19930310 TZCA Dar es Salaam
- Citation
- 19930310 TZCA Dar es Salaam
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TZCA
- Decision
- 10 March 1993
- Posture
- Application for Stay of Execution / Post Judgment, Pending Appeal
- Language
- English
More details
- Court
- TZCA
- Decision
- 10 March 1993
- Posture
- Application for Stay of Execution / Post Judgment, Pending Appeal
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The respondent is ordered not to execute rights consequent upon the declaration of ownership pending appeal to prevent further developments and minimize prejudice.
Court disposition
application granted in part
Orders
- Respondent is restrained from making further developments to the site pending appeal.
- Respondent is ordered not to execute rights consequent upon the declaration of ownership.
02
Material facts
Parties
Applicant
Applicant Counsel: Mr. IsmailRespondent
Respondent Counsel: Mr. Mohora03
Procedural history
Posture
Application for Stay of Execution / Post Judgment, Pending Appeal
04
Questions and positions
Legal issues
- 01
Whether the respondent should be restrained from making further developments to the site pending appeal
- 02
Whether granting the stay amounts to eviction
Party arguments
- Applicant
- Applicant seeks to restrain respondent from making further developments to the site, arguing that the application for stay of execution is essentially one for eviction.
- Respondent
- Respondent argues that a stop order from the City Council is already in place pending settlement of the dispute and that she is in physical possession of the premises.
05
Court’s reasoning
Legal principles
- 01
Court's reasoning
In cases involving real property, it is proper that no further developments be effected pending appeal.
06
Ratio, limits and disposition
Ratio decidendi
The respondent is ordered not to execute rights consequent upon the declaration of ownership pending appeal to prevent further developments and minimize prejudice.
Obiter and limits
- Granting the application does not amount to eviction but minimizes the bluntness of the blow if the applicant succeeds.
- The probability of success on appeal is not considered.
Court disposition
application granted in part
- Respondent is restrained from making further developments to the site pending appeal.
- Respondent is ordered not to execute rights consequent upon the declaration of ownership.
Source and reliance status
TZCA · 10 March 1993
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Judgment reading view
Judgment text
The complete available source text.
TZCA
Judgment· 10 March 1993
RULIMO ... . i' l :f~J J ,A-I ,, _,_':S.~>:I T~. ai;,plioant, .••.•••/2 .,. : ~ l .,. ,.r.: ..... 2 ,,- /'· ~~ ~~c:;_... • a ~ses. He e.ro,ed tl1a.t an application forLstey of exeo1.1:tion is ' in .eality one for eviction. • Ur, Mohora: replied that 8:.t the :.:Iigh Court there was elready (i ex;.sting a. atop orcler :from the DJ.ilcling Authority pending the · set:tlement. of tl!e disp.ite. From the l)ieadin[;'S at the I!i.~11·· Court it is obviou8 t~t tl1e re.epolld.ent has been in pb;yaical possession of the premises a.11d. '' infa.ot was erectir.-3 a builcling on it• Hot-iever, once the cl.isrute started there 1-1a.s a stop order issued on 3oth ne.rch, 1989, as l\lr• Mchora said; from t!1e City Council ( ~ . D3). So tho~ ou,L,;ht ,_:; ~:. ·" net to have been carried out aJry clevelopmc11t before the jucl{.;ment. ~- '\' ; : ~' . .' ; ..'); In this application w:1at t'.1e a)?plicant is pra;ying for is -l/L that the respam.lent be restrained from r,1akin,g further develoJ_A,-ients to the site, presu:.,ably after t~1e juc1J,ierr',;, ~UC:ing the termina-'i:ion of the a.P:r:eal tl1e J:ireparation of w.!1ioh is at a.n aP-vanced st~e. Admittedly Hr. Ismail· is ri;;ht that t)l8 arrilica.nt had sued fox- a. dellaration that s:1e is the o"l'mer of tile plo-t. The effect of l~, grantine tha'li ort'.er was to evict the res~:,ondent and to stop all th~ '-'··~ ;, l , ·C) developments
tl1at she had ,under-talcen al"IP. e1t:1er the a.11r,li.eant tiere tJ to Q!ll~nsa.te the respondent or that the latter ware to l.elilolish her (·'iP,, develepnents. ~ J If I {;Tant this arplioati.on the;.1 I ui.11 not be evioti11g tl1e respandent ou.t I will minimi.so the bluntneG$ of the. blow tl1a.t will be cia11sed in case the ar,plica.nt I s ar,~ a.l succeecls ·• I will not &;o into the probability or otherwise~ of tlJ.a,t suooess. I do not have .- tt se,y that ~ t~liS oe.se involves real i:iroperty then it is ::.,ro~r tha.'t no further developments be effected l'lOn~ing the a,ppeal. So the ·responclent is ordered no·t to exeoute the ri@1ts whioh " are 00nsecruent uwn the declaration tha:t she is the right:f'L.ll. QWlter• •.' 1•. I.';, ,.' • • I certi~r t1~a~:.t;~s • \'. l ; \ .(- .."'·.,;~•. \ -~~· \ '. () . \,•.•' •'• • t,, _•;••. ( •'!.·•·. t > .
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