CIVIL APPLICATION NO 371 01 OF 2024 JUNG HWAN KIM SANG OK NAM VS THE REGISTERED TRUSTEES OF TANZANIA PRESBYTERIAN CHURCH TPC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 371/01 OF 2024 JUNG HWAN KIM................................................................... 1st APPLICANT SANG OK NAM............................ ...........................................2nd APPLICANT VERSUS THE REGISTERED TRUSTEES OF TANZANIA PRESBYTERIAN CHURCH (T. P. C ) ........ .................................. RESPONDENT (Application for stay of execution of the judgment and decree of the High Court of Tanzania, at Dar es Salaam) (Nkwabi. J.) dated the 5th day of February, 2024 in Civil Case No. 28 of 2022 RULING 13thJune & 25th July, 2024 MDEMU. J.A.: Through a notice of motion under rule 11 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and also under the sub rules to that rule, the applicant preferred this application for stay of execution of the judgment and decree of the High Court of Tanzania at Dar es Salaam, in Civil Case No. 28 of 2022 which was decided in favour of the respondent. According to the i supporting affidavit, on 5th February, 2024 the learned High Court Judge dismissed the suit for want of merits thus prompting the applicants to commence appeal processes to the Court. They thus lodged the notice of appeal and further, through their letter dated 29th February, 2024, requested to be supplied with various documents for appeal purposes. They equally applied for stay of execution to the High Court in which, Maghimbi J. did strike it out for being wrongly filed to the High Court. The learned Judge's view was that, the application for stay of execution was supposed to be filed to the Court where the appeal of the applicants is pending. The respondent again commenced execution processes by filing application for execution No. 7623 of 2024 which was heard on 10th May, 2024. An eviction order was issued in respect of the applicants and also one Joshua Mwaitauka of Foster and Company Limited was appointed to satisfy the decree. Later, a fourteen (14) days' notice was therefore issued for the applicant to give vacant possession. This move of the broker is what awakened the applicants, the consequence of which they initiated this application for stay of execution. On being served with the notice of motion, the supporting affidavit and other accompanied documents, the respondent through Mr. Paschal Kamala, 2 learned advocate, along with the filing of an affidavit in reply, he also raised a point of preliminary objection to the effect that: The notice o f motion is hopelessly time-bared for contravening the requirement o f rule 11 (4) o f the Tanzania Court o f Appeal Rules, 2009 as amended by GN No. 344 o f 2019. The applicants were made aware o f the application for execution on 18th April, 2024 whereas they have filed this notice o f motion on 29h May 2024 well beyond the prescribed time under the Rules. I had to hear first the parties on this preliminary point of law. They henceforth appeared before me on 13th June, 2024 in which the applicants appeared through Mr. Faraja Mangula and the respondent had the services of Mr. Paschal Kamala, both learned advocates. Arguing in support of the notice of preliminary objection, Mr. Kamala stated that, pursuant to rule 11 (4) of the Rules, an application for stay of execution filed on 29th May, 2024 was beyond the prescribed time of fourteen (14) days stated in the Rules, he had such argument basing on the depositions in paragraphs 6 and 7 of the applicants'joint supporting affidavit in which it is deposed that, the applicants became aware of the execution 3 when they filed the application for stay of execution in the High Court of Tanzania, at Dar es Salaam. In his argument therefore, the applicants became aware of the intended execution on 18th April, 2024. He thus asked me to take judicial notice of the existence of Miscellaneous Application No. 10867 of 2024 filed in the High Court on 13th May, 2024 as evidence regarding when the applicants became aware of the intended execution. He thus urged me to strike out the application for being hopelessly out of time. On his part, Mr. Mangula argued that, the preliminary objection has no bases because first, it did not base on the pleadings as ordinary required. He cited the case of Moto Matiko Mabanga v. Ophir Energy PLC & Six Others, Civil Appeal No. 119 of 2019 (unreported) to bolster his argument Second, that the applicants became aware of the existence of execution on 15th May, 2024 when they were served with the fourteen (14) days' notice of vacant possession by the broker. Third, the applicants were not aware of the existence of the execution during all processes of the application for stay of execution filed in the High Court and also that, the application was initiated by their advocate without their prior knowledge. In this latter, he said, the applicants should not be condemned on the wrongs committed by their advocate. He supported that argument by making reference to the case of 4 Mohamed Suleiman Ghona v. Mahmoud Mwenmus Chotikungu, Civil Reference No. 7 of 2021 (unreported). In the end of all, he maintained that, the application was within time. Alternatively, the learned counsel submitted that, in the event this preliminary objection is sustained, then the striking out of the notice of motion should be without costs. Mr. Kamala rejoined briefly that, it is not