RULING OF AUGUSTINO MWAKABENDE

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY

AT MBEYA MISCELLANEOUS LAND APPLICATION NO. 1063 OF 2025 CASE REFERENCE NO. 202501161000001063 AUGUSTINO ADAMSON MWAKABENDE ................................... APPLICANT

VERSUS ANTHONY EDWIN MWAKALOBO ..................................... 1ST RESPONDENT ENELISA IKULIKA ........................................................... 2ND RESPONDENT

RULING 31st January & 10th February 2025 NONGWA, J. The applicant is seeking stay of execution of the decree in Application No. 4 of 2023 of the District Land and Housing Tribunal for Kyela. It is made under sections 68(e), 95 and Orders XXXIX rule 5(3) of the Civil Procedure Code [Cap 33 R: E 2019] “the CPC”. The application is supported by an affidavit of Ezekiel Mwampaka, the applicant’s advocate and opposed by a counter affidavit of the first respondent. The second respondent did not file counter affidavit. Facts of the matter is that parties had a land dispute in the District Land and Housing Tribunal for Kyela registered as Application No. 4 of 2023. It was decided in favour of the respondents. Discontent with the judgment, the applicant has filed Land Appeal No. 529 of 2025 pending 1 in this court. It is alleged that the respondent has initiated self execution by harvesting cocoa, cutting trees and cultivating the land right from the date of judgment. The applicant has filed this application to restrain the respondent to execute the decree on ground that the applicant’s cash flow and business will be impaired and that he stands overwhelming chance to succeed in appeal. When the application came up for hearing, the applicant was represented by Mr. Ezekiel Mwampaka, learned counsel. The respondents defaulted appearance on date of hearing, as the matter was filed

under certificate of urgency, I ordered hearing to proceed ex-parte. Due to Law Day activities, I ordered the applicant to file written submission. Dutifully complied with the order. In his submission, Mr. Mwampaka adopted the affidavit in support of the application. He submitted that the respondents and their agents, privies or whomsoever acting on their behalf are forceful evicting, cutting trees, reaping fruits as one way of executing decree of the impugned judgment, the appeal of it is pending before this court and is scheduled on 5th March 2025. It has been submitted that the applicant will suffer irreparable loss if execution proceeds before the appeal is determined because the respondents will not be able to atone the applicant by way of 2 damages. Adding that the disputed land includes the residential house where the applicant lives with his family since 1991 and if execution is carried the family will become homeless. Further submission is that the application has been made promptly as the tribunal decision was handed down on 30th December 2024 and this application filed on 13th January, 2025 which is six days after supply of the judgment. Mr Mwampaka cited the case of Pro Shares Capital Limited & Others vs Aisri Tanzania Limited & Another, Misc. Civil Application No. 8 of 2022 [2022] TZHC 1101 (28 January 2022; TanzLII) and Felix Emmanuel Mkongwa vs Andrew Kimwaga,

Civil Application No. 249 of 2016 [2020] TZCA 333 (9 June 2020; TanzLII) on position of the law that to grant stay order the applicant must satisfy that, the application was filed within a reasonable time; he will suffer substantial loss if the order is not granted; and he has furnished security for due performance of the decree sought to be stayed and that the conditions have to be cumulatively complied. Finaly, counsel prayed the application of stay be granted as prayed. I have examined the chamber summons, the supporting affidavit and considered the written submission advanced by the learned counsel on behalf of the applicant. From the affidavit, counter affidavit and 3 argument advanced the only issue for my determination is whether the application has merit or otherwise. Before sailing to the merits of the application, I find compelled to discuss a legal point raised by the first respondent in his counter affidavit that there is nothing to be stayed by this court. If I understood him, meant no execution has been filed. Under Order XXI rule 24(1) and XXXIX rule 5(1) of the CPC, stay of execution can be made when there is execution proceedings of the decree. However, it is not in every circumstance decree is executed with the assistance of the court, it depends on difficulties in realizing the decree and subject matter of the decree. For instance, in decree for possession of

