieved. They instituted a notice of appeal on 22/2/2016 and consequently on 3/4/2017, they lodged this application. The same was brought under Rule 11(2)(b) (c) and (d)(i), (ii) and (iii) of the Tanzania Court of Appeal Rules, 2009 (the Rules). At the hearing of the application, the applicants were represented by Mrs. Elizabeth Minde, learned counsel. On their part, the respondents 3

appeared in person, unrepresented. Both Mrs. Minde and the respondents had earlier on filed their written submissions in compliance with sub-rules (1) and (8) of Rule 106 of the Rules respectively. , As stated above, the applicants have moved the Court to issue an order staying execution of the impugned decree pending hearing and determination of the intended appeal. Under the Rules, an order for stay of execution of a decree may be issued subject to the specified conditions being met by the applicant. The conditions have been set out under Rule 11(2)(d) of the Rules which provides as follows:- ,. "11(1) . ... (2) (a) - (c) N/A (d) No order for stay of execution shall be made under this rule unless the Court is satisfied - (i) that substantial loss may result to the party applying for stay of execution unless the order is made; (ii) that the application has been made without unreasonable delay and 4

(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." In her submission, after having given the background facts giving rise to the application, Mrs. Minde argued that the applicants have met the laid down conditions for grant of an order for stay of execution of the impugned decree. She contended that the 2 nd respondent has effected developments to the Property and rented it to tenants. She went on to argue that if execution is not stayed, the 2 nd respondent who has been in occupation of the Property since the year 2001 will suffer substantial and irreparable loss. She added that the judgment of the District Court which was upheld by the High Court is erroneous because it conflicts with the earlier decision of the Court concerning the same parties. As for the requirement of giving security for due performance of the decree, the learned counsel submitted that the applicants have made an undertaking to provide the title deed of the Property and, in the 5

• ' alternative, to .. comply with any such order as may be given by the Court in respect of security to that effect. In response, in their submission, the respondents dealt mostly on the propriety or otherwise of attachment and sale of the property. With regard to the issue whether or not the set out conditions for grant of stay of execution have been met, they contended that the applicants have not duly complied with. Starting with the requirement on the part of the applicants, of showing that they will suffer substantial loss if the sought order is not granted, it was the respondents' s,ubmission that since the certificate of title is in the name of the 2 nd applicant, it is inconceivable that they will suffer any loss. They added that since the applicants are in occupation of the Property, they cannot be caused to suffer any substantial loss. On the requirement of giving security, they argued that the applicants have failed to meet that condition. According to their submission, the applicants have merely given a promise which cannot be executed. They argued that the applicants should have given security in the form of a bond which can be executed without recourse to court proceedings. 6

From the record, it is apparently clear that the application was filed before the expiry of the time allowed for appeal as required by Rule 11(2) (c) of the Rules. Under Rule 90(1) of the Rules, the period of filing an appeal is 60 days computed from the date of lodgment of notice of appeal. Since therefore, the notice of appeal was filed on 22/2/2016, item (ii) of Rule 11(2) (d) of the Rules was complied with. With regard to the issue whether or not the applicants will suffer substantial loss if execution is not stayed, we agree with Mrs. Minde that execution of the decree will occasion them substantial loss. It is not disputed that the 2 nd applicant, who purchased the Property at the auction which was conducted by order of the District Court, is in occupation of the Property. The consequence of executing the decree will certainly amount to eviction of the 2 nd applicant and his family. : In our considered view, the eviction will occasion him substantial loss in terms of finance and accommodation hardship. Concerning the requirement of providing security for due performance of the decree, Mrs. Minde had stressed in her oral submission '· that the applicants have undertaken to provide the title of the Property or 7

any other security as may be ordered by the Court. In paragraph 16 of his affidavit which was filed in support of the application, the 2 nd applicant states as follows:- "That the applicants are ready to provide the title of the suit property to be a security or provide any other security or abide by any order as to security as shall be ordered by the Court. " According to the respondents, security cannot be given by way of promise. They argued that the same must have been given by way of execution of a bond. We find that, such an argument has been based on misconception. Under the Rules, security can be given by way of an undertaking. It is then upon the Court to order how such security shall be executed. In the case of Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 (unreported), the Court stated as follows on that point:- "To meet this condition, 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 8

Court, all things, being equal, to grant stay order, provided the Court sets a reasonable time limit within which the applicant should give the same. [Emphasis added] As pointed out above, the applicants have undertaken to provide the title deed of the Property or any security which may be ordered by the Court. The issue is whether the title deed of the Property, which is the subject of the intended appeal, can be used as security. It is the position of the law that the same cannot be so used. This is for obvious reason that the ownership of the property remains with the decree holder until the appeal is determined. Considering this issue in the. case of Rehema Emanuel & Another v. Alois Boniface, Civil Application No. 5 of 2015 (unreported), the Court held that a decretal property which is the subject of an intended appeal cannot be given as security in compliance with Rule 11(2) (d) (iii) of the Rules. That decision was based on the following reason: "This is so because at the time of such application [for stay of execution] the disputed suit property is 9

taken to have been the property of the respondent until at such time when the Court decides otherwise. The applicants therefore cannot rely on the said property as security. They cannot give that which they do not possess- Nemo dat quod non · habet. It is not their property'~ In the case at hand, following the decision of the High Court, which upheld the District Court's decision nullifying the sale of the Property to the 2 nd applicant, unless that decision is reversed, the, said applicant cannot be taken to have a legal title over the Property. For this reason, the principle that no one can give what he or she does not have, equally applies in the particular circumstances of this application. That is with regard to the undertaking to give the title deed. As shown above however, the applicants had cast their net wider. They also undertook to provide any other security which :may be ordered by the Court, the undertaking which was firmly emphasized by their learned counsel. As stated above, such a firm undertaking is sufficient compliance with the condition set out under Rule 11 (2) (d) (iii) of the Rules. 10 -~.............._ ·- --- .-.

. . ' . • .On the· basis of the above stated findings, since the conditions for grant of stay of execution have been cumulatively met, we are of the considered view that the application has merit. We accordingly hereby order that execution of the decree be stayed subject· to deposit by the applicants in Court, within 30 days from the date of delivery of this ruling, of a bank guarantee in the sum of shs.150,000,000/= (shillings one hundred and fifty million) .. Costs shall abide the outcome of the intended appeal. · DATED at ARUSHA this 2 nd day of December, 2017~ .:>-?' · .. · · S. MJASIRI JUSTICE OF APPEAL A.G. MWARl.JA JUSTICE OF APPEAL S.S. MWANGESI JUSTICE OF APPEAL . I certify that this is a true copy of the original. A.H. MSU I DEPUTY REGISTRAR COURT OF APPEAL 11