kwamwande village council others vs paulo parisino sokoriano kipala others 2017 tzca 321 14 july 2017

IN THE COURT OF APPEAL OF TANZANIA AT TANGA fCORAM: LUANDA. J.A.. MZIRAY. J.A. And NDIKA, J.A.^ CIVIL APPLICATION NO. 2 OF 2016 KWAMWANDE VILLAGE COUNCIL & 49 OTHERS........................ APPLICANTS VERSUS PAULO PARISINO SOKORIANO KIPALA & 79 OTHERS......................................RESPONDENTS (An application for stay of execution of the judgment of the High Court of Tanzania (Land Division) at Tanga) ( Aboud, J.) Dated the 22nd day of April, 2016 In Land Case No. 12 of 2012 RULING OF THE COURT 13th & 14th July 2017 LUANDA, J.A This is an application for stay of execution of a decree pending the hearing and determination of the intended appeal. It has been made by way of a Notice of Motion supported by an affidavit. Briefly the background to the application is to this effect. The respondents sued the applicants in the High Court of Tanzania (Tanga Registry) for a declaration that they were lawfully occupying the suit land i and ancillary relifs in connection with the main claim, like eviction. After hearing the suit on both sides, Abood, J. granted the prayers. The applicants are dissatisfied. They are intending to challenge the decision of the High Court to this Court. They have started the process of appeal by lodging a notice of appeal. Being aware that an intention to appeal alone is not enough to hold on execution process, hence this application for stay. In this application Mr. Stephen Sangawe, learned counsel appeared for the applicants; whereas the respondents were represented by Mr. Philemon Raulencio, learned advocate who strongly resisted the application. For an application of stay of execution to succeed, the applicant must fulfill the conditions stipulated under Rule 11(2) of the Court of Appeal Rules, 2009 (the Rules) namely:- (i) Filing a notice o f appeal (ii) The application o f stay o f execution to be made before the expiry o f the time allowed for appealing i.e 60 days. 2 (iii) To show good cause. (iv) The Court to satisfy itseif whether the conditions enumerated in item (d) o f sub-rule 2 of Rule 11 were met. In this application, Mr. Ally Omari Magwadu deponed in the affidavit that they lodged a notice of appeal on 17/5/2016 in time as the judgment of the High Court was handed down on 22/4/2016. In law the notice of appeal ought to be made within 30 days from the date of the decision (See Rule 83(2) of the Rules). He further deponed that the application for stay was lodged on 7/6/2016 it is within the time of 60 days of the lodgment of an appeal. The issues which were hotly contested were showing good cause, they will suffer substantial loss and security for due performance of the decree. In his submission, Mr. Sangawe said that the applicants have been residing therein for quite a long time. If they are evicted they will not be able to be compensated in monetary terms. As to good cause he said to this effect, that the applicants are dissatisfied with the decision of the High Court. This Court might reverse the decision of the High Court on the evidence available on record. If execution is not stayed and win the appeal then the outcome of the appeal would be rendered nugatory. Turning to security, he said his clients are ready and willing to give security as would be directed by the Court. Mr. Raulencio opposed the application. But instead of confining himself within the parameters of the application, he, took a long time and raised some extraneous matters including the protection of his clients who are pastoralists. He then talked about security for due performance of the decree which he said is wanting. We have carefully gone through the affidavit in support of the notice of motion and affidavit in reply. The dispute subject matter of this which finally find its way to this Court is land. As to security for due performance of the decree, Mr. Sangawe said and indeed it is in the Notice of Motion that the applicants are ready to furnish the same. Indeed the law does not strictly demand the same must be given prior to the grant of the stay order. A firm undertaking is sufficient. (See Mantrac Tanzania Ltd V Raymond Costa, Civil Application No. 11 of 2010 (unreported). So, it is the Court to impose the condition if it finds fit to do so. We now turn to substantial loss and good cause, which we combine, we have the following to say. The applicants are intending to appeal to the highest Court of the Land. Now if execution is carried out by demolition of the property whatsoever that is standing on the land and when the applicants win their appeal, definitely the applicants will suffer substantial loss and the outcome will be nugatory. In Mantrac Case we said:- "What will happen, for instance, if the stay order is denied, execution o f the decree carried out and the Court eventually reduces the quantum o f damages awarded or allows the entire appeal? Won't that success prove to be nugatory? From the facts of this case, it is our respectful finding that that would be the case. This, then, is good cause for exercising our discretion in favour o f the applicant, hoping that the appeal will be instituted without undue delay, if it is yet to be instituted. " In view of the foregoing we are satisfied that the applicants meet the conditions of stay of execution as enumerated under Rule 11 (2) of the Rules. Because the condition for security for performance of the decree has been left to the Court, we hereby direct the applicants jointly to deposits Tshs. 10,000,000/= cash in The High Court (Tanga Registry) by 31st July 2017. In fine, the application is granted on the aforestated condition. Costs in the cause. It is so ordered. DATED at TANGA this 14th day of July, 2017. B. M. LUANDA JUSTICE OF APPEAL R.E.S. MZIRAY JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL I certify that this is a COURT OF APPEAL 6