land under Order XXI rule 33(1) of the CPC, it is not necessary to involve the court, order of possession of the land suffices to put the decree holder into possession. In Ibrahim Twahili Kusundwa Another vs CRDB Bank PLC Others, Civil Appeal No. 194 of 2021 2024 TZCA 7 (19 January 2024; TanzLII) stated; ‘A decree-holder need not seek the assistance of the court to execute a decree in his favour if he can do so peaceably. Put differently, if the decree can be satisfied smoothly without any breach of peace or violence occurring, the decree-holder can proceed to enforce the decree singly. Depending on the nature of the subject-matter and the disposition of the judgment- debtor, execution of a decree may not require an order of the court.’ 4 See also Shell and BP Tanzania Limited vs University of Dar es Salaam [2002] TLR 225.] There is no express provision under the CPC governing application for stay of execution in absence of application for execution. However, under the inherent powers section 95 of the CPC the court has power to entertain such an application to meet the end of justice. See Tanzania Electric Supply Company (TANESCO) vs Independent Power Tanzania Limited (IPTL) and 2 Others [2000] TLR 324 and UAP Insurance (T) Limited vs Yuda Thomas Shayo Others, Civil Application No. 61118 of 2022 [2024] TZCA 239 (25 March 2024; TanzLII). Back to the merits of application, it is

the law that in application of this nature powers to grant or refuse stay of execution is discretionary and the court has duty to balance interests of both the judgment debtors as well as decree holders. In Ecobank Tanzania Limited vs Double A Co. Limited and 3 Others, Civil Application No. 178/16 of 2021 [2022] TZCA 591 (29th September 2022, TanzLII) the Court echoed that duty in the following words; ‘The courts of law are dutifully bound to protect the rights or interest of the judgment debtors just as the rights and interest 5 of the decree holders deserve protection with equal force and means.’ In the case of Mekefason Mandali & Others vs Registered Trustees of Archdiocese of Dar es Salaam, Civil Application 491 of 2019 [2021] TZCA 4 (5 February 2021; TanzLII) the court of appeal cited with approval a passage of Justice C. K. Thakker (Takwani) in his book, Civil Procedure, 6th Ed., 2011 Reprint, Eastern Book Company, Lucknow, India, which comment on rule 5 of 0.41 of the Indian Code of Civil Procedure, 1908 Pari materia to Order XXXIX Rule 5 of the CPC which empowers an appellate court to stay execution of a decree. The author states as follow; ‘The object underlying Rule 5 is to safeguard the interests of both, the judgment - holder and the judgment - debtor. It is the right o f decree - holder to reap the fruits of his decree. Similarly, it is the right of the judgment -

debtor not merely to get barren success in case his appeal is allowed by the appellate court. This rule thus strikes a just and reasonable balance between these apposing rights.’ In making sure that justice is done to both parties, the law has put in place conditions which have to be fulfilled by the applicant before granting order of stay of execution. Relevant to our case is Order XXXIX rule 5(3) of the CPC which put three conditions to be satisfied. It provides; 6 ‘No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the High Court or the court making it is satisfied that- (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.’ To be noted is that the above conditions have to be cumulatively met by the applicant. In Ongujo Wakibara Nyamarwa vs Beatrice Greyson Mmbaga, Civil Application No. 200 of 2021 [2022] TZCA 732 (21 November 2022; TanzLII) the court stated; ‘It is trite law that, in order for the Court to grant the application for stay of execution all the three conditions must be cumulatively fulfilled.’ Thus, in this application, I will discuss the three conditions for grant of

stay order and see if the applicant has satisfied all. I opt to start with the second condition on making the application promptly. Mr. Mwampaka has submitted that application was made within six days of supply of the judgment. In my reading of the CPC there is no time limitation for filing 7 application for stay of execution. Order XXXIX rule 5(3)(b) of the CPC itself uses the phrase “without unreasonable delay”. Through the judgment attached to the affidavit shows was delivered on 30th December 2024, and this application filed on 13th January 2025, that is within fifteen days of delivery of judgment. On that accord the application is made promptly and without delay. This is amplified by the fact that there is no any execution filed by the respondent. Coming to the first condition that substantial loss must be established. In his submission Mr. Mwampaka has submitted that the applicant stands to suffer irreparable loss which will not be atoned by damage particularly that the land in dispute is built a residential house where the applicant is living with his family. Unfortunately, this statement is not reflected in the affidavit. Time without number it has been emphasized that submissions are not evidence but elaboration of what is found in evidence. In Mashapale African Gold Co Ltd vs Adon Adolf, Civil Application No. 1079 of 2024 [2025] TZCA 7 (17 January 2025; TanzLII) the

