CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA CIVIL APPLICATION NO. 109 OF 2025 MILTON LUSAJO LAZARO............................................................ APPLICANT

VERSUS ELIZABETH THOMAS O LO TU.................................................. RESPONDENT (Application for an order of staying of execution of the decree of the High Court of Tanzania - Land Division at Dar es Salaam). (Luvanda, J.) dated 25th day of October, 2024 in Land Case No. 326 of 2022

RULING 26th & 28th February, 2025 AGATHO. 3.A.: By a Notice of Motion preferred under rule 4(2)(a),(b), and (c), 11(3), (4), (4A ),(5)(a) and (b), (6) and (7)(a), (b), (c) and (d) of the Tanzania Court of Appeal Rules 2009 as amended, the applicant brought this application for stay of execution brought of the decree of the High Court of Tanzania Labour Division at Dar es Salaam pending determination of the appeal before this Court. The Notice of Motion was supported by an affidavit deponed by the applicant. In protesting the i application, the respondent's counsel, Mr. Juvenalis Joseph Ngowi filed an affidavit in reply. When the matter came for hearing on 26th February 2025 Mr. Gabriel Simon Mnyele, learned advocated for the applicant and Mr. Juvenalis Ngowi and Mr. Mpaya Kamara both learned advocates for the respondent appeared via video conference from Dar es Salaam. The court noted that the learned counsel confirmed their readiness to proceed with hearing. As preliminary, Mr. Mnyele submitted that this is an application for stay of execution. He pleaded that the court may note that there are two sets of enabling provisions these are rule 4(2)(a),(b) and (c) and rule 11 of the Tanzania Court of Appeal Rules, 2009. He submitted that they did as purposely as the application has unique features because the execution sought to be stayed is not being done by the Court. It was

his view that the same is being done by the Registrar of Titles. He continued to submit that the court may note that they have annexed annexture MLL - 6 to the supporting affidavit, which is an application for rectification of Title No. 12458 in the land registry. He stressed that that is the execution the applicant seeks to stay. The respondent has applied to effect changes by the virtue of the judgment and decree of the High 2 Court Land Division. That is annexture MLL-1. According to Mr. Mnyele, the law provides under rule 4(2)(a), (b) and (c) of the Rules that the Court of Appeal may stay the execution if it is in the interest of justice to do so. The learned counsel opined that that may particularly be so if rule 11 of the Rules cannot apply squarely due to some reason or another like in the situation where there is no execution application in the High Court. To cement his view, Mr. Mnyele referred to this court's decision in UAP Insurance Tanzania Limited v Yuda Thomas Shayo and 5 Others (Civil Application No. 611/18 of 2022) [2024] TZCA 239 (25 March 2024) at pages 6-11. He submitted that the copy of that authority will be submitted later. It was his submission that the principles applicable are the same. Before proceeding, I should state here that I have noted that case is about a situation where the stay of execution is sought against a decree for which no appeal has

been preferred. However, truly, that case held that rule 4(2)(a), (b) and (c) of the Rules may apply in application for stay of execution uncovered by rule 11 of the Rules, such as stay of execution where there is application for revision. Thereafter, Mr. Mnyele went on adopting the Notice of Motion and affidavit in support. He then turned to the principles, that the application 3 must contain documents stated in rule 11(7) of the Rules. He elaborated that the notice of appeal is appended, copies of judgment and decree are annexed, and annexture MLL-6 to the supporting affidavit is an application form for rectification of Title as notice of intended execution. He explained that there is no notice of intended execution filed in court, or from executing officer. But the respondent has filed an application before the Registrar of Titles for rectification of the Title No. 12458 plot No. 212 Msasani, within Dar es Salaam city. The learned applicant's counsel submitted that the applicant has stated in paragraph 5 of the affidavit how he became aware. Next on Mr. Mnyele's submission menu was rule 11(5) (a) of the Rules requiring showing of substantial loss likely to be suffered if stay of execution is declined. He submitted that they have indicated in the Notice of Motion and the supporting affidavit paragraph 7 that the applicant will suffer substantial loss as he will lose 49%

