CIVIL APPLICATION NO 502 17 OF 2023 EDOSAMA HARDWARE LTD ANOTHER VS AMOSI MLASA 3 OTHERS

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 502/17 OF 2023 EDOSAMA HARDWARE L T D .................................................... 1st APPLICANT EDWARD SAGUDA MADUHU ............................................... 2nd APPLICANT VERSUS AMOSI MLASA (As Administrator of The estate of PETER SABATO SANJO)................................ 1st RESPONDENT TIB CORPORATE BANK LIMITED......................................... 2nd RESPONDENT THE ATTORNEY GENERAL.................................................. .3rd RESPONDENT ADILI AUCTION MART LIMITED........................ ........... . 4™ RESPONDENT (Application for stay of Execution of the Decree of the High Court (Land Division) at Dar es Salaam (M akanLJJ dated the 3rd day of March, 2023 in Land Case No. 32 of 2021 RULING 12th & 13th September, 2024 MAIGE, J.A.: The 1st respondent was the plaintiff at the trial court while the applicants were the first and second defendants. The second and third respondents were the second and third defendants, respectively. It is common ground that, in between the applicants and the first respondent, there was a contract to the effect that the former would make available to the latter, which they did, a Certificate of Title No. 186282/61 of Plot No. 604 Block "D' Sinza Area in Kinondoni Municipality ("the suit property") to be used, for a period of one year, as a security to guarantee repayment of loan from the 2nd respondent. It was express in the respective contract that, should the applicants fail to repay the loan within the contractual period, the suit property would be released and substituted with another security from the first applicant. Eventually, the suit property was pledged in favour of the second respondent to secure a loan extended to the applicants. After expiry of the contractual period between him and the applicants, it would appear, the first respondent requested for the release of the suit property but the second respondent refused on the ground that the secured loan had not been settled. That prompted the first respondent to commence, at the High Court, a suit against the applicants on the one hand and the second and third respondents on the other, for the following reliefs; 1. Declaration that the second respondents retaining o f the suit property after expiry o f one year was illegal. 2. Mandatory injunction compelling the second respondent to unconditionally release the suit property. 3. Payment TZS 800,000,000.00 as consideration for the applicants' use o f the suit property to secure loan. 4. Payment o f TZS 50,000,000.00 as general damages. While holding that the applicants were in breach of the contract between them and the first respondent, the trial court took the view that, 2 the second respondent was legally entitled to retain the suit property in as long as she was not privy in the said contract. However, as the loan recovery process had not started, the applicants were ordered to replace the suit property with another security within 3 months and if that was done, the second respondent would release the suit property. There were other orders against the applicants in favour of the first respondent which may not be relevant for the purpose of this application. Being aggrieved, the applicants lodged a notice of appeal. Having been served with a 14 days-notice attached in the affidavit and marked "OH-3", the applicants have, in pursuance of rule 11(3), (4), (5), (6) and (7) of the Tanzania Court of Appeal Rules ("the Rules"), applied for stay of execution pending the conclusion of the intended appeal. The second applicant has deposed an affidavit in support of the application which has been rebutted by the affidavit in reply deposed by Mr. Mathew Fuko, learned State Attorney on the 2nd and 3rd respondents' behalf. On top of that, the 2nd and 3rd respondents have filed a notice of preliminary objection questioning the competency of the application for being brought without there being a notice of execution and for the reason of the fourth respondent being impleaded while she was not a party in the proceedings at the trial court. 3 When the application came for hearing on 12th September, 2024 the applicants were represented by Mr. Gilbert Mushi, learned advocate whereas the second and third respondents were represented by Ms. Glorian Issanya, learned Senior State Attorney and Mr. Mathew Fuko, learned State Attorney. The first and fourth respondents were absent. I allowed the second and third respondents to address me on the two points of preliminary objections, which they did. In support of the first point, it was submitted for the second and third respondents that; since an application for stay of execution cannot lie, in terms of rule 11(3) and (7) of the Rules, before commencement of execution proceedings and service of the notice to that effect on the judgment debtor, and there being no such proceedings at the trial court, the application is incompetently before the Court. The 14 days-notice attached in the affidavit, it was further submitted, has nothing to do with the execution of the decree in question and, therefore, cannot