CIVIL APPLICATION NO 1283 OF 2024 AGRIPINA BALANZIZE VS VICTOR MATHIAS MALEMA

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM CIVIL APPLICATION NO. 1283 OF 2024 AGRIPINA BALANZIZE.............. .............................................. APPLICANT

VERSUS VICTOR MATHIAS MALEMA................................................... RESPONDENT (Application for Stay of Execution of the Judgment and Decree of the High Court of Tanzania (Land Division) at Dares Salaam) (Luvanda,J) dated 26th day of September, 2024 in Land Case No. 174 of 2022

RULING 29th November, 2024 -14* Jan, 2025 FIKIRINI, J.A.: The Court is considering the application made through a notice of motion, pursuant to rules 11 (3), (4), (4A), (5) (a) & (b), (6), (7) (a) - (d) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The essence of the application is that the applicant, Agripina Balanzize, is seeking a stay of execution in satisfaction of a decree stemming from Land Case No. 174 of 2022. An affidavit deponed by the applicant supports the application. The respondent, Victor Mathias Malema, opposed the grant of the application and swore an affidavit in reply to that effect. Briefly, the basis of this application is the claim of ownership of an un-surveyed piece of land with a house (suit premises) located at Mbezi Juu, Kinondoni Municipality in Dar es Salaam. Whereas the applicant claims the landed property was hers, it being a matrimonial home, the respondent alleged that the applicant was a trespasser and unlawfully occupied the premises belonging to the respondent. Out of her claim, the applicant prayed to the court to be declared a lawful owner and order for permanent injunction restraining the respondent and/or their agents from trespassing, selling or otherwise disposing of the said property and costs of the suit. The respondent, by way of a counterclaim, prayed for a declaratory order that the applicant (then plaintiff)

is a trespasser and unlawfully occupied the suit premises; the orders for eviction should, therefore, be issued, payment of mesne profit, general damages, demolition of the structural building unlawfully constructed and costs of the suit. Upon hearing the parties and their witnesses and evaluating the documents, the trial judge decided in favour of the respondent. Aggrieved, the applicant preferred an appeal, prompting her to lodge a notice of appeal on 30th September, 2024. In the meantime, the respondent, on 31st October, 2024, lodged an application for execution which was registered as Application for Execution No. 27684 of 2024. The applicant was duly served on 13th November, 2024, hence the present application. The application was heard via video link on 29th November, 2024. During the hearing Mr. Erick Mgimba and Mr. Benjamin Mwakagamba both learned counsel appeared and argued the application for their respective parties. Both learned counsel adopted their filed documents and prayed that they form part of their oral submissions. Essentially, Mr. Mwakagamba did not object to the application being granted. He, however, pressed for the applicant's obligation to furnish security for the due performance as provided for under rule 11 (5) (b) of the Rules. He argued that, besides being a legal requirement, the applicant had committed herself in paragraph 13 of her affidavit

in support, indicating her readiness to provide security. He thus opposed the applicant's counsel submission, urging the Court to waive compliance to furnishing the security. His main reasons for this were that: one, the submission by the applicant's counsel seeking waiver was not part of the applicant's averment, making his submission being from the bar. Two, the counsel critiqued the case of Symbion Power LLC & Another v. East African Cables Ltd, Civil Application No. 214 of 2014 (unreported) as distinguishable to the facts in the present case, as in that case, it was a summary judgment. Besides the differing facts in the present case, the parties were heard before the court pronounced its judgment. He urged the Court not to consider the referred case favourably. Nonetheless, the Court could still grant the application upon the applicant fulfilling her commitment as averred in paragraph 13 of her affidavit and subject to valuation of the un-surveyed area to know its value. Mr. Mgimba welcomed the respondent's counsel's position of not opposing the grant of the application but maintained that furnishing security could be waived if the Court finds it appropriate. Responding to Mr. Mwakagamba's submission on valuing the property as a condition, Mr. Mgimba challenged the submissions as of counsel's own making as they did not feature in the affidavit in reply filed. Referring

specifically to paragraph 12 in the affidavit in reply, the counsel argued that is not what was covered in the said paragraph. With his short submissions in rejoinder, he urged the Court to grant the application with a waiver to furnish security for costs. The law is settled that grant of a stay of execution, and the checklist of the requisite conditions stated as provided under rules 11(4), (4A), (5) (a) & (b) and (7) (a) - (d) of the Rules should be satisfied cumulatively. See: Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported), Joseph Antony Soares Goha v. Hussein s/o Omary, (Civil Application No. 6 of 2012) [2013] TZCA 328 (8th May, 2013; TANZLii) and Ongujo Wakibara Nyamarwa v Beatrice Greyson Mmbaga, (Civil Application No. 200 of 2021) [2022] TZCA 732 (21st November, 2022; TANZLii). The rationale behind it is not complex to fathom that the decree- holder must not be deprived of the enjoyment of the judgment and decree in his favour, especially after the appeal has been concluded in that party's favour. In any application of this nature, the Court is compelled to balance the interests of the applicant, who is seeking the order for a stay of execution, and those of the respondent, who claims his land has been trespassed into and a house built thereon, leading to denying him it's use. Therefore, the Court has to be keen and observe that

