CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA

AT POPOMA CIVIL APPLICATION NO. 86 OF 2025

MARY MUKAMI MESSO APPLICANT

VERSUS HAMIS MOHAMEP SAGAMBA 1st RESPONPENT SANGU CHARLES JOHN......... 2nd RESPONPENT (Application for stay of execution of the judgment and decree of the High Court of Tanzania (Land Pivision) at Par es salaam) (Mweneaoha, 3.) dated the 26th day of September, 2024 in Land Appeal No. 16711 of 2024

RULING 19th & 25th February, 2025 MANSOOR. 3.A.: This is an application for stay of execution of the decree of the High Court of Tanzania (Land Division) at Dar es salaam in Land Appeal No. 16711 of 2024 dated 26th September 2024. This application has been preferred by way of notice of motion under Rule 11(3), (4), (4A), (5)(a), and (b), (6), (7)(a), (b), (c) and (d) and Rule 48(1) of the Court of Appeal Rules, 2009, as amended by the Tanzania Court of Appeal (Amendment) Rules, GN No. 362 of 2017 and Tanzania Court of Appeal(Amendments) Rules, GN No. 344 of 2019. The Notice of motion is supported by an affidavit of one Marry Mukami Messo, the applicant. The 1st respondent filed affidavit in reply while the 2nd respondent neither filed affidavit in reply nor entered appearance during hearing, hence hearing against the 2nd respondent proceeded exparte. Brief background to the present application goes as follows; The applicant herein filed Land Application No. 8/2023 in the District Land and Housing Tribunal of Kigamboni at Kigamboni (herein referred as "The Trial Tribunal"), seeking to be declared the lawful owner of the disputed land measuring three (3) acres situated at Gezaulole, at Somangila Ward, in Kigamboni District, Dar es Salaam. The applicant claims that she purchased the disputed land from Ally Saidi Ngayagoya since 12/08/1997, and that she has been using the same

since then, and was recognised by the Local Government Leaders as she was issued with the Certificate of Title on 09/01/2017. That in 2022, the 1st respondent invaded the disputed land claiming that he had a customary title and sold part of the land to the 2nd respondent. The applicant also prayed for nullification of a sale contract between the 1st and 2nd respondents arguing that the 1st respondent did not have a good title to the disputed land to enable him to pass it over to the 2nd respondent. The District Land and Housing Tribunal ruled in favour of the applicant, declaring her the rightful owner of the land in dispute and proceeded to nullify the sale of part of the land by the 1st respondent to the 2nd respondent. Dissatisfied with the trial tribunal's decision, the 1st respondent appealed to the High Court by filling Land Appeal No. 16711 of 2024.The Appeal was heard by Honourable Mwenegoha J., who in turn allowed the appeal. Irked with the High Court decision, the applicant lodged a notice of appeal to this court on 17th October, 2024. The applicant has further lodged this application intending to bar the respondents from executing the High Court decree pending the determination of the intended appeal. During the hearing of the application, the applicant enjoyed the services of counsel Juventus Katikilo who held brief of counsel Jalia Mohamed. The 1st respondent was

represented by counsel Joseph Yahaya Mbogela, while the 2nd respondent did not enter appearance despite being properly served, thus the application proceeded exparte against him. In arguing the application, Mr. Katikilo adopted the affidavit of the applicant in support of the notice of motion. He went on to submit that, the applicant has lodged the notice of appeal on time and had served it to the respondents. That, the applicant has not filed the appeal as she is yet to be availed with the records of appeal. The applicant has deposed in the affidavit specifically in paragraph 7 that, she received information from her neighbours that the 1st respondent has entered into the disputed land and has started apportioning the land and is about to sell pieces of 3 land to different buyers. That upon receiving the information from the neighbours, she herself visited and verified the ongoing processes of portioning the land and the 1st respondent's efforts to find prospective buyers of the disputed land. That, she tried to make follow up and sought an assistance from the local government offices but she could not get any assistance. In a bid to try to preserve the subject matter of the intended appeal, the applicant filed the present application for stay of execution on 14th January 2025, which is seven days after 8th January 2025, the day she discovered that the 1st respondent has

started the processes of portioning the land and looking for buyers. The applicant states at paragraph 9 of her affidavit that if the application is not granted she will suffer inconveniences and chaos and it will bring hardship to reclaim the land from the several buyers who might purchase the land from the 1st respondent. Mr. Katikilo made reference to Rule ll(5)(a) and (b) of the Court of Appeal Rules and paragraph 11 of applicant's affidavit and argued that the applicant is ready to deposit security for the performance of the decree. He further submitted that, the affidavit in reply by the 1st respondent has not contested on the security as he is not contesting an appeal initiated by the applicant. He thus prayed for the application to be allowed without costs. In rebuttal, Mr. Mbogela, the Counsel for the 1st respondent contested the grant of the application on the ground that, the applicant has failed to show the substantial loss bound to be incurred as she only stated under paragraph 9 that she will incur hardship to redeem the land. He admitted that, the order for security is within this court's discretion. He discredited the facts deposed under paragraph 7 of the applicant's affidavit arguing that the information needed to be supported by the neighbour's affidavit and local government leaders for them to be verified and believed. He further contended that this

