CIV

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 279 OF 2025 ARON TUTUS KAGUIRUMJULI................................................... APPLICANT VERSUS JIJI CO-OPERATIVE SAVINGS AND CREDIT SOCIETY LIMITED........................................ RESPONDENT (Application for Stop Order pending determination of the Appeal against the decision of the High Court of Tanzania (Land Division) at Dar es salaam) (Msafiri, J.) dated the 31st day of May, 2024 in Land Appeal No. 27780 of 2023 RULING 3rd & 7Ml March 2025 MANSOOR. J.A. The applicant seeks a stop order to restrain the respondent from disposing a suit landed property (farm) measuring ten acres located at Bigwa Village, Mkuranga District, Pwani Region, by way of sale through an auction. The application is brought by Notice of Motion supported by an affidavit of the applicant one Aron Tutus Kagurumjuli. The application is preferred under Rule 4(2)(a)(b) & (c), and Rule 11 of the Court of Appeal Rules, 2009. The brief background of this application is that; both the applicant and respondent herein purchased a piece of land from one Bakari Abdallah Pogola. Whereas, the applicant was the first one to purchase the piece of land from Bakari Abdallah Pogola in which according to the applicant he purchased 10 acres of land in consideration of TZS 11,000,000/= which was paid in two instalments of TZS 3,000,000= and TZS 8,000,000/=. the respondent also claimed to have bought the suit land from Bakari Abdallah Pogola measuring 10 acres for a consideration of TZS 24,000,000/=. The said Bakari Abdallah Pogola who testifies at the trial court as PW3, admitted to have sold the pieces of land to both the applicant and the respondent. However, he testified that he sold 10 acres of land to the respondent while he only sold 1 acre of land to the applicant. He further testified that the applicant has encroached the respondent's land. The trial tribunal decided in favour of the applicant in Land Application No. 21 of 2018 which the applicant instituted claiming to be declared the owner of the disputed suit land. Dissatisfied with the trial tribunal's decision, the respondent appealed to the High Court through Land Appeal No. 27780 of 2023, in which Msafiri J, declared the respondent herein to be the legal owner of the disputed property. Dissatisfied with the High Court decision, the applicant lodged his notice of appeal dated 6th June, 2024 before this court aiming to challenge the decision of the High Court. Further, the applicant was served with a notice of auction dated 22nd January, 2025, accompanied with approval letter for auctioneering the suit property. To prevent the respondent from disposing the suit property, the applicant has filed this instant application. During hearing of this application, the applicant was represented by Counsel Deogratius Mwarabu, while the respondent employed the services of counsel George Kato Mushumba. In his submission, counsel Mwarabu opted to adopt the sworn affidavit of the applicant Aron Tutus Kagurumjuli. He further narrated the events that led to this application. The applicant's counsel went on to submit that, the applicant has lodged his notice of appeal, however other documents for the appeal are not yet to be supplied. That the applicant has preferred this application under Rule 4 of the Court of Appeal Rules, 2009, on the reason that, the respondent has initiated sale of the suit property which means he has initiated the process of execution outside the court. That, the applicant is not served with the notice of execution as the respondent has not filed a formal application for execution, that's why the applicant invokes Rule 4 of the Rules as to carter for the unprescribed procedure under the Rules. That, the applicant has become aware of the process of auctioning the suit landed property on 5th February 2025. That, the respondent has admitted in paragraph 5 of the reply affidavit to have not filed the execution as she does not need to apply for one as she has already been declared an owner. He further submitted that, the applicant is ready to furnish security for the dlue performance of the decree as shall be directed by the court. Applicant's counsel, submits that the applicant stands to suffer substantial loss and the subject matter of appeal will be pre emptied. Applicant's counsel further disputed the contents of paragraph 6 of the reply affidavit where the respondent avers that she has already obtained approval for selling the disputed property from the Registrar of Co-operative Society. It is the applicant's counsel arguments that the Registrar of Co-operative Society cannot execute orders of the court. He further prayed for the orders set in notice of motion to be granted regarding para 7 of the affidavit in reply which the respondent said the landed property belongs to the applicant. In reply, counsel for the respondent opposed the