ownership of the property as declared in the decree. He then turned to rule 11(3) of the Rules require showing of good cause. It was his submission that the applicant had done so through paragraph 6 of the supporting affidavit. Mr Mnyele suggested that these grounds constitute a good cause. He buttressed his submission with reference to the case of Joseph Chacha Magabe v Board of Trustees of CCM, Civil Application 462/8 of 2023 CAT. Regarding rule ll(5 )(b ) of the Rules, requiring furnishing of security, Mr. Mnyele submitted that it is settled now that what is required first is the firm commitment by the applicant to issue security. The firm commitment is deponed on paragraph 8 of the supporting affidavit. The applicant is ready to execute a commitment bond. It was his argument that the nature of security depends on whether the decree is a money decree or otherwise. In support that view he cited the case of Evalyne Muna v Joseph Mshana, Civil application No. 277/17 of 2023 CAT at pages 6-8. Lastly, Mr. Mnyele submitted that the respondent has deponed on paragraph 8 of affidavit in reply disputing the nature of security. He submitted that that is a misconception. He argued that there could have been an issue if the property was given as security to the bank for the loan. To support his submission, he cited the case of CRBD Bank Limited v Issack Mwamasika and 2 Others (Civil

Application No. 103/01 of 2017) TZCA 159 (19 July 2017 TANZLII). In the end, he prayed for the application to be granted. 5 On the respondent's side stood Mr. Ngowi. After adopting the affidavit in reply to become part of his submission he submitted that the respondent opposes the application on several grounds. It was his stance that the applicant had failed to meet the conditions under rule 11(5) of the Rules. One is that the applicant will suffer substantial loss, and two, security must be given for due performance of the decree or may bind him. According to Mr. Ngowi these were discussed in the case of Ongujo Wakibara Nyamarwa v Beatrice Grayson Mbaga, Civil Application No. 200/17 of 2021 where the Court held that the conditions must be met cumulatively. To discredit the application, Mr. Ngowi submitted that paragraph 7 of the supporting affidavit does not tell what kind of substantial loss the applicant will suffer. He added that the respondent has applied for rectification of the title to comply with the decree of the High Court. He lamented that there is no issue of eviction here. It was his viewpoint that since the applicant claims that he will lose 49% of interest in the property due to rectification of the Title to be done by the Registrar of Titles that can be reversed on appeal if he succeeds and there is no substantial loss. As for security to be given, Mr. Ngowi

responded that looking at paragraph 8 of the affidavit in support there is no commitment to give 6 security in the meaning of rule ll(5 )(b ) of the Rules. He criticized the wording of para 8 of the supporting affidavit that it merely stated that the applicant will keep the property in good condition. In his standpoint that there is no commitment that the property will not be transferred or leased. As for reference to Isaac Mwamasika (supra), Mr Ngowi replied that the court in that case stated that the charged security for stay of execution was not subject of the suit/appeal. To Mr Ngowi that is different from the case at hand. He added that here the property sought to be pledged as security is the same in suit /appeal. He submitted that the 49% of shares granted to the respondent represent a monetary value. It was his plea that it must be properly secured if execution is to be stayed. Turning to the issue of lack of a pending execution application before the High Court, Mr. Ngowi agreed with the applicant's counsel that the application for execution must be done under Order XXI rule 9 and 10 of the CPC. He reiterated that the execution application is lacking. Along with that he clarified that the respondent is transmitting his shares by operation of the law. According to Mr. Ngowi argued that is a known procedure under section 71 of the Land Registration Act. Therefore, there

