CIVIL APPLICATION NO AUREKECOMPANY LTED VS ANTHONY PASTOR BIZULU

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION No. 135/17 OF 2023 AUREKE COMPANY L T D .......................................-........ ....... APPLICANT VERSUS ANTHONY PASTOR BIZULU............................................... RESPONDENT (Application for Stay of Execution from the decision of the High Court of Tanzania, Land Division at Dar es Salaam) (Mqevekwa,JJ dated the 30th day of November, 2022 in Land Case No. 242 of 2021 RULING 6th & 9th August, 2024 MASOUD. 3. A.: The applicant lost in Land Case No. 242 of 2021 which she filed against the respondent, among others, and of which the respondent had counterclaimed against her. At the heart of the controversy in the trial court was the disposition in the favour of the respondent of property in Plot No. 1073 Block "K" located at Mbezi Area within Dar es salaam region which the applicant had mortgaged to Azania Bank Ltd for a loan. i Aggrieved by the decision of the trial Court which dismissed her suit on 30th November 2022, the applicant lodged in this Court a notice of appeal on 1st December, 2022. In the meantime, the respondent has commenced execution proceedings (i.e Execution No. 10 of 2023) of a decree obtaining from the afore said decision that dismissed the applicant's suit. Thus, the applicant was on 27th February, 2023 duly served with a notice of execution. Upon being served with the notice of execution as afore said, the applicant lodged the instant application essentially under rule 10(3) of the Tanzania Court of Appeal Rules, 2009 (the Rules), seeking to stay the execution. The application is supported by a joint affidavit of two directors of the applicant and is opposed by an affidavit in reply of the respondent. When the application was called on for hearing, the applicant appeared through Mr, Alex Enock, learned advocate, while the respondent was represented by Mr. Tumaini Shija, also learned advocate. Both learned advocates adopted the affidavits and written submissions of the parties in support of their arguments for and against the application respectively. It subsequently in the course of hearing became clear that the controversy between the parties on the instant application was on the security for due performance of the decree that the applicant intimated to furnish. There was seemingly no controversy that the application was preferred without undue delay and thus within fourteen (14) days of being served with the notice of execution, that it was accompanied by copies of relevant documents, and that it was necessary to prevent substantial loss that may result to the applicant if stay is not granted. As he was expounding in the written submission in support of the application lodged in the Court, Mr. Enock informed the Court that the applicant was equally willing to furnish any form of security as may ultimately be directed by the Court. Upon being probed further on the latter, the learned advocate was categorically firm that the applicant would equally be pleased to furnish security in the form of bank guarantee for a total sum of TZS. 438,000,000/- if it is so directed. On his part, Mr. Shija welcomed the undertaking to furnish the said bank guarantee for the said sum without any objection whatsoever. He added that the sum corresponds with the purchase price the respondent had paid for the purchase of the disputed property. 3 On my part, I have considered the application before me in the light of the provisions of rule 11 of the Rules and in the light of what the parties have agreed upon through their respective learned advocates. I am satisfied that the application was lodged within fourteen (14) days, and it was accompanied by copies of all relevant documents. I am also satisfied that the applicant has shown in the affidavit in support that she is likely to suffer substantial loss if the sought order is not granted. Since the respondent has no objection to the application being granted if the applicant furnishes a security in the form of bank guarantee for a sum of 438,000,000/-, which sum reflects the sum that the respondent claims to have spent in purchasing the disputed property, I find no reason to decline considering granting the application on those terms. It is settled that for the Court to make an order staying execution, an applicant must meet all the requirements found under rule 11 of the Rules, which include cumulatively meeting the conditions found under rule ll(5)(a) & (b) of the Rules. In the case of Africhick Hatchers Ltd v. CRDB Bank PLC (Civil Application No. 98 of 2016) [2019] TZCA 148 (15 March 2019), it was in particular stated that: No order for stay of execution shall be made under this rule unless the Court is satisfied that;(i) substantial loss may result to the party applying for stay of execution unless the order is made;(ii) that the application has been made without unreasonable delay and;(iii) that the security has been given by the applicant for due performance o f such decree or order as may ultimately be binding upon them. With the foregoing position of the law and having been satisfied that the applicant has indeed met the requirements relating to application for stay of execution and cumulatively met the conditions under rule ll(5)(a) and (b) of the Rules, I am prepared to grant the sought order as agreed upon by the parties in their oral submissions. For the reasons stated above, the application has merit and is hereby granted. Consequently, the execution of the decree of the High Court dated 30th November, 2022 in Land Case No. 242 of 2021 is hereby stayed pending hearing and determination of the intended appeal on condition that the applicant deposits in the Court within thirty days of the delivery of this ruling a bank guarantee for the sum of TZS. 438,000,000.00. The said guarantee shall remain in force until full hearing and determination of the intended appeal by this Court. In the event of default, the order of stay shall lapse automatically. I do not in the circumstances make any order as to costs. DATED at DAR ES SALAAM this 7th day of August, 2024. B, S. MASOUD JUSTICE OF APPEAL The Ruling delivered this 9th day of August, 2024 in the presence of Mr. Tumaini Shija, learned counsel for the respondent also holding brief for Mr. Alex Enock, learned counsel of the applicant, is hereby certified as a true copy of the original. 6