juma bakari vs 2013 tzhc 2017 29 november 2013

IN T H E H IG H C O U R T O F T A N Z A N IA -A T M T W A R A .- - LAND CASE -A P P LI € A T I 0 M ; M g -GF- 2013 JU M A A T B A K A R I - ~ - - - - ------------ ~ '-A P P L IC A N T ” ' T H E LA TE A B D IL L A H B I K A R I ) V E R S U S ......... M BAR AKA A. BA K A R I - ----------------- - - - --------------- R E S P O N D E N T

RULING 11/11/13 & 29/11/13 M Z U N A , 3 .: Jum a A. Bakari, has filed this application against Mbaraka A. Bakari praying for stay of execution of a decree pending determination of Appeal case No. i/2011 before this court. T h e application is preferred under Order XXI rule 24 (1 ) of the Civil Procedure Code, Cap 33 R.E 2002, and is accompanied by the affidavit affirmed by the applicant. During the hearing both parties appeared in person to argue the application. T h e main issue is w hether or not there Is sufficient cause shown to allow stay of execution? T h e a rgum ent by the applicant was that the reason behind this application for stay of execution is because the disputed house had been \c ! *\ o f t-h o r l o r o a c o H T ^ ^ t " if dllOCciteCi LU l O U i \ ~T i IW U C D ii I W W ^ H *-l i»_ ------- t h e the execution is carried out k will resDonclent may opt l<» sell it_whi(.h will also crc3te some problems or, how .to trace it. He 11lei - gr aye % ’ for i:his court to stay the execution as .prayed for. ..— - .............. j n reply 'therctcL the . respondent (a blood brothei Oi the appiiCa> ^ .crs) d far w h a t:’ is be!ng-saks--ftr- on the estate of the late Abclillah. Th a t, the disputed house belongs to him as Mbaraka A. Bakari— T h a t he was not summ oned to attend during the alleged clan meeting which made such division. Th a t, since he won at the District

Land and Housing Tribunal at Lindi, he has a lK h e rights to o w n tne disputed house! .... ' Th a t the case has taken 3 years before hearing and that what is being seen is a delaying tactics that in w h y there is a change of administrators. He pra*yed for the application to be dismissed. I have earnestly followed the arguments from the parties. T h e governing principles for the issue of stay of execution are provided for under O r d e r X X X # W e 5 i { l ) - ( 4 ) of the Civil Procedure Code, Cap.33 R.E, 2002. , \ ‘ . . . - ■' Reading the a b o ve - provisions of the law, it is clear that appeal by Itself does no t ipso facto entitle the appellant/applicant an automatic right to be granted an order’ for stay, of execution. T h e court has been given discretion to order stay , of a decree or order, only If there are sufficient cause some of which are specified under category (3 ) (a ) .- (c ). It reads as j ' ' - ". .(3 ) No on/< 7 lor stay o f execution shall be made under subrule ( ; -] .Of submit. ■ (. ’) link's-; the High court.or the comt making it is satisfied- : .. : . ... _ - : r g ; . v . : - r - : ______ ■ _ (a )'th a t substantial lossjiiay result to the party applying for stay o f (b ) that the applica tion has been made w ith o u t unreasonable d e la y; and r (c ) That security has been given by the applicant for the due performance o

f such decree or order as may ultimately be binding ' *■ upon him... " Emphasis mine. It is not disputed as per the applicant's affidavit that there is'tfifc appeal pending in the High Court of Tanzania and that the respondent had obtained ju d g m e n t in his favour. T h e applicant says in paragraph 9 of the affidavit that if the order for stay is not granted there is a likelihood of family conflicts and disaster to arise between issues of the Sate Abdilah- Bakari and their respective mothers, since one group would have nothing inherited from their father. £ *. ' ' V - * Does that constitute substantial loss or an irreparable loss as the law says? T h a t is a condition precedent as it was held by Samatta, J.A (as he then w as) in the case of Ta n z a n ia E le c t r ic S u p p ly Com pany ( T A r J E S C O ) v s . I n d e p e n d e n t P o w e r T a n z g n j a t t d , , { I ° T L ) jsnd T w o O th e rs (2 0 0 0 ) T . L R 324 at page 328', He lasted three prerequisite conditions namely: , r element which must occur in every^xase and since the Code g g s r s ; expressly ptohibits. stay of em m tien as an ordinary rule it is dear -— the wo/ds "s/lbstantiai something in addition to &- and different from that, " 12 January 1993 held that: . "... and that there were strong grounds for an appeal was no reason r,or granting a stay, for no one ought to appeal without strong grounds

