CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 19 OF 2025 NICHOLAUS SAM W EL............................................................ 1st APPLICANT KIHILA W ILLIAM .................................................................. 2nd APPLICANT MACHIBULA KARWIZILE...................................................... 3rd APPLICANT SENI KASHINJE.................................................................... 4th APPLICANT MATHIAS SAGANYA MAYALA................................................ 5th APPLICANT PHILIPO MWENDESHA......................................................... 6™ APPLICANT DEUSDERIT KASHANGAK SIM O N..........................................7™ APPLICANT TUMA SHITUNGURU AND 813 OTHERS.................................8th APPLICANT VERSUS NATIONAL RANCHING COMPANY LIMITED (MINISTRY OF LIVESTOCK & FISHERIES) WIZARA YA UVUVI NA MIFUGO).......................................................... 1st RESPONDENT ATTORNEY GENERAL........................................................ 2nd RESPONDENT (Application for stay of execution of the Decree of High Court of Tanzania at Bukoba) (Kiwonde, 3.) Dated the 10thday of October, 2024 in Civil Case No. 15 of 2022 RULING 18th & 21st February, 2025 AGATHO. 3.A.: By way of a notice of motion and supporting affidavit the applicant preferred this application. The same was brought under rules 11(3), (4), (4)A, (5)(a) and (b), 7(a), (b), (c) and (d) of the Court of Appeal Rules 2009 as amended by the Court of Appeal amendment Rules GN No. 344 of 2019. i On 18th February, 2025 when the matter was set for hearing the parties through their learned counsel, Mr. Stephen Michael Kaijage, for the applicants and Mr. Gerald Njoka, State Attorney for respondents entered appearance via video conference from Mwanza and Dar es salaam respectively. The hearing was conducted viva voce. As the starting point to his submission, Mr. Kaijage told the Court that the respondents were duly served upon. On the adversary side, Mr. Njoka, State Attorney, stated that they were served on 14th February, 2025, they could therefore not file an affidavit in reply due to time constraint. However, he was ready to proceed with hearing as he will focus on points of law. Regarding the application, Mr. Kaijage submitted that the same was brought under rules 11(3), (4), (4)A, (5)(a) and (b), 7(a), (b), (c) and (d) of the Court of Appeal Rules 2009 as amended by the Court of Appeal Amendment Rules GN No. 344 of 2019 herein cited as the Rules. During his submission, he prayed to adopt the notice of motion and the affidavit in support to form part of his submission. He submitted that the applicant has fulfilled the requirements under rule 11(7) of the Rules by attaching therewith a notice of appeal, as deponed under paragraph 3 of the supporting affidavit. Another attachment as deponed under paragraph 2 of the supporting affidavit is the judgment and decree which is appealed 2 from. Along with that is a notice of intended execution as deponed under paragraph 10 of supporting affidavit. The learned counsel for the applicant submitted that they have also complied with rule 11(4) of the Rules, which requires the application to be made within 14 days from the date the application for execution was served upon. Here the applicant was served with execution application on 24th December, 2024 and this application was filed on 7th January, 2025. Therefore, it was filed within time. Mr. Kaijage submitted that the applicant has shown in her notice of motion under inter partes application paragraph (c) (ii) that the intended execution is to evict the applicants and other 813 residents. The applicants have shown under (ii) that there will be substantial loss suffered by them if the execution order is left to prevail. On top of that Mr. Kaijage submitted that the proceedings and judgment and decree sought to be executed contain serious errors, which have been deponed in paragraph 11 of the supporting affidavit. That the case file went through the trial without being assigned to mandatory stages of mediation, it was thus deponed that such omission is fatal as it renders the whole proceedings nullity. The second irregularity is that the case proceeded to trial and judgment without framing issues. Finally, the successor judge proceeded with hearing without assigning reasons. Nor did he ask the parties if they were ready 3 and willing to proceed with him as a successor judge. The case was entertained by two judges. The omission to provide reasons is fatal and renders the proceedings nullity. Mr. Kaijage submitted further that he is aware of the requirements under rule 11(5) (a) and (b) of the Rules which states that the no for order stay of execution shall be made under this rule unless the court is satisfied that: (a) Substantial loss may result to a party applying for stay o f execution unless the order is made. (b) Security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. The applicants counsel submitted that they have tried to show that in the notice of motion under paragraph (c) (ii) and (iii) and in the affidavit it has been deponed under paragraphs 7, 8 and 12 read together with 13 and 15. Mr. Kaijage submitted that the applicants have not been able to furnish security for the due performance of the decree as required under rule (5) (b) of the Rules. However, he submitted that since the subject matter under this case is land which cannot be alienated or shifted in any way and the respondents will not be prejudiced in any way with the order granting the stay just in case if this Court upholds the judgment of the High Court they will still have an opportunity to execute the decree. He added that since the decree is founded under an irregular proceedings and since this Court is a Court of record and in most cases this Court has been regarding the irregularities in the proceedings as ground for extending time why should it not regard that as ground for granting an order for stay of execution. He submitted so because these irregularities and irregularities cannot be left on record unless they are corrected by this Court. Mr. Kaijage submitted that the balance of convenience under paragraph 14 of the supporting affidavit tilt in favour of granting an order for stay of execution. It was his view that for all he has submitted and deponed in the affidavit in support amount to good cause to ordering stay of execution. For the respondent stood Mr. Njoka, State Attorney who intimated that he will submit on the point of law that they have seen concerning rule 11(5) (a) and (b) of the Rules. The rule requires the applicant to provide security for due performance of the decree or orders to be issued. The State Attorney