application should not be granted as there is nothing to support that the 1st respondent has initiated the execution processes. The Counsel for the 1st respondent also filed a notice of preliminary objection contending that the application is incompetent as the applicant failed to attach the notice of intended execution as required in Rule 11 (7) (d) of the Rules. I ruled that the objection raised by the counsel for the 1st respondent shall be determined in the course of determining the main application, as in order to determine the preliminary objection raised, the court needs to scrutinise the facts whether it is true that the 1st respondent has entered into the disputed land and has started portioning the land for selling it to the interested buyers. The objection could not qualify to be argued as a preliminary point of law as its determination requires scrutiny of the laws and regulations and evaluation of evidence. In so holding, I make reference to the famous case of MUKISA BISCUIT MANUFACTURING CO.LTD V. WEST END DISTRIBUTORS LTD [1969] E.A. 696, at page 100, in which it was held: "The first m atter related to the increasing practice o f raising points, which should be argued in the norm al manner, quite im properly by way o f prelim inary objection. A prelim inary objection is in the nature o f what used to be a demurrer. It raises a pure p oint o f law which is argued

on the assum ption that a ll the facts pleaded by the other side are correct It cannot be raised if any fact has to be ascertained or if what is sought is exercise o f ju d icia l discretion. The im proper raising o f p oin t by way o f prelim inary objection does nothing but unnecessarily increase costs and on occasion; confuse issues. This im proper practice should stop . " I now revert to the determination of the instant application. The issue for consideration and deliberation in the application for stay of execution is whether the applicant has met all the conditions for granting the stay of execution order as provided in Rule 11 of the Rules. This court is mandated to grant an order for stay of execution as provided under Rule 11 (3) of the Court of Appeal Rules. The provision states; "Rule 11(3), In any c iv il proceedings, where a notice o f appeal has been lodged in accordance with rule 83, an appeal sh all not operate as a stay o f execution o f the decree or order appealed from nor sh all execution o f a decree be stayed by reason only o f an appeal having been preferred from the decree or order; but the Court, m ay upon good cause shown, order stay o f execution o f such decree or order" Thus, for this Court to grant an order for stay of an execution, the applicant is obliged to show good cause for the stay order to be issued. The applicant is also obliged to state

and give particulars of substantial loss she might suffer if the stay of execution order shall not be granted, and that those particulars of loss must be substantiated. Further, Rule 11(7) states categorically that the application for stay of execution must be accompanied by four documents, that is, the Notice of Appeal, the copy of the impugned Judgement or Ruling, the Decree or Order appealed from and a Notice of the intended execution. This sub rule 7 of Rule 11 provides that; " Rule 11 (7) An application fo r stay o f execution sh all be accom panied by copies o f the follow ing a) a notice o f appeal b) A decree or order appealed from c) A judgm ent or ruling appealed from ; and d) A notice o f the intended execution." In the instant application, the applicant has complied with all the pre-conditions set out in Rule 11 sub rule 7 except that he did not attach the notice of intended execution and this issue is the center of contention between the counsels representing the parties herein. While the Counsel for the applicant argues that there is execution process going on as the 1st respondent has entered into the land in dispute and has started the processes of portioning the land into pieces with the intention of selling the pieces to the prospective buyers, the counsel for the 1st respondent denies those allegations and stated that since there is no notice of execution

issued by the Court, then there was no execution going on which the court is required to issue a stay order. Admittedly, Rule 7(d) of the Rules requires an application for stay of execution to be accompanied with the notice of execution. Despite the fact that attaching the notice of execution is a mandatory requirement for a competent application for stay of execution, "the notice of execution" or the word "execution" has not been defined in the Rules. It is also a clear and undisputed position of the law that execution can be done with or without the assistance of the court. The term "execution" is not defined in 8 the Civil Procedure Code, Cap 33, R.E 2022 or even in the Court of Appeal Rules. However, in my understanding of the law and practice, execution means implementing or enforcing or giving effect to an order or a judgment passed by the court or tribunal. In simple words, "execution" means the process of enforcing or giving effect to the decree or judgment. It is the realization of the fruits of the decree either peacefully and voluntarily by the judgement debtor or through the assistance of the court. Order XXI of the Civil Procedure Code contains elaborated provisions which deal with all questions regarding executability of a decree in all aspects. There are different modes of execution of a decree provided in the Civil Procedure Code. There is a procedure for