application, he adopted the affidavit in reply and prayed for paragraph 7 of affidavit in reply, which state the property belongs to the applicant, to be regarded as typing error. He further submitted that, the notice of motion seeks to restrain the respondent to sell plots of land situates at Bigwa, however, the plots are neither mentioned in the notice of motion nor in the affidavit thus the applicant seeks a stop order for undescribed land, the prayers are ambiguous as the court will issue order to the land which is unknown. Respondent's counsel further submitted that, the applicant seeks for a stop order pending the appeal in this court while the notice of motion has not stated the number of the appeal currently pending in the court. That the status of that pending appeal is not stated. Further that, the copy of the memorandum of appeal is not annexed in this application. Respondent's counsel contend that the applicant has preferred this application under Rule 4(2)(a)(b)(c), however the application is made under Rule 11 in disguise as the applicant seeks for stay of execution. He further argued that, the applicant has not fulfilled the conditions under Rule 11(5) on the issue of security as it is not stated in the affidavit and the counsel has only said that they are ready to furnish security. Counsel Mushumba went on to argue that the applicant has failed to demonstrate the substantial loss as there is no details or particulars to that effect. He further argued that paragraph 6 of the affidavit has not stated on how the sale of landed property will affect the imaginary appeal. Counsel Mushumba, further submitted that, the main aim for stop order is to preserve the status quo which in this case the land was declared to be the property of respondent. Thus, the order sought by the applicant is to stop the respondent from enjoying the fruits of judgment. That the applicant did not say that he intends to challenge ownership, thus the order cannot be granted on the facts which are not stated in the affidavit. Counsel Mushumba finalised his submission by arguing that, there is no need to come to court when you don't need assistance of the court, as there is declaration order thus the respondent do not need to seek court's assistance and the stated approval is just administrative one. He prayed for the application to be found incompetent and misconceived and thus to be dismissed with costs. Rejoining, Counsel Deogratius Mwarabu, argued that, even the decree of the High Court does not mention the plot number. That even the announcement for the auction and the approval only mentions shamba at Bigwa. He also admitted to have missed the word intended. He further argued that the application is competent before the court as the meaning of execution is wide that is why they have moved the court under Rule 4(2) of the Court of Appeal Rules thus, the respondent needs assistance of the Court. On the issue of security counsel Mwarabu retaliate his submission in chief arguing that, even though it is not stated in the affidavit the applicant is ready to furnish security. That, they have stated in the affidavit that, if the order will not be granted the applicant will suffer substantial loss. Counsel Mwarabu prayed for the application to be granted. After going through the rival submissions for and against this application, the question for determination is whether this application has merit. The applicant has referred this application under Rule 4(2)(a)(b) and (c) together with Rule 11 of the Court of Appeal Rules. The question is whether the application is brought under the proper provision. The applicant's counsel argue that he has opted to use Rule 4 as the respondent has not filed a court execution which would align with the provisions of Rule 11. The respondent rebutted that posing saying the application is brought under Rule 4 in disguise with Rule 11. Rule 4(1) & (2) of the Court of Appeal Rules 2009, provides that; "4. -(!) The practice and procedure o f the court in connection with appeals, intended appeals and revisions from the High court in relation to review and reference; and the practice and procedure o f the High court and tribunals in connection with appeals o f the court shall be as prescribed in these rules or any other written law, but the court may at any time, directa departure from these Rules in any case in which this is required in the interests o fjustice. (2) Where it is necessary to make an order for the purposes of- (a) Dealing with any matter for which no provision is made by these rules or any other written laws. (b) Better meeting the ends o fjustice; or (c) Preventing an abuse o f the process o f the court, The court may on application or its own motion, give directions as to the procedure to be adopted or make any other order which it considers necessary." It is undisputed that, there is no any execution that has been