CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1405 OF 2024 CONTINENTAL PRINTING & PACKAGING CORPORATION LIMITED................................................................1st APPLICANT SAHARA MEDIA GROUP LIMITED................................................. 2nd APPLICANT ANTHONY MWANDU DIALLO........................................................ 3rd APPLICANT SAMWEL NYALLA NGHUNI............................................................ 4™ APPLICANT VERSUS DIMOND TRUST BANK TANZANIA PUBLIC LIMITED COMPANY............................................................ RESPONDENT (Application to halt the recovery measures initiated by the Respondent subject to the Decision of the High Court of Tanzania, Mwanza sub-registry) (Robert, J.l dated 28th day of June, 2024 in Civil Case No. 14 of 2023 RULING 28th March & 4th April 2025 AGATHO, 3.A.: Armed with a certificate of extreme urgency the applicants preferred the application under rules 4(1), (2)(a),(b) and (c), 26(3) and 53(1), (2) and (3) of the Tanzania Court of Appeal Rules, 2009 by way of a Notice of Motion supported by an affidavit of the 3rd applicant. To resist the application the respondent filed affidavit in reply predicated with a notice of preliminary objection (the PO) containing two points as follows: 1) to the extent that this Court has no powers to issue the sought injunctive orders, this application is incompetent for contravening the principles stated in the cases of National Housing Corporation v Peter Kasidi & Others (Civil Application No. 243 of 2016) [2019] TZCA 153; Prada Enterprises Company Limited v Joyce Alex Khalid & Others (Civil Application No. 279/01 of 2020) [2023] TZCA 17468 both cases are on TANZLII. (2) That the application is incompetent for not being supported by an affidavit of the 4th applicant contrary to rule 49 (1) of the Rules and the principles stated in the case of Mohamed Abdiallah Nur and Others v Hamad Masauni and Others (Civil Application No. 436 of 2022) [2022] TZCA 546 also in TANZLII. When the matter was called for hearing on 28th March 2025 the applicants' learned counsel, Mr. Boniface Sariro appeared via video conference from Mwanza. On the adversary appearing via video conference from Tarime was Mr. Faustin Malongo, the learned counsel for the respondent. To break the ice, Mr Sariro informed the court that the matter was set for hearing. And he has been served with two documents on the very day, namely, the notice of PO and the affidavit in reply. He submitted that he has no problem with the affidavit in reply. However, he had issues with the notice of PO as it was not served timely contrary to rule 107(1) of the Rules. The Court allowed the respondent's learned counsel to proceed with the POs because the learned counsel of the respondent submitted that the notice of hearing was issued on 26th March 2025 it was a short notice they could not comply with rule 107(1). He prayed for leave to submit in support of the POs despite that unintentional non-compliance. Regarding the first PO, Mr. Malongo submitted that the prayer in the notice of motion is that recovery measures of plot No. 3 Block R Rufiji Mwanza pursuant to the ruling of the and drawn orders dated 28th June 2024 be halted or stopping pending determination of the intended appeal. The learned counsel for the respondent referred to paragraphs 16 and 17 of the supporting affidavit that the applicants are seeking an order halting the recovery measures pending determination of the intended appeal. Mr. Malongo submitted that the application at hand is made rule 4(l)(2)(a)(b) and (c) of the Rules. Other rules cited are rule 26(3), and 53 (1)(2) and (3) of the Rules which deal with certificate of urgency. It was his opinion that what the applicant is seeking is an injunctive order and it is not staying of execution because there is no execution of the High Court decree or drawn orders. He submitted further that the Court of Appeal has no jurisdiction to issue the sought injunctive orders to restrain the respondent from proceeding with her recovery measures of the plot stated in the application. To buttress his submission, the learned counsel referred to the case of Prada's case (supra). He went on submitting that in that case an application was made under rule 4(2)(a) and (b) of the Rules, and rule 11 of the said Rules dealing with stay of execution. But for the purpose of this application, Mr. Maiongo submitted that the focus will be on rule 4(2)(a) and (b) of the Rules which were relevant for an application for injunctive order. He then referred to page 8 of the said ruling in Prada's case (supra) where the Court of Appeal noted that in the notice of motion there was a prayer for an order restraining the respondent from alienating, transferring, or in any manner altering the physical and legal status of the landed property. It was his view that the prayer in that case is like the prayer in the present case. He continued to refer to Prada's case (supra) on page 9 first paragraph where this Court while citing National Housing Corporation's Case (supra) held that the application sought an order restraining the respondent from developing property that may alter the status quo. Again, the learned counsel for the respondent made reference to page 10 of Prada's case (supra) where the Court of Appeal cited Dominic Kagaruki v Farida F. Mbaraka and