19981029 TZHC Dar es Salaam 1

...,. . ./ CIVIL JI.PPEhL NO. 145 OF 1997 '-- . \.., OMARI MGENI •• ,. • • •• o • • • • • • • • ., o • • • • • • • • APi?LICANT/i\PPELLANT ' \ ... _ versus " .....,. ,., ...._ MORA.MED HAMID ••••••••••••o•••••••••••RESPONDENT '------./ -----~-~-•r~ •--=- RU L I N G. '::>W.~l::a=- ~l._TA, J.!. This is an application for an order to stay the execution of the decree of the Kivukoni RM 1 s Court in Civil Case No.62 of 1997 pending the hearing of the appeal. A brief background of the matter is as follows:- In 1986 Dar es Salaam Education and Office Stationery, in which Omari Mgeni, the Applicant, was director, ilpplied for overdraft facilities at the then National Bank of Commerceo Mr.Omari Mgeni deposited the title deed of his own house situated at Plot Noo5 Block 3? Kinondoni as security for an overdraft of shs.2 million granted by the Bank to the Company. In May 1994 the bank informed the Company tha.t ,thr-: debt had risen to shs. 15,371,538/20 and that if not settled the house mortgaged as security '\'muld be sold. The debt was apparently not aettled and the house was sold by the bank as mortgagee to Mohamed Hamidt the Respondent, on 29/11/1994. The company resisted the sale of the house by instituting a suit in the High Court being civil case No. 248 of 1994. The Company sought han order for a permanent injunction to stop the sale of the property situated on plot no.5 Block 37

Kinondoni, Dar es.Salaam until the facts indispute are resolved in full." The company also sought temporary injunctive orders. On 30.12.199L~ Bubeshi, J, made an order setting aside the sale and restraining the Bank and the Registrar of titles from transferring title No.2257 of the house in dispute to any person. The Bank appealed to the Court .of Appeal in Civil Appeal No 16 of 1995 against Bubeshi,J 1 s order of 30i12.1994. The appoal was successful. 'nle temporary injunction issued to set aside the sale was set aside by the Court of Appeal on 24/11/1995• On 27.11.1995 the said house was • •••• /2 '\ \ f j register~d in the name 0f Mohamed Hamid, the Respondent. Hohamed Hamid than instituted a suit at the RWs Court of Dar es Salaam at Kisutu, b~ing Rl1 Civil Case No.62 of i997 under order 35 of the '· Civil Pro~edure Code against the Applicant seeking an order-of . / eviction against the ii.pplicant. The l.pplicant applied for leave . to appear ~nd defend the suit. Leave waB refused and the trial court went on to order eviction. Being dissatisfied, the Applicant appealed to this court. The Applicant also sought an order for temporary injunction to restrain the Respondent from evicting him from the property in dispute. Th,1.t application was struck out by Chipeta, J. on 19.6.1998. Hence this application for stay of execution. The hearing of this application was by way of

written submissions. The Applicar..t was represented by Mr. M.S. Lebba, learned advocate. The Respondent had the services of Mr.s.E. Shayo learned advocate. In his affidavit Mr. Omari Mgeni, the Applicants, deposes that should t~ ½e evicted from the house in dispute his rights which he may be entitled to in Civil Case No.248 of 1994 would become unenforceable against the Respondent for the recovery of the said house as the Respondent intends to demolish it and constract another house on the parcel of land where the disputed house now stands. In his written submission Mr. Lebba states that the Applico.nt will suffer substantial loss if an order of stay of execution is not granted as prayed. He argues that the appeal (that is civil appeal no 145 of 1997 has overwhelming chances of success, In his submissio,. Mr. Lebba :i.Q?l!ies that the property in dispute constitutes security required under order 39 rule 5(3) of the Civil Procedure Codeo He submits that the Applicant has shown sufficient causG for the grar,-c of an order of stay of execution. In his written submission Mr. Shayo argues that this appl.t.cation is yet another attempt to prevent or delay the decree holder from enjoying the fruits of his ju::l.gment in P.M Civil Case No 62 of 1997• I l. He argues that the Applicant had applied for an order of st~y of execution in the court which passed the decree. That

