CIVIL APPLICATION NO 953 OF 2024 NAOMI MWAIPOLA AND ANOTHER VS TANZANIA INDUSTRIAL RESEARCH AND DEVELOPMENT ORGANIZATION TRIDO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 953 OF 2024 NAOMI MWAIPOLA......... .................................. ...............1st APPLICANT ABDALLAH SHABANI MVUNGI (as Administrator Of the Estate of Seleman S. Mvungi)................................. 2NDAPPLICANT VERSUS TANZANIA INDUSTRIAL RESEARCH AND DEVELOPMENT ORGANIZATION (TRIDO)........................ ...........................RESPONDENT [Application for stay of execution of the Judgment and Decree of the High Court of Tanzania (Land Division) at Dar es Salaam] fMakani. J/l dated the 27th July, 2020 in Land Case No. 419 of 2017 RULING. 24thOctober & 6th November, 2024 MWAMPASHI, J.A.: This is an application by way of a notice of motion brought under rules 11(3), (4A), (5), (6) and (7) as well as 48 (1) both of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is for an order to stay the execution of the decree of the High Court of Tanzania (Land Division) at Dar es Salaam (the High Court), in Land Case No. 419 of 2017, dated 27.07.2020, pending the hearing and final determination of the applicants' Civil Appeal No. 217 of 2021. The application is supported by an affidavit sworn on 09.10.2024 by the 1st applicant, Naomi Mwaipola and it is resisted by an affidavit in reply sworn on 23.10.2024 by Sarah Wilbard, the Principal Officer of the respondent. The applicants herein, instituted Land Case No. 419 of 2017 against the respondent in the High Court. In principle, the applicants' suit was for a declaration that they are the lawful owners of Plots Nos. 305/1 (724) and 306/1 (725) both situated at Block "B" Msasani Village Kinondoni Municipality in Dar es Salaam. They also sought for an order to permanently restrain the respondent from entering into the said two plots. The suit was dismissed with costs on 27.07.2020 whereby it was decreed that the applicants are not entitled to the reliefs they had sought. Aggrieved, the appellant duly lodged the notice of appeal on 05.08.2020 followed by Civil Appeal No. 217 of 2021 which is pending before the Court. As averred under paragraph 6 of the supporting affidavit, on 04.10.2024, the applicants were evicted from the two plots by force and without any eviction order from the court. It is the said eviction which prompted the applicants to file the instant application on 15.10.2024 for stay of execution of the decree pending the determination of Civil Appeal No. 217 of 2021. When the application came before me for hearing, Messrs. Emmanuel J. Msengezi and Mkama Musalama, both learned advocates, represented the applicants and respondent, respectively. In addition, to the two points of preliminary objection raised by the respondent, notice of which had earlier been filed on 23.10.2024, to the effect that the application is incompetent for non-compliance of rule 11 (7) (d) of the Rules and that the 2nd applicant lacks locus standi, the Court invited the counsel for the parties to also address the Court on whether the decree of which its execution is being sought to be stayed, is capable of being executed by the respondent. Mr. Musalama began by responding to the issue raised by the Court. He argued that the applicants' suit having been dismissed and as the decree gave neither of the parties any right to the two plots, the decree is not executable. It was insisted by Mr. Musalama that the fact that according to the decree, neither of the party was declared the rightful owner of the two plots, is a reason why the respondent has never even attempted to file any application for execution of the decree. He finally contended that, since the decree is not capable of being executed, there is no execution that can be stayed by the Court. He thus, prayed for the application to be struck out with costs. Mr, Msengezi readily conceded that since the relevant decree simply dismissed the applicants' suit giving the right over the two plots to neither of the parties, then it is not executable. Notwithstanding the concession and the fact that the decree is not executable, Mr. Msengezi did however, argue that as the applicants are still fighting for their rights over the two plots in the pending appeal, the Court is enjoined to safeguard and protect the applicants' rights which are in danger of being lost, by issuing a stay order. He so argued while placing reliance on the decision of the Court in Ecobank Tanzania Limited v. Double A Company Limited and 3 Others (Civil Application No. 178/16 of 