Others, (Civil Application No. 156 of 2014) [2015] TZCA 919 (26 October 2015) noting that the applicant had applied for both restraining order and stay of execution under rule 4(2)(a) and rule ll(2)(b)(c) and (d)(i) and (ii) of the Rules before the amendment. The Court noted further that the applicant had invited the court to restrain the respondent from carrying out any construction, transferring or changing ownership of the property registered under Certificate of Title. He submitted that the court declined to grant the application for restraining orders. The Court in Prada's case (supra) at page 11 paragraph this Court held that there is no gainsaying that the applicant is inviting it to issue a restraining or injunctive orders restraining the respondent from alienating, transferring or any manner altering the physical and legal status of the landed property described in Plot 182 Kunduchi Beach, Kinondoni Municipality. He submitted that that is amplified by paragraph 12 of the supporting affidavit. However, as alluded to earlier on, he argued that this court does not have power to issue such injunctive orders. Therefore, he opined that the relief sought is misplaced. He then referred to page 12 first paragraph of Prada's case (supra) where the Court held that the application for injunctive orders being not within the mandate of this court cannot be issued. Eventually, the application was struck out with costs. Mr. Malongo submitted that the application at hand and Prada's case (supra) are almost similar, and relying on the principle stated in that case the first PO be upheld because this court does not have power to issue injunctive orders or restraining orders. Turning to the second PO, Mr. Malongo submitted that the application at hand is brought by four applicants, but it is supported by an affidavit of the third applicant and according to paragraph one of the said affidavit, the 3rd applicant (deponent) is the principal officer of the 1st and 2nd applicants. Therefore, the affidavit was taken at the instance of the 1st, 2nd and 3rd applicants. He submitted that there is no affidavit of the 4th applicant. It was his stand that that is illegal and violation of the law and the principles stated in the decision of this Court cited in the notice of PO: Mohamed Abdiallah Nur & Others v Hamadi Masauni and Others (supra). In that case there were four applicants, there was only an affidavit of the principal officer of the 3rd and 4th applicants, the PO similar to the one raised here on the ground that the application was incompetent because it was not supported affidavit of the 1st and 2nd applicants contrary to rule 49(1) of the Rules. At page 9 second paragraph of Mohamed Abdiallah Nur & Others and Hamadi Masauni's case (supra) this Court held that it is now settled that in the circumstances of the present case the omission by an applicants to file an affidavit in support of notice of motion is a serious shortcoming which rendered the application incompetent. Consequently, the application was struck out. He prayed that the application be struck out with costs. In his reply submission, Mr. Sariro contested the first PO that this Court has no power to issue injunctive orders. He contended that Mr. Malongo is misleading the Court. Thereafter he submitted that the application is clear that the applicants are asking the court to give orders that will halt the recovery measures that have been initiated by the respondent and not otherwise. It was his view that the ordinary meaning of the word halt is to suspend or pending determination of a certain matter pending in the court. That is what is appearing before the court. And that is stated in the affidavit in support. He argued that the respondent's counsel has created his own case. He denounced the suggestion that the applicants have applied for injunctive orders against the respondent. He clarified that the application has been brought under rule 4(1), (2)(a), (b) and (c) of the Rules. With leave of the Court the counsel for the applicants read the said rules loudly. It was his submission that rule 4(1), (2)(a), (b) and (c) of the Rules are of general application covering procedures that are not covered by the Rules or any written law. He continued to suggest that the provision is for the matters that are out of the Rules of this court and one of them is the application at hand for the purpose of dealing with recovery measures that for sure has been initiated by the respondent as admitted by the respondent in her affidavit in reply. Under such circumstances he defended that the application is made under the ambit of the law and is not an abuse of the process of the Court. It was his conclusion that he does not see any merit in the first PO. Responding against the citing of Prada's case (supra) at pages 8, 9, 10, 11 and 12, Mr. Sariro was of the view that that case is quite different from the case at hand. According to him Prada's case (supra) was an application for stay of execution. Worse enough, he argued, it was an application for stay of execution of a decree, the decree which was already dismissed by the High Court as seen on page 6, paragraph 6 and page 7 the first paragraph of Prada's case (supra). He argued that the court dismissed the suit, and the status quo remained the same as if nothing was before the court. Mr. Sariro invited the court to distinguish