Ntora v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISC. LAND APPLICATION NO. 7113/2024 BETWEEN NORTH MARA GOLD MINE LTD………….….……………………………..APPLICANT AND NTORA NYAMBOGE NTORA.….…….…………………………..………RESPONDENT REASONS FOR THE ORDER 22/05/2024 & 25/06/2024 Kafanabo, J.: This is a ruling on the reasons for the order delivered by this court on 22/05/2024. The order given was in respect of an application for a stay of execution of the judgment and decree of the District Land and Housing Tribunal for Tarime in Application No. 162 of 2023 dated 05/02/2024, pending hearing and determination of Land Appeal Case No. 4671 of 2024 which is pending before this court. Having heard advocates for both parties and pending pronouncement of a reasoned ruling, this court under the provisions of Order XXXIX Rule 5(1) and (3) of the Civil Procedure Code Cap. 33 R.E. 2019 made the following orders: 1. The execution of the Judgment and Decree of the District Land and Housing Tribunal for Tarime in Application No. 162 of 2023 dated 05/02/2024 is hereby stayed pending the hearing and determination 1 of Land Appeal Case No. 4671 of 2024 which is pending before this court. 2. The Order of stay of execution granted above is conditional upon the Applicant depositing into this Court a bank guarantee to the tune of Tanzania Shillings One Hundred Thirteen Million One Hundred Three Thousand Five Hundred Forty-Eight only (113, 103, 548/=), which is a decretal sum, from a reputable and a reliable commercial bank duly licenced by the Bank of Tanzania within Twenty- Five (25) days of the date of this Order. Moreover, the court adjourned the matter intending to deliver reasons for the above-referred order. Now, therefore, herein below are the reasons justifying the granting of the above-mentioned orders. On the day of hearing the application Ms. Caroline Kivuyo, learned Advocate, entered appearance for the Applicant, and Mr. Mdimi Ilanga, learned Advocate, entered appearance for the Respondent. The learned advocates were given the opportunity to address the court on whether the application has merits, and they dispensed their duty as officers of the Court. In expounding the reasons for granting the application for a stay of execution, the starting point is that the application was made under sections 65(e) and 95 and Order XXXIX Rule 5(1) and (3) of the Civil Procedure Code Cap. 33 R.E. 2019 (hereinafter the ‘CPC’) applying for the major order that the Court be pleased to stay execution of the judgement and decree of the District Land and Housing Tribunal for Tarime at Tarime in Application No. 162 of 2023, pending hearing and determination of the 2 Applicant’s Land Appeal No 4671/2024 lodged in the High Court of Tanzania at Musoma. As alluded to herein above the application was granted by issuing relevant orders and this Court reserved reasons for the same. The major reason for granting the order is that as per the facts stated in the affidavit and submissions supporting the application, the Applicant sufficiently addressed all conditions as required by law for granting the stay of execution. The Applicant also expressed her willingness and readiness to comply with the conditions as would be ordered by the Court. Order XXXIX Rule 5(3) of the Civil Procedure Code Cap. 33 R.E. 2019 provides for the conditions in respect of which the order for stay may be granted, as follows: (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the High Court or the court making it is satisfied that- (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; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. By revisiting the contents of the affidavits and submissions of the parties, this Court was in a position to determine whether the conditions stipulated in the above-reproduced provision of the law were met. 3 In light of the Applicant’s affidavit and submissions made by the Applicant’s counsel which were not specifically controverted by the Respondent, first of all, it was not disputed that there is a pending appeal before this court registered as Land Appeal No. 4671/2024 challenging the decision sought to be stayed by the Applicant. Moreover, it was made clear that because of the pendency of the appeal, a substantial loss may result to the Applicant if a stay order was not made and that will affect the Applicant significantly for the reasons stated in paragraphs 6, 7, and 8 of the affidavit supporting the application. The said reasons include; one, the amount in question is colossal because the decretal sum is TZS 113, 103,548/=. This court agrees with the Applicant that the said amount is enormous if paid pending appeal, taking into account the position of the Court of Appeal in the case of National Bank of Commerce Limited v. Alfred Mwita, Civil Application 172 of 2015 (unreported) where the court accepted TZS 50,000,000/= as a colossal sum of money. Moreover, the Applicant established that she is not aware of any property owned by the Respondent that may be used to recover the said amount in the event the appeal before the court succeeds, and the appeal would be rendered nugatory. It is also clear from the Respondent’s affidavit that apart from the evasive denial, the Respondent’s averments did not disclose his source of income or property, and did not dispute that the amount sought to be executed is enormous. It was also not stated under oath that the Respondent would be able to pay the said amount if execution is allowed to 4 proceed pending hearing and determination of the appeal, and in the event the appeal is determined in favour of the Applicant. Further, since the Respondent did not dispute specifically the reasons as stated in the Applicant’s affidavit, it means that they have admitted the facts and application of the Applicants. Such a position was taken by the Court of Appeal in the decision of National Insurance Corporation v. Jimmy David Ngonya, Civil Application No. 126 of 2004 (Unreported). In the present case, the Respondent did not refute the Applicant’s deposition that he is unable to refund the decretal sum if paid to him, in case the Applicant succeeds in the appeal before this court. It is also noted that the application was made without undue delay. The order of the tribunal was delivered on 05/02/2024, the appeal was preferred to this court on 1st March 2024 as evidenced by the Memorandum of Appeal. The application for stay was filed on the 27th of March 2024. Moreover, in paragraph 9 of the affidavit supporting the application, the Applicant pledged his readiness to deposit in court a security of bank guarantee, or any other guarantee as the court may deem fit for the whole decretal sum. The rationale of requiring the provision of security is to ensure recovering the amount due in the event the appeal fails and that the Respondent should not suffer. The case of Mekefason Mandali & Others vs Registered Trustees of Archdiocese of Dar es Salaam (Civil Application No. 491 of 2019) [2021] TZCA 4 (5 February 2021), cited by the Applicant’s counsel is relevant as it discussed the rationale of granting a stay being to safeguard the interest of both decree holder and the 5