the requirements as per the Rules and discussed in the above cited cases are fulfilled, which are: one, that the application for stay was filed within fourteen (14) days as required under rule 11 (4), two, that there is compliance to the requirement under rule 11 (5) (a) showing that substantial loss would be suffered if the application is not granted and three, in terms of rule 11 (5) (b) of the Rules, the applicant willingness to furnish security for the due performance, to avert the possibility of the judgment debtor to hinder the realization of the decree in the decree holder's favour in case the intended appeal fails. The first and second conditions have been met in light of the stated conditions. Dissatisfied with the judgment of the High Court in Land Case No. 174 of 2022, the applicant lodged her notice of appeal on 30th September, 2024. After the expiry of thirty days, the respondent moved the executing court by lodging an application for execution, of which the applicant was duly served on 13th November, 2024. A few days after the service, the application was lodged on 20th November, 2024. This was done within fourteen days prescribed under rule 11 (4) of the Rules. The applicant has equally been able to show the substantial loss to be suffered if the application is not granted, in compliance with rule 11 (5) (a) of the Rules, since she and her family reside in the

suit premises. In the present application, besides the respondent not contesting the grant, other factors have influenced the position taken, including the fact that the applicant currently lives in the suit premises with her family. This is not the first time the Court has faced a similar scenario. In the case of Sudi Seif Ngota {Administrator of the Estate of Seif Mohamed Ngota) v. Aloyce John Kazimbaya, (Civil Application No. 262/17 of 2019) [2021] 72CA 26 (18th February, 2021; TANZLii), the Court discouraged declining to grant a stay of execution to the applicant who was currently in occupation of the disputed property. Likewise, in Mapius Otieno v. Machimu Mayara (Civil Application No. 279/8 of 2024) [2024] TZCA 515 (2nd July 2024; TANZLii), again the Court considered being in current possession as of the date of the decree a factor in granting the stay of execution. The applicant undoubtedly has been in occupation ever since, and there is a pending appeal. In that light, declining to grant the application is illogical. The only issue for determination left is the condition provided under rule 11 (b) of the Rules, that the applicant furnishes security for the due performance. Even though the applicant indicated in paragraph 13 of her affidavit that she was ready and willing to provide security, during the application hearing, Mr. Mgimba seemed to have a change of mind. He

urged the Court to waive furnishing of the security requirement, the prayer objected to by Mr. Mwakagamba. The applicant's commitment is found in paragraph 13 of her affidavit, which I had an opportunity to review. The paragraph states thus:- "/ confirm and warrant that in the event the intended appeal fails, still I will be able to honour the decree in Land Case No. 174 o f2022 without any difficulty considering that I am residing in the said house for the due performance o f the decree, if at all this Court wiii deem necessary." From the paragraph, there is no doubt the applicant is ready to furnish security, even though the commitment insinuates that the Court could exercise its discretion and do away with furnishing security. In any application of this nature, the Court is compelled to balance the interests of the applicant, who is seeking the order for a stay of execution, and those of the respondent, who claims his land has been trespassed into and a house built thereon, leading to denying him it's use. The law under rule 11(5) (6) of the Rules is not specific on the type or amount of security to be furnished. Therefore, it is left to the Court, which has been vested with the discretionary power to grant a 8 stay of execution. However, the powers vested in the Court are to be exercised judiciously and according to the rules of reason and justice, not persona! whims. In

the application before the Court, the primary focus is that each case should be decided on its peculiar facts. The paramount consideration is whether there is a valid reason advanced to warrant waiver of the requirement under rule 11 (5) (b) of the Rules, the prayer advanced by the applicant. Frankly, I have not found a reason convincing me to waive compliance to rule 11 (5) (b) of the Rules. Neither in her affidavit nor in her counsel's oral submissions could he advance any reason. In my view, since the applicant's initial inclination was that she was ready and willing to furnish security, her commitment should remain in the absence of any explanation to the contrary. The cited case of Symbion Power LLC & Another (supra) relied on by the counsel for the applicant to beseech the Court to grant the application, as argued by Mr. Mwakagamba counsel for the respondent, the position I fully support, is distinguishable. In the referred case, the the issue was summary judgment, whereas in the present case parties were heard and their evidence evaluated before the judgment was pronounced. Moreover, the Court, in that application for a stay of execution before it, did not per se deal with the issue of whether the requirement to furnish security should be waived. The case, in my view, does not support the applicant's counsel's submissions. The prayer that the grant of the application be

without an order that security for the due performance be waived is declined. The way forward is for security to be furnished. Mr. Mwakagamba, in his submission on this aspect, implored that the area be surveyed to know its value, a position resisted by Mr. Mgimba. It was his submission that the assertion was not part of what was averred in paragraph 12 of the affidavit in reply. Paragraph 12 reads as follows: "Paragraph 13 is disputed I aver that it is the respondent who suffers from not residing in the premises, and as for the security for the due performance o f the decree, should the Court deem fit to grant it based on the value of the premises. "[Emphasis added] Based on the paragraph, it is evident that the respondent was suggesting a valuation of the premises. Otherwise, how could the value be determined without valuation? Mr. Mgimba's argument that the issue of the value of the property after the valuation was not featured and that what Mr. Mwakagamba submitted was of his own making, is unsupported. Value of any property is subject to valuation. This is more so when the landed property is unsurveyed, like the one in this application. All facts considered, I find the application meritorious and grant it, staying execution of the decree in Land Case No. 174 of 2022, with the condition, first, that the applicant shall not dispose of or alienate the disputed property in any

way. Second, instead of securing a bank guarantee, the option, in most cases, the applicant to file a valuation report that gives the value of the disputed landed property. The valuation report must be filed within sixty (60) days, pending the hearing and determination of the intended appeal. Costs in the application shall abide by the outcome of the appeal. It is so ordered. DATED at DAR ES SALAAM thisl^ day of January, 2025. P. S. FIKIRINI

JUSTICE OF APPEAL The Ruling delivered this 14th day of January, 2025 in the presence of Mr. Jacob Kahisi, learned counsel for the applicant and Mr. Simon Ntangwa, learned counsel for the respondent is hereby certified as a t