true that the filing of an application for stay of execution to the High Court was without prior knowledge of the applicants. He said so because that argument is being submitted at first time in the bar as nowhere in the supporting affidavit the applicants dared to depose such a fact. He thus distinguished the case of Mohamed Suleiman Ghona (supra) as being not applicable in the instant application. The rest of his rejoinder was mostly a repetition of what he submitted in chief. I heard the counsel for the parties submitting for and against the raised preliminary point of law. The synergy between them is on one legal point that in terms of rule 11 (4) of the Rules, an application for stay of execution has to be instituted within fourteen (14) days from either; one, the date the 5 service of the notice of execution reached the applicant and two, or, from the date the applicant became aware of the existence of the application for execution. Their point of departure however is in respect of when the said awareness regarding the existence of the execution reached the applicants. On this one, whereas the applicants maintain that the date of service of the broker's notice was the date they became aware of the execution, the respondents peg the existence of that knowledge from the time the applicants moved the High Court to stay execution of the decree. In response to the rival argument by the parties, one thing to note is that, through Mr. Hamis Athuman Mbangwa, learned advocate, the applicants initiated in the High Court of Tanzania at Dar es Salaam an application for stay of execution registered as Miscellaneous Application No. 10867 of 2024. The said application was for stay of execution of a decree pending the determination of the intended appeal initiated by the applicants to the Court. It was prayed in that chamber summons that: a) That this honorable court may be pleased to grant an interim order for stay of execution ordered on 24hApril\ 2024 by honorable Madam FIMBO (DR) pending determination of the application and the intended appeal to the Court ofAppeal of Tanzania, b) Any other relief(s) this honorable Court may deem fit andjust to grant [Emphasis mine] Whereas this is what the applicants intimated the High Court to grant, according to paragraph 8 of the supporting affidavit in the instant application, that application for execution to the High Court was lodged on 10th May, 2024. At this hour, the notice of appeal had already being filed to the Court. By all means and standard, an application for stay of execution which was struck out by the High Court on 22nd May, 2024 was filed in response to the intended execution. Now, as the notice of appeal was already filed to the Court, it was justified on the part of the High Court to strike out the application for being misplaced. This being the case, it is obvious that, the applicants became aware of the existence of the execution upon being served with the notice of execution on 18th April, 2024. Of essence is that, the applicants' counsel did not dispute service of the said notice of execution. He only alleged that, such service was in the knowledge of the applicant's advocate only, so do the filing of the application for stay of execution in the High Court. He thus strives to convince me that, the applicants were not aware of the notice of execution. Of relevance perhaps is, it is this notice of execution which prompted the applicants to initiate an application for stay of execution, though in a wrong forum anyway. It is obvious therefore that having been served with the notice of execution, in my view, there was a proper service of the notice of execution and it is from that day when the fourteen (14) days within which to file an application for stay of execution started to run. In other words, the applicants rushed to the High Court for stay of this notice of execution and not any other. It is odd therefore for the applicants to allege unawareness of the said notice and alternatively, shifting the blame to the advocate who filed the application for stay of execution to the High Court. If anything to do with that argument, then it has to be in a different forum and not in this instant application for stay of execution. In Joseph Chande Magabe v. Board of Trustees of CCM, Civil Application No.462/08 of 2023 (unreported) it was observed by a Single Justice of Appeal that: ".three, the application for stay o f execution must be filed within fourteen days of service o f the notice of execution or from the date the applicant became aware o f the existence of such application..." Under the circumstances, the application for stay of execution filed on 29th May, 2024 intimating to stay execution of the decree following a notice of execution served to the applicants on 18th April, 2024 is well beyond the mandatory period of fourteen days dictated under rule 11 (4) of the Rules. That said, I find merit in the preliminary objection, accordingly, I sustain it. In the light of the foregoing, this application for stay of execution suffers incompetence and I hereby strike it with costs. It is so ordered. DATED at DAR ES SALAAM this 23rd day of July, 2024. G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 25th day of July, 2024 in the presence of Ms. Esther Msangi, learned counsel of the Respondent also holding brief for Onesmo Kivuma, learned counsel for the Applicants, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 9