Prada's case (supra) and the present case because the facts are different. He thus beseeched the court to dismiss the first PO with costs. As for the 2nd PO, Mr. Sariro admitted that the 4th applicant did not swear an affidavit to support the notice of motion. But he was quick to point out that the third applicant deposed in his affidavit that he was involved in a series of proceedings, particularly Civil case No. 14 of 2024 and he is conversant with the facts surrounding this application. Mr. Sariro sought refuge in Rule 49 (1) of the Rules requiring one or more affidavits by the applicant. He opined that the facts deponed by Mr. Anthony Mwandu Diallo, third applicant, are sufficient to support the application at hand. He was of the view that there was no need for the 4th applicant to swear an affidavit. Adding to his submission that the respondent has not complained that the facts deposed by the third applicant were not sufficient. Besides that, Mr. Sariro argued that the defect is curable under the overriding objective as per Section 3A of the Appellate Jurisdiction Act Cap [141 R.E. 2019]. That being the position, it was his urge that the two POs lack merit and they be dismissed with costs. In rejoinder Mr. Malongo rejoined that the applicants are seeking to halt recovery measures which means stopping the recovery measures that is an injunctive order or a restraining order which intends to restrain or suspend the respondent to proceed with recovery measures. The wording is thus similar. In both the cases of Prada's (supra) and Dominic Kagaruki (supra) cited therein. In each the application was made under rule 4(2) of the Rules and it was rejected. Similarly, he implored the court to strike out the application at hand. He opined that Prada's case (supra) is relevant because that case was an application for stay of execution and injunctive orders and both were rejected. As for the second PO, Mr. Malongo maintained that the case cited was relevant and the question of overring objection was covered at page 11-12 of the case Mohamed Abdiallah Nur & Others and Hamadi Masauni's case (supra). As a result, the prayer to invoke overriding objective was rejected. In respect of the main application, Mr Sariro submitted that the application is brought under rule 4 (1), (2), (a), (b) and (c) of the Rules, he also adopted the grounds stated in the notice of motion. He also adopted the facts in the affidavit in support of the notice of motion to form part of his submission. He submitted that paragraph 3 of the affidavit states that the recovery measures initiated by the respondent were made without any proper notice to the applicant and without regard to the intended Civil Appeal at this Court. He suggested that the recovery measures were initiated with ill will or bad motive to defeat justice to the applicants. It was his argument that once the appeal process is initiated by lodging notice of appeal under rule 83(1) of the Rules there is an intended appeal at the Court. Therefore, every person obedient to the law must deal with the any matter pending at the court as per the requirement of law and not otherwise. It means that notice of appeal and a letter requesting certified copies of the proceedings, ruling, and drawn order informs the respondent that there is an intending appeal before this Court. Further, he invited the court to look at paragraph 4 of the supporting affidavit that the process of recovery is done by unknown. He also relied on paragraph 5 and invited the court that there documents (notice of appeal and proceedings, ruling and drawn orders) were all served to the respondent as per rule 84(1) of the Rules. He asked the court to look at paragraphs 6, 7, 10, 11, 12, 13, 14, 15 and 16 of the affidavits and grant the application costs. At the outset, Mr. Malongo objected to the application and went on adopting the affidavit in reply. It was his submission that the application does not disclose any grounds to legally justify granting of orders sought in the application. He submitted further that the applicant claimed that the applicants have not been issued with notice of recovery. He protested that and submitted that the 2nd applicant who is the owner of the property in dispute was served with notice of recovery, and the copy of the notice has been attached under paragraph 7 of the affidavit in reply. On the notice of appeal as a bar to exercising recovery measures under mortgage, Mr. Malongo submitted that there is no law in our jurisdiction that the notice of appeal bars the respondent from undertaking recovery measures under powers of mortgage. He was dismayed with the learned counsel for the applicants' submission that that is the requirement of the law without citing any provision of the law or principle stated in the precedent or any legal scholarly works. The respondent's learned counsel cautioned that this being the apex court of the land it has to uphold the law as stated in the statute or case law. It was his prayer that since there is no law cited, the application is devoid of merit and lacks legal basis. He invited the court to dismiss it. With regards to the allegation of recovery done by an unknown court broker, Mr. Malongo submitted that such submission is misconceived as there is no execution pending before the court of law in which court brokers are involved. He added that recovery