20071207 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM " ; (CORAM: MROSO, J.A., NSEKELA, J.A. And MSOFFE, J.A. CIVIL REFERENCE NO. 3 OF 2007 HARUNA MPANGAOS AND OTHERS ................... APPLICANT$. VERSUS .TANZANIA -~ PORTLAND CEMENT CO. LTD. ......... RESPONDENT (Reference from the Ruling of a Single Judge of the Court of Appeal of Tanzania at Dar es Salaam) (Mu·nuo, l.A.) dated the 1st day of March, 2Q07 - in Civil Application No. 171 of 2006 -------------- RULING OF THE COURT - 21 September & 12 December 2007 - -~-~ '': NSEKELA, J.A.: This ~eference arises from the decision of a single judge of this Court refusing to grant a stay of execution of an order of the High Court pending appeal to this Court. The historical background to the . matter may be briefly stated as follows: The applican~ Haruna Mpangaos and Others, having lost in High Court Civil Case .No. 173 of 2003 (Manento, J~K.) have lodged an appeal to this Court. _In the • 2 C . filed Civil Application No. 171 of 2006 seeking stay .of meantime, they execution of the decree in High Court Civil case Nb. 173 of_ 2003. . l- Before the learned ,single judge (Munuo, J.A.) it was contended on behalf of the applicants that they would suffer irreparable loss i(a:. stay order was not granted since the houses of the families involved I• would be demolished thus rendering them homeless. This loss, .it was arguedi· could not be cor:npensated by way of damages. In ,addition, it was contended that the appeal was likely to succeed and ', so if a stay order was withheld, the appeal would be rendered • • ,. f • I . -~ nugatory. It wa~ also urged that on a balance of converiience, the Court should grant a stay order pending the hearing and determination of the appeal. The learned single judge refused to grant tl)e orRer sought, hence this reference. Before us the applicants are represented by Mr. Mabere ·Marando and Mr. Mandele, learned advocates, while the respondent is advocated for by Mr. Mbwambo, learned advocate. The learned ' ~ advocates for the applicants filed the following grounds of complaint against the decision of the single judge, namely that- " . 3 . "1. The learned single judge erred in law by failing to exercise her discretion judiciously, in that,_ she failed to consider rival arguments and material before hel and ., the relevant. applicable law. Had she done so, she . could have exercised her discretion otherwise and grant stay of execution. 2. The learned single judge erred in law by failing to hold that the execution of the decree would cause irreparable loss to the applicants as their homes will be demolished and more than 903 families having a population of more than 3000 people would be rendered homeless, the loss of whicb cannot be 'l atoned by way of damages, regardless of whether they are compensated or not. 3. The learned single judge erred in law and fact by failing to hold that refusal to grant a stay would render the. whole-appeal academic as the substratum of the appeal that is occupation and ownership of the land will be gone by virtue of the execution of the decree. This would .render nugatory the decree in appeal, if the applicant would succeed. 4. The learned single judge erred in law by failing t& hold that on balance of convenience the applicants were • I • . :.... 4 • likely to suffer more if grant was refused as while the applicants were in occupation and use of land as their dwelling homes, the respondent owns vast a lan,d and it is not in immediate need of the said land for its use - for the time being. - 5. The learned single judge erred in law by failing to hold that the judgment ·was problematic and therefore th~re was likelihood of appeal succeeding. Her order I has created a big fr~cas on the ground between the applicants and the Field Force Unit who are hired by the respondent to forcefully e~ict the applicants even I , without a proper order of eviction. 'I ·.t _6. The learned single judge erred in law by holding that since the dispute is over potential mining land· and I that the respondent would be liable to pay compensation for· the unexhausted improvements there was. no justification for grant of stay order. In ruli_ng so she completely misdirected herself as tegard to the principle perta·ining to the grant of stay orders and with regard to the essence of dispute between the parties." . . At the hearing of the reference, Mr. Marando ar@ued all the : I grourids of complaint together. He submitted that the learned single 5 • judge did n(?t consider and apply the established principles that guide the Court whether or not to grant a stay order. H~ admitted however ·-~; that although the learned single judge was fully aware of the said . principles, she did not make a finding to the effect that if a stay order was not m.ad.e, the outcome of the intended appeal. would be ._rendered nugatory in the event the pending appeal succeed in favour .