CIVIL APPLICATION NO 321 17 OF 2024 NASOR HAMIS NASOR VS REGINA ISHEMWABURA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 321/17 OF 2024 NASOR HAMIS NASOR............ ............................................. APPLICANT VERSUS REGINA ISHEMWABURA..................................... ............... RESPONDENT [Application for stay of execution of the Decree of the High Court of Tanzania (Land Division) at Dar es Salaam] ( Luvanda. 3.1 dated the 09th April, 2024 in Land Case No. 47 of 2014 RULING 01st & 9th July, 2024 MWAMPASHI. J.A.: The subject matter in this application for stay of execution of a decree dated 09.04.2024, passed by the High Court of Tanzania (Land Division) at Dar es Salaam in Land Case No. 47 of 2014, is a house on Plot No. 705 Block "F" Msasani Area, formerly known as house No. 94A Block "F" (the House). In the instant application, the Court has been moved to stay the execution of the said decree pending hearing and final determination of the applicant's intended appeal against the relevant judgment and decree. In the said Land Case No. 47 of 2014, before the High Court, wherein the respondent, Regina Ishemwabura, successfully sued the applicant, Nasor Hamis Nasor and two others who are not parties to this application, i the High Courtz, declared the respondent the rightful owner of the House. The applicant was also ordered to vacate the House and pay to the respondent Tshs. 500,000/^ as mesne profit per month from June, 2004 to the date the applicant vacates the House. Aggrieved, the applicant applied for the copy of the proceedings for appeal purposes on 12.04.2024 and on 18.04.2024 he duly lodged the notice of appeal. While waiting to be supplied with the requested copy of the proceedings so that he can file his intended appeal, on 25.04.2024, a notice to show cause why the decree should not be executed, was issued by the Deputy Registrar against the applicant. It is the said notice to show cause which prompted the applicant to file the instant application on 08.05.2024. The application is by way of the notice of motion and basically, it is made under rule 11 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The grounds for the application, as sifted from the notice of motion are: (i) The applicant may sustain a substantial ioss if stay is not granted. (ii) The appiicant may lose his residential house and become homeless. (Hi) The applicant has instituted the application without any unreasonable delay. Whereas, in support of the application there is an affidavit affirmed by one Mr. Salum Khamis Nasor allegedly holding power of attorney issued by 2 the applicant in his favour on 21.09.2023, in resistance, there is an affidavit in reply sworn on 10.05.2024 by the respondent Regina Ishemwabura. When the application was called on for hearing before me, whereas the applicant was represented by Mr. Kessy Ngau, learned advocate, the respondent had the services of Mr. Joseph Rutabingwa, also learned advocate. Arguing the application, Mr. Ngau began by adopting the supporting affidavit. In that affidavit, apart from paragraph 9 under which it is deposed that refusal of stay of execution of the decree is likely to cause substantial and irreparable injury in that the heavily unexhausted improvements made to the House will be enjoyed by the respondent, the remaining part of the affidavit is just a summary of the background of the matter and the inception of the instant application. Having adopted the supporting affidavit, Mr. Ngau, very briefly, contended that the application is timely filed within the prescribed period of fourteen (14) days and that the applicant had to file the application following the respondent's continuous attempts to evict him from the House while the applicant is still waiting to be supplied with the copy of the proceedings he had requested so that he can appeal against the judgement and decree. He thus prayed for the application to be granted as sought in the notice of motion. On his part, Mr. Rutabingwa, adopted the contents of the affidavit in reply and prayed for the application to be refused because the requirements under rule 11 (5) of the Rules, have not been fulfilled by the applicant He submitted that it cannot be claimed in paragraph 5 of the supporting affidavit that the House belongs to the applicant while there is no evidence to that effect and further, while there is a decree by which the respondent is declared the rightful owner of the House. Mr. Rutabingwa did also refer the Court to paragraph 11 of the supporting affidavit where it is deposed that the applicant is abroad and thus not staying in the House. He insisted that it is the respondent who suffers substantial loss for being deprived of her rights to occupy and use the House and not the applicant who is abroad and not in occupation of the House. Regarding the requirement of furnishing security for the due performance of the decree, it was submitted by Mr. Rutabingwa that the applicant has not furnished security and he has not undertaken or even shown that he is ready or willing to furnish security if he is so directed by the Court. He pointed out that under ground 7 of the notice of appeal the applicant states that the property, that is, the House, is available as security while the House does not belong to him. It was also argued that the position of the law is settled that a property in dispute cannot be given as security for the due performance of the decree. On this point, Mr. Rutabingwa referred the Court to the decisions of the Court in Juto Ally v. Lucas Komba and Another, Civil Application No. 