Joramu Biswalo vs Hamis Richard (MZA Civil Application No. 11 of 2013) [2014] TZCA 2335 (14 May 2014)

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: LUANDA, l.A., MASSATI, J.A., And KAIJAGE, l.A.) MZA CIVIL APPLICATION NO. 11 OF 2013 JO RAMU BISWALO ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• APPLICANT VERSUS HAMIS RICHARD ••••••••••••••••••••••••••••••••••••••••.•••••••••••••••••••••••••••• RESPONDENT (Application for stay of execution from the Judgment and Decree of the High Court of Tanzania 13 th & 15 th May, 2014 KAIJAGE, J.A.: at Mwanza) (Mwangesi, J.) Dated 27 th day of lune, 2013 in (PC) Civil Appeal No. 27 of 2010 RULING OF THE COURT This is an application for stay of execution of the decree of the High Court of Tanzania sitting at Mwanza in (PC) Civil Appeal No. 27 of 2010. The judgment on appeal was delivered on 27 th June, 2013 in favour of the respondent. Aggrieved by that decision, the applicant timeously lodged a notice of appeal to this Court on 8 th July, 2013. Anticipating early attempts to execute the decree before the institution and/or determination of the 1

intended appeal, the applicant lodged the present application on 26 th August, 2013. The application is by notice of motion under rule 11 (2) (b) and (c) of the Court of Appeal Rules, 2009 (the Rules), and is supported by the applicant's own affidavit. Mr. Steven Magoiga, learned counsel, appeared before us to prosecute the application on behalf of the applicant. The respondent, who opposed it, appeared in person. We think the only decisive issue calling for our attention and determination in this application is whether or to the applicant has satisfied the three cumulative preconditions for a stay order stipulated under rule 11 (2) (d) of the Rules, which provides:- ''R. 11 (2) Subject to the provisions of sub-rule 1 the institution of an appeal shall not operate to suspend any sentence or to stay execution but may- (a) ... (not relevant) 2

I ' ' . j i I I i i I I '! (b) In any civil proceedings, where a notice of appeal has been lodged in accordance with rule 83, an appeal shall not operate as a stay of execution of the decree or order appealed from except so far as the High Court or tribunal may order, nor shall execLJtion of a decree be stayed by reason only of an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay of execution of such decree or order. (c) ... (not relevant) (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 (iii) That security has been given by the applicant for the due performance of 3

such a decree or order as may ultimately be binding upon him?" [Emphasis is ours]. Going by the notice of motion, the applicant in seeking the stay of execution order, is relying on the following three grounds:- " (i) The applicant is aggrieved by the judgment and decree in appeal of the High Court and intends to appeal to the Court of Appeal. (ii) In the event of an order of stay of execution is not made, the respondent who is preparing to execute the decision of the High Court as confirmed by the Honourable Judge, the applicant will suffer substantial loss because the respondent is not the right owner or beneficiary of the disputed land (iii) If the decree in appeal will be executed, the intended appeal will be rendered nugatory. " Submitting in support of the application, Mr. Magoiga amplified on and adopted the grounds reflected in the notice of motion and in the 4

supporting affidavit taken by. the applicant himself. He further informally and orally raised a jurisdictional issue which he formulated as an additional precondition for a grant of stay order, but which is not envisaged under item (d) of rule 11 (2) of the Rules. However, he conceded that the applicant has not fulfilled pre-condition (iii) of the said item (d) by not providing security. The respondent, on the other hand, appears to have exercised his discretion under rule 56 (I) of the Rules. He did not lodge an affidavit in reply. He simply pleaded to us that a stay order sought by the applicant be refused. , On the basis of the grounds stated in the applicant's notice of motion, his affidavit filed in support thereof and the submission made on his behalf by Mr. Magoiga, we are satisfied that the applicant has fulfilled conditions (i) and (ii) stipulated under item (d) of rule 11 (2) of the Rules. However, a firm stance taken by this Court on the grant of stay orders under the said Rule is that the three conditions stipulated under item ( d) must be conjunctively and not disjunctively satisfied. (See, for instance, ! 1 THEROD FREDRICK V. ABDUSAMUDU SALIM, Civil Application No. 7 of 2012, GEITA GOLD MINING LIMITED V. TWALIB ALLY, Civil Application No. 14 of 2012, and JOSEPH ANTHONY SOARES@ GOHA 5

V. HUSSEIN s/o OMARY, Civil Application No. 6 of 2012, (All unreported). In Therod Fredrick case (supra), we held that:- •~s is immediately discernible from the above extract, Rule 11 (2) is more restrictive in scope than the former Rule 9 (2) of the 1979 Rules. On the terms of the present Rules, the Court no longer has the luxury of granting an order of stay of execution on such terms as the Court may think just; rather, the Court must be satisfied, Just as the applicant will be required to fulfill the following cumulative requirements:- (1) Lodging a Notice of Appeal in accordance with Rule BJ; (2) Showing good cause and; (3) Complying with the provisions of item (d) (i), (ii) and (iii). " In this case, it was imperative for the applicant to fulfill a fundamental prerequisite condition of giving security for the due 6

\ ' ,-1 · performance of the decree cumulatively with other preconditions under Rule 11 (2) (d). In Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 (unreported), this Court held:- "One other condition is that the applicant for a stay order must give security for the due performance of the decree against him. 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 Court, all things being equal, to grant a stay order, provided the Court sets a reasonable time limit within which the applicant should give the same. " The applicant having not furnished security or made a firm undertaking for giving such security in his sworn affidavit or in the submission made on his behalf by Mr. Magoiga, settled law requires us not to grant the order sought. Accordingly, we hereby dismiss this application with costs. 7

It is so ,ordered. tf DATED at MWANZA this 14 th day of May, 2014. B. M. LUANDA· JUSTICE OF APPEAL ' S. A. MASSATI JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. P. W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 8