is no pending application for execution. He supported his view with the case of Zanzibar Telecommunication Limited v Commissioner General Tanzania Revenue Authority, Civil Application No. 216/15 of 2021 where the Court held that for stay of execution there must be an application for execution. To conclude his reply submission Mr. Ngowi reacted to Mr. Mnyele's citation of rule 4(2) (a)(b) and (c) of the Rules in a bid to persuade the court to entertain this application. However, the respondent's counsel was of the view that rule 4(2) cannot apply while there is a clear provision providing for stay of execution. Mr. Mpaya Kamara's added in the respondent's reply submission on Ongujo's case at page 12 on the conditions that they have to be cumulative. It was his further submission that the application was essentially brought under rule 11 of the Rules. He stressed that the conditions are very clear. It was his view that the applicant is moving the court away from the rule 11 to something elsewhere. That is why the case of Zanzibar Telecommunication (supra) held that stay of execution related to execution under Order XXI of the CPC. Mr. Kamara disputed the applicant drive to invoke rule 4 of the Rules which applies to lacuna situation while rule 11 of the Rules is on 8 stay of execution. He prayed for the application to be dismissed for want of merit. Mr. Mnyele briefly rejoined on

the applicability of rule 4(2) (a)(b) and (c) of the Rules, it was his submission that he cited that provision because the execution is taking place elsewhere. It is not taking place in court. Secondly, he submitted that the application for stay of execution relates to the decree of the High Court and the one doing or initiating the execution is the respondent is through back door and not the registrar of titles who is not in this court. The applicant's counsel admitted that the conditions under rule 11 are cumulative and they have met them. He wondered if taking or depriving 49% of interest is not substantial loss. It was not necessary for them to show that there is risk of eviction, etc. As for security, he submitted that if the decree is not money decree it has been the practice of the court to issue the commitment bond or change the hour or alter. As for the allegation that the applicant did not give commitment of not transferring or leasing, it was his view that a commitment bond is enough. The court is at liberty to take that as security. Mr. Mnyele conceded that there is no application for execution in the court. However, he underlined that what is being applied to the 9 registrar of titles is execution for all purposes that, is why they cited rule 4(2) of the Rules. He conceded further on rule 11 that the fourth condition of pending execution is not there. That is why

he cited rule 4(2) of the Rules. He eventually prayed that the application be granted, and costs be in the main cause. Having heard the parties' submissions, and perusal of the Notice of Motion, supporting affidavit and affidavit in reply, the key issue for determination is whether the application at hand has merits. Whether it has complied with the Rules? Indeed, the criteria for grant of an order for stay of execution are loud under rule 11(3), (4), (4A), (5) (a) and (b), (6) and (7) of the Tanzania Court of Appeal Rules, 2009 as amended by rule 2 of the Tanzania Court of Appeal (Amendment) Rules of 2017 and rule 4 of the Tanzania Court of Appeal (Amendment) Rules 2019 [Cap 141 R.E. 2019]. First, under rule 5(a) and (b) of the Rules the conditions to be complied with have been stipulated for an order for stay of execution. These limbs are substantial loss may result in the party applying for stay of execution unless the order is made, and that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. The second requirement is on documentation. Rule ll(7 )(a ) - (d) enlists the documents that the 10 applicant must accompany with the application for stay of execution. Namely: (a) a notice of appeal, (b) a decree or order appealed from, (c) a judgment or ruling appealed from, and (d) a notice of the

intended execution. The parties agree that the above is the relevant law on application for stay of execution. However, there are two or three issues dividing them: to begin with, whether the applicant has complied with rule ll(7 )(d ) of the Rules requiring notice of the intended execution. Parallel with that is whether rule 4(2) (a) and (b) of the Rules may be invoked in the context of this application. Moreover, whether the applicant complied with rule 11(5) (a) of the Rules as to whether he is likely to suffer any substantial loss. Lastly, whether the applicant complied with rule ll(5 )(b ) of the Rules prescribing a requirement of the applicant to give security for the due performance of the decree. Starting with the first issue whether the applicant has complied with rule 11(7) (d) of the Rules requiring notice of the intended execution. That has been the epitome of the rival submissions. The applicant has deponed on paragraph 5 of the supporting affidavit that on 13th January 2025 he came to know about the intended execution through annexture MLL-6, aa form filed with the Registrar of Titles li applying for rectification of Title No. 12458 Plot No. 212 Msasani, Dar es Salaam, the property in which the respondent has been granted 49% shares ownership by the High Court decree subject of appeal which is pending before this Court. I ask myself whether this is a notice