84 of 2017 and Sinani Building Contractors Limited & 2 Others v. CRDB Bank PLC, Civil Application No. 662/16 of 2022 (both unreported). In his brief rejoinder, Mr. Ngau insisted that the applicant is ready and willing to furnish the House as security for the due performance of the decree. The oniy issue for determination is whether the prerequisite conditions warranting the grant of stay of execution of the decree have been fulfilled. Before tackling the said posed issue, I should first restate that the jurisdiction of the Court to order stay of execution of a decree upon good cause being shown, is derived from rule 11 (3) of the Rules under which it is provided that: "11(3) In any civil proceedings, where a notice o f appeal has been lodged in accordance with rule 83, an appeal, shall not operate as a stay o f execution o f the decree or order appealed from nor shall execution o f a decree be stayed by reason oniy of an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay o f execution o f such decree or order". Further, the conditions constituting good cause within rule 11 (3) of the Rules, that need to be fulfilled to warrant grant of stay of execution of the decree are provided under rule 11 (5)(a) and (b) of the Rules, that: "/\to order for stay o f execution shaii be made under this ruie unless the Court is satisfied that- (a) substantial loss may result to the party applying for stay o f execution unless the order is made; (b) security has been given by the applicant for the due performance o fsuch decree or order as may ultimately be binding upon him. The law is also settled that the conditions laid down under rule 11 (5)(a) and (b) of the Rules, must be satisfied cumulatively. See- Mohamed Masoud Abdalla and 16 Others v. Tanzania Road Haulage (1980) Limited, Civil Application No. 58/17 of 2016 and Salvatory Gibson v. William Laurent Malya and Another, Civil Application No. 06/05 of 2017 (both unreported). In the former decision the Court observed that: "For an application for stay o f execution o f a decree to succeed, the applicant must comply with conditions listed under the law, cumulatively" Guided by the above restated position of the law, let me begin with the issue of substantial loss. It is averred under paragraph 11 of the affidavit in reply that the applicant lives abroad and is not in occupation of the House. This fact has not been ostensibly disputed by the applicant. Further, under paragraph 9 of the supporting affidavit it is averred for the applicant that the loss the applicant is likely to suffer, if the execution of the decree is not stayed, is unexhausted improvements made to the House by the applicant. The question that arises here is whether the said loss is reparable or not. To my considered view the answer in in the affirmative. The alleged loss is reparable. I also find that, under the circumstances of this matter where the applicant is living abroad and is not in occupation of the House, it is the respondent who suffers most for being deprived of her right to occupy and use the House which has been declared hers by the High Court. The requirement under rule 11 (5) (a) of the Rules has thus, not been satisfied. With regard to the second requirement on security for the due performance of the decree, the advocate for the applicant has emphatically maintained the averment in the notice of motion that the only security the applicant is ready to offer is the House. It should be borne in mind that the House the applicant is offering is the same house that was declared by the High Court to belong to the respondent. The applicant is thus offering the House that does not belong to him as security. This cannot be accepted. Faced with the similar scenario, the Court in Juto Ally (supra), stated that: "We have indicated in the preceding pages that the impugned decision declared the second respondent the lawful owner o f the house; the very house the applicant is now offering for security. We think that is ironic and we cannot accept that offer". Further, in the case of Juma Hamis v. Mwanamkasi Ramadhani, Civil Application No. 34 of 2014 (unreported), which was also referred in the case of Juto Ally (supra), the Court observed that: "As already intimated, the decree forming the subject o f the application categorically adjudged that the respondent (plaintiff) is the lawful owner o f the suit land and that the same should be returned to her. The decree is, so to speak, not in favour o f the applicant. Under the circumstances, it will be against reason for the applicant to be allowed to offer the land in dispute as security for the due performance o f the decree". For the above given reasons, the applicant's offer to furnish the House, which does not belong to him, as security for the due performance of the decree in compliance with the requirement under rule 11 (5) (b) of the Rules, is refused. As it has been for the requirement on substantial loss, 8 the applicant has also failed to meet the requirement on furnishing security for the due performance of the decree. In the event, I find that the applicant has failed to comply with the two conditions listed under rule 11 (5) of the Rules, cumulatively. Consequently, for above given reasons, the appiication is accordingly dismissed with costs. DATED at DAR ES SALAAM this 5th day of July, 2024. A. M. MWAMPASHI JUSTICE OF APPEAL The Ruling delivered this 9th day of July, 2024 in the presence of Mr. Kessy Ngau, learned counsel for the applicant and Mr. Thomas Brash, learned counsel for the respondent, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 9