CIVIL APPLICATION NO 242 01 OF 2024 MOHAMED ENTERPRISES TANZANIA LIMITED VS DINDIRA TEA ESTATES LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 242/01 OF 2024 MOHAMMED ENTERPRISES (TANZANIA) LIMITED..................... APPLICANT VERSUS DINDIRA TEA ESTATES LIM ITED.......................... ......... RESPONDENT (Application for stay of Execution of the Judgment of the Court of Appeal of Tanzania at Tanga) (Mgeta, 3.) dated the 29th day of September, 2016 in Land Case No. 2 of 2007 RULING 26th June & 20th August, 2024 MAIGE. J.A.: This is an application for stay of execution of the decree of the High Court of Tanzania at Tanga in Land Case No. 2 of 2007. The application is brought under rules 4(2), (a), (b) of the Court of Appeal Rules, 2009 ("the Rules") and is premised on an affidavit of the applicant's Principal Officer one Gulamabbas Hassanali Fazal Dewji and a supplementary affidavit of Mr. Elisa Abel Msuya, learned advocate. The decree the execution of which is sought to be stayed was to the effect that the applicant should yield vacant possession of the Farm No. 7902 ("the suit property") to the respondent. It is deposed that; a short while after the decree had been passed, the applicant executed a deed of settlement with the respondent and five other persons not parties to this application with a view to, among others, satisfying the decree. That, pursuant to the deed, the applicant performed part of her bargain by paying USD 300,000.00 to the respondent who in turn executed indemnity bond and power of attorney necessary for transfer of the suit property in the name of the applicant. Afterwards, it is further asserted, the respective indemnity bond and power of attorney were submitted to the Registrar of Title to initiate the transfer process and were registred. In what the deponent of the affidavit calls "a twist of event", it is further asserted, the respondent lodged a caveat and statutory declaration in objection to the entry of the said instruments in the land register. Acting on the said caveat, the Registrar refused to register the suit property in the name of the applicant and, as a result, the applicant appealed to the High Court, Land Division in terms of section 102 of the Land Registration Act. The respective appeal was struck out for the reason that it contained more evidence that those placed before the Registrar of Titles. Further aggrieved, the applicant lodged a notice of appeal and an application for leave to appeal to the Court. For non-appearance on the part of the applicant, such application was dismissed. The applicant applied for review, the application which was struck out on technical ground. In her further efforts to pursue the intended appeal, the applicant filed an application for extension of time to apply for revision, the application which is still pending before the Court. Before that, it would appear, the applicant had, filed in the High of Tanzania at Dar es Salaam, Civil Case No. 95 of 2022 for specific performance of the deed of settlement which was, however, dismissed at the instance of the respondent for being res judicata to the decision of the Registrar of Titles in question. During hearing, the applicant enjoyed the services of Mr. Elisa Msuya learned advocate assisted by Ms. Regina Kiumba, learned advocate while Mr. Ndurumah Majembe, also learned advocate, represented the respondent. They each submitted in details in support and opposition of the application, as the case might be. Unlike Mr. Majembe who initially filed written submissions, Mr. Msuya solely relied on oral arguments. Frankly speaking, the counsels' submissions have been very instrumental in composition of this decision and, in that regard, I express my sincere appreciation to them. I regret, however, that for escaping from being prejudicial to the intended appeal, some of the arguments and facts in the affidavits might have not been considered. It is trite law that grant of stay of execution depends upon the applicant fulfilling three conditions set out under rule 11 (5) (a), (b) and (c) of the Rules, namely: First, the application must be necessary to 3 prevent substantial loss; Second, the application has to be made without delay; and Third, the applicant must undertake to furnish security in due performance of the decree. See for instance, Felix Emmanuel Mkongwa v. Andrew Kimwaga (Civil Application No 249 of 2016) [2020] TZCA 333 (9 June 2020; TANZLII). The powers of the Court to stay execution of the decree, it is also the law, can only be exercised where the decree to be stayed relates to the intended appeal or application, as the case may be. See for instance, Micah Elifuraha Mrindoko t/a New BP Kilwa Road Services Station v. Bank of Africa Tanzania Limited (Civil Application No. 211/16 of 2022) [2024] TZCA 43 (February 2024; TANZLII). From the submissions, it would appear, the counsel are not in dispute that, the instant application was filed without undue delay. Equally so, for the fact that the applicant has firmly undertaken to furnish security in due performance of the decree as may be determined by the Court. The contention by the respondent as founded in the affidavit in reply is that, the pending application for extension of time to apply for revision as well as the intended appeal do not relate to the decree to be executed. In this respect, Mr. Msuya submitted that; since the deed of settlement which the Registrar refused to give effect was executed by the parties as the way of satisfying the decree, and, pursuant thereto, the 4 applicant performed part of her bargain by, inter alia, paying the purchase consideration