Alex Siriamara Machale & Others vs Bryson Nalogwa Kituly (Civil Application No. 3 of 2016) [2017] TZCA 267 (6 November 2017)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM : LUANDA, J.A.. MWARIJA, J.A.. And MKUYE, J.A.^ CIVIL APPLICATION NO. 3 OF 2016 APPLICANTS
- ALEX SIRIAMARA MACHARE
- MARIJANI ABUBAKARI MSOFFE
- CAPT. MAKONGORO NYERERE VERSUS BRYSON NALOGWA K ITU LY .........................................................RESPONDENT [Application for stay of execution of the decree of the High Court of Tanzania, (Land Division) at Dar es Salaam] (Nchimbi, J .) Dated the 23rd December, 2015 In Land Case No. 275 of 2007 RULING OF THE COURT 10thOctober & 6th November, 2017 MWARIJA, J.A.: In this application, the applicants have, by a notice of motion lodged on 11/1/2016, moved the Court seeking an order for staying execution of the decree of the High Court of Tanzania, Land Division in Land Case No. 275 of 2007. The application which was brought under Rule 11(2) (b), (c), (d) (i), (ii) and (iii) of the Tanzania Court of Appeal Rules, 2009 (the Rules) is supported by the affidavit of Majura M.A. Magafu, advocate.
The grounds upon which the application is based are as follows:- "(i) The judgm ent o f the High Court is problem atic on the re lie fs granted and the rate o f interest aw arded and should be sorted out through the intended appeal before the execution is carried o u t (ii) The sum Tshs. 300,000,000/= aw arded as general dam ages in favor o f the Respondent is unjustifiable and too big. (Hi) That the balance o f convenience, common sense and hardship weighs in favor o f the Applicants as opposed to the Respondent and that if the decree is executed before the intended appeal is determ ined it is like ly to cause inconveniences, substantial and irreparable in ju ry to the Applicants. (iv) That the interests o f ju stice in the circum stances o f th is case necessitate aw aiting the results o f the appeal when execution can take place in atm osphere o f certainty.
(v) That in case the A pplican ts' appeal succeeds the Respondent w ill be unable to repay the sum o f Tshs. 300,000,000/= and the recovery o f the disputed property w ill be difficult. (vi) That this application has been made w ithout unreasonable delay and that the disputed property is a su fficien t security fo r the due perform ance o f the decree." The application was resisted by the respondent who filed his affidavit in reply on 25/3/2016. At the hearing of the application, the applicants were represented by Mr. Majura Magafu, learned counsel while the respondent had the services of Mr. Mpale Mpoki, learned counsel. Submitting in support of the application, Mr. Magafu began by adopting his written submission filed in Court on 10/3/2016 and the affidavit supporting the application. He contended that the necessary conditions set out under Rule 11(b), (c) and (d) (i) - (iii) of the Rules have been complied with by the applicants. On the requirement of furnishing security for the due performance of the decree, a condition set out in paragraph (d) (iii) of Rule 11(2) of the Rules, the learned counsel argued
that by virtue of paragraph (vi) of the notice of motion, that requirement has been complied with. When asked however, whether the property which has been declared by the High Court to belong to the respondent can be used as a security by the applicants, Mr. Magafu conceded that the same cannot be relied upon by the applicants as a security. He subsequently submitted however, that the applicants undertake to furnish security if the Court so orders. For that reason, he said, the Court is supposed to assess the befitting amount to be given in that regard by the applicants. In reply, Mr. Mpoki did also start by adopting his written submission and the respondent's affidavit in reply filed in Court on 4/4/2016 and 28/3/2016 respectively. In his written submission, the learned counsel argued that the applicants have not complied with, in te r alia, the condition of giving security as required under paragraph (d) (iii) of Rule 11(2) of the Rules. He argued firstly, that the applicants have neither shown in their affidavit that the security has been given nor undertaken to give such security. Secondly, on the submission by the learned counsel for the applicants that the applicants undertake to furnish the security, Mr. Mpoki submitted that since that undertaking was made by way of a statement