of intended execution. The respondent has noted under paragraph 4 of her advocate's affidavit to the extent that she has lodged the said application but added that she has done so in exercise of her legal rights which were lawfully declared by the High Court of Tanzania, Land Division in Land Case No. 326 of 2022. The respondent's counsel, Mr. Ngowi also impressed that the intended rectification of the Title to reflect the respondent ownership of 49% is lawful because that transmission is by operation of law. In his view that process is not application for execution as framed under Order XXI of the CPC. He thus objected to a proposition that the application form for rectification of the Title before the Registrar of Titles is a notice of intended execution. To him the transmission is by operation of law, Section 71 of the Land Registration Act. While I concur that the execution application is governed by Order XXI of the CPC, and I subscribe to view that transmission by operation of the law is regulated by the Land Registration Act, I do not think that in all instance execution of decrees must be done through courts of law. 12 It depends on the nature of a particular decree. There are instances where a decree holder may proceed with execution without involving the courts. One may ask, if a decree holder decides to do so, is a judgment debtor precluded from seeking an order for

stay of execution in case she has preferred an appeal? The law is clear that the Rules and the Court protect the decree holder as much is they protect the judgment debtor. That was appositely held in Ecobank Tanzania Limited v Double A. Co. Limited and 3 Others, (Civil Application No. 178/16 of 2021) [2022] TZCA 591(29th September 2022, TANZLII). But a lingering question in this case is whether the application for rectification of Title before the Registrar of Titles is an execution of the decree and hence amounting to a notice of intended execution? While Mr. Mnyele supports it, Mr. Ngowi holds the opposite view that the application for rectification of the title under the Land Registration Act [Cap 334 R.E. 2019] is not execution under Order XXI of the Civil Procedure Code [Cap 33 R.E.2019] herein cited as CPC. In my view this argument is self-defeating because what the respondent has initiated is execution of the decree without filing any application for execution in the court of law. Considering the nature of the decree of the High Court in Land Case No.326 of 2022, it is my profound view that the application 13 for rectification of the Title before the Registrar of Titles is an execution of that decree. Looking at rule ll(7 )(d ) of the Rules, it loudly mentions a notice of the intended execution. Therefore, the application for rectification of the Title though is premised

under the Land Registration Act it is intended to execute the decree of the High Court. The decree is very categorical that the Registrar of Titles shall rectify the Title. The respondent in a bid to put the same in motion she filed her application for rectification before the Registrar of Titles. For the purposes of rule ll(7 )(d ) that is a notice of intended execution. Understandably, Mr. Mnyele for the applicant, was adamant whether rule 11(7) (d) has been complied with. He thus sought refuge to rule 4(2) (a) and(b) of the Rules. The issue is thus whether rule 4(2) (a) and (b) of the Rules may be invoked in the context of this application. The respondent led by Mr. Kamara, learned advocate vehemently disputed the urge to apply the said rule in the present application. He sought to impress the court that requirements for stay of execution have been prescribed by rule 11 of the Rules and there is no lacuna. He appealed to the Court to resist temptation to apply rule 4(2) of the Rules. Respectfully, Mr. Kamara's argument that rule 4(2) (a) and (b) of the Rules is inapplicable in all applications for stay of execution is 14 inaccurate. The reason is found in the UAP's case (supra); Selcom Gaining Limited v Gaming Management (T) Ltd and Gaming Board of Tanzania [2006] T.L.R. 200; Attorney General v The Board of Trustee of the Cashewnut Industry Development Trust Fund and

