Ntumbangwaza Balindile vs Madirisha Ng'hungu (Civil Appeal No. 123 of 1996) [1999] TZHC 252 (27 September 1999)

4 J CA) £- j444 j IN THE HIGH COURT CF TAN4NIA AT TOJANTZ A (PC) CIVIL APPEMJ No. 123 OF 1996 (From the decision of the District Court of Magu District at Magu Civil Appeal No. 12+ of 1996 and Criginal Civil Case No. 9/1996 of Kisesa Primary Court) NTUIAGWPZA BALINDILE . . . .. . . 00800604006*649600.6000 A.PP]-ICT VERSUS i1ADIRISHA NGH' IJITGU , , . . • . . •. . . , .. ,. a a , .•, a. RESPONDENT R U L I N G NSEKLA J. This is an application made undez' Crder XXXIX r 5 (I) and section 95 of the CRC seeking, inter alia, an order that — (a) the execution of the decree and judgment in redpect of Magu District2 Court Civil Appeal No 0 124 of 1996 be stayed pending the determination of the applicant appeal which is still pending i.n this CourL, T} ppi ic.r3nt on Ntumbagwaza Balindile who was the r espondent in the District Court and the appellant was one Madirisha Ng' hungu. In the District Court the appllant Madirisha won the case and the disputed land was declared tn belong to him in a judgment that was delivered on 10.90 96. Aggrieved by this d ecision, the then respondent Balindile filed an appeal to this Court on 17.9.96 followed by achamber filed on 4.11.96 1 the subject matter of this Ruling. The main reason fr aeeking a stay of execution pending the hearing and d terminatin of his appeal is to be found inparagraph 3 of the applicantts affidavit which reads as follows — That if the execution of the decree and judgment of the Magu is not • 00 a 0 a a e ./2.

_l • 2 : 2V stayed pending determination, of my appeal which still pending in this Hon'urabie Court, the applicant stand to suffer an enormous substantial loss and hardship since, the respndent will evict the applicant frmm the disputed shamba. I have heard the information that the respondent is f'und the customary in order to sell my shamba," Thus the basic reason for the applicant seeking stay f execül4on is that he and his family will be evicted frrm the disputed shamba and that thisofnecessity will c.usesubstantial loss to him and to his family if executirñ takes place before the appeal is heard and determined 0 , At the applicantBalindi1e and the xesprndent the ,hearing'f the applicationbothNgThuflgu appeared in pèrsn, unrepresented. The applicant 'éy briefly adopted tha •cntents his affidavit The respondent on his part had little to s i.y save that the appal qh,,nuld be heard as soon as is practicable. Order XXXIX r (i) c2 the CPC is in the following terms -, 5(1) An appeal shall nr-t operate as a stay of proceedings under a decree or oder apea1ed..frnm except so far a 8 the CnürL may nrder, nor shall . execution of a decree be stayed by reasi1 only of an appeal having been preferred froii the decree but the . . . Court may for sufficient cause order stay of execution of such decree, ... No order for s . tay of executirn shall be made under sub—rule (1) or sub—rule (2) unldss thailigh Coi'tor the Crurt ma.ldng it is satisfied - (a) that substantial loss may result

• • p I :3: to the party applying for stay cf• execution unless the order is.mad: ••. .... that the application has 1eeti made without unreasonable delay - and that security has been given . by the applicant for the - due perfc . rrnance rf such decree-or order.as may ultimately be binding upn hi.m It has been said that the ordinary rule is that an executir - n of a decree should not be stayed pnding an appeal'unlessthè appliat skinjs good cause a i nd the appell.te court corâiders it sufficient fr stayiri execution s±nce decree holders 'also have their rihts which shri1d nt b interfered with except for substantial reasons' which an applict seeking a stay order must discicac, In paragraph 3 of the apjplicanfls supporting affidavit which I have quoted above the reesn given' i that — the applicant stand to stiffer
• an 'erihrmoüs substantial 1c-8s ... ....... hardship since the respondent will . evict the applicant from the disputed shamba." In (CA) Civil Application No. 52 '?f 1996 Tanza_ia Cotton arketi Board Coecct_Cotton_Con SA, (unreported) the Court of Appeal qtoted with apprà'ral the following passage from the':Thdian case of TEansidet v Pribhu where it was sthted thus — The words 'ubstantiaJi cannot nean the ordinary less to which . .. every judgment-.debthr is necessar'i.-y subjected when he los his case' and is deprived of nis property in consequence 0 OS.eS..Oaa/'+.

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: 5 : Needless to say 1 I an in crnlete agreement with these views. It is the intrinsic value of the disputed shaniba that is in, issue and this cannr"t becoinsanted by way of damages. The disputed shaniba is farnand undoubtedly used for farming both food and commercial crops, grazing animals and 'like activities in this rural setting. The disputants are peasants and land is a rare commodity. 'In the, circumstances, I do accept the applicant' s prayer that he is likely to suffer'iibstantial loss if execution takes place. If in the meantime the disputed 'hamba is disposed of the applicant .' cannot possibly get another shamba 'f the same qualities. In the premises, it is ordered that the excecutinn of the depision cf the District Court of Magu in Civil Appeal No. 124 nf 1996 dated 10.9.96 be stayd pending the determina'on of the intended appeal 0 In additinni it is ordered that until the' daiermirition of the intended appeal, the disputed shamba should not be disposed of 0 The appliant should execute an undertaking for the due perfomance of the decree that will be binding upon him 0 It is soordered. . . H. R. NSEKELA JODG Date: 27th September, 1999 0 Coram B.M.K. MmiUa 1 DR Appellant: Ntumbangwanza Balindile - present Respondent: Madirisha Ng' hungu - Present in person., " B/C: Restituta Court: Ruling delivered this 27th day' of September, 1999 in, the presence of the respondent but in the abseOce of the applicant. AIWJ ', ": , M.K MNILLA 27.9.99 :............ DIS TRICT REG ISTRAR I hereby certify that this is a true copy 'xt the Original, DISThTQRR. IANZA