executing a monetary decree and payment of monetary decree which can either be made to the court or outside the court, and if payment have been done directly to the decree holder by the judgement debtor without involving the court, the court needs to certify that the decree has been satisfied and discharged. There is also a mode of execution of a decree involving moveable or an immovable property. In all modes and scenarios, the Court may be asked to assist to execute the decree, and if the decree has been satisfied outside the court, then the decree holder is required to inform the court and the court will certify that the decree has been discharged. Certainly, there is no execution of the decree without involving the court. The Court must be involved in any mode of executing the decree, either by assisting the decree holder to execute or by recording and certifying that the decree has been satisfied in full or in part. Thus, the notice of execution envisaged in Rule 11 (7) (d), is the notice issued by the court or an officer of the court in the execution proceedings, as when the decree is executed freely and voluntarily by the judgement debtor, certainly there would be no need to issue the notice of execution. It is true as argued by the Counsel of the 1st respondent that in this matter the court was not asked to assist the decree holder to enforce the decree, and if the

decree holder has executed the decree without involving or informing the court, the decree holder might have used force or procedures not known to the court, and this mode of enforcement of the decree is not recognized and cannot be encouraged by the court. All the same, Rules 33 and 34 of Order XXI of the Civil Procedure Code provide the mode of executing decree for possession of immovable property. Where the decree is for immovable property in the possession of the judgment-debtor or in the possession of the person bound by the decree, it can be executed by removing the judgment-debtor or any person bound by the decree and by delivering the possession thereof to the decree-holder. The decree must be executed by the court by putting the decree-holder in possession thereof. It is obvious, and from the undisputed facts of the present matter that the decree holder did not involve the court or did not seek the assistance of the court when or if at all it is true that he has already taken possession of the property subject to the decree. It is not clear also as to whose possession the land in dispute was before the decree of the High Court was issued and how did the 1st respondent entered into the disputed land without involving the court. If that is true, as pleaded by the applicant, then this application must have been overtaken by events, and the judgement debtor/credior is

required to follow the procedures elaborated under the Civil Procedure Code to have the decree marked as satisfied as nothing can be reversed for now. Asking the Court of Appeal to issue a stay of execution order on a decree which has already been executed is an abuse of the processes of the court, as actually there is nothing to stay. Again, I have considered the applicant's assertions that she was informed by the neighbours to the land that the 1st respondent has already taken possession of the land and he is in the process of portioning it and selling it. In my fortified view, these are mere allegations which have not been substantiated. It is trite law and as required under section 101 of li the Evidence Act that he who alleges any fact to exist must substantiate that those facts indeed exist or existed. The Court cannot give reliefs to facts which have not been proved. [See the cases of; Barelia Karangirangi vs Asteria Nyalwambwa, Civil Appeal No. 237 of 2017; Ikizu Secondary School vs Sarawe Village Council, Civil Appeal No. 163 of 2016 and Godfrey Sayi vs. Anna Siame Mary Mndolwa, Civil Appeal No. 114 of 2012. It is also trite law that, the court must grant stay of execution only where it is satisfied that the applicant has shown good cause and all the conditions enumerated in Rule 11 (4), (5), and (7) have been met. This was also held by this court in the case of Joseph

Soares @ Goha vs Hussein Omary, Civil Application No. 12 of 2012(unreported). The court stated as follows; "The Court no longer has the luxury o f granting an order o f stay o f execution in such term s as the Court m ay think ju st; but it m ust find that the cum ulative conditions enum erated in Rule 11(2) (b)(c) and (d) exist before granting the order. The conditions are i. Lodging a Notice o f Appeal in accordance with Rule 83; ii. Showing good cause and; iii. Com plying with the provision o f item (d) o f sub rule 2 " Not only that the applicant failed to comply with the pre­ conditions of Rule 11 (7) (d) and Rule 5 (a) of the Rules, the affidavit of the applicant and the submissions made by the applicant's counsel have proved that the decree has already been executed and the decree holder has already taken possession of the decreed property, thus there is nothing to stay. Consequently, on the above stated reasons, I find this application to 1 be unmeritorious, and it is hereby dismissed. I order that costs of this P application to follow the events. It is so ordered. DATED at DODOMA this 25th day of February, 2025. L. A MANSOOR

JUSTICE OF APPEAL The Ruling delivered this 25th day of February, 2025, in the presence of Mr. Juventus Katikilo holding brief for Ms. Jalia Mohamed learned counsel for the Applicant, Mr. Joseph Mbogela, learned counsel for the 1st Respondent and in absence of 2nd Respondent, is hereby certified as a true copy of the original. C.

DEPUTY REGISTRAR

COURT OF APPEAL