cocodacor general co ltd vs unyiha association limited another 2022 tzhclandd 47 24 february 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 03 OF 2022 COCODACOR GENERAL CO. LTD..................................APPLICANT

VERSUS UNYIHA ASSOCIATES LIMITED....................... 1st RESPONDENT CHARLES MPAMBA CHENZA............................ 2nd RESPONDENT

RULING Date of Last Order: 14/02/2022 Date of Ruling: 24/02/2022 A. MSAFIRI, J This is an Application for stay of execution under the provisions of order XXI Rule 27 and Section 95 of the Civil Procedure Code Cap 33 R.E 2019. The Application was brought under a Certificate of Urgency. The Court is being moved for the following orders; (i) That the execution order of the Kinondoni District Land and Housing Tribunal in Land Application No. 451 of 2020 which ended on 30th day of November, 2021 and judgment delivered to the parties on 24th day of December 2021 be stayed pending the determination of the appeal. (ii) Costs of this application be in the course. (iii) Any other relief this Honourable court deems fit and just to grant. In support of the application is the affidavit sworn by Jackson Oscar Komba, the advocate of the applicant. I । - . i The origin of this matter as per the court records and the pleadings, is the long term lease agreement which was entered between the parties to the land and structure therein for commercial purposes (herein suit premises). The applicant entered with the respondent a contract of six years from May 2018 to May, 2024 for a rent of TZS. 500,000/- per month. On 4th September, 2020, the applicant received a 14 days' notice from the respondents requiring the applicant to surrender the business premises from the land in dispute. As the result, the

applicant referred the matter to the District Tribunal. On 30th November, 2021, the District Tribunal delivered its Judgment in favour of the respondents. The applicant was dissatisfied hence filed an appeal before this court which is Appeal No. 03 of 2022 and subsequently has filed this Application for stay of execution. By the mutual consent of parties and leave of the Court, the Application was heard by way of written submissions. In support of the Application, Mr. Komba learned advocate for the applicant submitted briefly that the application for stay of execution has merit basing on the grounds that; the intended appeal raises strong arguable issues such that it stands a good chance of success, that, on a balance of convenience, there are good and sufficient grounds for the grant of stay of execution, that, common sense and a balance of advantage weigh in favour of granting the order of stay of execution and that, in the event of the intended appeal being allowed and the judgment and decree being reversed, the amount involves is so enormous that the respondent is unlikely to be able to refund it. Iu[l c 2 He prayed that basing on the applicant's affidavit and submission, the application for execution filed by the respondent be stayed pending the determination of Appeal No. 03 of 2022. Opposing the Application, Mr. Godfrey Alfred learned advocate for the respondents started

his submission by praying to adopt their counter affidavit as part of his written submission. Briefly, he stated that, he understands that the granting of stay of execution is within the discretion of the Court but that discretion should be done judiciously and the applicant must satisfy the Court with genuine and tangible grounds which are regarded as sufficient reasons for the Court to grant the application. He argued that the applicant has failed totally to establish and substantiate the sufficient reasons for this Court to grant him an order for stay of execution. He pointed that the respondents are the ones who will suffer if the application is granted because the applicant occupies the business premises owned by the respondents for her own benefit without paying any rent. That, despite having been ordered by the District Tribunal to vacate the premises and pay the rent arrears to the respondents, he has refused to do so. Mr. Alfred requested that, if this Court will feel like granting the stay of execution, let the applicant deposit TZS.22, 500,000/= pending determination of her appeal. He prayed for the Court to dismiss the entire Application with costs. In rejoinder, Mr. Komba mostly reiterated his submissions in chief. Order XXXIX Rule 5 (1) of the Civil Procedure Code (supra), provides as follows: 3 "5(1); An appeal shall not operate as a stay ofproceedings under a