of USD 300,000.00 and withdrawing the notice of appeal against the decree to be executed, the execution of the decree by evicting her from the suit property will render the intended appeal nugatory. That, he submitted, sufficiently connects the intended appeal and the decree to be executed. Mr. Majembe is in doubt, in the first place if the application for extension of time to apply for revision is still relevant. The reason being that, leave to appeal is no longer a legal requirement. In reaction, Mr. Msuya while in agreement that leave is no longer a requirement and, the pending application for extension of time to apply for revision has indeed been overtaken by events, it was his contention that; in as long as there is a notice of appeal against the decision of the Registrar of Titles, and the decree to be stayed is in respect of the matter subject of the intended appeal, it is in the interest of justice that the application is considered pending determination of the intended appeal; regard being that, at the time of lodging the notice, leave was still a mandatory requirement. In that regard, reliance was placed in the case of National Housing Corporation v. Peter Kassidi & Others (Civil Application No. 243 of 2016 [2019] TZCA 153 ( 4 June 2019; TANZLII) and Maryam Nassor v. Abla Estate Developers and Agency Limited and Ohers (Civil Application No. 462/8 of 2023 [2024] TZCA 322 (7 May 2024; TANZLII). For Mr. Majembe, it was further argued that; as the proceeding whose decision is intended to faulted on appeal is not against the decree to be executed but a decision of the Registrar of Titles refusing to register the suit property in the name of the applicant, the application cannot stand. I have carefully followed the rival arguments and considered them in line with the notice of motion, affidavit, supplementary affidavit and the affidavit in reply and, hereinafter, I will determine the merit or otherwise of the application. I have already said elsewhere in this decision that whether the application was timely lodged and whether an undertaking to furnish security has been made, is not in dispute. Therefore, if it is established that the other requirements have been met, the application will be granted. I note from the affidavit that the decree to be executed was issued on 29th September, 2016 while the application for execution was filed in 2024 and served on the applicant on 3rd April, 2024. The deed of settlement and the power of attorney purport to have been executed on 9th December, 2016 while the indemnity bond on 28th April, 2017. The applicant's proposition is that the respective documents were executed 6 by the parties as necessary steps towards satisfying the decree in Land Case No. 2 of 2007 and, pursuant thereto, the applicant paid the purchase price of USD 300,000.00. and withdraw the notice of appeal against the decree to be executed. I also note from the affidavit in reply that, the caveat and statutory declaration which led to the removal of the power of attorney from the land register were issued on 11th June, 2018. The affidavit in reply further suggests that; on 15th June, 2017, the respondent's majority shareholder, one Anglo Dutch Agricultural Holding Ltd wrote to the Registrar of Titles requesting him not to proceed with the registration of the transfer of the suit property from the respondent to the applicant because " approval needed for Transferring Title Deed is still not yet finalized due to non-fulfillment o f certain conditions precedent". Much as the correctness or otherwise of the applicant's proposition cannot be determined at this stage, I can say without any hesitation that; the above facts are sufficient to connect the intended appeal and the decree to be executed. For, if the intended appeal succeeds and the suit property is, at the end result, registred in the name of the applicant in terms of the deed of settlement, the decree to be executed will be rendered satisfied. On that account, I agree with Mr. Msuya that; although the subject of the intended appeal is a decree on appeal from the decision of the Registrar of Titles, the execution of the decree in question will have 7 nugatory effect to the intended appeal as the property to be executed is also the subject matter of the intended appeal. I understand that in terms of rule 11 (3) of the Rules, stay of execution can only be granted in respect of a decree or order against which the appeal is preferred or intended to be preferred. In this matter, the decree upon which the notice of appeal has been lodged is not that which is to be executed despite that the latter has nugatory effect to the former. Obviously, therefore, an order for stay of execution cannot be granted under the respective provisions which is why the applicant has relied on rule 4 (2) (a) and (b) of the Rules. As a matter of practice, the said provision is used by the Court to address some interlocutory matters necessary for the interest of justice unto which the provisions of the Rules or other laws are silent. Therefore, in Attorney General v. the Board of Trustees of the Cashewnut Industry Development Trust Fund and Another (Civil Application No. 77 of 2015 [2015] TZCA 581 (13 May 2015; TANZLII), it was said: " We think that, the wording o f Rule 4(1) and (2) (a) and (b) o f the Ruies, is wide enough to give discretion to this Court to go into any matter or give any order, if it is o f the opinion that it is required in the interest of justice." 