appl1cation was refused because th& Applicant did not satisfy the co:ttiitions ·'"\·._j prescribed by Order 39 rule 5(3) of the CiVil .. . Procedure Code. He went on to argue that conditions which must be fulfil~d before an ,J order of stay is granted as required under' Order 39 ruie- 5(3)...., __.., I have not been fulfilled in the instant application. He accordingly '-- _,/ prayed that this applir,ation be di'smissed with·costs. Order 39 rule 5(1) of the Civil Procedure Co~e provides that an appeal shall not operate as a stay of proceedings under a decree or order appealed from nor sli.nll execution of a decree be stayed bY,J'. reason only of art appeal having saen preferred from the decree; but the court may for sufficient cause order stay of execution of such decree, Rule 5(3) stipulates the conditions ·which must be fulfilled before an order for stay of execution can be made. That rule is as follows: ... 91 (3) Noorder for stay of e~cution shall be made · under sub-rule (1) or sub-X'l.4le(2) unless the High Court or the Court making it is satisfied- (a) That substantial loss may result to the party applying for stay of execution unless the order is made; · (b) That the application has been made without unreasonable delay; (c) That security has been given by the ,,;. -::.,;,l,•(A. applicant fQJ' the due performance of such decree -0r order as may ultimately be binding

'\lpon him." With regard to conditi~n (a) that is the issue of substantial loss to the Applicant unles~ the application is granted, it appears that the loss must be such loss·as cannot be made good by mere monetary compensa.tion. In ASIM POO!?J;RTlES LTD V ARUN PALEJA and Another, Dar es Salaam Civil Application No 8 of 1998, Lubuva J.A. said: nrt is common knowledge that sufficient ground is laid fbr consideration for granting stay of execution if it is shown, inter alia, thnt the intended app~al would, if successful, be rendered nuga tor1• Ol In SWAIBU SHJi;MDOLWA Ys FRi'.i.NK S1iFi1.RI MCHUMA, DSM Civil Application No 47 of 1997, Lull.lva J.A Iteld th::i.t i;,i th regard to Jllnud property, in the event an orderfo~ s·tay of execution is not granted and the .. 4••/4 r- - 4- decree holder constructs a building on the disputed plot, the applica.nt would suffer substantiaLu.oss if the appeal we.e to succeed becc=tuse land has intrinsic value and not monetary value because there may not be another plot' at the same situation as the disputed plot. In th8 instant application there is a real possibility th~t if application is not granted the Respondent will dimolish the disputed house and errect another building in its place. Should this happen and the Applicant goes cin to ~ the appeal ' and the case, he would suffer substantial loss. The application appears to have been made

without unreasonable delay, as the Applicant first applfod for an order of stay of execution in the court that entered j~dgment. The Applicant applied to this Court on dismissal of his application by the trial court. The requirGment that the applicant should give security for the due performance of such decree or order as may ultimately be binding upon him is mandatory, In this regard the Applicant does not appear to be serious. Mr. Lebba appears to imply that the property in dispute constitutes security reqtlired under order 39 rule 5(3) of the Civil Procedure Code. I do not think that property the stibje'ct matter of the ·suit can be·r~:gard~u·as security ~specially whore the said property J::ia~ already been'soldto a third~party~ _I~ of the considered opinion that the Applicant has not .. ·• . , . - . • . • ' . ~ ' 1 ' complied .. fully. with t,he mandatory requirements ' . of Order 39 rule 5 (3) • ~ The a,p:plication is dismissed with costs., - ....JUDGE Delivered i:u ,chambers in the preserice of Mr. Lebba, advocate for . th,e App],.icant and Mr. Mohamed Hamid the Respondent this 29th day .of • October 1998. • .ItJPqE 29/10/98