202i) [2022] T7CA 591(29 September,2022:TanZLII), wherein the Court stated that the courts of law are dutifully bound to protect the rights or interest of the judgment debtors just as the rights or interest of the decree holders deserve protection, with equal force and means. The only issue arising from the above submissions by the counsel for the parties on the issue raised by the Court, is whether the instant application is competent and maintainable. As rightly conceded by the counsel for the parties, the relevant decree does not give a right to any of the parties. In particular, the decree does not give any right to the respondent entitling it to execute the same. The decree is thus, not capable of being executed and its execution cannot be stayed. Confronted with a similar situation, the Court, in the case of Hamis Mohamed (Administrator of the Estate of the Risasi Ngawe Deceased) v. Mtumwa Moshi (Administrator of the Estate of Moshi Abdallah, Deceased) (Civil Application No. 526 of 2016) [2019] TZCA 338 (21 August, 2019; TanZLII), observed that: "Since the claim in both the plaint and the counter ciaim were dismissed. We agree with Mr. Njama that in principle there can be no decree or order which is capable o f being executed. That is for obvious reason that the decision of the High Court did not give any right to any o f the parties. In the case o f Athanas Albert and 4 Others v. Tumaini University College, Iringa [2001] T.L.R. 63, the Court stated as follows on thatprinciple: "A stay o f execution can properly be asked for where there is a Court order granting a right to the respondent or commanding or directing him to do something that affects the applicant". Again, in the case of Kibo Hotel Kilimanjaro Limited v. Consolidated Holding Corporation and Another, Civil Application No. 105 of 2008 (unreported), the Court stated that: "In the instant case I am inclined to agree with the submission made by counsel for the respondent that the decision o f the High Court was not capable o f execution, it simply dismissed the suit filed by the applicant With the dismissal o f the suit by Mziray, J. the parties position reverted to the same status quo before the filing o f the suit There is no decree that is capabie o f being executed which this Court couid order to be stayed... In the event, the application for stay o f execution is hereby struck out with costs". Guided by the above settled position of the law and considering the fact that the decree in the instant case is not capable of being executed, it goes without saying, as night follows day, that in the instant case, there is no execution of the decree that can be stayed. The application is thus, incompetent and not maintainable. It is also an observation of this Court that, apart from the fact that the decree is neither capable of being executed nor of its execution capable of being stayed, it appears, as averred under paragraph 6 of the supporting affidavit, that the applicants have already been evicted from the premises in dispute. In such a situation, even if the decree would have been executable, the application for stay of execution would have been overtaken by events. The invitation by Mr. Msengezi that, notwithstanding that the decree is incapable of being executed, the court should protect the applicants' rights over the two plots in dispute by issuing a stay order, is, with due respect, refused for being misconceived. The case of Ecobank Tanzania Limited (supra), on which Mr. Msengezi relied, is distinguishable to the instant case. Unlike in the instant application where the decree is not executable, the respondents in Ecobank Tanzania Limited (supra), had an executable order arising from the bill of costs proceedings. The findings on the issue raised by the Court regarding the competence and maintainability of the instant application on account that the decree of which its execution is being sought to be stayed, is not capable of being executed rendering the application incompetent and not maintainable, suffices to dispose of the application. In the circumstances, I find no compelling necessity of considering the two points of preliminary objection raised by the respondent. In fine, the application is hereby struck out with costs for being incompetent and not maintainable. DATED at DAR ES SALAAM this 5th day of November, 2024. A.M. MWAMPASHI JUSTICE OF APPEAL The Ruling delivered on this 6th day of November, 2024 in the presence of Mr. Emmanuel J. Msengezi, learned counsel for the Applicant and Respondent in absence, is hereby certified as a true copy of the