Therod Fredrick vs Abdusamadu Salimu (Civil Application No. 7 of 2012) [2013] TZCA 2379 (4 December 2013)

1 IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: RUTAKANGWAV J.A., KAIJAGE, J.A., And MUSSA, J.A.) CIVIL APPLICATION NO. 7 OF 2012 THEROD FREDRICK .............................................. APPLICANT VERSUS AUSAAU SALIIIU ..................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Kibella, J.) dated the 4 th day of June, 2012 in Misc. Land Case Appeal No. 2 of 2008 RULING OF THE COURT 29th November & 5th December, 2013 MUSSA, JA.: This application owes its background from Land Claim No. 89 of 2006, instituted in the Magete/Karutanga Ward Tribunal in Muleba District. In the original proceeding, the respondent lost his claim against the applicant over a parcel of land. Dissatisfied, the respondent succeeded on appeal,in the District Land and Housing Tribunal for Kagera Region, which overturned the verdict of the Ward Tribunal in his favour. The applicant was aggrieved but, on appeal to the High Court he, again, lost (Kibella, J.),in a verdict that was delivered on the 4th June, 2012. Still discontented, on the 15th June,2012 the applicant duly filed a Notice of Appeal and,he now seeks a stay of the execution of the 1

decree of the High Court, pending the institution and determination of the desired appeal. The application is by a Notice of Motion taken out under the provisions of Rule 11(2) (b),(d) (i), (ii) and (iii) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). The same is accompanied by an affidavit, duly sworn by Mr. Mathias Rweyemamu who happens to be the applicant's advocate. The grounds upon which the Notice of Motion is predicated are expressed thus:- (,) The applicant has preferred an appeal which has overwhelming chances to succeed. (ii) That if the respondent will be allowed to execute the decree of the Hi'h court the applicant will stand to suffer asubstantial irreparable loss. (II,) That the application has been made without unreasonable delay. In the accompanying affidavit, the applicant replicates the grounds stated in the Notice of Motion with details of the factual setting giving rise to the quest. As hinted upon, at the hearing before us, the applicant had the services of Mr. Mathias Rweyemamu, learned advocate. In his brief submission, learned counsel for the applicant fully adopted the Notice of Motion as well as his supportive affidavit. In addition, Mr. Rweyemamu painstakingly drew our attention to the fact that his affidavit was not countered by any reply from the respondent. In sum, counsel urged that from the applicant's documents, good 2

cause has been shown to entitle him an order for stay of execution of the referred decree or order. For his part, the respondent who was unrepresented simply contended that the applicant was employing delaying tacticts. He, accordingly, prayed for the dismissal of the application to enable him reap the fruits of the decree. Addressing the rival points of contention, as already intimated, this application has been taken out under the provisions of Rule 11(2) (b) and (d) which goes thus:- 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 the court may - - - (not relevant) 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 execution 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 for execution of such decree or order. (not relevant) . 3

(d) no order for stay of execution shall be made under this rule unless the Court is satisfied: - that substantial loss may result to the party applying for stay of execution unless the order is made; that the application has been made without unreasonable delay; and that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. As is immediately discernible from the foregoing 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 fulfil the following cumulative requirements: - Lodging a Notice of Appeal in accordance with Rule 83; Showing good cause and; Complying with the provision of item d(i), (ii) and (iii). 4

The question before us is whether or not the applicant has fulfilled these conditions. To begin with, there is no dispute that, in the matter before us, the applicant duly lodged a Notice of appeal in accordance with Rule 83. In the Notice of Motion as supplemented by the affidavit, the applicant has also ventured to explain how he stands to suffer substantial irreparable loss if the respondent is allowed to execute the High court decree, that is, to come to terms with Rule 11(2) (d)(i). What is more, the applicant hasstated, without demur from the respondent that the application has been made without unreasonable delay. Indeed, the chronology of events bears this account and, so to speak, the application is within the terms of Rule 11(2) (d)(ii). Nonetheless, there is one imperative requirement which stands completely unattended in both the Notice of Motion and the accompanying affidavit and, this is it: No security has been given by the applicant as required by Rule 11(2) (d) (iii), for the due performance of the decree or order as may ultimately be binding upon him. In the unreported Civil Application No. 11 of 2010, Mantrac Tanzania Ltd. V. Raymond Costa, we subscribed the following direction:- One other condition is that the applicant for a stay order must give security for the due pefformance 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 5 RO

order, provided the court sets a reasonable time limit within which the applicant should give the same. In the situation at hand, the applicant has not even made a fleeting reference to this requirement, let alone, a firm undertaking to give security for the due performance of the decree. To this end, the applicant has not shown good cause to entitle himself a stay of execution. Accordingly, this application fails and is, hereby, dismissed with costs. DATED at MWANZk this 4th day of December, 2013. E.M.K. RUTAKANGWA JUSTICE OF APPEAL S.S. KAIJAGE JUSTICE OF APPEAL K. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. P.W. Bampikya SENIOUR DEPUTY REGISTRAR COURT OF APPEAL