amount to a notice of execution envisaged in sub-rule (7) of rule 11 of the Rules. I was thus urged to strike out the application. In reaction, it was submitted for the applicants that, the 14 days- notice in question in as much as it is an expression of the second respondent's intention to sale the suit property, cannot be separated from the execution process. It was prayed, therefore that, the preliminary objection be overruled. On the second point, it was argued for the second and third respondents that, because the 4th respondent never featured out in the trial proceedings, it was wrong for him to be joined in the current proceedings without leave of the Court. My attention was drawn to the decision in Salim Amour Diwani v. the Vice Chancellor Nelson Mandela African Institution of Science and Technology, Civil Application No. 116/01 to the effect that 'parties in the proceedings shouid at any given time appear as they did in the previous proceedings unfess there is a reason for not observing that.' In response, it was submitted for the applicants that, the joinder of the fourth respondent was necessary because the order sought in effect would restrain her from continuing with the execution process. It was submitted further that, unless she is joined and made aware of the proceedings, she cannot easily be associated with the sought order. I have given the rival submissions due consideration and I have very carefully examined the affidavits both for and against the motion. I am fully satisfied that, the first point of preliminary objection has merit and suffices to dispose of the application. I will justify my decision gradually as I go along. 5 Under rule 11(3) of the Rules, the Court is empowered to stay execution of the decree of the High Court pending intended appeal, if good cause to justify the stay is shown. It is also a condition precedent under sub-rule (4) and (7) thereof that, for the judgment debtor to be entitled to lodge the application, the decree holder should have commenced to execute the decree and the notice of the intended execution must have been attached in the affidavit in support of the application. From the submissions, it may be apparent, parties have a common understanding of the above precondition. The contention, it would appear, is whether the notice in annexure OH-3 of the affidavit amounts to a notice of execution. The respective notice which is entitled "NOTISI YA SIKU KUMI NA NNE (14) YA KULIPA DENI LA MKOPO UIMAODAIWA NA BENKI YA TANZANIA COMMERCIAL BANK" read as follows: "Kwa idhini na mamlaka tuiiyopewa na benki ya TANZANIA COMMERCIAL BANK (Mkopeshaji) tunakupa notisiya siku 14 kuanzia tarehe ya barua hii, Hi uweze kulipa deni unaiodaiwa na benki. Katika kipindi hicho kama utakuwa hujalipa deni unaiodaiwa, hatua kali za kisheria zitachukuiiwa dhidi yako, ikiwa nipamoja na kukamata mail zako zote uiizoweka kama dhamana ya mkopo wako na kuziuza kwa njia ya mnada wa hadhara Hi kufidia deni hiio ia benki, biia kutoa taarifa nyingine." 6 Literally translated, the above words mean: "By the power given to us by the Tanzania Commercial Bank (the creditor% we give you 14 days from today to liquidate the outstanding loan due and payable to the bank. Should the loan not be repaid within the said period, we shall take serious legal measures to recover the same including sale o f all the pledged securities by way o f public auction without further notice." What can be observed from the above quotation is as follows. First, while the first respondent in the instant case is named as TIB Corporate Bank Limited which name appears also in the decree, the person at whose instance the notice in the respective annexure was served, is Tanzania Commercial Bank whose name is neither in the application nor in the decree. Much could have been said in the affidavit to link the two names which was not. Two and most importantly, the respective notice relates to realization of various securities pledged by the applicants to the said bank. Neither has the suit property nor the decree in question been mentioned in the said notice. Without much ado, therefore, it is correct, as submitted for the second and third respondents that, the issuance of the said notice was in realization of mortgage contract and not in execution of the decree in question. The application, therefore, does not meet the condition under rule 11(4) and (7) of the Rules and cannot stand. In view of the foregoing, therefore, I sustain the first point of preliminary objection and hold that, the application is incompetently before the Court for being made before commencement of execution proceedings. In the circumstances, it may not be necessary to consider the second point of preliminary objection. As a result, the application is struck out with no order as to costs. DATED at DAR ES SALAAM this 13th day of September, 2024. 1.1 MAIGE JUSTICE OF APPEAL The Ruling delivered this 13th day of September, 2024 in the presence of Mr. Gilbert Mushi, learned counsel for the Applicants and Mr. Mathew Fuko, learned State Attorney for the 2nd and 3rd respondents and in the absence of the 1st and 4th respondents is hereby certified as a true copy of the original. 8