submitted that the counsel for the applicant conceded clearly that they have not complied with rule 11 (5) (b) of the Rules. Further to that Mr. Njoka replied to applicant's counsel appeal that since there are irregularities in the trial court judgment and decree the 5 Court should grant stay of execution. The State Attorney submitted that in several authorities, irregularities and illegalities are regarded as good grounds for extension of time and for stay of execution. Furthermore, Mr Njoka submitted that the land which the applicants are seeking to be pledged as security cannot operate like that because it is now in the hands of the decree holder. It was Mr. Njoka's view that the same cannot be the security in favour of the applicant. The learned State Attorney submitted that the words that the learned counsel for applicants' submissions are mere words from the bar and not evidence. The words here include the land in issue to be used as security that has not been pleaded in his affidavit. Therefore, that cannot be regarded as evidence as they are mere words from the bar. Mr. Njoka submitted that the applicants have failed to show firm declaration on any other property that could be used as security. It was his candid view that since the applicants have failed to comply with rule ll(5)(a) and (b) of the Rules that they have spoken generally about the loss, and they have failed to furnish security. To buttress his point he referred to the case of Twaha Michael Gujwile v Kagera Farmers' Cooperative Bank Limited, Civil Application No. 541/04 of 2018 (2019 TZCA 505) TANZLII at page 10 where this Court held that the applicant fulfilled only two out of three conditions and completely ignored to address 6 the third important condition that is security for the due performance of the decree as ultimately be binding upon him. Thus, the application was declined because the conditions are required to be fulfilled cumulatively. Mr Njoka submitted that as far as the amendment of the Rules is concerned there are two conditions: that of substantial loss and security for due performance of the decree or order. It was his submission that the applicant has failed to adhere to the conditions for furnishing of security for due performance of the decree. He added that these conditions ought to be adhered to cumulatively. In the end Mr Njoka, State Attorney, prayed for dismissal of the application with costs. Following the closure of Mr. Njoka's reply submission, Mr. Kaijage rejoined. It was his rejoinder that he made submission on the judge made law. That this court cannot shut its eyes on the irregularities and illegalities in the proceedings at the trial court, which are failure to frame issues, omission to assign the case to mandatory stage of mediation, and failure of the judge successor to state reasons for taking over the matter. It was his view that the court should use these irregularities as a ground for granting an order for stay of execution of the decree. As for the land as security, the argument that the land is in the hands of the respondent is wanting as what will be the point of the appeal if at all the land is already in the hands of the respondents. Again, if the land is in the respondents' hands what was the rationale of filing the application for execution at High Court of Tanzania Bukoba Sub-registry which before the Deputy Registrar is coming for hearing on 26th February, 2025. Turning to the case of Twaha Michael Gujwile (supra), Mr. Kaijage distinguished that case from the case at hand. He submitted that the said case was not about a judge making law which he is inviting the court to do in the instant case by considering the irregularities or illegalities as ground for stay of execution of decree. And that non- compliance of rule ll(5)(b) should not bar the Court from ordering stay of execution where there are serious irregularities like the ones at hand. In the end, he prayed the Court to grant an order for stay of execution of the decree. Having gone through the pleadings, particularly the notice of motion, its supporting affidavit, and after listened keenly to the submissions of the counsel representing the parties, I find that in this application there is only one decisive point, that is, whether the applicant has complied with the requirements prescribed by the Rules for the grant of an order for stay of execution. There is no gainsaying that the applicant's counsel conceded that the applicant has not met the second condition under rule ll(5)(b) of the Rules. This rule requires that the 8 applicant seeking the order for stay of execution must furnish security. That requirement is neither cosmetic nor optional. It is obligatory. With due respect to Mr. Kaijage for the applicant, I have perused the supporting affidavit nowhere he deponed that the applicants will furnish security. Even the suggestion that the disputed land could serve as security is an afterthought that came from the bar. I thus find Twaha Michael Gujwile (supra) to be a relevant authority here. As for Mr. Kaijage's suggestion that in the circumstances of this case the Court should make law to the effect that illegalities and irregularities should be grounds for stay of execution, that in my view is a poisoned fruit. I am saying so because the Rules are very clear. It is a principle of interpretation of the law that if a provision of legislation is clear the Court gives effect to plain meaning of the words in that provision. Rule ll(5)(b) of the Rules is neither ambiguous nor has lacunae. Hence, this Court declines to heed to judicial creativity proposed. To do otherwise is to fix the unbroken. Before penning off, a word or two on illegalities and irregularities complained about suffices. The applicant has repeatedly cited and amplified the irregularities in the trial proceedings and the judgment. It is my profound view that these are matters to be addressed in the 9 impending appeal before this Court. They are not grounds for granting an order for stay of execution. That said, failure to comply with the mandatory requirements of the Rules, especially rule ll(5)(b) that of furnishing security, means that this application has no legs to stand on and the same must fail. I thus proceed to strike it out with costs. Order accordingly. DATED at DODOMA this 21st day of February, 2025. U. J. AGATHO JUSTICE OF APPEAL The ruling delivered this 21st day of February, 2025 in the presence of Mr. Stephen Michael Kaijage, learned advocate for the Applicants who appeared via video conference from Mwanza and Mr. Nestory Lutambi, learned State Attorney for the Respondents, who also appeared via video conference from Bukoba, is hereby certified as a true copy of the original.