8 Similarly, in Maryam Nassor v. Abla Estate Developers {supra), where the applicant applied for stay of execution against inexecutable decree under rule 11 of the Rules, the Court while dismissing the application, observed: " We have no such provision in the Tanzania Court of Appeal Rules, 2009, except for the one respecting stay o f execution. That lacunae", if at all, does not, in our view, mean that, that is the end o f the world for the applicant; she can still seek such recourse under the very Rules. Our Rules are so wide as to accommodate almost every situation that justice seeks to accommodate in proper circumstance" Discussing the injustices that may occur if the Court's discretion to stay execution is in all cases restricted to decrees or orders which is directly appealed against, the Court observed in the case of EcoBank Tanzania Limited v. Double A Co. Limited & Others (Civil Application IMo. 178/16 of 2021) [2022] TZCA 591 (29 September 2022; TANZLII) as follows: "With great respect, we decline to accept the learned counsel's invitation to hold otherwise. Nor is Mr. Dismas correct to ask us to treat the decree issued by the Taxing Officer as no decree before us to stay with all intends and purpose. By holding so, we have the 9 mandate also to hold that, if strictly our powers to stay execution were restricted to the decrees directly issued by the High Court in its first instance sitting, in total disregard o f the latter's appellate, revisional, review and reference jurisdiction, the possibilities o f the decree holders going out o f the courts with empty decree which is a mockery o f justice would not be ruled out The courts o f law are dutifully bound to protect the rights or interest o f the judgment debtors just as the rights or interest o f the decree holders deserve protection with equal force and means." The obvious question which follows, therefore, is whether the order sought is necessary, for the interest of justice, to prevent substantial loss on the part of the applicant and to preclude the intended appeal being rendered nugatory. The facts on which the applicant relies to establish existence of substantial loss are pleaded in paragraphs 13.0-15.0 which for clarity are reproduced hereunder: "13.0 That the suit farm is currently in occupation o f the Applicant who took possession way back in the year 2005 and the Applicant cultivates tea plantations. In carrying out the farming the applicant has employed a good number o f employees on permanent terms and some are on temporary employments; total number 10 employees at the moment is 333 (Three Hundred and Thirty-Three). 14.0 That if the eviction sought is carried out, the applicant shall lose tea plantations and the employees shall be forced into termination o f their employments with immediate effect. These losses cannot be atoned in damages. 15.0 That the Applicant has heavily invested in the suit Farm immediately after she took possession because at the time there was no dispute over ownership o f the Farm and she also invested after she signed the deed o f settlement believing that all is well only to find out that the Respondent was not acting in good faith. The intended eviction shall result into financial loss whose value is immensurable". In my view, the above depositions, on their face, suggest that the applicant has not only invested a huge capital on the suit property but employed numerous persons as well. On top of that, the facts in the affidavit despite being refuted in the affidavit in reply, raise a bonafide contention that the decree sought to be executed might, by agreement, been satisfied upon the applicant paying the alleged purchase price of USD 300,000.00 as reflected in annexure MTL-3 of the affidavit and withdrawing the notice of appeal against the decree to be executed. Therefore, as a matter of common sense, it would follow that, if the execution proceeds and the applicant is evicted from the suit property right away, more than 300 employees will be retrenched and the applicant will suffer substantially in terms of loss of investment and claims from the retrenched employees who will also remain jobless despite that the fate of the settlement of the decree to be executed is still sub judice in the intended appeal. So, in the events the intended appeal succeeds, the applicant will be likely to go out of court with, if I can use the words in EcoBank Tanzania Limited {supra) "an empty decree". For those reasons, and, in as long as the applicant has undertaken to furnish security in due performance of the decree, I am satisfied that; it is in the interest of justice to stay the execution of the decree pending hearing and determination of the intended appeal. Accordingly, the execution of the decree of the High Court of Tanzania at Tanga in Land Case No. 7 of 2007 is hereby stayed pending hearing and determination of the intended appeal on the following conditions: (i) The applicant desists from disposing o f or in any way alienating the suit property. (ii) The applicant executes and deliver to the Registrar of the Court a bank guarantee o f USD 300,000.00. within 30 days from the date hereof. 12 (iii) The applicant executes and deliver to the Registrar of the Court within the same period, a bank guarantee of TZS 151,133,333.33 being the decretal sum and interest inclusive as o f the date o f the filing o f the application for execution. (iv) Costs to follow events. It is so ordered. DATED at DAR ES SALAAM this 19th day of August, 2024. I. J. MAIGE JUSTICE OF APPEAL The Ruling delivered this 20th day of August, 2024 in the presence of Ms. Irene Mchau, learned counsel for the Applicant and Mr. Hassan Sinjo, learned counsel for the Respondent, is hereby certified as a true copy of the original. 13