from the bar, the same does not amount to a binding undertaking on the part of the applicants. Having considered the arguments made by the learned counsel for the parties, the issue which arises for determination is whether or not the applicants have complied with the requisite conditions for grant of their application. Under Rule 11(2) (c) of the Rules, the Court may order a stay of execution of an appealable decree or order when an application to that effect is made before the expiration of the period of appeal. That provision states as follows:- "W here an application is made fo r stay o f execution o f an appealable decree or order before the expiration o f the tim e allow ed fo r appealing therefrom , the Court, m ay upon good cause shown , order the execution to be stayed ." There is no dispute that the application was made within the prescribed time of sixty days. An application for stay of execution cannot however, be granted unless the person applying for it has satisfied the Court that the conditions set out under paragraph (d) (i) - (iii) of Rule 11(2) of the Rules have been met. That provision states as follows:-
"(d) no order for stay o f execution sh all be made under this rule unless the Court is satisfied: - (i) that substantial loss m ay result to the party applying fo r stay o f execution unless the order is m ade; (ii) that the application has been m ade w ithout unreasonable delay; and (iii) that security has been given by the applicant for the due perform ance o f such decree o r order as m ay ultim ately be binding upon him ." The above stated conditions which are mandatory, must be complied with cumulatively. That position of the law was clearly stated in the case of Efficient Freighters (T) Ltd v. Cargo Management and Logistics, Civil Application 145 of 2013 (unreported). In that case, the Court stated as follows: u Ever since the inception o f the current Rules, the Court has pronounced severally that the conditions se t out in Rule 11(2) (d) (i) to (iii) are m andatory and m ust be com plied with cum ulatively before an order o f stay o f execution is granted." It was Mr. Magafu's submission that the applicants have met all the conditions, the submission which was opposed by Mr. Mpoki. The discord
was however, mainly on the compliance with the requirement of giving security for the due performance of the decree. Although in their notice of motion the applicants had relied on the disputed property as sufficient security, at the hearing, Mr. Magafu conceded that the property which according to the decree does not belong to the applicants, cannot be used by them as a security. That stance was taken in the case of Rehema Emanuel & Anr v. Alois Boniface, Civil Application No. 5 of 2015 (unreported) in which the Court stated as follows:- "... the applicants have failed to provide security or m ake a firm undertaking o f giving security as provided under Rule 11(2) (d) (iii) o f the Rules. This is so because a t the tim e o f such application the disputed su it property is taken to have been the property o f the respondent u n til a t such tim e when the Court decides otherw ise. The applicants therefore cannot rely on the said property as security. They cannot give that which they do n ot possess - N em o d a t q u o d n on habet. It is n ot th e ir property." As pointed out above, having conceded that the property cannot be used by the applicants to furnish security, Mr. Magafu proceeded to submit that the applicants were making an undertaking to that effect. It is indeed acceptable that compliance with the requirement of furnishing
security may be complied with through a firm undertaking by the party applying for stay of execution. In the case of Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 (unreported), the Court had this to say on that principle. "To m eet this condition, the law does not strictly dem and that the said security m ust be given p rio r to the grant o f the stay order. To us, a firm undertaking by the applicant to provide security m ight prove su fficien t to m ove the Court, a ll things being equal, to grant stay order, provided the Court sets a reasonable tim e lim it w ithin which the applicant should give the sam e." In the particular circumstances of the present case however, we agree with Mr. Mpoki that since the undertaking came from the counsel's statement made from the bar, the same cannot be taken to amount to a firm undertaking binding on the applicants. The Court had the opportunity of considering this pointin the case of Farm Equipment Company Limited v. Festo Mkuta Mbuzu, Civil Application No. I l l of 2014 (unreported). In that case, the undertaking to furnish security was made by the applicant's counsel in his written submission. The Court observed in te r alia, that:- 8
"To indicate one's readiness to provide security fo r the due perform ance o f a decree in the subm ission is to go against the law because w ritten subm ission consists basically o f argum ents." Having found that the applicants have not met the condition of furnishing security for the due performance of the decree, the non- compliance suffices to dispose of the matter. In the event, we find the application devoid of merit and hereby dismiss it with costs. DATED at DAR ES SALAAM this 2n d day of November, 2017. B.M. LUANDA JUSTICE OF APPEAL A.G. MWARIJA JUSTICE OF APPEAL R.K. MKUYE JUSTICE OF APPEAL I certify that this is a tru original. DEPUTY REGISTRAR COURT OF APPEAL 9