filed by the respondent in court for the execution of the decree. Thus, the applicant would not have satisfied the requirement of Rule ll(7)(d) which requires the applicant to annex a notice of intended execution which in our case does not exist as the respondent has not filed execution in court. Thus, I would agree with the applicant that it was proper to have instituted this application under Rule 4 together with Rule 11 of the Rules as the Court is granted the power to depart from the Rules or to determine the application for the better meeting the ends of justice. Regarding as to whether the applicant has demonstrated good cause for this court to grant stop order as prayed, Rule 11 guides as what the applicant must satisfy the court before granting the order. Good cause has also been demonstrated in the case of Paula David Kifaru vs Karim Shahbudin Ally, Civil Application No. 174/01 of 2017. In his application, the applicant has stated that the respondent has already issued a notice of conducting an auction for selling the suit property, facts which were not denied by the respondent who believes he has a right to enjoy the fruits of the judgement and decree. From the facts collected it is also undisputed that, the respondent has already taken possession of the suit property and that's why he wants to dispose the property. It is also undisputed that the applicant has already filed his notice of appeal as the notice was attached to this application. It is the respondent's argument that the appeal is not filed and does not exist as the applicant did not annex the memorandum of the said appeal. It is my view that the notice of appeal filed by the applicant suffice to show that the applicant has intended to file his appeal, thus there was no need to attach the memorandum of appeal as alleged by the respondent. The applicant stated that he will suffer irreparable loss if the respondent will not be restrained from disposing the property. The respondent is of the view that the applicant has not substantiated the loss to be incurred. I agree with the applicant that, there is enough explanation in the affidavit of the applicant on how the applicant will be affected with the sale of the suit property, as he stated under paragraph 6 of his affidavit that, if the respondent is not stopped from selling the property, then the hearing and determination of the intended appeal will be prejudiced. I agree with the applicant that, if the property will be sold then the intended appeal will be rendered nugatory as the main subject matter of appeal would have been disposed. The applicant depose that he is ready to furnish security as directed by the court. It is my opinion that, since the subject matter is immovable property, the applicant must commit himself to provide a commitment bond that will relieve the respondent for him to satisfy the decree in case the appeal will be dismissed. The rationale of furnishing security was also observed in the case of Rose Benedict v. Janet Evarist Njau and Others, Misc. Civil Application No. 311/02 of 2024[2024] T7CA 508 (27 June, 2024; TANZLII) where it was observed; "I have a/so taken into account the fact that in the event that the intended appeal fails, there is nothing which shaii specifically be required to be performed by the applicant in as long as the status quo o f the suit properties shall remain as they were. The risk related to the status quo can; in my humble view, be sufficiently secured by an order requesting the applicant to submit a commitment bond to that effect In Mohamed Masoud and 16 Others v. Tanzania Road Haulage (1980) Ltd (Civil Application No. 58/17 o f 2019) [2019] TZCA 198 (17th June, 2019) where, as in the instant case, the subject o f the intended appeal was a landed property, it was held that the security requirement would be fulfilled by the applicant upon furnishing a commitment bond guaranteeing that the suit property would remain in the same condition as it was at the issuance o f the decree," In conclusion, the respondent is ordered to stop selling the disputed landed property (Shamba) situated at Bigwa Village, Mkuranga District, Pwani Region. I also order the parties to must maintain the status quo of the subject matter of the intended appeal until the intended appeal « is determined. The applicant shall furnish a Commitment Bond committing himself not to do anything on the landed property until the intended appeal is finalized. The Commitment Bond shall be deposited in Court within 30 days from the date of this Ruling. DATED at DAR ES SALAAM this 7th day of March, 2025 L. A. MANSOOR JUSTICE OF APPEAL The Ruling delivered this 7th day of March, 2025 in the presence of Mr. Deogratus Mwarabu, learned counsel for Applicant and Mr. George Mushumba learned counsel for the Respondent, is hereby certified as a true copy of the original. F. ATMTARANIA DEPUTY REGISTRAR COURT OF APPEAL