· .--~.:.': of the applicants. Th_e learned advocate added that if a stay order -was refused, the applicants' residential houses would be destroyed and that was the substratum of the appeal. He also· faulted the learned single judge when she. stated that the ~spond~nt company ·-~~- would be able to pay compensation for the unexhausted improvements tha~ the applicants had made on the land. That loss was not quantifiable in monetary terms. I,.:.·· On his part, Mr. Mbwambo, learned advocate for the respondent submitted that the learned single judge exercised her judicial discretion properly in refusing to grant a stay order. She was aware of the guidelines to be taken into consideration and these were discussed in her ruling. The main reason in sotdoing was essentially on the ground that. the respondent would be able to pay . - ... ' . ~ . . '-. ~ ," . • 6 compensation to the applicants. In addition, Mr. Mbwambo ' ' strenuously submitted that the respondent was in· posses~ion of the title to the disputed land, and not the applicants. With respect, we agree that the law on the grant or refusal of. · "·'.'.an order for stay of execution involves .the exercise of judicial c·• ~. ,' •• ~~~•;";- discretion. This was well articulated in Civil Reference No. 8 of 1999, ·1gnazio Messina (2) National Shipping Agencies and (1) •Willow Investment (2) Costa Shinganya (unreported) wherein this Court stated - "it is now settled that the Court will grant a stay of execution if the applicant can show that refusal to do so would cause . substantial irreparable loss to him which cannot be atoned by an award of damages. It is equally settled that the Court will order a stay if refusal to do so would, in the event the intended appeal succeeds, render that success nugatory. Again this Court will grant a stay if, in its opinion, it would on a balance of convenience to the parties to do so." ' 7 " . . The l~arned single judge recapitulated these principles when making a summary of the rival contentions of the learned; advocates. She opined that any damages suffered by the applicants could be - compensated for adequately by an award of· damages which the •;:::.: .. resp(?ndent would be able to pay. That may well be so, .but in case .·! . .."1 ". . : --~~:.;,. -~:the applicants should emerge winners in their appeal by then their cherished houses wo_uld probably have been razed to the ground. -This is not the kind of damage which can be expressed in purely financial terms however substantial the compensation might turn out to be. The physical loss of their houses; the eniotionaf., sentiments attached to them; the agony of their families being rendered homeless and all_ that, is an unquantifiable factor which cannot be compensated by an award of damages., Had the learned single ·• 'judge ·looked the matter from this perspective, we are. certain she could not have reached the conclusion she did. (see also (CAT) Civil Application No. 39 of 1995, Joseph K. Mlay v Ahmed Mohamed (unreported). The learned single judge in her ruling also referred to the concept of ''balance of convenience'~ but with respect~ apart from mentioning it, she did not discuss its applicability to the facts before II 8 the Court. The question is, as between the applicants and the respondent, which one would be more inconvenienced if a stay order is not granted? Execution of the decree would mean that' the houses . in which the applicants are accommodated with their families will Q~ve to be demolished giving way to quarrying activities. The applicants would of necessity have to be evicted from their homes. We are of the firm vlew that the applicants would suffer greater injury if a stay order is--refused than the respondent will suffer if it is granted. In the result and for the foregoing reasons, we allow the reference with costs. We order that execution of the decree of the · . High Court be stayed while the parties await the outcome of the · · .·· pending appeal. DATED at DAR ES SALAAM this ih day of December, 2007. J. A. MROSO JUSTICE OF APPEAL ~ H. R. NSEKELA JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL 9 It "- I certi_fy that this is true copy of the original. ~~~ (I. P. U I) ._ DEPUTY REGISTRAR '·.t I •