Another, Civil Application No. 72 of 2015 [2025] TZCA 581(13th May 2015, TANZLII). All these decisions are clear that rule 4(2)(a) and (b) of the Rules may be invoked where there is no provision for application for stay of execution pending revision. Fortunately, in the case at hand the application for stay of execution is not pending revision. Rather, it is pending appeal before this Court. However, there is no application for execution before the High Court. Mr. Mnyele on the other hand cited rule 4(2) (a) and (b) of the Rules and several authorities especially the UAP's case (supra). Unfortunately to him, he did not tell the court that the decisions cited were on stay of execution where there is no provision of the law on a particular issue especially the stay of execution pending revision. Here one can simply distinguish the cases cited. But the spirit of the law remains the same, that of ensuring justice is achieved. Mr. Mnyele's view is that since the application for rectification of Title before the Registrar of Titles is not an application for execution in the court of law then rule 15 ll(7 )(d ) of the Rules may be inapplicable. Hence, he sought refuge under rule 4(2) (a) and (b) of the Rules which is a provision applicable to situations where there is no provision of a particular matter. With respect, that provision may be applied in other instances but not the

case at hand because I have held that the application for rectification of the Title before the Registrar of Titles is a notice of intended execution of the decree. The impugned decree indicates that there was no way the respondent will file an application for execution before the court of law. All that she was required to do and which she did was to apply for rectification of the Title to the Registrar of Titles, and that is the execution of the decree. By analogy see Industrial Gases and Chemical Ltd and Two Others v Azania Bank Limited and Another (Civil Application No. 886/08 of 2023) [2024] T7CA 619 (19 July 2024). On other remaining issues, I start with whether the applicant complied with rule 11(5) (a) of the Rules, that if stay of execution is refused, he will suffer substantial loss. Briefly, the applicant has deposed in his affidavit that the loss will deprive him 49% of ownership of the property. Mr Ngowi for the respondent considered that is non-substantial loss because if the Title is rectified and on appeal the applicant becomes 16 successful then it will be reversed. But in my view, losing 49% of the ownership is indeed a substantial loss. Besides that, even though 49% may be restored on appeal, certainly the inconvenience that will be caused to the applicant can hardly be ignored. Lastly, is whether the applicant complied with rule 11(5) (b) of the Rules

prescribing a requirement of the applicant to give security for the due performance of the decree. Paragraph 8 of the supporting affidavit is clear that the applicant is ready to furnish security in a form of commitment bond. Mr Ngowi objected to such security citing fear that the applicant may dispose of or lease the property. In my view these are unwarranted fears. Besides, there is an appeal pending before this Court. The commitment bond has been held in several decisions of this court to be a good security especially if the decree is not money decree. See Dr Luis B. Shija v Kellu Kamo Lucas (Civil Application No. 209/14 of 2024) [2024] TZCA 675 (1 August 2024 TANZLII). I thus hold that the applicant has complied with rule ll(5 )(b ) of the Rules. In fine, I find the application to have merit. The rectification of Title No. 12458 Plot No. 212 Msasani, within the city of Dar es Salaam by the Registrar of Title in execution of the decree of the High Court of Tanzania in Land Case No.326 of 2022 is stayed pending determination of the 17 appeal before this Court. This order is subject to the applicant executing a commitment bond as security within 30 days from the date of this ruling. Given the circumstances of this application each party shall bear its costs. Order accordingly. DATED at DODOMA this 28th day of February, 2025. U. J. AGATHO

JUSTICE OF APPEAL The Ruling delivered this 28th day of February, 2025 in the presence of Mr. Juvenile Ngowi, learned counsel for the Applicant and also holding brief for Mr. Gabriel Mnyele, learned counsel for the Respondent via video facility from Dar es Salaam, is hereby certified as a true copy of the original. 18