court stated; ‘The Court has always emphasised that submissions are not evidence, as is the case with the contents of the affidavits. Therefore, any fact claimed must be proved .... Written submissions are for further explanation of what has been 8 averred in the affidavit or evidence led in court or to elaborate more on the legal position.’ In that sense submission that the disputed land comprises of the residential house of the applicant and his family is living there is statement which needs no consideration by a court of law. On averment that the respondent has entered the land and started to reap cocoa, cut trees and cultivate the land as deponed under paragraph 8 of the affidavit, it falls short of establishing substantial loss. The applicant ought to provide detailed account of the loss likely to be suffered to the satisfaction so that the court exercises its discretion and grant stay order. In the case of Tanzania Cotton Marketing Board vs Cogecot Cotton Co. SA [1997] TLR 63 the court stated that: ‘That the applicant had not gone beyond mere assertion that it would suffer great loss and that its business would be brought to a standstill. Unless details and particulars of the loss were specified there was no basis upon which the Court could satisfy itself that such loss would be incurred.’ The court also cited the Indian Case of Bansidhar v Pribhu Dayal [1954] AIR 41 Raj

where it was stated; ‘It is not enough merely to repeat the words of the Code and state that substantial loss will result; the kind of loss must be 9 specified, details must be given, and the conscience of the court must be satisfied that such loss will really ensue.' In this application apart from the applicant mere statements that he will suffer substantial loss, no particulars of the loss were stated. I take note that cocoa and trees is for commercial purpose, not consumptions by people. But cultivating the land may be for both agricultural produce for human consumption and commercial crops, it is not stated how the applicant will be affected if the respondent cultivates the land as part of the enjoyment of the decree. Last condition is providing security; the applicant did not make any statement regarding this requirement. Principally security is provided so as to protect the respondent from facing difficulties or impossibility of realising the decree in case the intended appeal fails. In Africhick Hatchers Limited vs CRDB Bank Plc, Civil Application No. 98 of 2016 [2019] TZCA 149 (15 March 2019; TanzLII) the Court stated the importance of security in the following terms; ‘Of course; most important is the fact that the respondent should not find it difficult or impossible to realize the decree in case the intended appeal fails. This is the cornerstone of the requirement for

security. In such circumstances, the Court is principally 10 obliged to figure out whether or not any one particular mode of security vouchers risks on the part of the respondent.’ In dispute is the land, thus security need not be in form of money, in such situation the applicant must provide firm undertaking to execute a commitment bond to maintain the status quo of the premises. In Suleiman Yusuf Ali vs Sultanali Abdalla Gulamhussein, Civil Application No. 421/15 of 2018 [2019] TZCA 452 (17 October 2019, TanzLII) the court stated; ‘a firm undertaking to execute a commitment bond that the suit property would remain in the same condition as it was at the time when the decree was passed, was a sufficient security for the purpose of compliance with the condition. At hand the applicant has not made any statement for his commitment to provide security. Absence of willingness on party of the applicant at least to maintain status quo of the suit property, the court cannot risk itself to grant stay order to the detriment of the decree holder. 11 From discussion above, the applicant has failed to meet cumulatively conditions for grant of stay order, that is the failure to state or establish substantial loss and willingness to furnish security in performance of the decree. Consequently, this application fails and it is hereby dismissed. Owing the circumstance of this application I order no costs. V.M NONGWA

JUDGE 10/2/2025 Dated and Delivered at MBEYA this 10th day of February, 2025 in presence of the Applicant and Mr. Ezekiel Mwampaka for the Applicant and absence of the Respondents. V.M NONGWA

JUDGE 12