CIVIL APPLICATION NO 360 17 OF 2021 MATHEW UPANGA MNKANDE VS SIMEDA PRODUCTS AND TRADING COMPANY LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 360/17 OF 2021 MATHEW UPANGA MNKANDE............................... ...................APPLICANT VERSUS SIMEDA PRODUCTS AND TRADING COMPANY LIMITED......... RESPONDENT (Application for stay of execution of the judgment and decree of the High Court of Tanzania, at Tanga) fMruma. 3.^ dated the 23rd day of April, 2021 in Land Case No. 16 of 2017 RULING 12thJune & 30thJuly, 2024 MDEMU. J.A.: This application is for stay of execution of the judgment and decree of the High Court of Tanzania at Tanga, in Land Case No. 16 of 2017 which was decided in favour of the respondent. The applicant's suit was dismissed for want of merits. The application is by way of a notice of motion premised under rule 11 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The sub rules to the rule have also been cited for the purpose. i According to the supporting affidavit, on 6th July, 2017 the applicant instituted Land Case No. 16 of 2017 against the respondent for among other things, a declaration that there was no valid agreement between the applicant and the respondent and a declaration for vacant possession along with compelling the respondent to hand over the suit farm. As said, on 23rd April, 2021 Mruma J. dismissed the said suit for want of merits. The applicant was aggrieved by that decision. He then appealed to the Court in Civil Appeal No. 431 of 2021, an appeal which is pending before the Court. While hearing of the appeal was underway, the respondent filed Application for Execution No. 23 of 2021 intending that the applicant be evicted from the suit farm, hence the instant application for stay of execution. I heard the parties on 12thJune, 2024 in which the applicant had the services of Mr. Ndurumah Keya Majembe, learned advocate whereas Mr. Tumain Omari Bakari, also learned advocate appeared to represent the respondent. At the inception, the respondent's counsel prayed to withdraw the preliminary objections he had earlier on filed. On the other hand, Mr. Majembe did not oppose to that prayer. On my part, I acceded 2 to the unopposed prayer. Consequently, I marked the raised preliminary objections withdrawn. In support of the application for stay of execution, the applicant's counsel stated that the notice of motion, the supporting affidavit and the supplementary affidavit deposed in that behalf should constitute part of his oral submission. He thereafter submitted that, the application was in compliance with the dictates of rule 11 (3), (4), (4A) and (5) of the Rules, more so as the ex-parte order for stay of execution was duly granted. He thus asked me to order the stay of execution paving way for the determination of Civil Appeal No. 431 of 2021. According to the counsel, the said appeal, which is pending before the Court, was filed on 4th November, 2021. He also pressed for costs. In reply, Mr. Bakari resisted the granting of the application for stay of execution. As was to Mr. Majembe, he also relied on an affidavit in reply to constitute part of his oral submission. In effect, the learned counsel's basis in objecting the granting of the stay of execution hinges on the security to be deposited. As deposed in paragraph 10 of the supporting affidavit, the applicant has made an undertaking to use the immovable property, that is, Kwashemshi Sisal Estate in Plot No.639a and 639b LO 3 No. 104180 under certificate of title No. 5626, located at Korogwe District in Tanga Region as the security for the due performance of the decree. He had two reasons for the argument. One, that the farm is currently in the applicant's possession as it was mortgaged to secure loan and two, there is no evidence that the said mortgage has been discharged. He thus argued that, rule 11 (5) (b) of the Rules has not been duly complied. Mr. Majembe rejoined briefly that, what the applicant did is to make an undertaking to furnish security which is permissive in law, else, the Court is vested with discretion power to order any security to be furnished, a bank guarantee and or insurance bond inclusive. He concluded that, since the suit was dismissed by the trial court for want of merit, it is improbable to determine the value of the decree because, execution is intended to evict the applicant from the suit premises. As it is, this is what the counsel for the parties submitted for and against the granting of the application for stay of execution. Having heard from the counsel for the parties and having duly considered their respective affidavits and submission, one question to resolve is whether the conditions stipulated under rule 11 (5) (b) of the Rules in respect of an undertaking to furnish security has been duly complied. This being an 4 application for stay of execution, rule 11 (5) (b) of the Rules is clear in that aspect that: "(5) No order for stay o f execution shall be made under this rule unless the Court is satisfied that: (b) security has been given by the applicant for the due performance o f such decree or order as may ultimately be binding upon him," I have narrowed the discussion to the question of undertaking to furnish security because it is not disputed that the instant application was filed within 14 days, in which case therefore, the condition stated in sub rule (4) of rule 11 to the Rules has been duly complied with. Equally, the applicant's act to annex in the supporting affidavit, the notice of appeal, judgment, decree and the notice of execution is evidence of compliance with the dictates of rule 11 (7) of the Rules. On matters of