for doing so". Lastly, in the case of W i n c h e s t e r C i g a r e t t e M a c h i n e r y Ltd*v P a y n e and Another (2 ) Tim e s Law Reports, 15 December 1993 the court inter alia stated: 'In recent cases it has been said that the practice o f the court had moved on from the principle that the only ground for a stay was the reasonable probability that damages and costs paid would not be repaid if the appeal succeeded. These cases held that the approach o f the court now was a matter o f common sense and a balance of advantage ...B u t in holding any such balance o f advantage, full and proper weight h a d to he g iv e n b y the court to the. ■ '% starting principle that th e re h a d to be a g o o d reason for depriving a plaintiff from o b ta in in g the fruits o f a ju d g m e n t" (Emphasis supplied). - There is a need to show sufficient cause for the one who prays to be granted an order for stay of execution. I have perused use applicant's affidavit as <!<i.iilt'd ’a bove. W h a t he has said is mere fear without any --• V backirrq ^It a-;-h I k : paid for by com pensa^onjift-eafe __ • tr*t*y win on appeal .i™r .Above :aiL a house is such property w hich:;fcajxJrnm ovable property, It is "traceable, in other words, (and W is ^W ^L h e first ground for not ): There is no Jo ss l fffc^*y? m sp a ra b le nam fm w hictL could not be adequately Compensated by way o f

damages" as w eirsfated -in the case of Nicholas W ere Lekule v s . I n d e p e n d e n t Power- ( T ) L td a n d A n o t h e r 1997 T L R 58 (C A ), Lubuva, j . A (as he then was). Secondly, the allegation that one group would have nothing inherited "from their father I would say in view of thedecision in the above cited case of Bansidhar ( s u p r a ) substantial loss of property is something far beyond mere "ordinary loss to which every judgment-debtor is necessarily subjected when he loses his case .and is deprived of his property in . consequence." T h e same logic will befall the respondent in case the appeal fails. Thirdly, from the above laid down principles, the balance .-of- convenience or balance o f advantage should equally cover the respondent . that he has an equal right to benefit-from the fruits of the ju dg m e nt which was decided in his favour. Fr :ourthly, this application was made so belatedly contrary to the spirits of the law allowing its grant under Order XXXIX Rule 5 (3 ) (b ) or the Civil Procedure Code, C ap.33 R.E. 2002 which specifically says "that the application has been mads w ithout unreasonable deigy, (DGCdUSG, thlS appilCSCiOD WciS I lieu on- / U LlO D ST ZU j ~> vvi iici i Wcio culGf three years had lapsed as the judgm ent was passed on 18" November 'm o As lhe reM « n f S h t s l f the applicant Is employing a rieiay j n p a a i c . F o r

Lhc'ah(T7’'^tcttcfi f e l o n s , this appfceationj cs 111‘— Vv rir"__' shown s i :- ! ; t h a t tbijreourt-ean g r a n t stay for e x e c u t i o n as applied i q l . x j g j ^ a t -ft1!"here- js g p f c o t ^ s a ^ c ;^ ± z execution, it will be recovered by w a y of compensation or costs in case he wins in the pending appeal. Application stands dismissed with costs. M. G. MZUNA, JU D G E • 29/11/2013 C o u rt: Ruling delivered this 29th day of November, 2013 in the presence of the respondent and absence or the applicant. m . , v M.GftozuNA r~ JU D G E 29/11/2013