decree or order appealed from except so far as the Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree but the Court may, for sufficient cause, order the stay of execution of such decree". (emphasis added). The central issue in this Application is whether there is sufficient cause advanced by the applicant for the order of stay of execution to be granted. In determination of whether there is sufficient cause for the Court to exercise its discretion in granting the stay of execution pending the appeal, I will focus on the principle set in the case of Tanzania Electric Supply Company (TANESCO) vs. Independent Powers Tanzania Ltd (IPTL) and two others, TLR (2000) 324, which was also cited by the counsel for the respondents in his written submissions. The Court of Appeal in the said case held that; "In this country it is now well settled that the principal factors a Court should consider whether or not to grant a stay of execution are as follows; a) Whether the appeal has prima facie a likelihood of success. b) Whether its refusal is likely to cause substantial and irreparable injury to the applicant. c) Balance of convenience" Basing on those principles I will determine first on whether the appeal has a prima facie likelihood of success. The applicant has instituted an Appeal 4 No. 03 of 2022 before this

court. He claims in his submission that the same has strong arguable issues and it stand a good chance of success. That the main triable issue is whether the District Land and Housing Tribunal erred in law and fact to decide in favour of respondent without considering the weight of evidence adduced by the applicant that there was a long lease contract between the parties. Restraining myself from going into the merits of the appeal, I am convinced that there is a prima facie arguable appeal although it is difficult to say at this stage whether the same stands a good chance of success or not. However, gathering from the grounds of appeal which have been quoted in the applicant's affidavit, there is an issue of breach of tenancy agreement and the issue on whether the applicant has paid the tenancy rent or not. Among other issues raised in the grounds of appeal, I am satisfied that the applicant has prima facie arguable appeal, and hence has met the first principle. The second principle is whether the refusal of prayer of stay of execution by the Court is likely to cause substantial and irreparable injury to the applicant. The counsel for the applicant has submitted that, if this Court will allow execution to proceed, the loss which will be suffered by the applicant is irreparable loss which cannot adequately be compensated by way of damages and the respondent will not be able to

refund the applicant. In this, I am inclined to agree with the submissions from counsel for the respondent that the applicant has failed to show as to how she stands to 5 suffer irreparable loss if the order sought in this Application is not granted compared to the respondents. The applicant has referred this Court to the case of Nicholas Nere Lekule vs. Independent Power (T) Ltd. TLR (1997) at Page 58. He quoted as follows: "........ an execution pending the determination of an intended appeal is the loss or injury to which an applicant is subjected. It should not be any ordinary loss, it must be an irreparable loss which cannot adequately be compensated by way of damages...... " Surprisingly, despite quoting the above case, the applicant has not established to this court either in her affidavit or through the written submission on how she will suffer irreparable loss which cannot be compensated by way of damages. In the applicant's affidavit at paragraph seven (7), it is stated that the respondent is using illegal means to frustrate the applicant's business, knowing that the applicant had a loan from NMB Bank which amounts to TZS 77,000,000/- and 75,000,000/- and the repayment source is the business located from the property in dispute. By this, the Court expected the counsel for the applicant to propound more in the submission on how the respondent is frustrating the said

applicant's business and how this is going to bring injury or irreparable damages to the applicant. The counsel for the respondent kept repeating that the loss which will be suffered by the applicant is irreparable which cannot be compensated by way of damages and that the respondent will not be able to refund the 6 applicant. But did not establish on what loss and how it is irreparable. For failure to establish on how the applicant stands to suffer, I find that the applicant has failed to meet the second principle. On the balance of convenience, the Court has a duty to see whether if the execution will be allowed to proceed (the application for stay of execution not granted), the applicant will stand to suffer more than the respondent. On this the applicant has simply stated in his submission that common sense and a balance of advantage weigh in favour of granting the orders of stay of execution. He urged the Court to grant the application because the applicant has met all three grounds as he has already filed an appeal No. 03 of 2022 which has strong arguable issues which stands a good chance of success. On his side, the counsel for the respondents has submitted that on the balance of convenience, if the application for stay of execution will be granted, it is the respondent who will stand to suffer as until now, it is the applicant who occupies the business premises owned by

the respondents for her own benefit despite being ordered by the Kinondoni District Land and Housing Tribunal to vacate the premises and has refused to pay the rent arrears. Having analysed the evidence adduced from the affidavit and counter affidavit together with the submissions from both parties, I am of the view that the applicant has failed to give sufficient cause for court to exercise its judicial discretion and grant the stay of execution pending appeal. I hereby dismiss the application. I make no order for costs. 7 8 J