CIVIL APPLICATION NO 449 01 OF 2024 AYUBU ISSA KIDANGI VS PATRICIA ISMAIL MATOGO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 449/01 OF 2024 AYUBU ISSA KIDANGI......................................... ....................APPLICANT VERSUS PATRICIA ISMAIL MATOGO(As an administratrix Of the Estate of the Late Ismail Elisali Nkya)........................ RESPONDENT [Application for stay of execution of the Decree of the High Court of Tanzania at Dar es Salaam] (Kamuzora, dated the 29th April, 2024 in Civil Case No. 232 of 2022 RULING. 12th & 18thJuly, 2024 MWAMPASHI, J.A.: By way of a notice of motion predicated upon rules 11 (3),(4), (4A), (5) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant herein, Ayubu Issa Kidangi, has filed the instant application for stay of execution of the decree of the High Court of Tanzania, at Dar es Salaam, in Civil Case No. 232 of 2022, dated 29.04.2024, pending the hearing and final determination of his intended appeal. The application is supported by two affidavits, one affirmed by the applicant, Ayubu Issa Kidangi, on 27.06.2024 and the other sworn on the same date by the applicant's advocate one Mr. Mafuru Mafuru. In opposition, there is an affidavit in reply sworn by the respondent, Patricia Ismail Matogo. At the outset, before the hearing could commence, Mr. Peter Alfred Bana, the learned advocate for the respondent, rose to inform the Court that he was no longer resisting the application provided the applicant gives security for the due performance of the decree as may ultimately be binding upon him by way of a bank guarantee in the sum of Tshs. 1,120,000,000/= within thirty (30) days from the date the order is made. He also argued that the property on Plot No. 143, Block 43, LO No. 229444 situated at Mwenge area (the House), which the applicant has offered, in paragraph 9 of the supporting affidavit, cannot be accepted as security because it has already been decreed the property of the respondent by the High Court. To cement his argument that the said house cannot be furnished as security because it does not belong to the applicant, Mr. Bana referred me to the decisions of the Court in Sinani Building Constructors Limited & 2 Others v. CRDB Bank PLC (Civil Application No. 662/16 of 2022) [2024] TZCA 196 (19 March 2024; TanzLII) and Magreth Thomas Ofutu v. Matilda T. Philip & 2 Others (Civil Application No. 226/02 of 2024) [2024] TZCA 362 (16 May 2024; TanzLII). 2 Mr. Mafuru Mafuru, learned advocate, who appeared for the applicant, alongside Mr. Dickson Evans Mtogesewa, also learned advocate, welcomed the concession to the application by Mr. Bana. However, citing the case of Mohamed Masoud Abdallah & 16 Others v. Tanzania Road Haulage (1980) Ltd (Civil Application No. 58/17 of 2016) [2019] TZCA 198 (24 June 2019; TanLII), he argued that since the issue regarding security is in the discretion of the Court, the House offered by the applicant suffices to be furnished as security for the due performance of the decree. Mr. Mafuru contended further that, if the Court finds that the House in dispute cannot be furnished as security, then as averred in paragraph 10 of the applicant's affidavit, the applicant is ready to give any other security as ordered by the Court. With regard to the sum of the bank guarantee to be furnished, it was argued for the applicant that, for the interest of justice, the sum should not exceed Tshs. 720,000.000/= which was the outstanding loan amount in dispute before the High Court. In his brief rejoinder, Mr. Bana, insisted that the loan amount in dispute was Tshs. 1,120,000,000/= and not Tshs. 720,000,000/=. He also argued that interest of justice should be regarded for both parties. 3 As alluded to, at the inception of this ruling, the respondent is, in principle, not contesting the application. The only disagreement between the parties is on the type and quantum of the security to be given by the applicant for the due performance of the decree. The crucial point for my determination in this matter, is therefore, simply on the type of the security that should be ordered to be furnished by the applicant. First of all, I should agree with Mr. Mafuru that, it is in the discretion of the Court to determine the kind of the security to be furnished for the due performance of the decree. It is not for the parties to choose what should be furnished as security as a condition for the grant of an order for stay of execution of a decree. As observed by the Court in Junior Construction Company Limited & 2 Others v. Mantrac Tanzania Limited (Civil Application No. 24/16 of 2019) [2021] TZCA 416 (26 August 2021; TanzLII), it would certainly be disrespectful and arrogant for a party to arrogate to himself such powers and purport to determine what security is to be given for purposes of rule 11 (5) (b) of the Rules. It should also be pointed out that, under the circumstances of this case, the House offered by the applicant, cannot be accepted to be given as security for purposes of rule 11 (5) (b) of the Rules. As correctly argued by Mr. Bana, apart from the fact that the House offered by the applicant 4 is at the centre of the dispute between the parties, the same has already been decreed to belong to the respondent. See- Sinani Building Contractors Limited (supra). As the House offered by the applicant cannot be furnished as security for the due performance of the decree as above held, the remaining viable type of security, under the circumstances of this case, is a bank guarantee as suggested by Mr. Bana. With regard to what should be the sum of the bank guarantee, I have gone through the High Court judgment and observed that the High Court found it proved that while the loan amount advanced to the applicant by the respondent was Tshs. 1,120,000,000/=, it was only Tshs. 20,000,000/= which was repaid by the applicant. That being the case, based on the findings of the High Court, the outstanding balance is Tshs. 1,100,000,000/=. It is also clear, in the High Court judgment, that, as agreed by the parties, the applicant having failed to repay the outstanding loan amount, the House was deemed to have been sold to the respondent and the applicant was ordered to surrender the House to the respondent. The applicant has not yet surrendered the house to the respondent as ordered by the High Court and he is thus, still in occupation of the House. 5 All said and done, as stay of execution of the decree is not contested, as earlier alluded to, and in consideration of what have been discussed above, I am satisfied that the application has merit. The application is thus, hereby granted. Accordingly, the execution of the decree of the High Court of Tanzania, at Dar es Salaam, in Civil Case No. 232 of 2022, dated 29.04.2024, is stayed pending the hearing and final determination of the applicant's indented appeal. However, this stay order is conditional upon a deposit of a bank guarantee of the sum of Tshs. 1,100,000,000/= to the Court by the applicant within sixty (60) days from the date of the delivery of this ruling. Costs to be in the cause. It is so ordered. DATED at DAR ES SALAAM this 17th day of July, 2024. A. M. MWAMPASHI JUSTICE OF APPEAL The Ruling delivered this 18th day of July, 2024 in the presence of Ms. Sia Ngowi, learned counsel for the applicant and Mr. Mwesigwa Ishengoma, learned counsel for the respondent, is hereby certified as a true copy of the original.