CIVIL APPLICATION NO 96 01 OF 2023 PERMANENT SECRETARY MINISITRY OF NATURAL RESOURCES AND TOURISM ANOTHER VS RAMADHANI RASHID KUHUKA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 96/01 OF 2023 PERMANENT SECRETARY MINISTRY OF NATURAL RESOURCES AND TO URISM ........................... 1st APPLICANT ATTORNEY GEN ERAL ...................................................... 2nd APPLICANT VERSUS RAMADHANI RASHID KUHUKA.................................................. RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Mgetta, J.) dated the 14th day of April, 2021 in Land Case No. 51 of 2016 RULING 19th & 30th August, 2024 MASHAKA. J.A.: In this application for stay of execution under rules 4(2) (a) (b) (c), 11(4), ll(5)(a)(b), 11(6), 11(7) (a), (b), (c) and (d) and 48(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), Mr. Augustine Kusaiika, learned advocate representing the respondent raised a contentious issue that the applicants, who are represented by Messrs. Edwin Joshua Webiro and Pantaleo Urassa, both learned State Attorney, did not demonstrate the i substantial loss to be suffered in case execution of the decree in Land Case No. 51 of 2016 will proceed. A brief background for the determination of this application is that the High Court of Tanzania (Land Division) entered judgement in favor of the respondent in Land Case No. 51 of 2016 was declared the lawful owner of the suit land which is part of his farm measuring 177.886 acres and 125.518 acres situate at Katurukila Mang'ula Mkula Ward in Kilombero District, Morogoro Region issued a permanent injunctive order against the applicants and its agents and the 1st applicant ordered to pay TZS 2,500,000.00 compensation for planting drums in his farms. On 6th February, 2023 the respondent served the 1st applicant with the notice of execution of the decree in Execution No. 123 of 2022. On receipt of that notice of execution, the applicants filed this application seeking an order to stay execution within 14 days. They have demonstrated, through affidavit of Salome Rwiza, a Legal Officer of the 1st applicant, that the notice of appeal was lodged on 11th May, 2021. She has shown the willingness of the applicants to provide security for the due performance of the decree as may ultimately be binding on them in the event the appeal is not successful. At paragraphs 10 and 11 of supporting affidavit, it is deponed that if the order of stay of execution sought is not granted, the applicants stand to suffer irreparable loss as the respondent will completely destruct the suit land which is Magombera nature reserve endangering the flora and fauna in the reserve. The respondent vehemently disputed the grant of the application by filing affidavit in reply. At paragraphs 5, 6, 7 and 8 of the affidavit, he averred that he is the one suffering substantial loss as since 2016 he has never used the suit land. In his submission, Mr. Webiro submitted that the application complied cumulatively with the requirements under rule 11 (4), (5) (a) and (b) and (7) of the Rules. In respect to the security for the due performance of the decree, Mr. Webiro submitted that since the decree sought to be stayed is not in monetary value, he prayed for the applicants to be in commitment to maintain status quo pending determination of the appeal. The learned State Attorney referred the cases of Mohamed Masoud Abdallah and Others v. Tanzania Road Haulage (1980) Ltd (Civil Application No. 58 of 2016) [2019] TZCA 198 (24 June 2019) TAN ZLII and Asha Juma 3 Mansoor and Others v. John Ashery Mbogoni (Civil Application No. 122 of 2020) [2021] TZCA 252 (11 June 2021) TANZLII. He implored me to grant the application and order to stay execution of the decree in Land Case No. 51 of 2016. Mr. Kusalika maintained that he does not resist the application except that the applicants have not demonstrated how they were going to suffer irreparable loss, taking into account that the applicants have been in occupancy of the suit land since 2015 and no agricultural activities were conducted. Thus, he concluded that the applicants had not met the requirement under rule ll(5)(a) of the Rules and that the requirement for the grant of stay of execution has to be met cumulatively. He prayed this application be dismissed with costs. In brief rejoinder, Mr. Webiro reiterated his submissions in chief and added that in paragraphs 10 and 11 of the supporting affidavit, they have demonstrated the irreparable loss to be suffered by the applicants if this application will not be granted. He urged that, the suit land is a nature reserve managed by the 1st applicant under the Tanzania Forest Services Agency, in which if stay of execution will not be granted the respondent may continue with agricultural activities which will destroy the flora and fauna of the reserve. Having heard the arguments of the parties and in consideration of the notice of motion, its supporting affidavit and the affidavit in reply, I agree with both counsel that, the conditions under rule 11 of the Rules have been complied save for rule 11 (5) (a) of the Rules on whether the applicants have demonstrated on how they will suffer substantial loss if the intended execution will proceed. It is undisputed that the applicants are in possession of the suit land since 2016 until the pronouncement of the impugned decision on the assertion that the suit land is a nature reserve. It is the assertion of the applicants that if they wilt be evicted from the suit land and the respondent allowed to proceed with agricultural activities there is a likelihood of endangering the flora and fauna in the forest reserve. Mr. Kusalika's contention is that the one to suffer irreparable loss is the respondent as he has not carried any agricultural activities since 2016. 5 In the case of Tanzania Motor Services Ltd v. Tantrack Agencies Ltd (Civil Application No. 86 of 2004) [2005] TZCA 22 (12 May 2005) TANZLII, the Court determined what amounts to irreparable loss: "It is common ground that the property earmarked by the respondent for execution by sale is a buiiding. The applicant's fear is that, if it is sold to a third party, and at the end of the day the applicants appeal succeeds, the status quo can never be restored. I have carefully considered this. Indeed, if the premises in dispute are sold to a third party, as the respondent intends to do, and at the end o f the day the applicant's appeal succeeds, the status quo can never be restored. This, in my view, is irreparable loss." In consideration of the excerpt above and the circumstances of this application, it is evident that the respondent in the execution seeks to remove planted drums and thereafter take over the suit land which in the view of the applicants will endanger the flora and fauna of the nature reserve, that alone suffices to be irreparable loss. In my opinion, the endangering of the flora and fauna of the Magombera Nature Reserve constitutes irreparable loss to the extent that if the applicants succeed in 6 their appeal it cannot be atoned by the respondent through an award of damages. For those reasons, I grant this application and hereby order stay of execution of the decree of the High Court (Land Division) in Land Case No. 51 of 2016, until determination of the intended appeal. This order is on condition that the applicants execute a bond committing to maintain the status quo of the suit land subject of the decree within sixty (60) days from the date of delivery of this ruling. Costs shall abide the main cause. DATED at DAR ES SALAAM this 28th day of August, 2024. L. L. MASHAKA JUSTICE OF APPEAL Ruling delivered this 30th day of August, 2024 in the presence of Mr. Edwin Joshua Webira, learned State Attorney for the Applicants and Mr. Augustine Kusalika, learned counsel for the Respondent, is hereby certified as a true copy of the original.