measures under mortgage need not court brokers. He invited the Court to consider paragraph 15 and 16 of the affidavit in reply that the recovery measures have been pending for about 11 years now and there is a huge amount of money which is outstanding as per paragraph 5 of the affidavit in reply. In the end he prayed for the application to be dismissed with costs. In rejoinder Mr. Sariro submitted that it is not true that there is no law that has been cited. He submitted that they have cited rule 83(1) of the Rules and there are numerous decisions of this Court on that rule. These cases are in public domain. And the respondent learned counsel is aware. It was Mr. Sariro's stand that once notice appeal has been filed then the appeal has commenced or been initiated. The applicants' counsel rejected the suggestion that court brokers are only involved in execution of court decrees and orders. It was his view that they can as well undertake other tasks. He also rebuffed the submission that the recovery measures have been pending for about 11 years. He contested with reference to a letter - the annexture DTB -1 annexed to paragraph 7 of the affidavit in reply. The said letter was written on 24th November 2021 and that is only 4 years ago. It is not 11 years. This letter warns that if the loan is not paid then recovery measures will be initiated. In that premise while reiterating his submission in chief Mr. Saririo emphasized that the respondent's submission is untrue and should not be considered. Having keenly listened to the submissions by the learned counsel representing the parties both on the POs and the application and after perusing the pleadings, I will, as the practice dictates, begin my analysis with the POs. To be precise, I will deal with the second PO first because if it is sustained the matter ends there. The gist of the second PO is that the 4th applicant did not swear an affidavit supporting the notice of motion. Unless the 3rd respondent deposed on behalf of all applicants or the 4th applicant be regarded to be not a party to the application, rule 49(1) of the Rules will be contravened as rightly submitted by Mr. Malongo. Both these propositions are untenable, I will explain why. First, it is undisputed that the 4th applicant is a party to the application. Second, the 3rd applicant in paragraph 1 of his affidavit in support of the notice of motion is very categorical that he is a principal officer of the 1st and 2nd applicants. In all 17 paragraphs of his affidavit nowhere, it is deposed that he the 3rd applicant is deposing on behalf of the 4th applicant. Besides, in our Courts it is understood that evidence may be adduced by way of affidavit. With the exception of legal persons, it is not expected that a person may ask another to testify on his behalf. The 4th applicant is a natural person, he ought to swear his own affidavit to back the notice of motion. However, a deponent can depose facts based on information received from another person provided he indicates in the verification clause the source of that information. A word or two should be stated with respect to Mr. Sariro's argument that rule 49(1) of the Rules requires an applicant to swear an affidavit or affidavits in support of the Notice of Motion. In his conviction, the learned counsel for the applicants took that as green lighting Mr. Anthony Mwandu Diallo, the 3rd applicant to depose on behalf of other applicants. And that the 3rd applicant's depositions are sufficient to support the application at hand. That is why Mr. Sariro suggested that there was no need for the 4th applicant to swear an affidavit. This in my respectful view is a misconception. Rule 49(1) of the Rules talk about an applicant implying a single applicant and where there are more applicants accordingly applies to all. That means each must swear an affidavit or it may be an affidavit sworn by them jointly. With utmost respect, it is pointless to argue that the respondent has not complained that the facts deposed by the 3rd applicant were not sufficient. Unconvincingly, Mr. Sariro sought to underrate the second PO by arguing that the defect is curable under the overriding objective as per Section 3A of the Appellate Jurisdictions Act [Cap 141 R.E. 2019]. In my humble view invoking the overriding objective in the context of the application at hand is to defile the rules of procedure that go to the root of the matter. By any stretch of imagination, since the application lacks the 4th applicant's supporting affidavit the same is incompetent before this Court and the overriding objective cannot rescue the same as rightly held in Mohamed Abdiallah Nur & Others v Hamadi Masauni's case (supra). That being the legal standpoint, the application is indeed incompetent for lacking the 4th applicant's affidavit. I thus sustain the 2nd preliminary objection and that alone disposes of the matter. I need not examine the other preliminary objection. In the premises the application is struck out with costs. Order accordingly. DATED at DAR ES SALAAM this 4th day of April, 2025. U. 3 . AGATHO JUSTICE OF APPEAL The Ruling is delivered this 4th Day of April 2025 in the presence of Boniface Sariro, learned counsel for the applicants and Caroline Kivuyo, learned counsel for the respondent both through virtual Court from Dar es Salaam original. W. A. Hamza DEPUTY REGISTRAR COURT OF APPEAL