substantial loss, the applicant has managed to show that, if execution of the decree is allowed to proceed, the applicant stands to suffer substantial loss, that being the state of affairs, as noted, the only controversy between the parties is in respect of the interpretation of rule 11 (5) (b) of the Rules, regarding the furnishing of security for the due performance of the decree. The counsel for the respondent argued that, the applicant cannot rely on Kwashemshi Sisal Estate in Plot No.639a and 639b LO No. 104180 under certificate of title No. 5626 as security because it has been mortgaged to secure a loan. He added that, currently, there is no evidence to the effect that the said mortgage has been discharged. I have gone through paragraph 10 of the supporting affidavit thoroughly and between the lines. There are two components gathered regarding the requirement to furnish security which the applicant was able to elaborate. One is the usual firm undertaking to furnish security for the due performance. In this one, the Court is empowered not only to exercise its discretion power to determine the security to be given, but also on the amount of security to be deposited. It is trite law that, a firm undertaking by the applicant to furnish security for the due performance of the decree is a sufficient proof to move the Court for stay of execution. See for instance; Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 (unreported). Component two is in respect of the use of the suit property as the security for the due performance of the decree. On my part, I will go by the first component which, in my considered view, is in compliance with rule 11(5) (b) of the Rules, more so as the 6 applicant has made a firm undertaking to furnish security. What the respondent disputes regarding the use of the suit property as security, in my view, was pleaded as an addition to what the Court may prescribe as the security for the due performance of the decree. In Kibo Corridor Ltd. v. Ravji Investment Co. Ltd, Civil Application No. 473/05 of 2019 (unreported), just one example to mention, this Court stated the following regarding an undertaking to furnish security: "It is established iaw that, a firm undertaking by the applicant to provide security might be sufficient proof to move the Court to grant the order o f stay o f execution. See for instancef Mantrac Tanzania Ltd v. Raymond Costa, Civii Application No. 11 o f 2010 (unreported)/' Regarding the amount of security, the respondent argued that, the decree has no value because the suit was dismissed. In order to appreciate this line of argument, I reproduce the whole decree as hereunder: DECREE WHEREAS, the plaintiff prays for the judgment and decree against the defendant as follows: a) A declaration that there is no valid and enforceable agreement between the plaintiff and the defendant b) A declaration that the defendant is illegally and unlawfully occupying the plaintiff farm. c) An order against the defendant to give vacant possession and hand over the farm L e. Kwashemshi Sisal Estate to the plaintiff immediately. d) An order for payment o f the sum o f TZS 500, 000, 000/- annually effective from October, 2016. e) An order to pay 12% interest on the principal sum on the outstanding rental sum in paragraph (d) above. f) General damages to be assessed by the court, regard being had to the estimated loss pleaded herein in paragraph 40(a) and (b) above. g) An order that the defendant pay the plaintiff costs o f this suit. h) Any other reliefs which this honorable court may deem fit andjust to grant. This case came on 2 J d April, 2021 for final disposal before judge A.R. MRUMA in absence o f the plaintiff 8 and his advocate and in the presence o f Mr. Tumain Bakari, advocate for the defendant THE COURT DOTH HEREBY ORDER THA T The plaintiff's suit is hereby dismissed with costs, Reading the above decree between the lines, besides the complaint that the decree has no monetary value, there is an understanding that the respondent herein is in possession of the suit farm. However, going by the contents of paragraphs 9 and 10 of the supplementary affidavit and also paragraphs 14, 16, 17, 19 and 24 of the affidavit in reply to the supplementary affidavit, it is clear to me that, the suit farm is currently in the hands of the applicant as from December, 2017. Given such state of affairs, I have the conviction that, there is substance in this application for stay of execution, accordingly I allow it. That means, if this application is not granted, the respondent will proceed to evict the applicant from the suit premises. For that matter, execution of the decree in Land Case No. 16 of 2017 (Mruma J.) dated 23rd April, 2021 is hereby stayed pending the determination of Civil Appeal No. 431 of 2021. 9 As this Court held in Suleiman Yussuf Ali v. Sultanali Abdalla Gulamhussein, Civil Application No.421/15 of 2018 and Mohamed Masoud Abdallah &16 Others v. Tanzania Road Haulage (1980) Ltd. Civil Application No. 58/17 of 2016 (both unreported), this order for stay is conditional that the applicant, within fourteen days of the delivery of this ruling, shall execute a bond of commitment to maintain the status quo of the premises. Costs of this application to abide the outcome of the intended appeal. It is so ordered. DATED at DAR ES SALAAM this 24th day of July, 2024. G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 30th day of July, 2024 in the presence of Mr. Hassan Sinjoati, learned counsel for the Applicant and Mr. Hassan Singo for Mr. Tumaini Bakari learned Advocate for the Respondent, is hereby certified as a true copy of the original. 10